2011 QCCA 1361, 2011 QCCA 1361

France Animation, s.a. c. Robinson 2011 QCCA 1361 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020014-098 500-09-020033-098 500-09-020034-096 500-09-020035-093 (500-05-021498-967) DATE: JULY 20, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. BENOÎT MORIN, J.A. FRANÇOIS DOYON, J.A. FRANCE ANIMATION S.A. CHRISTOPHE IZARD RAVENSBURGER FILM + TV GmbH RTV FAMILY ENTERTAINMENT AG APPELLANTS (500-09-020014-098) – Defendants and CINAR CORPORATION CINAR FILMS INC. APPELLANTS (500-09-020033-098) – Defendants and CHRISTIAN DAVIN APPELLANT (500-09-020034-096) – Defendant and RONALD A.

WEINBERG RONALD A. WEINBERG, in his capacity as sole liquidator of the estate of the late Micheline Charest APPELLANTS (500-09-020035-093) – Defendant and Defendant in continuance of suit v. CLAUDE ROBINSON LES PRODUCTIONS NILEM INC. RESPONDENTS – Plaintiffs and BBC WORLDWIDE TELEVISION THERESA PLUMMER-ANDREWS HÉLÈNE CHAREST McRAW HOLDINGS INC. IMPLEADED PARTIES – Defendants and VIDEAL GESELLSCHAFT ZUR HERTELLUNG VON AUDIOVISUELLEN PRODUKTEN MHB 3918203 CANADA INC.

IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] The appellants appeal from a judgment rendered on August 26, 2009, by the Superior Court of the District of Montreal (The Honourable Mr. Justice Claude Auclair), which allowed in part the action of the respondents, with costs, granted declarations, made injunctive orders, and - Ordered Cinar, Ronald A.

Weinberg, both personally and in his capacity as liquidator of the estate of the late Micheline Charest, Christian Davin, France Animation, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG, jointly and severally, to pay the respondents the sum of $2,724,283, with interest at the legal rate and the additional indemnity since December 5, 1995; - Ordered Cinar, Ronald A.

Weinberg, both personally and in his capacity as liquidator of the estate of the late Micheline Charest, Christian Davin, France Animation and Christophe Izard, jointly and severally, to pay the respondents the sum of $1,000,000 as exemplary damages, with interest at the legal rate from the date of the judgment; - Ordered Cinar, Ronald A.

Weinberg, both personally and in his capacity as liquidator of the estate of the late Micheline Charest, Christian Davin, France Animation, Christophe Izard, Ravensburger Film + TV GmbH and RTV Family Entertainment AG, jointly and severally, to pay the respondents the sum of $1,500,000, plus GST and QST, as extrajudicial fees, with interest at the legal rate from the date of the judgment; - Ordered Cinar, Ronald A.

Weinberg, both personally and in his capacity as liquidator of the estate of the late Micheline Charest, Christian Davin, France Animation and Christophe Izard, jointly and severally, to pay to the respondents all of the expert fees with interest at the legal rate from the date of the judgment. [ 2 ] The action against McRaw Holdings Inc., Hélène Charest, Theresa Plummer-Andrews and Peter Hille was dismissed, and has not been appealed before the Court. 1. Background [ 3 ] The respondent Claude Robinson is an artist.

In the summer of 1982, he drew the first sketches of the characters in a projected children’s television series that would be called Robinson Curiosité . He defined the characters and their personalities in written form. Between 1982 and 1985, he refined his project. [ 4 ] On October 16, 1985, the Copyright Office issued a registration certificate for Robinson Curiosité indicating Mr. Robinson as the author of the work and the respondent Les productions Nilem inc. (hereinafter Nilem), a business corporation of which Mr.

Robinson is the sole shareholder, as the owner. [ 5 ] As of 1985, the respondents took additional steps to promote and start production on their work, Robinson Curiosité : a partnership with Pathonic, a television production company, a contract with Cinar to mandate it to solicit the U.S. market, meetings with representatives from Columbia Pictures and the Disney Channel, participating in the MIP-TV international trade show in 1986 and 1987 in Cannes, a new partnership with a Quebec film production company, Les Productions SDA ltée (hereinafter SDA), SDA’s incorporation of two business corporations, and so on. [ 6 ] Unfortunately, the respondents’ considerable efforts did not bear fruit.

The two business corporations incorporated by SDA were dissolved on December 12, 1990, and the Robinson Curiosité project was put on the back-burner. [ 7 ] In December of 1994, Mr. Robinson gave a presentation on his project to his spouse and to some friends and associates. They persuaded him to reactivate the project. In this context, he gave a few presentations, including one that led to interest from a company named Philips.

That company wrote to him on April 24, 1995: “As you are aware, Philips…has recently created a catalog of software titles entitled… Following our investigation, we believe that your project for a collection of CD-i/CD-ROM titles based on “Robinson Curiosity” possesses all the necessary criteria to participate in this market program.” In addition, Mr.

Robinson prepared a project which he presented to a representative from Toys “R” Us. [ 8 ] Nothing came of these new possibilities because in early September of 1995, the first episode was broadcast in Quebec of Robinson Sucroë , a work produced by Cinar, France Animation, and Ravensburger. The respondents and their new partners felt that there was too much resemblance between Sucroë and Curiosité .

As a result, plans to develop Robinson Curiosité were suspended. [ 9 ] For the purpose of the appeal, it is unnecessary to relate in detail the steps taken by the respondents to develop the Robinson Curiosité project or to describe the stages involved in creating Robinson Sucroë , which debuted in 1992. In this regard, the timeline drawn up by the trial judge may be consulted (paragraphs 22 to 205 of the judgment). [ 10 ] A formal demand was served on Cinar, Mr. Weinberg, Micheline Charest, and all the partners in the coproduction and distribution of Robinson Sucroë.

A complaint was filed with the Royal Canadian Mounted Police. [ 11 ] On July 16, 1996, the respondents brought a suit against the appellants. The suit was divided into two parts. The first dealt with the infringement of their copyright and moral rights in the work Robinson Curiosité , in violation of the Copyright Act . [1] The second part of the suit had to do with the extracontractual liability of certain persons whom the respondents accused of disloyal conduct toward them, in violation of the obligations of the Civil Code of Québec .

In addition to injunctive-type conclusions, the respondents claimed damages from the appellants for psychological harm, infringement of their moral rights, infringement of their copyright, and loss

of profits. Finally, they sought punitive damages and reimbursement for solicitor-client fees. [ 12 ] More specifically, the respondents sued the following parties: - Cinar Films and Cinar Corporation (hereinafter Cinar), coproducer of Robinson Sucroë ; - Ronald A.

Weinberg, President and shareholder of Cinar, Vice-President, Secretary and shareholder of McRaw Holdings Inc., and Micheline Charest, Chair of the Board of Directors, Chief Executive Officer and shareholder of Cinar, and president and shareholder of McRaw Holdings Inc.; - France Animation S.A. (hereinafter France Animation), coproducer of Robinson Sucroë ; - Christian Davin, President and Chief Executive Officer of France Animation; - Ravensburger Film + TV GmbH (hereinafter Ravensburger), coproducer de Robinson Sucroë ; - Peter Hille, managing director of Ravensburger; - RTV Family Entertainment AG (hereinafter RTV), the result of the March 29, 1999, merger of Ravensburger with RTV Family Entertainment GmbH; - BBC Worldwide Television (hereinafter BBC), the distributor of Robinson Sucroë ; - Theresa Plummer-Andrews, President of BBC; - Christophe Izard, executive producer of Robinson Sucroë at France Animation; - Hélène Charest, sister of Micheline Charest, designated under the pen name of Érica Alexandre; - McRaw Holdings Inc. (hereinafter McRaw), the holding company of Micheline Charest and Ronald Weinberg. 2.

