IP NEWS

Canada’s Supreme Court takes a holistic approach to assessing copyright infringement in cases of non-literal copying

28/01/2014

In many cases of alleged copyright infringement, it is clear when infringement has occurred; a protected work has been copied verbatim, without the permission of the copyright owner. However, when only a portion of a protected work has been copied, it can be difficult to determine whether enough of the work has been copied to constitute infringement. Things become even more difficult in cases of non-literal infringement, when nothing has been directly copied, but the works at issue are very similar nonetheless.

The Supreme Court of Canada recently addressed such a situation in Cinar Corporation v. Robinson (2013 SCC 73). The original plaintiff, Robinson, developed a concept for a children’s television show based on Daniel Defoe’s famous 1719 novel, Robinson Crusoe. Robinson pitched the concept for his show, entitled Robinson Curiosity (along with the literary and artistic works he created depicting the characters, their personality traits, the island setting, etc.) to several possible producers, including Cinar. However, Robinson failed to attract the investors necessary to fully develop the television show.

Nearly a decade later, Robinson was stunned when he saw the first episode of a children’s television show entitled Robinson Sucroë, produced by Cinar, which was quite similar (perhaps a little too similar) to the Robinson Curiosity concept. In particular, Robinson Sucroë featured the same overall architecture as the Robinson Curiosity concept, the same graphic appearance, and incorporated several aspects of the visual appearances and personalities of Robinson Curiosity’s main characters. That being said, there also were significant differences between the two shows: curiosity, the dominant personality trait of the protagonist of Robinson Curiosity, was not present in the protagonist of Robinson Sucroë. The secondary characters of Robinson Sucroë were humans, whereas those of Robinson Curiosity were animals. And, villainous characters were added to Robinson Sucroë, which were absent from Robinson Curiosity.

Copyright law protects original expressions of ideas, but not ideas themselves. In the past, the Supreme Court has defined an “original expression” as an expression of an idea through an exercise of the author’s skill and judgment. Copyright will be infringed if all or a substantial part of an author’s original expression is copied, without authorization.

While these principles are relatively easy to state, they are not so easy to apply. The line between an idea and an original expression of the idea is blurry, at best. The line becomes even blurrier still in cases of non-literal infringement, where nothing tangible has been directly copied.

In addressing these difficult questions in the Cinar case, the Supreme Court emphasized the need to strike a balance between giving protection to the skill and judgment exercised by authors in the expression of their ideas, and leaving ideas and elements from the public domain free for all to draw upon. To this end, the Supreme Court adopted a qualitative and holistic approach for determining whether a substantial part of a protected work has been copied. That is, the two works at issue must be looked at as a whole to see whether rights in the protected work have been infringed. Dissecting the protected work to isolate what makes it original, and comparing only these elements to the accused infringing work, as advocated by Cinar, is not the right approach, at least at the outset of the analysis.

The Court also said that it is not the correct approach to focus on differences between the protected work and the work accused of infringing, although the differences between the works are not altogether irrelevant. In some cases, the differences between the works might be so great that the accused infringing work, when viewed as a whole, is a new and original work. Essentially, everything is a matter of nuance, degree and context.

Perhaps the most significant part of the Court’s decision is the recognition that, despite the need to leave ideas free for all to draw upon, a substantial part of a protected work can include intangible things such as the original elements in the plot of a play or novel. In such cases, copyright in the protected work may be infringed by another work that does not reproduce a single sentence of the original.

At the end of the day, the Supreme Court was content to accept the lower courts’ opinions that a substantial part of Robinson Curiosity was copied. In particular, the Court found that the particular combination of characters with distinct personality traits, living together and interacting on a tropical island represented a substantial part of the skill and judgment exercised by Robinson, and that this substantial part was copied without authorization in Robinson Sucroë. The Court therefore upheld the finding of copyright infringement.

The Court’s decision represents a significant development in the law governing copyright infringement in Canada. The idea that intangible elements such as a combination of characters with particular personality traits and the ways in which they interact can constitute a copyright protectable expression, rather than an idea, may come as a surprise to some. It may also make it difficult to determine where the line is between legitimately drawing inspiration from the works of others and infringing copyright. Since the issue of infringement will apparently depend on the holistic analysis of a court in which everything is a matter of nuance, degree and context, the safest approach is likely to err on the side of caution. If a work seems a little too similar to a copyright protected work, one should assume that it probably is.

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