In the midst of the culturally effervescent sixties, the Quebec
Ministry of Education was trying to develop new means to reach
underprivileged children through television. Laurent Lachance, then
a CEGEP teacher, was hired by the Ministry. His employment contract
was renewed every year until he received a permanent full-time
position in 1977. During his employment, he was given the mandate
to create an original educational children's series, which
became a huge success. Between 1977 and 1998, 283 episodes of the
now famous Passe-Partout series were produced and shown on
In 2006, at a time where the original public of the series were
becoming parents themselves, two production companies obtained the
rights from the public broadcaster to put DVD box sets of the first
125 episodes on the market. Although he was invited to the series
launch, Lachance was never consulted beforehand nor was he asked to
assign his rights in the series.
The re-release was a success, with almost 200,000 copies sold.
Lachance decided then to claim royalties amounting to 15% of the
proceeds of the DVD box sets. Since his claim was rejected, he
instituted proceedings before the Quebec Superior Court.
Lachance claimed that he was the person in charge of the
creative process and was given carte blanche by the Ministry. He
claimed that there was no relationship of subordination between him
and his employer, and that therefore he should be granted copyright
ownership because he was the father of the artistic work. The
production companies responded that he was simply a project manager
hired by the Ministry.
On March 15, 2012, the Quebec Superior Court dismissed his
action, but Lachance appealed the decision. In a judgment from
January 30, 2014, the Quebec Court of Appeal dismissed his appeal,
and confirmed the criteria applicable to section 13(3) of the
Section 13(3) of the Copyright Act states that:
"13(3). Where the author of a
work was in the employment of some other person under a contract of
service or apprenticeship and the work was made in the course of
his employment by that person, the person by whom the
author was employed shall, in the absence of any agreement
to the contrary, be the first owner of the
copyright [...]" (Emphasis added)
The Court of Appeal ruled in favour of the production companies,
holding that Lachance could not claim more than the moral rights in
the series. The court said that although Lachance was one of the
authors within the meaning of the Copyright Act, he was
never the copyright owner. Even though he was in charge of the
creation process, Lachance was not a self-employed worker but
rather a party to an employment contract with the Ministry.
Canada's Copyright Act Draws Clear Line in
No matter how much creativity has been demonstrated by an
employee, the employer will always own the product copyright if all
of the following apply:
a work is created during an employment contract;
a work is created in the course of employment; and
there is no written agreement to the contrary between the
Unfortunately for Lachance, that means that although his
"paternity rights" were recognized by the Court of
Appeal, he will not be able to claim any royalties from the sale of
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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