TD is a sub of Bell which publishes the Yellow Pages (YP). ABI copied the “subscriber information” used by YP to make its own directory. The trial judge found that there was no c/r in the compilation of information in Yellow Pages directories. It was conceded that there is c/r in the Yellow Pages as a whole. The C/R act was amended after NAFTA to include compilation.
Issues
Did the post-Nafta amendment alter the state of the law?
What is the correct approach for assessing the originality of a compilation?
Whether the compilation involved a sufficient degree of skill, judgment, or labour to qualify for c/r protection.
Holding
There is no change to the law
The correct approach is to assesss whether the fragments of a compilation can be protected before assessing whethere this is the case for the compilation as a whole
There is not a sufficient degree of originality to have c/r protection over a directory.
Reasoning
The basis for c/r is originality, determined by skill, labour, and judgment that goes into making a work. Vast majority of material in YP not subject to c/r (phones numbers, names, etc).
Prior to NAFTA, judges had to determine if compilations could be shoe-horned into “literary works” b/c compilations were not protected under statute. This does not change the law substantially although it does clarify it because it settles a jurisprudential debate between two visions of c/r: one based on creativity, the other based on labour. The former, which is more consistent with NAFTA's reference to “intellectual creativity,” garuantees protection. Labour alone is not enough to benefit from c/r. (knock on effect of this is that some USA decisions putting this idea into action may be relevant to Canadian cases).
Correct approach
Court must decide how to assess whether the components of a compilation are subject to c/r.
The usual approach is to first assess the compilaiton as a whole, and then to look at its parts.
c/r protects against copying. If a copy is made that uses a substantial part of a work, does this violate c/r? This depends on the qualities of the components that were copied: were they well known or original?
Determing whether the copied component is protected by c/r (in addition to the protection that the entire compliation has) is a short cut to determining whether a c/r violation has occurred.
The trial judge considered the components (“sub-compilations”) of the compilation first. This was the correct way to address the question b/c the matter of c/r over the compilation as a whole had been conceded.
The test of originality
Is the information in the YP directory protectable? The answer is clearly no. There is an insufficient degree of originality and skill in the components of the YP. The labour that goes into compiling them is not enough to warrant protection.
Directive 96/9/EC du Parlement européen et du Conseil, du 11 mars 1996, concernant
la protection juridique des bases de données.
Chapter 1
Art. 1: Directive concerns protection of DBs in any form. It excludes software used to make DBs
Art. 2: It applies w/o prejudice to rights to rent and loan neighbouring rights as set out in other EU directives.
Chapter 2 (c/r, aka droit d'auteur.)
Art 3: DBs are an intellectual creation belonging to their author and are protected by c/r. No other criteria, for the purposes of c/r, applies.
Art. 4: Definition of author: physical or moral person.
Art. 5: Author of a DB has, for the purposes of the expression of the DB, the benefit of c/r: the right to do carry out or authorize:
(a) continuing reproduction of the work,
(b) its translation/adaptation, or arrangement,
(c) its distribution, although this is limited by the first sale of the product (épuisement du droit).
(e) its reproduction, distribution, communication, exposition, or representation to the public b/c of the rules in 5(b)
Art. 6: stipulates exceptions to author's c/r in virtue of fair use, personal use, instruction/education, public safety, and other traditional exceptions to c/r.
Chapter 3 (sui generis rights)
Art. 7: EU members contemplate a right to prevent the extraction or re-utilisation of all or of a substantial part of a DB when the extracted or re-used part represents the product of a substantial investment.
- extraction = permanent or temporary transfer of content of a DB.
- “réutilisation” = any form of putting the content of a DB at the public's disposition.
This right applies independently of the availability of rights under c/r (aka droit d'auteur)
Art. 8:Sui generis rights do not allow their holder to prevent fair use of part or all of a DB ,
- a person exercising rights of fair use cannot injure the holder of the c/d or any neighbouring rights that he/she may have.
Art. 9: Exceptions to sui generis rights:
(a) personal use
(b) instruction, illustration for research
(c) public safety.
Art. 10: Duration
- sui generis rights last 15 years from January 1st of the year in which the DB is completed.
- if the DB has been made available to the public, the period is 15 years from the date of when it was first made available.
- any substantial changes to the DB allow for the resulting product to benefit from its own period of protection for 15 years.
Art. 11: all nationals of member states benefit from the sui generis right, as do people making their habitual residence in the territory of the European Community. This includes moral persons having their siège statutaire, central administration, or principal establishment within the Community.
Cummings c Canwest Global Broadcasting (2007)
Jurisdiction
QCA
Facts
Cummings had had an idea for a TV show: “Dream Comes True.” He had produced some guidelines sketching out its main features (these being of a very generic nature). Canwest later produced “Popstars,” a TV show which Cummings claimed was a rip-off of Dreams. He wants copyright in the guidelines. In the alternative, he wants to sue extracontractually: Canwest had used his info to their advantage. The trial judge found that the guidelines were so barebones and typical of a TV show structure that they did not constitute an exercise of talent and judgmenet necessary to grant copyright. Cummings appealed.
Issues
Did the Guidelines constitute a work of sufficient talent and judgment to merit copyright? Are there indications for eco?
Holding
No. No.
Reasoning
Notations such as “Nature of the project,” “Objectives sought,” “Choice of participants,” etc. are no more than chapter headings and are not sufficiently developed to constitute an exercise of talent and judgment.
There was nothing in the guidelines that would have permitted someone to exploit Cummings’ idea without investing their own talent and judgment
Cummings’ document did not contain any information that someone would have paid for in order to avoid applying their own talent and judgment.
No eco: the similarities are of a generic, commonplace, and unimportant nature
Construction Denis Desjardins c Yves Jeanson et Brigitte Brunet (2010)
Jurisdiction
QCA
Facts
Desjardins, an arhitect, had shown a crtain architectural plan and model home to the respondents. They’d refused to buy them but then went on to have a house built that Desjardins claims copies his plan exactly. He wants copyright in the plan. The trial judge recognized the plaigarism but refused to accord copyright protection.
Issues
Do the plans and model home possess the originality required to constitute works protected under the Copyright Act?
In the affirmative, to what damages in the appelant entitled?
Holding
Yes. See below for damages.
Reasoning
Originality consists of an exercise of talent/skill and judgment, as established in CCH
The plans are a work that is not a copy of some other. This work, both in its plan and model home form, are the fruit of the labor of Desjardins. They entail numerous architectural elements which Desjardins assembled and arranged on the basis of his skill and judgment.
When a work is protected by copyright, it does not mean that all similar or identical works constitute an illegal reproduction, i.e. a forgery as per the Copyright Act. In order for there to be a forgery, the perpetrator must have de facto copied the work in question. If he has not done so but arrived at the same result by applying his own skill and judgment, there is no forgery or violation of copyright. The protection accorded to an original work under the Copyright Act is thus limited. The author of the original work benefits from the presumption of forgery, but the defendant can easily refute it by showing, for instance, that his own work has produced the same results by applying certain rules of art, etc. The respondents have not demonstrated this in line with art. 34.1 (a) of the Copy right Act.
In accordance with art. 34.1, the owner of the copyright is entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise by law.
In exercising its discretion, the court shall take into consideration: a) the good or bad faith of the defendant (bad faith here), b) the conduct of the parties before and during the proceedings, and c) the need to deter other infringments of the copyright in question
Damages awarded: medium price between what Desjardins had asked for his plans and what the respondents had originally been willing to pay); expert costs; punitive damages.