Trial judgment [ 13 ] At the end of an 83-day trial, the trial judge granted the respondents’ lawsuit in part. [ 14 ] In a detailed judgment, the judge found that the appellants had had access to Robinson Curiosité (paragraphs 250 to 404). [ 15 ] His assessment of the evidence also led him to state that Robinson Curiosité is an original work (paragraphs 405 to 436) and that Robinson Sucroë presents substantial similarities with this work (paragraphs 502 to 685). [ 16 ] Finally, the judge considered that the appellants had not established that Robinson Sucroë was an independent work in such a way as to refute the evidence of infringement.

He therefore found that the respondents’ work had been infringed (paragraphs 686 to 827). [ 17 ] He examined the liability of the various parties involved with regard to the Copyright Act . In addition to the three business corporations that coproduced Robinson Sucroë , he retained the liability of Mr. Weinberg, Micheline Charest, Christophe Izard, and Christian Davin because they were all aware of the infringement of the respondents’ rights, had contributed to it, or had encouraged it (paragraphs 828 to 843). [ 18 ] The judge stated that Cinar, Mr.

Weinberg, and Micheline Charest had, through their disloyal actions, also incurred civil liability.

He criticized them, inter alia , for using the documents – submitted to them by the respondents for a contract entered into to sell Robinson Curiosité in the U.S. – even after the expiry of the contractual relationship between Cinar and Pathonic (paragraphs 865 to 908). [ 19 ] In terms of damages, the judge awarded the respondents $5,224,293: $607,489 to compensate them for copyright infringement (paragraphs 994 to 1005), $1,716,804 for reimbursement of the profits earned by the appellants (paragraphs 1006 to 1030), $400,000 for psychological harm (paragraphs 959 to 993), $1,000,000 for punitive damages (paragraphs 1036 to 1073) and $1,500,000 for extrajudicial fees (paragraphs 1074 to 1103). 3.

Grounds for appeal [ 20 ] In their factums, the appellants outline various grounds that can be grouped under the following headings: 1. Owner of the copyright to the work Robinson Curiosité. 2. Is Exhibit P-18 an integral part of the respondents’ work? 3. Definition of the respondents’ work and its original nature. 4. Substantial reproduction in Robinson Sucroë of the respondents’ work. 5. Evidence of independent creation. 6. Christian Davin’s personal liability under the Copyright Act . 7. Liability of the other respondents under the Copyright Act .

8. Cinar’s extracontractual liability (duty of loyalty). 9. Access to the work Robinson Curiosité . 10. Remedies ordered by the trial judge. 11. Awards for copyright infringement. 11.1 Compensatory damages. 11.2 Profits. 12. Psychological harm. 13. Interest and the additional indemnity. 14. Punitive damages. 15. Extrajudicial fees. 4. Analysis 1. Owner of the copyright [ 21 ] Mr.

Weinberg maintains that the respondents do not have the necessary interest to bring their suit because they no longer own the copyright, which they allegedly assigned to Les productions de l'Île Curieuse inc ., formed in the context of Nilem’s partnership with SDA. Failing a written deed of reconveyance, under the terms of section 13(4) of the Copyright Act , Mr. Weinberg states that copyright is vested in Her Majesty in right of Canada under

section 228 of the

Canada Business Corporations Act . [2] [ 22 ] This ground is without merit. [ 23 ] According to clauses 2.2 and 2.4 of a letter of agreement signed on April 17, 1987, between SDA and Nilem, the copyright was assigned to a company to be formed under the express condition that a shareholder agreement be signed between the parties within 90 days after the signing of the letter. However, the shareholder agreement was not signed during that time period. Consequently, the letter of agreement was cancelled because of the expiry of the time period, as stipulated in clause 2.3 of the document.

That also means that the copyright was not assigned under this letter of agreement: [ translation] 2.2 In this regard, the parties must, within ninety (90) days after the date of this deed, create together a separate company in which the complete management of this production will be vested as well as all operations of the SERIES and the WORK, (including, without restriction or limitation, names, drawings, descriptions, and personalities of all the characters in the SERIES and the WORK).

They must also, at the same time as this separate company is created, (hereinafter called the “COMPANY”), negotiate and ratify a shareholder agreement through which they will be bound, in their capacity as shareholders of their COMPANY. Failing any other agreement to the contrary signed by the parties, PRODUCTIONS NILEM INC. and S.D.A.

PRODUCTIONS LIMITED will be the two (2) sole shareholders, in equal parts, of the COMPANY, with an interest of FIFTY per cent (50%) each. 2.3 It is expressly understood that the validity of this agreement is conditional upon the performance by the parties, within the time period mentioned above, of each of the provisions mentioned hereinabove in the previous paragraph. Non-performance of any of these conditions will result, by operation of law at the expiry of the term prescribed above, in the cancellation of this agreement . 3.

VESTING OF RIGHTS Subject to complete compliance by the parties with the stipulations hereinabove expressed in paragraph 2.2 , copyright and all other existing rights in the WORK will be vested in the COMPANY… [Emphasis added.] [ 24 ] A shareholder agreement was signed, however, between Nilem and SDA, joint shareholders of the companies Les Entreprises de l'Île Curieuse (the Company) and Les Productions de l'Île Curieuse (the subsidiary) , in the fall of 1987.

The clause in the agreement dealing with its objectives indicates which of the two would be the owner of the copyright: [ translation] For the purposes of this agreement, copyright and all other existing rights to the work and the series will be vested in the Company , (including, without restriction or limitation, copyright and all other existing rights to the names, drawings, descriptions, and personalities of the characters in the work and the series). The Company agrees to assign and assigns to its subsidiary the necessary and expedient rights for producing and operating the series .

NILEM acknowledges and agrees that full and exclusive ownership of all the rights which it owns and holds from Claude Robinson, be and is vested in the Company and undertakes in this regard to subscribe to any document necessary for performing such vesting of rights. [Emphasis added.] [ 25 ] Clause 16.2 specifies that the shareholder agreement is null and void if the company is dissolved or if the parties decide to terminate their relations:

[ translation] 16.2 This agreement shall automatically terminate and become null and void with regard to all the parties hereto: 16.2.1 If the Company is declared to be in bankruptcy or makes an authorized assignment of its property for the benefit of its creditors in general, or becomes or is declared insolvent, or is dissolved or voluntarily wound up; or 16.2.2 If the shareholders agree to terminate it, by mutual consent. [ 26 ] By this resolutory clause, the parties agreed to reclamation if the purposes for which the partnership was established no longer existed, which is exactly what happened.

The companies were dissolved on December 12, 1990, and, as a result, Nilem retroactively recovered the copyright. This conclusion is, furthermore, in accordance with the intention of the parties involved, as it appears from a document entitled [ translation] “ Acknowledgement” signed by them on November 4, 2008. 2. Is Exhibit P-18 an integral part of the respondents’ work ? [ 27 ] The Copyright Act protects the original, particular, and personal expression of ideas. It does not protect ideas, however innovative they may be.

In that sense, it promotes the free flow of ideas. [ 28 ] To be protected, the work must be [ translation] “ original”, which means that the author has necessarily performed intellectual efforts combining skill and judgment. That being said, the court must first inquire into the original nature of a work to determine whether it benefits from the protection of the Copyright Act . [ 29 ] Robinson Curiosité is an unfinished work since the project never materialized and remained at the promotional stage.

It may therefore be harder to establish its components and to characterize it, and to then determine whether the appellants, or any one of them, copied a [ translation] “ significant” part of it; in other words, a [ translation] “ substantial” part. [ 30 ] In this context, the appellants argue that the trial judge erred by including in the respondents’ work the exhibit numbered “P- 18”. This exhibit is comprised of a series of several hundred documents with, inter alia , the description of the personalities of some of the characters, many scripts and synopses, many comic strips, and a large number of drawings.

According to the appellants, the judge should have limited himself to exhibits P-27 (a promotional newsletter prepared by Mr. Robinson and distributed in Cannes in 1987), P- 30 (a presentation booklet also prepared by Mr. Robinson) and P-210 (panels with many of the drawings found in P-18). These were the only aspects of the project retained by Mr.

