"there cannot in general be any copyright in the title or name of a book"
Held that the appellant has not right by reason of his copyright to prevent the publication and sale of the respondent's book, and the case for passing off was not sufficient.
Flamand v. Société Radio-Canada
Plaintiffs had registered copyright in a title “Medecine d’aujourd’hui - Doctor Today”.
Produced a series of tv broadcasts and printed publications using that title in ’61-’62.
In ’67 the defendants produced a series of televised courses entitled “Medecine d’aujourd’hui”.
A popular expose of medicine.
Meant to educate doctors and nurses away from big cities in new discoveries.
Reid J
A mere title cannot form the object of a copyright apart from the work to which it relates.
No exception to this principle except when the title of a work is “original and distinctive”.
Must be proven that it is original.
To get an injunction, you must prove the original and distinctive character of the title.
When any title cannot form the subject-matter of a copyright because of lack of originality, must be proven that the accused party is attempting to deceive the public to accept the work in place of the original.
If neither work has copyright, but are sufficiently different enough that regardless of the same title they won’t be confused, no protection.
If a title is purely descriptive, devoid of originality, no injunction unless it’s proven that the adversary is attempting to pass off other work as the applicant’s.
An application to prevent the use of the title independently of the work to which it relates, the Court entertains the slightest doubt regarding the petitioner’s right to the exclusive use of the title, petition will be dismissed.
If the presentation was done in a way to imitate the original, then it’s not allowed.
Held that it was not original or distinctive enough, cannot be protected.
Francis, Day & Hunter Ltd. v. Twentieth Century Fox Corp. Ltd.
One of the issues concerned whether there was copyright in the title of the plaintiff’s song “The Man Who Broke the Bank at Monte Carlo”.
Defendants had produced a motion picture under that title.
Lord Wright says the plaintiffs are not entitled to succeed because they used the title only and that is too unsubstantial in the facts of this case to constitute an infringement.
Part of the reason why, in general, a title is not by itself a proper subject-matter of a copyright.
Further argued by the plaintiffs that s. 2 of the Canadian Act of 1921 (amended in 1931) extended work to include the title thereof when such title is original and distinctive.
Didn’t think that for the purposes of this case the amendment had changed the law.
Reasoned that the definition mean that the title of a work is to be deemed to be a separate and independent “work”.
Work is to include “the title thereof” - the title is treated as part of the work, so long as it is original and distinctive.
Canadian Olympic Association v. Konica Canada Inc.
Plaintiff held official marks in Olympic, Summer Olympics, Winter Olympics.
Guinness licensed to Konica Canada the exclusive right to public and distribute in Canada a premium edition of the book of Olympic records.
Hugessen JA:
The name “Guinness Book of Olympic Records” is much less original than even “The Man Who Broke the Bank at Monte Carlo”.
Nothing to do with copyright of the original book of olympic records, but the right to use the word “Olympic” as a trademark in association with films and cameras.
Example given was an artist who painted a picture of someone’s trademark would have copyright in his work, but wouldn’t allow him to use the work as a trademark. Conversely, the owner of the trademark could not reproduce the work without the authority of the owner of the copyright.
CCH Canadian Ltd. v. Butterworths Canada Ltd.
The plaintiff and the defendant corporations carried on business in Canada as publishers of business and legal texts.
“The Access Letter” v. “Access to Canadian Income Tax”
Defendants are correct that copyright protection extends to the title.
However, registration of a copyright in a work cannot be used as a basis to restrain another from using the title as a trademark.
Therefore, the defendant’s copyright is not a bar to a passing-off action by the plaintiff.
Translations
In 1988, s.2 of the Copyright Act was amended to include “translations” in the definition “literary work”.
In 1994, this reference was deleted and reference to “translations” was inserted in the definition of the broader expression “every original literary, dramatic, music and artistic work” in s 2 of the Act.
Therefore, the concept of a translation can apply to all categories of works.
Prior to 1988 translation was considered to be a work independent of the work from which it was derived and therefore entitled to its own copyright.
