A bad year for copyright infringers

A landmark decision of the Supreme Court of Canada has been released which will serve as an important precedent in many fundamental areas of Canadian copyright law, including the test for determining if a “substantial part” of a work has been copied, assessment of damages, use of experts in a copyright context and the vicarious liability of directors for infringement.

In Cinar Corporation v Robinson, the court held Cinar Corporation, some of its directors and officers, and other co-distributors and co-producers liable for copyright infringement of Claude Robinson’s work, with orders to pay punitive damages of $500,000 and non-pecuniary damages of $400,000, among other damages.

In order to find a work infringing, the work copied must consist of any substantial part of the original work. The court confirmed that to assess this, one must look at the work as a whole, which is part of using a qualitative and holistic approach, and warned that this analysis should not be conducted with the “copied features piecemeal”.

In regards to expert evidence, the court confirmed that although the perspective of the person of the intended audience of the works at issue is the proper test, the opinion of an expert might be necessary in order to detect structural similarities or intelligible similarities between the works. Here, relying only on the intended audience of the works in question, in this case, a children’s animated TV series, would effectively be asking whether a five-year-old child could detect the similarities between the works.