Robinson and the only parts that were sufficiently detailed to be protected as an original work, the remainder having been rejected by the author. [ 31 ] In sum, exhibits P-27, P-30, and P-210 would constitute the entirety of the genuinely original work, while P-18 would not be the result of the exercise of Mr. Robinson’s judgment and skill. At most, it would be an amalgam of unfinished and vague ideas that would not constitute an original work, except for the portion retained in Exhibits P-27, P-30, and P-210. [ 32 ] Characterizing the work and determining its original nature are questions of mixed law and fact.

In Betaplex inc. v. B&A Construction ltée , [3] Robert C.J.A. wrote for the Court: [ translation] [36] The appellants assert that the characterization of the work and its original nature are questions of law, based on a passage from the

Loi sur le droit d’auteur annotée by Normand Tamaro: [ translation] Characterizing the work and its original nature are matters of law. The parties are not the ones to characterize the work. Based exclusively on questions of fact and of degree, it is up to the courts to characterize the work. [37] It is clear that the meaning to be given to Mr. Tamaro’s words is that characterizing copyright and original nature are questions of a judicial nature and not questions of law.

Characterizing the work and determining its originality consist in evaluating the facts to determine whether the characteristics of a work make it eligible to benefit from the protection of the law. As a result, it is a question of mixed fact and law. [38] According to Housen v. Nikolaisen , the standard of review varies depending on whether the alleged error is more at the factual level or at the judicial level of the question of mixed fact and law under study.

When it is difficult to separate the legal principle from the factual questions, the question is truly mixed and a rigorous standard of intervention applies. [Citations omitted.] [ 33 ] The appellants must therefore demonstrate the existence of a palpable and overriding error for the Court to intervene, unless the trial judge’s analysis is deficient on account of an error of law.

However, contrary to what they maintain, there is every indication that, by using a comprehensive approach as recommended by the courts, [4] the judge did not commit any error of this nature by finding that Exhibit P-18 was part of the original work Robinson Curiosité . [ 34 ] As mentioned previously, this exhibit is comprised of numerous literary, artistic, and graphic elements which, furthermore,

are the product of the combination of Mr. Robinson’s effort, skill, and judgment. There is nothing to suggest that this part of the work is not sufficiently fixed or decided to be able to be incorporated into the work as a whole. [ 35 ] In CCH Canadian Ltd. v. Law Society of Upper Canada , [5] McLachlin C.J. described the concept of an [ translation] “ original work” in the following way: 16 I conclude that the correct position falls between these extremes. For a work to be “original” within the meaning of the Copyright Act , it must be more than a mere copy of another work.

At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort.

The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work. … 24 Requiring that an original work be the product of an exercise of skill and judgment is a workable yet fair standard. The “sweat of the brow” approach to originality is too low a standard.

It shifts the balance of copyright protection too far in favour of the owner’s rights, and fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works. On the other hand, the creativity standard of originality is too high. A creativity standard implies that something must be novel or non- obvious — concepts more properly associated with patent law than copyright law.

By way of contrast, a standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and provides a workable and appropriate standard for copyright protection that is consistent with the policy objectives of the Copyright Act . [ 36 ] Exhibit P-18 meets these requirements. The ideas it contains are expressed, decided, and rendered in either literary or artistic formats.

The drawings and descriptions, the storylines and synopses, the comic strips and the photos they contain, even if they were not all incorporated into Exhibits P-27, P-30, and P-210, remain part of the work. [ 37 ] Naturally, the fact that this is a project that was not completed remains pertinent and must be taken into consideration in characterizing the work. This fact may make the task more difficult, but it does not prevent the work from being protected, provided that it is sufficiently developed and has gone beyond the stage of being merely an idea, as decided in Arbique v.

Gabriele ; [6] Télé-Vision 84 inc. v. Corporation des célébrations du 350 e anniversaire de Montréal (1642-1992) ; [7] Fénollar v. PRB Média ; [8] Preston v. 20th Century Fox Canada Ltd. [9] [ 38 ] For his part, the author Normand Tamaro writes: [ translation] A work within the meaning of the law does not have to be finished.

Even at a preliminary stage, an author’s labour becomes a work when it attests to the elements that determine the originality of a work. [10] [ 39 ] Therefore, there is not, as the appellants argue, a [ translation] “finished” version (P-27, P-30, P-210) and an [ translation] “unfinished” version (P-18) of the work. Imposing choices of this nature on Mr. Robinson, as the appellants seek to do, does not comply with the Copyright Act , does not meet its objectives, and constitutes a reductive way of dealing with the question of the work’s originality.

In the present case, it is clear that, in preparing the promotional documents P-27 and P-30, Mr. Robinson used only part of his work, which was more extensive. Indeed, the purpose of P-27 was basically to attract the attention of producers by giving a brief synopsis and a short description of the main characters. Exhibit P-30 seems more complete, but it remains that its purpose was also to give a brief introduction to the project, as many of the drawings and storylines found in P-18 were not included. This does not mean, however, that by doing so, Mr.

Robinson was [ translation] “focusing” his work and waiving his right to protection for the rest of the work, as the appellants argue. A work can have a number of aspects. [ 40 ] In sum, what is found in P-18 would have or could have been used if the project had materialized and remains an integral part of the work as a whole. 3. Definition of the respondents’ work and its original nature . [ 41 ] The trial judge found that the work is original and that it is protected by the Copyright Act .

The appellants write that he omitted a preliminary stage, that of defining the work: [ translation] Defining the work that is allegedly plagiarized is a preliminary stage that is essential for determining copyright infringement.

It requires identifying its substance because only reproducing the substance can lead to a finding of infringement… [ 42 ] The Court does not share this point of view. [ 43 ] There is no indication that the court, in a preliminary stage, must identify the substance of the work in order to determine whether there has been infringement by copying a significant, a substantial part of the original work.

Doing so would reduce the content of the work, unduly restrict the scope of the protection granted by the Copyright Act and could, for no reason, limit the exercise aimed at identifying the number of similarities likely to be accepted. Therefore, it is not the substance of the work that must be compared to the copy, but the overall work to determine if there has been substantial reproduction of it in the copy.

[ 44 ] In Avanti , [11] Paul-Arthur Gendreau J.A. wrote: [ translation] Two particular elements of the quote from the judgment of McLachlin J. are interesting for resolving the case at bar. First, when characterizing the work, an essential and demanding task, the court must use a comprehensive approach to determine whether the work produced is novel and original and not just a mere compilation of various fragments. This facilitates the definition of what constitutes an essential and substantial part of the work.

Second, this classification must be done by studying the work from the perspective of the amount of labour and creativity involved on the author’s part. Thus, a substantial part of a work will be one which has an important place in the work as a whole and which results from the work of the artist, writer, filmmaker, playwright, etc. [ 45 ] The court must therefore consider the originality of the work, without which, of course, there can be no infringement of the Copyright Act .

It then carries out a comparative analysis to determine whether there are similarities between the original work and the copy, similarities that must involve aspects that have a significant place in the original work as a whole. This is emphasized by the Federal Court of Appeal in Tele-Direct (Publications) Inc. v. American Business Information, Inc. : [12] 21 The principles in that regard have been set out by Lord Reid in Ladbroke (Football) Ltd. v.

William Hill (Football) Ltd. : The appellants’ dissection theory is derived from some statements in infringement cases and I must, therefore, examine at this point the law regarding infringement. Copyright gives the exclusive right to do certain things including “reproducing the work in any material form” (section 2(5)), and reproduction includes reproduction of a substantial part of the work (section 49(1)). Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying.

And, if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken. One test may be whether the part which he has taken is novel or striking, or is merely a commonplace arrangement of ordinary words or well-known data. So it may sometimes be a convenient short cut to ask whether the part taken could by itself be the subject of copyright.

