Law Times

Page 12 January 27, 2014 Law Times • FOCUS Decision encourages a 'touchy-feely approach to the work' Continued from page 11 argued they weren't liable for infringement. The judges struck down the Cinar appellants' argument that the trial judge should have assessed the originality of particular elements of Robinson's show before determining whether a substantial part of it had been reproduced. The court said this approach "would prevent a truly holistic assessment." Rather, it suggested "the cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial part of R's skill and judgment expressed in his work as a whole." Robinson's lawyer, Gowling Lafleur Henderson LLP partner Guy Régimbald, calls this "the most important issue" dealt with by the Supreme Court in the case. Régimbald says the style of analysis advocated by the Cinar appellants was similar to the abstraction/filtration/ comparison approach used in the United States to assess substantial copying in the context of computer software infringement. "The SCC held that an abstraction/filtration approach could be useful in some circumstances, such as computer software disputes, but that the approach will not be appropriate in most cases as it would result in a dissection of the work," he adds. Peter Henein, a partner at Cassels Brock & Blackwell LLP, questions whether the court has clarified its position in a sufficiently "meaningful" Peter Henein believes the decision will lead to way. more claims for non-pecuniary damages in copy"What does it mean to look right cases. at a work holistically and then look at the cumulative effect? "almost touchy-feely approach That's never going to be some- to the work" that could make it thing you can advise a client on even more difficult to predict from the outset." copyright damages, he suggests. The decision encourages an The Cinar appellants also ar- gued the trial judge had based the bulk of his findings on inadmissible expert evidence. The court must assess the question of whether a substantial part has been copied from the perspective of the layperson in the intended audience, they suggested. However, the Supreme Court stated: "In some cases, it may be necessary to go beyond the perspective of a lay person in the intended audience for the work, and to call upon an expert to place the trial judge in the shoes of someone reasonably versed in the relevant art or technology." This case included the expertise of semiologist Charles Perraton. Semiologists study signs and symbols. Perraton identified "latent similarities in how the two works used atmosphere, dynamics, motifs, symbols, and structure to convey meaning," according to the decision. CANADIAN LAW LIST 2014 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: of more than 78,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound Published February each year On subscription $159 L88804-627 One-time purchase $176 L88804-627 Multiple copy discounts available Prices subject to change without notice, to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation Untitled-7 1 www.lawtimesnews.com 13-12-19 3:17 PM Henein welcomes this clarification. "What was helpful was the manner in which the SCC described how the expert can break the evidence down," he says. "Lawyers are going to be looking at these types of experts more in the future," he adds. That could be useful in other contexts such as theatre copyright cases where "you might look at dramatologists who place the work in its historical context and its style and contextualize it in a way that's very specific," says Henein. The decision also shines a fresh light on the payment of non-pecuniary damages in copyright cases. Regarding damages for Robinson's psychological suffering, the Court of Appeal applied the $100,000 cap established in a trilogy of 1978 cases. However, the Supreme Court ruled the cap is "inapplicable to non-pecuniary damages that do not stem from bodily injury." Robinson's suffering wasn't a bodily injury but stemmed from the material injury of having his property rights breached, the court ruled. It agreed with the trial judge that his damages were analogous to those claimed by a defamation victim. "Before the Robinson case, it was not clear whether the cap applicable to non-pecuniary damages stemming from bodily injury . . . applied in other contexts. Non-pecuniary damages are now only subject to a cap in a limited number of cases," says Régimbald. "The court was really looking at case law that's outside of the law of copyright infringement," says Henein, who believes the decision will lead to more claims for non-pecuniary damages in copyright cases. The case also poured cold water on Cinar Corp.'s argument that the calculation of the profits shouldn't include money made from the soundtrack because it hadn't been copied from Robinson's work. But there was no evidence it could have commercialized the soundtrack as a separate product if Robinson Curiosity hadn't been infringed in the first place, according to the Supreme Court. Although the decision represented a partial victory for Robinson, it's not likely to act as a deterrent to deliberate copyright infringers, according to Henein. Taking the case through the courts has been a long and expensive process for the animator who has suffered mentalhealth problems as a result of the drawn-out legal fight. "For it to have taken this long is reflective of our legal system," says Henein. "If anything, it's going to discourage people from bringing claims," he adds. LT

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