Cinar Corp v Robinson

Cinar Corp v Robinson is a leading case of the Supreme Court of Canada in the field of copyright law, which has impact in many key aspects of it, including:
Background.
In 1982, Claude Robinson, an artist, drew the first sketches of the characters for a proposed children's television series to be called "The Adventures of Robinson Curiosity" (), based in part on the novel "Robinson Crusoe", but also on his own life experiences. In 1985, a certificate of registration was issued under the "Copyright Act" for "Robinson Curiosity", listing Robinson as author and Les Productions Nilem inc., a corporation of which he was the sole shareholder, as the owner of the work.
In the same year, Robinson and Nilem stepped up their efforts for the promotion and production of "Robinson Curiosity", including presentations to Cinar Corporation, but those efforts were unsuccessful for nearly 10 years.
On September 4, 1995, the first episode of "Robinson Sucroe" (), a work produced by Cinar, France Animation S.A. and Ravensburger Film + TV GmbH, was broadcast on Le Canal Famille in Quebec. Robinson perceived that "Sucroë" was a blatant copy of "Curiosity", and subsequently discovered that Cinar, together with several of its principals, were also involved in its production.
Robinson and Nilem commenced an action for copyright infringement against Cinar, its principals, and other parties connected with the production of "Sucroë". They also claimed damages under the rules of extra-contractual liability contained in the "Civil Code of Quebec", contending that Cinar and its principals had breached their obligations of good faith and loyalty, and that in doing so they knowingly caused damages to Robinson and Nilem.
The courts below.
After a trial that lasted 83 days, Auclair J of the Superior Court of Quebec held that:
On appeal, the Quebec Court of Appeal:
Several appeals were filed with the SCC:
At the Supreme Court of Canada.
In a unanimous (7-0) decision written by McLachlin CJ, the first three appeals were dismissed and the fourth appeal was allowed in part.
Standing of Robinson and Nilem.
Under Canadian jurisprudence, the appellants (in this case, Ronald Weinberg and the succession of his late wife Micheline Charest) had the burden of proving the loss of copyright, which they failed to discharge. The SCC did not interfere with the conclusions of the courts below, and agreed that the title to "Curiosity" had reverted to the plaintiffs in 1990 under the terms of the 1987 agreement, following the dissolution of the other corporation in question.
Infringement of copyright.
While the "Copyright Act" protects original literary, dramatic, musical, and artistic works, it does not protect every "particle" of an original work, and the copyright owner has the sole right to reproduce "the work or any substantial part thereof". What constitutes a substantial part has been the subject of considerable litigation:
The Cinar appellants submitted that the trial judge:
The SCC held that:
In all respects, the trial judge did not err in his decision.
Personal liability for infringement.
The trial judge concluded from the whole of the evidence that Weinberg and Charest deliberately, wilfully, and knowingly infringed Robinson's copyright, and this was supported by the evidence. The SCC agreed with this conclusion.
On the other hand, it also agreed with the Quebec Court of Appeal in concluding that the CEO of France Animation could not be held personally liable for copyright infringement on any of the grounds argued. The trial judge established Davin's liability by presumption, but courts may only rely on presumptions that are "serious, precise and concordant". In that respect, he erred.
Extra-contractual liability of Cinar and its principals.
As copyright infringement had been found to have occurred, it was unnecessary to examine the issue of extra-contractual liability. That had only been argued as an alternative case.
Disgorgement of profits.
The Court of Appeal erred by interfering with the trial judge's conclusion that the profits stemming from the soundtrack could not be dissociated from the profits derived from the infringing material. The soundtrack was only commercialized as a component of the television show Sucroë, which was itself created by copying a substantial part of Robinson's work. The trial judge was entitled to conclude that the soundtrack had no stand-alone value, and that it generated profits only as an accessory to the television show. Consequently, he did not make a reviewable error in concluding that it was inappropriate to apportion profits to the soundtrack as a non-infringing component of the work.
However, solidarity of profits ordered disgorged under s. 35 of the "Copyright Act" cannot be inferred from , which makes co-authors of a fault solidarily liable for the "obligation to make reparation for injury caused to another". In this respect, the Court of Appeal was correct.
Non-pecuniary damages.
The Court of Appeal erred in applying the "Andrews" cap, as that only applies to cases of bodily injury (within the meaning of ). In Quebec civil law, an injury can only be characterized as a bodily injury if "some form of a breach of physical integrity" is made out, and "interferences with rights properly characterized as being of a moral nature will not be included within this class of claims". The cap does not apply to non-pecuniary damages stemming from material injury, and, in this case, Robinson's non-pecuniary damages were analogous to those claimed by a victim of defamation.
Punitive damages.
In Quebec, punitive damages can only be awarded where they are provided for by a specific enabling enactment. In this case, they were based on Robinson's right to dignity under that province's "Charter of Human Rights and Freedoms". However, liability on a solidary basis is not to be presumed. While neither of the courts below had expressed it in this manner, the Court of Appeal was held to have reached the correct decision.
While the trial judge had awarded $1,000,000 and the Court of Appeal reduced it to $250,000, the SCC decided that $500,000 was a more proportionate amount in the circumstances.
Impact.
At trial.
The case had received substantial and ongoing following in the Quebec media, because of the issues it raised about creators' rights. Evidence at the original trial revealed a series of financial improprieties at Cinar, including earnings misstatements, improperly handled related party transactions, and tax fraud, which led to the ouster of its founders, its delisting from Canadian stock exchanges and from Nasdaq, its acquisition by the Cookie Jar Group (now part of DHX Media), and numerous administrative and judicial proceedings. It has also generated significant debate as to how effective managerial, governance and market oversight mechanisms are in the context of financial misreporting.
At the SCC.
The SCC decision attracted considerable comment in the Canadian legal profession, not least because this was the seventh ruling to come down from the Court on copyright law in eighteen months. One legal commentator said that, "For copyright lawyers, this case is a goldmine a treasure trove of important copyright holdings by the Supreme Court."
Legal commentators have also pointed out certain areas for further consideration:
"Cinar" also extended the Court's earlier "Monsanto" guidance for the accounting of profits to the field of copyright law. While some commentators suggested that "Cinar" did not offer a principled approach on the matter, others contend that lost profits from so-called "convoyed" goods are "prima facie" recoverable.
The analysis by the trial judge and the Court of Appeal (which was supported by the SCC) has also attracted discussion as to the impact this case may have on derivative works, such as those used in remix recordings, especially in the context of incomplete creations such as "Curiosity" was. In Canadian copyright jurisprudence, derivative works are defined by what they are not, which suggests that further litigation will be needed in that area.
When the Court of Appeal rendered its decision in 2011, $3,250,000 was ordered to be paid and held in trust, pending the outcome at the SCC. As the SCC ruled that solidary liability did not apply, it is questioned whether the extra damages resulting from the SCC decision will be paid, due to the foreign residence of some of the parties and the risk of bankruptcy or insolvency arising for others.