But, in my view, that is only a short cut, and the more correct approach is first to determine whether the plaintiffs' work as a whole is "original" and protected by copyright, and then to inquire whether the part taken by the defendant is substantial . A wrong result can easily be reached if one begins by dissecting the plaintiffs’ work and asking, could

section A be the subject of copyright if it stood by itself, could

section B be protected if it stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be. Indeed, it has often been recognised that if sufficient skill and judgment have been exercised in devising the arrangements of the whole work, that can be an important or even decisive element in deciding whether the work as a whole is protected by copyright. [Emphasis added.] [ 46 ] In the present case, the Copyright Act protects the expression of ideas that emerge from the skill and judgment of Mr.

Robinson and which can be found in Exhibits P-18, P-27, P-30 and P-210. We must therefore examine the substantiality of the similarities with regard to the work as a whole and not with regard to the parts classified as substantial beforehand, to find out whether there has been substantial borrowing from the work. [ 47 ] The trial judge supports his finding that this is overall an original work, including P-18, by referring to several aspects of the evidence. [ 48 ] He refers to the testimony of Seth Willenson, from Cinar U.S., who, 15 years after being interested in the project, still recognized Mr.

Robinson’s work in looking at Exhibit P-18. In the judge’s eyes, the work had [ translation] “so much style and character” that the witness still remembered it despite the passage of time. [ 49 ] He also noted the testimony of André Picard, from Telefilm Canada, who considered the project [ translation] “exceptional” and still remembered it in 2008: [ translation] Well, I figure that some of those elements there…anyway, it was pretty exceptional as a presentation. We rarely saw anything like it, you know, in 1985 in the projects submitted to Telefilm Canada.

The position I held, in fact, was with a new fund that had been created, it was the rise of the independent industry and today these are elements that are found more readily but…but to have an illustration, I mean the tools to visualize, which is part of the common vernacular today, but at the time it was pretty rare. Maybe that’s why I remember it more clearly than other presentations. I remember the island, the three huts very clearly, the three characters.

Especially the one that had a test tube. [ 50 ] In paragraph 429 of his judgment, the judge repeats the description of the work as given in the formal notice sent to the defendants: [ translation] 1. Children’s television program format, each show lasting thirty minutes (30 min), using live and animated formats; 2. One main character, ROBINSON CURIOSITÉ: The character is bearded, near-sighted, and curious; he is a journalist, explorer, and communicator.

He is keenly interested in all kinds of discoveries and experiments; his relationships with others are like those of a child; he can be generous, sulky, impatient, cheeky, likeable, curious, clumsy, hot-headed, starry-eyed, carefree, thoughtless, a cook, sometimes sweet, exuberant, and absent-minded;

Supporting characters, including the following: 3.1 VENDREDI FÉRIÉ (HOLIDAY): Scientific mind, teacher, inventor, he is calm and kindly disposed toward Robinson; 3.2 BOUM BOUM (TIPTOES): Typical overweight guy in appearance, both insecure and very helpful to the point of being annoying; generous, exuberant but also sulky; finds it hard to make himself understood; 3.3 CHARLIE Gruff, spineless bachelor, an adventurer; he is narrow-minded and determined; awkward with women; the worst smells don’t bother him at all; he sets great store by what his parents might think of him; has a means of transportation. 3.4 LÉON: Small, loves playing tricks and is easy to spot in spite of all his disguises; 3.5 PARESSEUX (LAZYBONES): He is slow; speaks slowly; he is glassy-eyed, slack-jawed; lazy, a scapegoat; likes music and vegetarian cooking; 3.6 GERTRUDE: She is from a large family and is determined, independent, and dainty in her gestures; although she has a stable temperament, she sometimes has mood swings; she has an innate sense of organization, discipline at work is essential to her; she has an enviable femininity and a booming voice; defender of the oppressed; she doesn’t suffer fools gladly; she has also travelled extensively. 4.

Main theme: the adventures of Robinson Curiosité on a south-sea island, with abundant vegetation, a volcano and, to the north-east, a semi-circular beach; this island where the action takes place is inhabited and located near another, smaller island; it stays in contact with the continent; 5.

Concerning the artistic and visual expression of the WORK: Photographic and artistic documentation of Robinson Curiosité’s expressions and movements; drawings of the other characters; an artistic and visual description of the island and its inhabitants, its vegetation and its other components; hundreds of comic strips with different incidents; drawings in the form of boards and posters; 6. Positioning studies in terms of teaching, business, and art; 7. ... 8.

Concerning the dramatic and literary expression of the WORK: fifty-two (52) synopses and eighty-two (82) themes for shows, including the following: • Robinson opens an advertising agency; • The time-travelling machine; • Robinson makes a movie; • Tourism; • The Olympic Games; • Elections on the island; • The symphony orchestra; • Eruption of the volcano; • BOUM BOUM’s birthday; • Finding it hard to get up. [ 51 ] He found that the work Robinson Curiosité , including P-18, is an original work within the meaning of the Copyright Act . [ 52 ] The appellants did not demonstrate a palpable and overriding error in the judge’s analysis and his conclusion.

Among the original aspects of the work Robinson Curiosité , Robinson, unlike the hero of the work Robinson Crusoe by Daniel Defoe, is not alone on his island. [13] He lives with several people, including Vendredi Férié, who is the polar opposite of the classic Friday. There is also a very detailed and specific description of the personalities of the dozen or so characters who live on the island, and especially their relations with each other in the framework of scripts that illustrate all these dynamics, which are an essential part of the work.

Finally, all the drawings in the work must also be retained as the original expression of an idea.

[ 53 ] As the author Tamaro [14] wrote, citing the aforementioned judgment in Avanti : [ translation] All in all, case law concerning fictitious characters can be summed up in an idea expressed by an American judge: the less developed a character is, the less chance its author can claim copyright. An author is thus penalized for not sufficiently developing a character. [ 54 ] In the present case, the author Claude Robinson has sufficiently drawn his characters, their personalities, their relations, and their environment for him to be entitled to the protection of the Copyright Act . 4. Substantial reproduction in Robinson Sucroë of the respondents’ work [ 55 ]

Section 2 of the Copyright Act [15] defines infringing in relation to a work in the following manner: “ infringing ” means (

a) when applied to a copy of a work in which copyright subsists, any copy, including any colourable imitation , made or imported in contravention of this Act; [Emphasis added.] [ 56 ] The Copyright Act then describes actions that may be carried out only by the owner of the copyright: 3.

(1) For the purposes of this Act, “copyright” means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right (

a) to produce, reproduce, perform or publish any translation of the work, … [Emphasis added.] [ 57 ] Infringing is not limited to an exact or slavish copy of the work, since it can be a colourable imitation inasmuch as it reproduces, if not all, at least a substantial part of the work. [ 58 ] What is substantial or significant in a work? [ 59 ] First, it is not really a matter of quantity. Rather, it is a matter of quality, although both aspects remain important: 21 There was no reproduction here of the protected work.

However, was there reproduction of a "substantial part" of the work? 22 To determine whether a "substantial part" of a protected work has been reproduced, it is not the quantity which was reproduced that matters as much as the quality and nature of what was reproduced. In Beauchemin v. Cadieux , Blanchet J. cited with approval at page 281 this passage from Pouillet, Propriété littéraire , No. 507: [ translation] It would be risky to confine oneself to determining the number or extent of the borrowings: it is their quality and nature that should be looked at.

To enter upon a simple calculation of percentages or proportions in order to determine whether there was an infringement would be to unduly minimize the protection given to copyright.

In a copyright matter a part may be as important as the whole, and this seems especially relevant when we are considering arrangements of data which are in the public domain. [16] [ 60 ] The author Tamaro points out the trend in case law in this regard: [ translation] Noting, in the development of case law, that great importance had to be attributed to the result of the author’s labour, the courts are now turning toward the criterion of the qualitative importance of the borrowings instead of contenting themselves with tallying the number of borrowings. [17] [ 61 ] It goes without saying, moreover, that an infringing copy is assessed first by its similarities, since, for instance, the use of a known important character from a comic strip may be enough, even if there are numerous differences in the rest of the copy.

