Protection Against Copyright Infringement Strengthened by Robinson Case but at What Cost

On December 23, 2013, the Supreme Court of Canada rendered an important decision on copyright infringement in Cinar Corp. v. Robinson. The Court affirmed the trial judge’s finding that Cinar infringed Claude Robinson’s intellectual property and allowed a considerable increase in the monetary relief the Quebec Court of Appeal awarded Robinson.

The unanimous judgment, written by Chief Justice Beverley McLachlin, on behalf of the seven judges who presided over the case:

“I conclude that the copyright in [Robinson Curiosité] was infringed. The trial judge committed no reviewable errors in finding that [Robinson] Sucroë reproduced a substantial part of [Robinson Curiosité]. The Cinar appellants incorrectly argue for an approach that dissects Robinson’s work into its constituent parts. Rather, a qualitative and holistic approach must be adopted. In order to determine whether a substantial part of Robinson’s work was copied, the features that were copied by the Cinar appellants must be considered cumulatively, in the context of Robinson’s work taken as a whole. This is precisely the approach adopted by the trial judge. In addition, the expert evidence relied upon by the trial judge in his analysis was admissible.”

We previously wrote about Claude Robinson’s 18-year plagiarism saga against Cinar on Slaw here, here and here. In short, Claude Robinson developed an animated children’s television programme called Robinson Curiosité and worked with Cinar to sell the programme. Cinar subsequently produced its own animated series titled Robinson Sucroë. When Claude Robinson found out about the Cinar programme, he sued Cinar and began the protracted legal proceeding, which the Quebec Court of Appeal decided in Robinson’s favour in 2011. The defendants appealed to the Supreme Court, which released its decision last month.

The Supreme Court has granted Robinson approximately $4 million, including $1.5 million as reimbursement of his legal fees. Unlike his opponents (Cinar, France Animation, Ravensburger Film and RTV), who have been enriched by illegally exploiting his work, Claude Robinson will not get rich from the decision of the Supreme Court. Furthermore, he may never be able to collect on the judgment.

Since the Court did not apply the principle of joint and several liability of the defendants (the ability to recover all the damages from any of the defendants regardless of their individual share of the liability), Robinson will have to collect his award from his opponents one by one under proportionate liability. Unfortunately Cinar has been sold to Cookie Jar, and France-Animation merged with Moonscoop, and both companies are insolvent.

The costs and delays in this case are symptomatic of the problems of access to justice. Robinson has a debt to his lawyers of at least $2.5 million dollars. If he cannot secure the money owing to him, he will be financially ruined, and regardless he is psychologically broken by this dispute which has monopolized much of his life.

The key outcome of this case is that authors owe a debt of gratitude to Robinson, as the decision has strengthened the protection against copyright infringement. Because of this case and Robinson’s perseverance, it will be easier for authors to prove plagiarism in situations where the work and the copy are inspired from the same source.

Intellectual property lawyer Barry Sookman notes, the case is:

“an important precedent dealing with many other core areas of copyright including the framework for how to assess if a ‘substantial part’ of a work has been reproduced, the assessment of damages for infringement including accounting of profits, non-pecuniary damages and punitive damages, the use of experts in a copyright case, the vicarious liability of directors for infringement, and whether copyright is protected by the Quebec Charter of Human Rights and Freedoms.”

While future creators may thank Claude Robinson, he could find that cold comfort if he doesn’t get his hands on any of the award. Moreover, if the guilty parties don’t end up paying any of the amounts owing to Robinson, it will be hard to say that the decision acts as a deterrent to future plagiarism of this sort. Indeed, one might argue that by forcing Robinson into a legal battle at immense financial and opportunity cost, the defendants succeeded in defeating Robinson’s claims, despite the Supreme Court’s ruling, and discouraging future claims of plagiarism against producers.

So, we might not have seen the end of this case yet!


  1. David Collier-Brown

    Can he request the court reconsider joint and several liability, arguing that the disappearance of several defendants should be considered a factor?

  2. Not under current law, as I understand it. (There’s a rumour that I’m supposed to know something about those issues.) The point j&s liability is to favour the injured person over the wrongdoer, so that the injured person is made whole leaving it to the wrongdoers to sort out, amongst themselves, who should be reimburse whom.