In Lachance v. Productions Marie Eykel inc.,
2014 QCCA 158, the Court of Appeal of Quebec has recently
upheld the Superior Court's ruling rejecting the
action of Laurent Lachance (appellant) against Marie Eykel and
Jacques L'Heureux (respondents), two actors in the well-known
Quebec series Passe-Partout, in which Lachance claimed a
copyright in the work as well as royalties from the sales of the
DVD boxed sets of the series.
Lachance worked for the Quebec Ministry of Education as project
director where he participated in the creation and production of
283 episodes of the television series Passe-Partout
between 1977 and 1998. He was apparently known in the artistic
community as the "Father of Passe-Partout". However, up
until his retirement, he had never claimed from his employer any
economic right to the series. In 2006, the respondents obtained
from Télé-Québec a licence to sell the first
125 episodes of the series as DVD boxed sets.
In 2007, Lachance claimed for the first time that he was the
author of the series and that he was entitled to copyright
ownership. He demanded 15% of the sale price of all DVD boxed sets
sold and those to be sold in the future.
The respondents argued that Lachance was only a project director
hired by the Ministry of Education to develop a concept for the
creation of the series, and that pursuant to section 13(3) of the
Copyright Act (the Act), Lachance could not be entitled to any
monetary compensation since where the work was made in the course
of employment, the employer of the author of the work will be the
first owner of the copyright.
Ruling of the Superior Court
On March 15, 2012, the Court recognized that the series
Passe-Partout is an original work pursuant to the Act and
that Lachance is one of the authors of the work because he, among
other things, participated in the creation of the series, was the
author of the concept and created the names of the characters. The
Court found that the series is a "collective" work
comprising different collaborators including writers, educators,
directors, composers and puppet, costume and décor
designers. However, the Court ruled that Lachance, as an employee
of the Ministry of Education, could not be entitled to any
copyright ownership in the work. Although he received professional
latitude, Lachance remained subordinated to his supervisor who
imposed the general structure of his employment, gave him annual
evaluations, and he was also a salaried employee. For these
reasons, Lachance was not entitled to royalties.
On appeal, Lachance alleged that subsection 13(3) of the Act had
to be interpreted restrictively because it is an exception to the
general rule found at subsection 13(1) of the Act, which provides
that the author of a work is the first owner of the copyright in
The Court of Appeal held that the trial judge correctly applied
the application criteria of subsection 13(3) of the Act,
reiterating that the employer is the copyright owner when the
following 3 conditions are met:
the work is created in the context of employment;
the employee created the work in the course of his employment;
there is no contractual agreement to the contrary.
Further, Lachance conceded at many occasions during his
testimony that only his employer had a copyright on the work and
that he had never discussed with his employer any entitlement to a
Lachance's attorney argued that, based on various sources of
comparative law, certain economic rights should be recognized to an
author who is also an employee in a context similar to
Lachance's. The Court of Appeal concluded that while this
argument is interesting and could potentially lead to a legislative
intervention, it does not hold water vis-à-vis the
analysis imposed by the pertinent legislative provisions.
Finally, the Court of Appeal rejected the incidental appeal of
the respondents who claimed that the trial judge erred by not
granting them legal costs, and doing so without providing any
reason. This appeal was rejected because the intervener,
Télé-Québec, had covered all litigation
related costs and therefore the respondents had not incurred any
This case is of interest for several reasons. It reiterates the
criteria for determining copyright ownership in the context of the
course of employment. It also explains that the creativity of the
author or the destination of the work are not relevant under
section 13(3) of the Act.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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