Overall, the similarities make it possible to determine whether a substantial part of a work has been borrowed, while the differences could, for example, support a claim of independent creation. [ 62 ] The trial judge was therefore justified in examining the existence of similarities and basing himself on the expert testimony of Charles Perraton, [18] whose mandate was in fact to identify, as the case might be, resemblances and similarities between Robinson Curiosité and Robinson Sucroë . [ 63 ] The appellants, who would like the court to examine and weigh the similarities and differences concurrently, refer to certain judgments that do not, however, support their claim.

Thus, whether it is in Cummings v. Global Television Network , [19] Hutton v. Canadian Broadcasting Corp. (CBC) , [20] Shaker v. MGM Distribution , [21] or Preston v. 20th Century Fox Canada Ltd. [22] neither the originality of the work nor the presence of substantial similarities was demonstrated.

[64] As already mentioned, the Copyright Act states that colourable imitation is still infringement. In other words, differences maysometimes be used to camouflage an infringing copy, but does not eliminate it. [65] However, we must not go to extremes and conclude that the purpose of every difference is to camouflage infringement. AsBuffoni J. wrote: [translation] 36 Certainly, the Act proscribes what it calls “colourable imitation".

And case law provides many examples of defendants who triedin vain to disguise their plagiarism by putting, as the classic aphorism goes, enough similarities to confuse the buyers, and enoughdifferences to confound the court. 37 But we cannot infer from this that an accumulation of differences automatically amounts to as many acts of concealment.Otherwise, the argument becomes circular: carried through to its end, it would mean that the more a competitor tries to stand out byexpressing a common idea in a different way, the more he is trying to [translation] “disguise” his misdemeanour.[23] [66] In sum, the differences may have no impact if the borrowing remains substantial.

Conversely, the result may also be a noveland original work simply inspired by the first. Everything is therefore a matter of nuance, degree, and context, such that, on this subjectas on many others, it is a question of fact that is first and foremost a matter for the trial judge.[24] [67] It must also be said that, if there is substantial reproduction, the infringement remains despite a significant intellectual efforton the part of the infringer: 57 Thus, the true test for infringement is whether the act complained of is only

an act that the copyright owner could do undersubsection 27(1), including reproduction of the original or a substantial part of the work. The expenditure of some mental labour is notenough to trump the fact that there has been reproduction of a substantial part of a work.

Persons who adapt novels into musicals or filmsalso expend mental effort but if there is reproduction of a substantial part of the original, there is still infringement if the consent of thecopyright owner has not been obtained.[25] [68] Thus, even if the infringer, thanks to his skill, has produced an [translation] “improved” version of the original work, whichsome could claim in this case, it does not change the reality: the infringement remains and the author is entitled to the protection of theCopyright Act. [69] The appellants also submit that the trial judge erred in refusing to take into account the fact that many similarities can beexplained by the common source of inspiration for the two works – Robinson Crusoe.

This argument must be dismissed. [70] The trial judge, on the contrary, acknowledged that certain similarities could be explained by the common source ofinspiration. However, he characterized them as minor and rightly did not give them much importance. In reality, the similarities acceptedby the judge to find that there was substantial reproduction of Mr. Robinson’s work are in no way similarities that may be explained bythe common source material: Daniel Defoe’s work, Robinson Crusoe.

For instance, it goes without saying that the existence of otherresidents on the island, or the reassuring presence of a companion so entirely different from the classic Friday could not be similaritiesresulting from the same source material. [71] As for the admissibility of the report and testimony of the expert Perraton, the appellants are once again going down thewrong path. [72] It is true that expert testimony is generally not necessary to allow a court to determine whether there has been substantialreproduction of a work.

Having an ordinary, reasonable person compare two works should normally enable a court to reach a conclusionwithout the help of an expert, as it did in Avanti, quoted above. [73] On this matter, expert testimony does not answer different rules of eligibility, which Rothstein J. points out, in the context of atrade-mark lawsuit: [75] Tendering expert evidence in trade-mark cases is no different than tendering expert evidence in other contexts. This Court in R. v.Mohan, (SCC), [1994] 2 S.C.R. 9, set out four requirements to be met before expert evidence is accepted in a trial: (a)relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; and (

d) a properly qualified expert…[26] [74] This testimony must therefore be necessary, which is not always the case in matters of infringement since, very often, thejudge is just as well placed to determine whether there has been substantial reproduction of the work. In sum, the criterion of necessitymust be examined with regard to the circumstances of the case at bar while ensuring that this testimony does not distract the court fromthe analysis it must undertake. That is what Rothstein J. points out in Masterpiece, particularly in paragraphs 77, 79, and 93.

How doesthis apply to the present case? [75] The very particular situation that was before the trial judge must be taken into consideration. [76] On the one hand, there was a work that was still only a project, in development, and on the other, a completed television seriesthat had been produced and broadcast. Two works at very different stages of development had to be compared. It made comparing themall the more difficult, notably because Robinson Curiosité was made up of a set of many documents, texts, and drawings that then had tobe examined and compared to Robinson Sucroë, a completed work.

Incidentally, the respondents’ claims deal not only with certaingraphic aspects of the work, but also with its literary aspects, particularly in relation to the characters. The judge could have taken on theexercise and examined each aspect of the two works without the aid of an expert. That would have meant devoting an excessive numberof hours to it, however, while an expert could also sort and analyze the various elements of the works for the purpose of comparison.This was a much more efficient way to proceed, as long, of course, as the judge remained the only decision-maker.

[ 77 ] In sum, part of the expert Perraton’s report consisted in support work for the court, which could have done the work itself. This is nothing new. In many cases, for instance, the parties have recourse to an accountant to sort information and carry out mathematical operations that the judge could do as well, but proceeding this way saves precious time. [ 78 ] However, there is another reason that justifies the testimony of the expert Perraton here. [ 79 ] Indeed, his report involves two separate methods of comparison. First, there is the [ translation] “visible” form of a work.

This is the part of the work that can be seen directly, either in the choice of shapes, colours, layout, and such, or in the choice of words and how they are expressed. In sum, it is the concrete and common way to examine a work, by considering what the senses permit us to discover directly.

It can be said that this is in all likelihood the aspect of a work to which case law refers when it prescribes that ordinary persons should be able to see the similarities for themselves between two works. [ 80 ] The report however deals with another method of comparison which, unlike the first, may require explanations likely to help the court to make a comparison. This is the [ translation] “intelligible” form of a work.

The expert Perraton explains that this involves [ translation] “its structure and composition and the way its elements are arranged: characters, interactions between them, time period, actions, and so on. These are things that are not perceived directly, but can be drawn from the perceptible form. It is the understanding of the dynamics, the atmosphere and the motivations that make up the work.” [ 81 ] In short, the ordinary observer is aware of what he perceives and can therefore easily compare the two works in this regard.

This is much less the case when it comes to what he does not perceive directly, which justifies having an expert to make a comparison of the “intelligible” form of the work. The expert Perraton, for example, made a connection and established a resemblance between two characters by examining and comparing their physical appearance, their personality traits, and their relations with the other characters, to suggest that even if one is an animal and the other a human being, [27] the second is a reproduction of the first.

Whether or not this proposal is accepted, it may be concluded that a court would find it more difficult, without the help of an expert, to make such a connection between an animal and a person. This is another reason justifying the admissibility of the expert Perraton’s testimony. [ 82 ] The appellants also argue that the trial judge unreservedly espoused the expert’s theory and, to all intents and purposes, abdicated his role. This is not at all the case. [ 83 ] The trial judge amply explains why he accepted the expert Perraton’s testimony, his methodology, and most of his findings.

The appellants do not point out any palpable and overriding error in this respect. Furthermore, the judge set aside certain aspects of the report and the testimony, which once again shows that he examined everything properly, accepting part of the testimony and rejecting part of it. He therefore made an independent analysis of the similarities identified by the expert Perraton. He concluded that some were significant and others were not. He therefore disagreed with some of the findings in the report.

