Canadian Admiral Corporation Ltd. v. Rediffusion, Inc. -
Looking at ss. 2 and 3 of the Copyright Act, for copyright to exist in a "work" it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.
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All the works included in the definitions of "artistic work" and "literary work" must be printed, reduced to writing or otherwise graphically produced or reproduced.
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Likewise, in regard to "dramatic works" there is the requirement that the scenic arrangements or acting form must be fixed in writing or otherwise.
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Cinematographic productions, which are also dramatic works, are obviously "fixers otherwise" since they involved the making of films.
Gould Estate v. Stoddart Publishing Co. Ltd. -
Gould, a young concert pianist, was interviewed for an article by Carroll.
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Talked on a variety of occasions and in numerous venues.
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Over this time, Carroll took approximately 400 photos of Gould, copious notes, and some tape-recordings of their conversations.
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Some of these photos, notes, etc, were used in the article.
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~40 years later, Carroll published a book through Stoddart publishing "Glenn Gould: Soime Portraits of the Artist as a Young Man"
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Gould had died 13 years prior, and his estate did not authorise its publication or receive royalties from the book.
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Issue: Whether Gould (and now his estate) has copyright in the oral conversations, which occurred between himself and Carroll and form the essence of the text in the book in question.
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S. 2 discusses lectures, further defined as including "address, speech and sermon".
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Plaintiffs submit that spoken words are therefore clearly contemplated within the definition of "literary works".
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Goes counter to judicial decisions which have held that for copyright to subsist in a work, it must be expressed in material form and having a more or less permanent endurance (Canadian Admiral Cord v. Rediffusion).
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A person's oral statements in a speech, interview or conversation are not recognized in that form as literary creations and do not attract copyright protection (Walter v. Lane).
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The person who makes notes or report of the speech is the author of the report and obtains copyright in the report.
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Exception for a scribe, merely writing an article from dictation (Walter v. Lane)
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Excerpt from Falwell v. Penthouse sayings that Falwell's claim of copyright presupposes that every utterance he makes is a valuable property, and any time celebrities or public figures said anything it should be afforded the protection of copyright.
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In Canada it relies often on fixation and who fixed the "work".
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In the US, fixation is the subject of a statutory definition:
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…sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed for purposes of this title if a fixation of the work is being made simultaneously with its transmission".
"A Charter of Rights for Creators" -
Report of the Sub-Committee on the Revision of Copyright: Standing Committee on Communications and Culture
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Report in 1984 said that the current definition of fixation was out of date and needed to be revisited, and expanded to include any form of fixation.
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Suggestion was that it should take into account all forms of material media, even those that do not exist at present.
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54. Said that fixation should be defined as all means capable of capturing a work, including capture in computer media, but excluding capture in a medium as volatile as a computer's main storage or display screen.
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55. With respect to the right of reproduction, a material form should be one that has a certain degree of permanence.
Originality/Expression/Idea -
Examiners appointed by the UoL prepared examination papers to be written by students.
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By agreement, the copyright in the examination papers was owned by the university., which in turn assigned the copyright to the plaintiff
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Plaintiff published the examination papers after the exams had been taken.
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The defendant had taken the exams and published them together with answers to some of the questions in the papers as well as some criticisms on the manner in which the papers had been set.
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Reasoning: Are these examination papers, within the meaning of the Act, original literary works?
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s. 35 states what the phrase includes; the definition is not a completely comprehensive one, but the section is intended to show what, amongst other things, is included in the description of "literary work".
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includes maps, charts, plans, tables and compilations.
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In the judge's view, literary work covers work which is expressed in print or writing, irrespective of the question whether the quality or the style is high.
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Established that it is a literary work, but is it original?
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Doesn't mean that the work must be the expression of original or inventive thought. Just needs to be an original expression of thought.
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Must originate from the author, not copied from another source.
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Doesn't require knowledge that is unique to only the author, or else historians could only publish work about facts they discovered themselves.
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Time expended can't be the test, or else a poem written quickly wouldn't be able to get copyright.
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Held that the book and the papers alike originate from the author and are not copied by him from another book or other papers.