Plaintiff was employed by an English newspaper, the Financial Times.
Able to translate Portuguese.
A communication from a government official in Brazil was delivered to a state legislative body, and official agreed to allow the message to be published in the Financial Times in English.
Plaintiff cut down the speech by a third, removed less material parts, added paragraphs and headers.
Defendant newspaper saw the add and paid the official to include it in their newspaper as well.
Plaintiff claimed he held the copyright.
Court found that the translation was not performed by the plaintiff as part of the plaintiff’s employment with the Financial Times.
Reasoning:
Translation is a literary work, was it original and the work of the plaintiff?
Yes.
Translator of a literary work has been held to be the author of his translation.
In Walter v. Lane, it was stated that a shorthand writer who reported a speech verbatim was the author of his report.
If a translation is made without the consent of the copyright owner of the original work it would be an infringement.
Redwood Music Ltd. v. Chappell & Co. Ltd.
No copyright can subsist in an arrangement of a work made in infringement of the copyright in the original work.
Pasickniak v. Dojacek
Copyright should be denied for “fraudulent works”.
Aldrich v. One Stop Video
Position on “fraudulent works” was left open.
Originality of Translations
In addition to infringement or other illegality or public interest objection, a translation may not have sufficient originality to gain separate copyright protection.
Translating from one national or ethnic language to another ordinarily meets this requirement, but would Morse Code or Braille meet qualify?
Pasickniak v. Dojacek
Plaintiff sought to restrain an alleged copyright infringement in a book he had written in the Ukrainian language.
Book was in the nature of a dictionary for interpreting dreams.
Some interpretations were copied from other books.
Plaintiff’s selection and arrangement were found to be original as a “compilation”.
Apart from everything else, clear that such part of the plaintiff’s book as is not original was translated from other languages.
The parts that were not original were translated from other languages, and thus count as an original literary work.
Bishop v. Tele-Metropole Inc.
Plaintiff alleged an infringement of his musical work, song “Stay”.
Defendant produced a version of the song with both English and French lyrics, entitled "Please Stay" and "Ne t’en vas pas”.
Please Stay is very much the same, with omission of the second verse.
Lyrics of the French version were substantially different.
Same theme, but more of a lament for a decision already made rather than an exhortation not to go.
Cannot be viewed as a translation.
Apple Computer Inc. v. Mackintosh Computers Ltd.
The defendants’ position is that there is no copyright protection given to the hexadecimal form of the source code program because it is not a translation of that work but a different literary work.
Conversion from assembly code to hex is called a “translation” by computer programmers.
But not a relevant factor.
Question is whether or not the hex code version is a translation of the original assembly code version, in terms of the Copyright Act.
If yes, then the right to produce any such translation belongs exclusively to the holder of copyright in the original work. s 3(1)(a)
“express the sense of (word sentence, speech, book poem) in or into another language, in or to another form of representation.” - Concise Oxford Dictionary
Conversion from one code to another clearly falls within that definition.
Same as with Morse Code, could be converted and called “instructions to the telegraph operator on how to send the message”.
Still retains the character of the original work.
Held that the hexadecimal form of the program is the same literary work, and therefore a translation.
Federal Court of Appeal said that it had to be human languages for it to count as a translation between “languages”.
Prism Hospital Software Inc. v. Hospital Medical Records Institute
Plaintiff was providing the defendant with software program for maintaining and operating a health care information database.
Difficulties arose between the parties, defendant engaged another supplier who rewrote the plaintiff’s program in another source code language.
“Not dealing with the conversion of the plaintiff’s program into a machine language, but into another “human” programming language”.
In this process there has been a “translation”: of the plaintiff’s software within the meaning of 3(1)(a).
The Copyright Act does not define the concept “translation” except in s. 30.6(a) when providing an exception to copyright infringement in specified circumstances of making a computer program compatible with a particular computer.
Parliament says “translating” into another computer language, basically nullifies the FCoA from Apple Computer.