As a result, if the judge accepted a large part of the report, it was only after analyzing it and making the findings of fact that he considered necessary. That was his role and there is nothing to justify the Court’s intervention in this regard. [ 84 ] The judge therefore noted a number of similarities between the two works and expressed himself at length on this aspect in his judgment. [ 85 ] He accepted those which he classified as substantial.

However, it must be noted that the criterion applicable is not the number of substantial similarities, but rather the substantial reproduction of the work, or substantial borrowing from it. In spite of this formulation used by the judge, the appellants have not convinced the Court that there was an error of law. Indeed, the judge’s result is in accordance with the rule.

It is necessary to proceed in stages and question whether there are similarities before finding that there has been substantial reproduction or borrowing. [ 86 ] And now, let us consider these similarities. [ 87 ] As the judge wrote, the framework and the story are not at issue: [ translation] From the outset, the plaintiff has admitted that it was not the story that was reproduced; rather, it was the main characters and their personalities as well as certain drawings that were reproduced. [ 88 ] In his opinion, the evidence established a number of substantial similarities with respect to both the graphic aspect of the work and the personality traits of a number of the characters and their interactions.

He found that there was substantial reproduction from Robinson Curiosité . [ 89 ] It should first be observed that, to make this finding, the judge did not base himself exclusively on the expert’s testimony. [ 90 ] He based his finding, amongst other things, on the testimony of Thomas LaPierre, head writer at Cinar during the production of the series Robinson Sucroë , who said he recognized Claude Robinson right away when he met him for the first time, in 1996, because of his strong resemblance to the character of Robinson in Robinson Sucroë .

He added that he had noted an obvious similarity between Robinson Sucroë and Exhibit P-30. [ 91 ] The judge also cited the testimony of Serge Lalonde, an employee at Pathonic, who stated that [ translation] “the main character looks very much like Claude Robinson’s, and so do the houses”. After seeing the broadcast of Robinson Sucroë , he was so convinced that it was Mr. Robinson’s work that he looked in vain [ translation] “in the credits for the names of people I knew, including Claude Robinson”. [ 92 ] There is also the testimony of Madeleine Lévesque, who was familiar with Mr.

Robinson’s documentation, especially his

drawings, because she had helped to prepare that documentation for a presentation in Cannes. She describes her reaction as follows after viewing Robinson Sucroë at home with her children: [ translation] Q All right. And what was your reaction? A Well, I thought right away that it was Claude’s project and that he had finally managed to get it produced. Q All right. So you remembered Claude Robinson’s project? A Oh yes, absolutely, yes. [ 93 ] She added: [ translation] Q And when you say it struck you… A Mm-hm. Q ...what struck you when you watched Robinson Sucroë? A Nothing struck me in particular.

It’s just that it was clear to me. I had no doubt that it was Claude’s show. It was Claude’s project. [ 94 ] François Champagne, the former president of the production house SDA, took

part in the sales pitches for the Robinson Curiosité project. He also testified concerning the similarity between the characters in the two works. [ 95 ] Stephen Ashton, the scriptwriter employed by Cinar to work on the production Robinson Sucroë , explained how he reacted when he later saw Mr. Robinson’s work: …when I first heard about it [ Robinson Curiosité ], I was quite surprised at how it seemed to be ninety-nine percent (99%) of “ Robinson Sucroë” that we had worked on. The drawing style, the structure, the story and all. I have to admit I was quite shocked.

Q- And when you say the similarities, do you recall what you saw from “ Robinson Curiosity” ?

A- The characters, the structures... [ 96 ] He then gave several specific examples. [ 97 ] Finally, there was the statement made to the RCMP by Peter Sander, director of development at Cinar: “After hearing Claude Robinson's description of his project Robinson Curiosity, my immediate reaction was ‘So that's where Robinson Sucroë came from’”. [ 98 ] In sum, apart from the expert Perraton’s testimony, there were several evidentiary elements that allowed the judge to conclude that there were substantial similarities between Robinson Curiosité and Robinson Sucroë . [ 99 ] As for the similarities accepted by the judge following the testimony of the expert Perraton; they are amply described in paragraphs 505 to 663 of the judgment. [ 100 ] Without citing the judgment word for word, the main similarities accepted were as follows: - The main character, Robinson : graphic resemblance and similar personalities: both are sulky, childish, moody, in the process of developing, clumsy, naive, versatile, messy, curious, kind, and generous, but sometimes hot-tempered and impatient; - Vendredi Férié and Mercredi : graphic resemblance, resemblance of names [28] and similar personalities: father figures and therefore paternalistic in their interactions with Robinson, scientific, intelligent, erudite, knowledgeable, ingenious, good at explaining, kindly; - Boum Boum and Duresoirée (her real name being Hildegarde Van Boum Boum): two characters that are physically large [29] with similar personalities: sulky, irritable, emotional.

It should also be noted that, in the first synopsis of Robinson Sucroë ( [ translation] The treasure hunt) , the name Duresoirée was given to a pachyderm; - Gertrude and Gladys : graphic resemblance (young, pretty, tall, thin, and elegant; both have freckles) and similar personalities: strong-willed women with very definite ideas, independent, self-sufficient; - Charlie le pilote and Courtecuisse : graphic resemblance and similar personalities: sloppy, strange and repulsive tastes in food, gruff, but lose their heads when in the presence of either Gertrude (for the one) or Duresoirée (for the other);

- Paresseux and Dimanchemidi : graphic resemblance and similar personalities: eyes half-open, very lazy, always sleeping or struggling to stay awake, very slow movements, talk slowly, slack-jawed; - Général Schloup and Capitaine Brisk : graphic resemblance (tall, thin, elegant, slender faces and hollow cheeks) and similar personalities: dishonest, bossy; - Léon le Caméléon and Petitevacances : no graphic resemblance, but similar personalities: mischievous, like to play tricks and disguise themselves, they can change their appearance in spite of certain traits by which they can be recognized; they often help Robinson; - The main house : an L-shaped bungalow, topped by a slender tube that serves as a chimney and an observatory, or a cone-shaped observation tower with a telescope, a retractable dome, lit by a skylight, along with a porch covered by an awning supported by bamboo trunks, as can be seen in another drawing from Robinson Curiosité ; - Numerous duplications ; i.e., the infringer uses the same borrowing on more than one occasion for different characters. - Vehicles used for transportation ; - The logo used in both works. [ 101 ] One might disagree with some of the similarities accepted by the judge (for instance, the graphic resemblance between Boum Boum and Duresoirée).

It remains that the evidence allowed him to find that there was substantial reproduction of Mr. Robinson’s work, even if the plot was not in question and even if Robinson Sucroë as a finished product contains a great many new elements that are distinct from Robinson Curiosité . It is the accumulation of perceptible and intelligible elements that is determinative here. [ 102 ] Finally, the appellant’s other criticisms cannot be accepted either. It is therefore inaccurate to say that the judge erred by not setting aside similarities that were from the public domain.

He did this in paragraphs 620 and 621 of the judgment, amongst others.

He also set aside the similarities particular to children’s programs, which the appellants had brought to his attention. [30] As for the time period in which the adventure of Robinson Sucroë takes place, it is not relevant since the respondents do not claim any reproduction of the storyline. [ 103 ] In conclusion, even if the Court does not share all the reasons for the trial judgment, it is not convinced by the appellants that the judge committed a reviewable error by finding that there was substantial reproduction of the work Robinson Curiosité , except as regards music rights, which we will later see. 5.

Evidence of independent creation [ 104 ] It must be noted that the purpose of proving independent creation is to refute evidence of infringement: [ translation] [40] With respect for the contrary opinion, I think that the appellant could be partly right concerning this aspect: in truth, case law recognizes that in the absence of direct or contrary evidence, circumstantial evidence resulting from a substantial number of similarities, if not of identical expressions, formulas, and terms or errors common to both texts, may indeed create a presumption of infringement ( Cadieux v. Beauchemin ).

