France Animation v Robinson – a case comment

I just finished reading the fascinating reasons delivered by the Quebec Court of Appeal in the France Animation v Robinson, 2011 QCCA 1361 case. The main issue in the appeal was whether sketches and characters of the proposed TV series Robinson curiosity were infringed by the series Robinson sucro. The trial judge found infringement and the Court of Appeal upheld the judgment, in part.

The case is a gold mine for copyright lawyers. It canvasses many copyright issues including the application of the standard of originality to partially completed works, the test for infringement when there has been substantial alterations and improvements to the original work, the relevance of expert evidence in copyright cases in light of the Supreme Court of Canada decision in the Masterpiece Inc. v. Alavida Lifestyles Inc. case, and the application of the patent standard for calculating profits in a copyright case under the Supreme Court’s Monsanto Canada inc. v. Schmeiser decision.

There is also a very interesting discussion of the basis for awarding punitive damages for copyright infringement under Quebec law. The Court of Appeal held that the intentional infringement of copyright is a violation of the copyright owner’s right to the enjoyment of property protected under Articles 6 and 49 of the Quebec Charter of Rights and Freedoms. The Court quoted from its prior decision in Construction Denis Desjardins inc. c. Jeanson, [2010] RJQ 1600 in which it stated:

The Copyright Act does not in as many words provide for punitive damages, though section 38.1(7) refers to them by stating the right to claim them, if applicable. These damages are acknowledged and routinely awarded based on the ordinary law of the province in which the lawsuit was instituted. In Quebec, a few judgments by our Court have acknowledged the possibility of awarding punitive damages in cases of intentional copyright infringement. Though the Court did not specify the basis for such awards, it may be possible, through article 1621 C.C.Q. and sections 6 and 49 of the Charter of human rights and freedoms, to argue intentional copyright infringement as a breach of the owners’ rights to the peaceful enjoyment of their property.

The quoted Articles of the Quebec Charter of Rights and Freedoms state the following:

Article 6 Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

Article 49 Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.

The Quebec courts are not the only ones to recognize that the protection of copyright is rooted in fundamental rights and freedoms. For example, the protection of the right to intellectual property is enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union. This right is balanced with other fundamental rights. Recently the Irish High Court in the EMI Records -v- Eircom Ltd [2010] IEHC 108 case relied on article 40.3.2 and article 43.1 of the Constitution of Ireland as a basis for protecting copyrights against online infringements.

An English translation of the Robinson case created using Google Translate can be found here.

* Motions for leave to appeal to the Supreme Court of Canada are pending. See, http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=34469, http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=34468, http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=34467, http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=34466.

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