Just before Christmas, an artist named Claude Robinson prevailed at Canada's Supreme Court in a case that has lasted nearly two decades and illustrates some nuance around materials assumed to be in the public domain.
The dispute stretches back to the 1980s when Robinson and his company developed an educational children’s television show, “The Adventures of Robinson Curiosity,” inspired from Daniel Defoe’s 1719 novel, Robinson Crusoe, as well as from his own life experiences. After drawing up characters, sketches and storyboards, the artist pitched various producers.
Then, in 1995, Robinson flipped on the television and was stunned to see a new children’s television show, “Robinson Sucroë,” produced by several companies (Cinar Corp, France Animation, etc.) that were once given access to his project. The show was being aired internationally -- on France 2, BBC, Teletoon, and other networks.
Robinson then sued, and after a trial that lasted 83 days and had over 40 witnesses, the trial judge in Quebec concluded that "Sucroë" copied a substantial part of "Curiosity." The judge awarded a whopping $5,224,293 in damages, including $607,489 in compensatory damages, $1,716,804 to disgorge profits, $400,000 for psychological harm, $1 million for punitive damages and $1.5 million in legal fees.
The initial appeals court affirmed the ruling, but trimmed damages to just over $2 million. Last week, Canada's highest court roughly doubled that.
The ruling suggests that Canada might be a more favorable venue for copyright plaintiffs than previously assumed. Whereas U.S. judges in these type of cases usually start their analysis by weeding out what's not original and protectable, and then going out of their way to spot differences among works, the Canadian high court largely rejects that process.
"I do not exclude the possibility that such an approach might be useful in deciding whether a substantial part of some works, for example computer programs, has been copied," writes the Supreme Court judge. "But many types of works do not lend themselves to a reductive analysis. Canadian courts have generally adopted a qualitative and holistic approach to assessing substantiality. 'The character of the works will be looked at, and the court will in all cases look, not at isolated passages, but at the two works as a whole to see whether the use by the defendant has unduly interfered with the plaintiff’s right.'"
The judge also addressed the defendants' contention that "Sucroë" had merely reproduced the idea of a children’s television show about a Robinson Crusoe-inspired character living on a tropical island. But just because the story of a man marooned on an island interacting with nature has been around for centuries, and arguably a part of the public domain thanks to Defoe's book, it was the "the way Robinson expressed that idea" -- the graphic appearance of characters, the personality of secondary characters, etc. -- that was cause for protection.
Canada's Supreme Court also elects to be tough in the calculation of damages as a result of the declared infringement. For example, a lower appellate court deducted an award of lost profits from the TV show's soundtrack because there was no causal link between the infringement and the soundtrack. The high court reinstates nearly $1.2 million of that money, concluding the soundtrack "had no stand-alone value, and that it generated profits only as an accessory to the television show."
Punitive damages of $500,000 are awarded -- less than the $1 million the trial judge had delivered, but more than the $250,000 given by the appeals court.
Then, there was the issue of psychological harm to Robinson. A lower appellate court had trimmed damages here from $400,000 to $121,350 because it felt a need to cap a non-bodily injury. The high court reverses.
"The product of Robinson’s artistic exertions was taken from him and the integrity of his personal creative process was violated, causing deep psychological suffering," writes the judge. "These harms are similar to those suffered by a victim of defamation."