The presumption then reverses the burden on the defendant to establish that he has not infringed the work of the plaintiff and that his work constitutes an independent creation. [31] [ 105 ] The burden of proof was incumbent on the appellants. They did not show that the trial judge committed a palpable and overriding error by dismissing their claims.

As Morissette J.A. points out, an appellant who questions the factual findings of the court below has a heavy burden: [ translation] [111] The appellants respond on this point that their negligence and carelessness are not enough to conclude that there was an intentional infringement of the respondent’s rights. Clearly, their

interpretation of the facts adduced as evidence is different from that of the judge, but that would not be enough to establish the existence of a palpable and overriding (or decisive) error in the conclusions he drew. I remind you of what Fish J. wrote on this subject in a recent and unanimous decision of the Supreme Court of Canada [ R. c. Clark ,

2005 SCC 2 , [2005] 1 S.C.R. 6, para 9]: Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And itmust be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm: [reference follows to seven decisions by the Court on this point, ranging between 1976 and 2002].

We must therefore go beyond the step of mere pernickety harping over everything seen and heard by the judge at trial, to identify in thejudgment an obvious weakness with respect to the evidence (hence its palpable nature), a weakness likely to falsify all or part of theformal judgment (hence its overriding nature).[32] [106] This is all the more true when, as in the present case, the judge’s findings are based on his assessment of the credibility of theappellants’ witnesses.

The judge devoted some 136 paragraphs to analyzing this issue and raised a number of troubling elements in theversion given by these witnesses. It is not necessary to list all of his conclusions. A

summary will suffice. [107] The only witness heard on the question of graphic creation was Jean Caillon, who appears in the credits for the programRobinson Sucroë as creator of the main characters and author of graphic research for the additional characters. However, his testimony,which the judge rejected, is confused, hesitant, and unconvincing. [108] Apart from the many troubling examples cited by the judge, Mr.

Caillon’s testimony is filled with [translation] “probablys”,[translation] “maybes” and [translation] “I guesses”, which do not make him a very credible witness, or at least not a very reliable one.The appellants had the opportunity to call other graphic designers from the program Robinson Sucroë to testify. There are seven of themwho worked on the characters, along with the ones who worked on the backgrounds. The appellants chose not to have them testify and tolimit themselves to the evasive and nebulous testimony of Mr.

Caillon. [109] As for the proof of independent literary creation, it is largely based on the testimony of Mr. Izard, designer of the original ideaand executive producer of the series, according to the credits of Robinson Sucroë. Again, the judge rejected his testimony, explainingwhy at length and using many supporting examples. It is true that the judge was hard on the witness, and some may say excessively so.This was not necessary, but the fact remains that in the exercise of his discretion, the judge found that the witness was not credible.

Thereis nothing to suggest that this finding was due to a palpable and overriding error. [110] The appellants maintain that the judge seemed to suggest that the evidence of access to Claude Robinson’s work prohibits proofof independent creation: [translation] [802] One thing is certain: Izard had access to the plaintiff’s work and the representatives from CINAR also required changes. Izardorchestrated all literary production and was in charge of Caillon.

Considering his contamination as a result of his certain access to theplaintiff’s work, he cannot claim to be independent and to direct an independent production. [111] If the judge had refused to consider evidence of independent production based solely on the fact that Mr. Izard had access tothe work, this would have been an error of law. But this excerpt does not have the meaning given it by the appellants. In fact, the judge’sentire analysis of the claim of independent creation, which is quite long (paragraphs 680 to 822), shows that he certainly did not want toreject it on this ground.

In reality, in this excerpt, which comes from the last part of his analysis, the judge is instead trying to show thecomplete absence of evidence of independent creation.

The choice of words is perhaps not the best, but here again one fact isundeniable: the judge does not believe the witnesses, to a point where there cannot be a preponderance of proof of independent creation. [112] Following this exercise, the judge concluded, in paragraphs 823 to 826: [translation] [823] In Problèmes de droit d’auteur en éducation, the authors write: [translation] What is well established, however, is the fact that the literal reproduction of a work in its entirety always constitutesinfringement.

However, when the reproduction covers only part of a protected work, the judge will refuse to consider the quantitativecriterion and will retain the qualitative criterion instead. The qualitative criterion expresses the idea that when the very essence,substance, or vital part of a protected work is reproduced, there is infringement. This situation may occur even if what is reproduced isonly a few lines of a text that is otherwise important or a single character from a comic strip, or a few bars from a piece of music. Eachtime, judges will strive to situate the reproduction vis-à-vis the original work as a whole.

If they find that the reproduction repeats thevery essence of the original work, they will conclude that there is infringement.[33] [824] Considering the existence of substantial similarities, including: • Drawings for the main character Curiosité; • The L-shaped house and its observation tower; • The personalities of the main characters disguised as humans, such as Boum Boum as Duresoirée; Paresseux as Dimanchemidi,Léon the chameleon as Petitevacances; • The disguising of Vendredi Férié as Mercredi, of Charlie as Courtecuisse, and of Schloup as Brisk; [825] Considering Dr.

Perraton’s conclusion, which the Court adopts and which reads as follows: [translation]

By systematically identifying similarities and the observed and inferred connections between characters and their relationships, or the spacial-temporal context and elements of the storyline that organize the action, the comparative analysis is in fact sufficiently exhaustive to answer the initial question in the affirmative: yes, there are similarities and connections between Robinson Curiosité and Robinson Sucroë that can be seen not only in quantity, through the reproduction of visible forms, but also and above all in quality through the reproduction of the intelligible form. [826] The Court finds that the defendants have reproduced the essence, substance, and vital part of the work Curiosité. [ 113 ] The appellants have not shown that this finding is unreasonable.

It is based on the evidence and does not proceed from a palpable and overriding error of law or fact, apart from the liability of Mr. Davin. 6. Christian Davin’s personal liability under the Copyright Act [ 114 ] In January 1989, Mr. Davin joined France Animation as Chief Executive Officer. He would eventually be appointed President and Chief Executive Officer of the company and would hold this position until his departure around February of 1997. [ 115 ] In 1991, France Animation offered Mr.

Izard a freelance contract to be involved in producing television series, including Albert le 5 ième mousquetaire, coproduced with Cinar, BBC, and Ravensburger. [ 116 ] In 1992, France Animation turned to Mr. Izard again and asked him to develop a new project. He suggested the idea of parodying Robinson Crusoe . On October 8, 1992, Mr. Izard signed a copyright agreement with France Animation in which he guaranteed that the work Robinson Sucroë was an original concept of which he was the author. [ 117 ] The trial judge held Mr. Davin personally liable under the Copyright Act .

He dealt with this issue in paragraphs 835 to 839 of his judgment: [ translation] [835] Davin was President and Chief Executive Officer of France Animation at the relevant time, i.e., from 1989 to 1997. He is the Teflon man in this affair. Although he was never directly accused of anything, it is nonetheless impossible that he was unaware of the manoeuvres going on to infringe the copyright, whether through his relations with Weinberg and Charest or his reporting relationship with Izard. [836] Furthermore, Izard testified that he had been treated generously by Davin when he was hired.

He also stated that he was afraid of [ translation] “losing his job” if he did not take

part in the WASH scheme that involved McRaw receiving royalties from the SACD to which it was not entitled, by way of Érica Alexandre. [837] Who could make him [ translation] “lose his job”, if not the person who granted his contracts? [838] Davin is an accomplice in the monoeuvres carried on by CINAR and France Animation in the bilateral agreements through which they falsified the percentage interests without which the two corporations would be ineligible for grants because they did not comply with the requirements and conditions of the France-Quebec bilateral agreement. [839] It is impossible for Davin not to have known about these manoeuvres and the plagiarism, and his personal liability must be retained, as well as that of France Animation. [ 118 ] Mr.