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Rough test that what is worth copying is worth protecting.
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Papers set by the examiners are "original literary work" and property subject for copyright under the Act of 1911.
Fletcher v. Polka Dot Fabrics Ltd. -
September 1989 the plaintiff designed a pattern for a cloth diaper and marketed the pattern under the trademark "Snappy Nappy".
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From March to August 1990, the defendant or parties connected with the defendant purchased 5 shipments of the pattern.
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In spring 1991, the plaintiff discovered that the defendant had commenced producing a diaper pattern under the trademark Baby Precious.
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Although the pattern cover for BP was dissimilar to the cover of the plaintiff's, she believed her pattern to have been copied and brought proceedings for infringement of her copyright.
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Reasoning:
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Notes that copyright protects the expression of ideas rather than the ideas themselves.
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The form of the idea, not the ideas contained in that form.
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No one can copyright an idea.
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Plaintiff's work is both literary and artistic, and has material form.
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The Snappy Nappy was the result of the plaintiff's personal labour.
Boutin v. Bilodeau -
The respondent put on the market tickets to be used for promotions and to raise funds for charitable or non-profit organisations.
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As with certain kinds of lottery tickets, these tickets had 100 squares covered with a thin film which is scratched to show the amount of the voluntary contribution.
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In Oct 1984 the respondent obtained copyright of these tickets registered as a literary work.
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In 1986 Boutin decided to go into that same market.
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Once informed, the respondents reacted strongly.
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Also contacted Boutin's clients directly to encourage them not to enter into any agreements with Boutin and made remarks about the appellant which the judge of first instance found to be defamatory.
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Initial ruling found the appellants liable for infringement.
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For liability to exist, not enough that Boutin borrowed an idea. There has to be a wrong.
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This wrong consists in a copy of the original, a copy such that, in anyone who sees it, it produces the same idea as that given by the original (King Features Syndicate Inc. v. Lechter)
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From case law, two conditions have to be met for a copy to be at fault.
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Has to be a connection between the original work and the copy, in the sense that it must be possible to established that the original work is the source for the copy.
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In this case, condition is undoubtedly met.
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Had to be a sufficient objective similarity between the original and the copy for the latter to be considered as a reproduction or an adaptation of the first, without necessarily being perfectly identical.
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Same number of squares, placed in an identical way.
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Words on the two tickets are very similar.
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Looking at the originals, different size, construction, colour, and general appearance are different.
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Held: Criterion of sufficient objective similarity between the original and second had not been met, and that the latter cannot be viewed as a reproduction or at best as as simple adaptation of the original.
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Then went to SCC, where it was found that the CoA erred in thinking that it must only be a simple copy.
Baker v. Selden -
Selden the testator of the complainant in this case in 1859 took the requisite steps for obtaining the copyright of a book.
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Object of which was to exhibit and explain a peculiar system of bookkeeping.
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In 1860-61 he took the copyright of several other books containing additions to and improvements upon the said system.
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Bill of complaint was filed against the defendant for an alleged infringement of these copyrights.
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If Baker had the right to exclusive use of the system, it would be difficult to contend the defendant didn't infringe regardless of the differences in column arrangement and headings.
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Selden has used essentially the same system, but presented in a different way.
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More like an issue of patent. If a doctor devises a system of healing, and publishes it, he has made it available to the world.
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By publishing the book, without getting a patent for the art, the latter is given to the public.
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The illustrations are the mere language employed by the author to convey his ideas more clearly.
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Math book cannot give the author the exclusive right to use that sort of math.
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Claim to copyright in a catalogue of furniture which the published had on sale in his establishment, illustrated with many drawings.
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Defendants used the same illustrations, but also had the same products on sale.
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Held that there could be no copyright, because it was a mere ad for the sale of particular articles which anyone might imitate and anyone might advertise for sale.
Page v. Wisden -
Copyright was claimed in a cricket score sheet, held that it was not a fit subject for copyright partly because it was not new, but also because "to say that a particular mode of ruling a book constituted an object for a copyright is absurd".
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