In an epic saga dating back over 40 years and 6 years of
litigation, the Quebec Court of Appeal has released a decision
which states clearly that an employer is the presumed owner of the
copyright to works created by an employee, provided no contractual
provision says otherwise.
In 1968, Laurent Lachance was hired by the Ministry of
Education of Quebec as an occasional employee. In 1972, the
Director of Audio-Visual Productions asked Lachance to create a
French-language educational television series for children which
would include 125 educational episodes. This ultimately
resulted in the popular television series
"Passe-Partout". Lachance's employment
contract was renewed annually until he became a permanent employee
in 1977. He continued his employment with the Ministry until
his retirement in 1993. Between 1977 and 1998, more than 283
episodes of Passe-Partout shows were produced.
The employment contract was silent as to ownership of
Long after the series stopped airing, Productions Marie Eykel
Inc. obtained a commercial license in order to sell DVDs of the
first 125 episodes. DVD sales were extremely successful.
In June of 2007, Lachance attempted to assert a copyright
claim over the episodes, seeking 15% royalties on all DVD
sales. Productions Marie Eykel Inc. initially
took the position that Lachance was not an "author" for
the purposes of the Copyright Act and that even if he
were, the copyright belonged to his employer.
In 2012, the Superior Court of Québec found that the
Passe-Partout series constituted a copyright work as defined in the
Copyright Act (the "Act"), and that
Lachance was one of the authors, in co-operation with others.
However, since the evidence established that the series has been
created in the course of the Lachance's employment, the Court
decided that the rights vested with the employer pursuant to ss.
13(3) of the Act. Consequently, the Court dismissed
Lachance's action without costs, stating that he was not
the owner of the copyright work and that he was not entitled to
Lachance appealed the trial judge's findings, challenging
her interpretation and application of ss. 13(3) of the
The Quebec Court of Appeal concluded on January 30, 2014 that
Lachance could not assert copyright over the show, and therefore
was not entitled to royalties as a result of DVD sales.
Lachance clearly had moral rights ("droits moraux") to be
associated with his own work, but these had not been
breached. The DVDs clearly made reference to his
The Court of Appeal concluded that the trial judge had correctly
interpreted and applied ss. 13(3) of the Act in light of
the evidence. The Court confirmed that the employer is the owner of
the copyright with respect to the work of his or her employee when
the following conditions are met:
the work is created in the course of an employment
the work is created by the employee in the exercise of such
there is not a contractual provision that says otherwise.
The Court of Appeal's decision represents the culmination of
a costly six-year legal battle. Notable is that the successful
party was not awarded costs, despite its victories at the Superior
Court and Court of Appeal.
It should be noted that the decision could have gone in favour
of Mr. Lachance, had he been an independent contractor. The
key here was that Mr. Lachance was an employee. Businesses
may be able to avoid significant legal battles over copyright by
ensuring that (1) there is no doubt that the person was an
employee, and (2) that there are clear provisions regarding
ownership of intellectual property in their contracts and
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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