Davin asserts that his status at France Animation is not enough to act as a basis for personal liability and that under the terms of the applicable copyright rules, the evidence must establish his knowing participation in the corporation’s wrongdoing: If the concept of separate legal existence of the corporation is given effect, a director or officer should not be liable for infringement of intellectual property rights merely as a consequence of his or her relationship to or position with a corporate defendant.

However, in specific situations it may be appropriate to "lift the corporate veil" and impose personal liability on directors and officers for a corporation's infringing activities.

The concept of "lifting the corporate veil" is designed to prevent directors and officers, who are guilty of intentional infringement, from escaping personal liability by using a puppet corporation controlled by them. … The [Federal Court of Appeal in Mentmore ] set out the test for the imposition of liability against a director or officer as follows: …there must be circumstances from which it is reasonable to conclude that the purpose of the director or officer was not the direction of the manufacturing and selling activity of the company in the ordinary course of his relationship to it but the deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it .

The precise formulation of the appropriate test is obviously a difficult one. Room must be left for a broad appreciation of the circumstances of each case to determine whether as a matter of policy they call for personal liability. [34] [Emphasis added.] [ 119 ] The judge acknowledged that the evidence has not directly established that Mr. Davin knew about the infringement or that he had taken

part in the plot to infringe. It was therefore through presumptive evidence that his involvement in or knowledge of the infringement had to be shown. In this regard, Mr. Davin maintains that the evidence does not satisfy the conditions set out in

article 2849 C.C.Q .: 2849. Presumptions which are not established by law are left to the discretion of the court which shall take only serious, precise and concordant presumptions into consideration.

[ 120 ] This provision was interpreted by the Court in an authoritative judgment: [ translation] To reach this conclusion, I adopted Larombière’s concept of the standard that applies in the case at bar and that he worded as follows in his treatise on obligations: [translation] Presumptions are serious when the connection between the known fact and the unknown fact is such that the existence of one establishes the existence of the other in a clear and obvious manner.

Presumptions are precise when the conclusions that flow from the known fact tend to establish the contested unknown fact in a direct and specific manner. If it were also possible to draw different and even contrary results, to infer the existence of various and contradictory facts, the presumptions would not be precise in nature and would give rise only to doubt and uncertainty.

Finally, they are concordant, whether or not they each spring from a common or different source, when they tend to establish the fact to be proven...If... they contradict each other…and cancel each other out, they are no longer concordant, and create only doubt in the magistrate’s mind . [35] [ 121 ] With respect for the trial judge, he committed an error by retaining the personal liability of Mr. Davin under the Copyright Act . [ 122 ] For one thing, the facts argued in paragraphs 836, 837, and 838 of the judgment are not relevant in establishing that Mr.

Davin knew about the infringement or that he had played some role in it, even if they were relevant in assessing his credibility. For another, paragraphs 835 and 839 of the judgment do not state any fact that could be grounds for the finding that [ translation] “it is impossible for Davin not to have known about these manoeuvres and the plagiarism.” The judgment is therefore deficient with regard to the reasons for Mr.

Davin’s knowledge of the infringement or his involvement in it. [ 123 ] Parenthetically, let us consider two facts that are not directly connected with the existence of the infringement but that had a considerable impact on the judge’s conclusions with regard to the credibility of the persons involved, their liability, and to the punitive damages. [ 124 ] In order to obtain the royalty payments due to authors from the Société des auteurs et compositeurs dramatiques (hereinafter the SADC), Micheline Charest set up a scheme that involved designating an author for the episodes of Robinson Sucroë produced by Cinar.

She therefore gave a fictitious name, Érica Alexandre, the pen name of her sister Hélène, who, in reality, did not write any of the scripts. Because of this deception, Hélène Charest received royalties to which she was not entitled. She kept 16% of the royalties and paid the rest to McRaw Holdings Inc., a holding company of which Mr. Weinberg and Micheline Charest were the shareholders. [ 125 ] It is common ground that the royalties were received without entitlement thereto, so much so that in December of 1999, Cinar repaid $1,096,351.80 to the SADC. Like Cinar, Mr. Weinberg, and Ms. Charest, Mr.

Izard knew that royalties had been received wrongfully through the fictitious author Érica Alexandre. [ 126 ] Cinar also obtained financial assistance from Telefilm Canada, without being entitled to it, in application of the Agreement on Television Relations Between the Government of Canada and the Government of the French Republic [36] (hereinafter the Agreement ), which purposes to promote and develop Canada-France television coproductions . Under

Article III of the Agreement , in order to qualify for the benefits of coproduction, companies had to meet certain conditions, including that the proportion of the respective contributions could vary from 20% to 80% for each program. [ 127 ] Contrary to what was presented to the organizations in charge of applying the Agreement , it appears that the actual contributions of France Animation and Cinar were 90% for the former and 10% for the latter, making them ineligible for grants. [ 128 ] Cinar therefore wrongfully received $2,594,055, which it had to repay to Telefilm Canada. Like Cinar, Mr. Weinberg, and Ms.

Charest, Mr. Davin knew that the proportion of respective contributions meant that they were not entitled to receive the grants provided for in the Agreement . [ 129 ] In law, it is not permitted to infer the existence of infringement or involvement in copyright violation from these collateral facts.

These facts, however, may be used to assess the credibility of all the parties who cooperated, in one way or another, in the manoeuvres designed to obtain financial aid without being entitled to it. [ 130 ] That means that the respondents had the burden of establishing the facts on which their claim was based, this claim being that Mr. Davin consciously and deliberately took

part in the infringement of their copyright. [ 131 ] In their factum, the respondents attempt to make up for what is lacking in the trial judgment and mention several specific facts to try to establish Mr. Davin’s involvement in the infringement or his knowledge of it. These are his relations with Mr. Weinberg and Ms. Charest, his reporting relationship with Mr. Izard, and his meeting with Mr. Robinson in 1984. [ 132 ] Such a conclusion is a matter of conjecture. It fails to meet the applicable standard of presumptive proof, which requires that known facts render probable the existence of the fact to be inferred.

The existence of a relationship between Mr. Davin and the Weinberg-Charest couple does not mean that Mr. Davin knew that the couple had shown the respondents' work to Mr. Izard. Furthermore, the fact that Mr. Weinberg brought certain documentation regarding Robinson Curiosité with him on a trip to France in 1989 does not support any inferences that it was given to Mr. Davin. The reporting relationship between Mr. Izard – a freelancer whom France Animation had assigned to create a new television series – and Mr. Davin does not indicate that Mr. Davin was aware of Mr.

Izard's infringement or that he authorized the production of work infringing protected rights. Lastly, the meeting between Mr. Davin and Mr. Robinson in 1984, a meeting during which they discussed the Robinson Curiosité project, without examining the work, [37] hardly

suggests that Mr. Davin's knowledge of it was such that he could see that Mr. Izard had infringed it. [ 133 ] The presumptions that can be drawn from these facts are not serious, precise, and concordant. It is also reasonable to infer that Mr. Davin did not remember a meeting he had had several years ago, that he had never been shown Mr. Robinson's work, and that the infringing activities were conducted without his knowledge by the Weinberg-Charest couple and Mr.

Izard, as he testified. [ 134 ] It should also be noted that the respondents alternatively argued this defence. [ 135 ] Their principal argument was that Mr. Davin is a “maker” within the meaning of the Copyright Act and that, under the circumstances, ignorance and good faith are not valid defences. They write that Mr. Davin [ translation] “personally authorized and was involved in the Robinson Sucroë series”. [ 136 ] Is this the case? [ 137 ] In the credits for the Robinson Sucroë programs, France Animation, Cinar, and Ravensburger are listed as coproducers, while Mr. Davin and Ms.

Charest appear as [ translation] “executive producers” [producteurs délégués] in France and [ translation] “executive producers” [producteurs exécutifs] in Canada. Mr. Davin describes the function of executive producer as follows: [ translation] Mr. Davin – In France, the executive producer [producteur délégué] – t

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