Supreme Court Of Canada Releases Landmark Copyright Infringement Ruling

In Cinar Corporation v Robinson, 2013 SCC 73, the Supreme Court of Canada (Court) provided guidance on certain core issues in Canadian copyright law, including the test for copyright infringement, liability of directors and officers for infringement, and the assessment of damages, among others. Background Claude Robinson developed a project for a children’s television show, The Adventures of Robinson Curiosity (Curiosity), loosely based on Daniel Defoe’s famous novel Robinson Crusoe and his own experiences. In an attempt to engage Cinar Corporation (Cinar) as a producer for the show, Robinson provided copies of Curiosity’s script and sketches to its directors. Cinar eventually went on to produce a very similar show named Robinson Sucroë (Sucroë). Robinson then sued Cinar and its directors for copyright infringement. The Court upheld the findings of the lower courts that Cinar and its directors personally were liable for copyright infringement and went on to award Robinson profits, compensatory damages, non-pecuniary damages, punitive damages and costs, totaling $5.2 million. Here are some important highlights of the Court’s decision: The Test for Copyright Infringement In general, the test for copyright infringement is whether the allegedly infringing work contains a substantial part of the original work, when viewed as a whole from the perspective of the intended audience, focusing on the similarities and not the differences between the works. The Court held that Sucroë captured a substantial part of Curiosity, which included the visual appearance of the main protagonist and other characters, the visual aspects of the setting, and the recurring scenographic elements. Expert Evidence Expert evidence may be admissible to establish infringement if it helps the trial judge understand subject matter outside his or her own expertise. The Court allowed evidence of a semiologist to explain certain “latent similarities” between the works, which were difficult to appreciate by direct perception but indirectly affected the experience of the intended audience, and included the atmosphere, dynamics, motifs, symbols and structure of the works. Liability of Corporate Directors A corporate director will be personally liable for copyright infringement if he or she deliberately and knowingly pursued a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it. The Court found the two directors of Cinar to be personally liable on the basis of their intentional use of Curiosity to develop Sucroë, their persistent denials of having had access to Curiosity, and their disparagement of Robinson’s claims that they copied Curiosity. Non-Pecuniary Damages In Quebec, an author can claim non-pecuniary damages due to psychological suffering resulting from copyright infringement. The Court assessed damages using principles similar to those used in defamation cases, and went on to award Robinson $400,000 in non-pecuniary damages. Punitive Damages In Quebec, punitive damages can be awarded for copyright infringement under the Quebec Charter of human rights and freedoms. The assessment of damages must be rationally connected to prevention, deterrence and denunciation. The Court focused on the defendants’ intentional interference with Robinson’s rights under the Quebec Charter, and set punitive damages at $500,000. Conclusion Cinar v Robinson has clarified key areas of Canadian copyright law, particularly in respect of copyright infringement, director’s liability and remedies. It will be interesting to see how courts will reconcile the need to rely on expert evidence in the analysis of copyright infringement with the requirement that the assessment be grounded in the perspective of the “intended audience”, and not that of an expert. Summary by: Darren Hall