In Cinar Corporation v Robinson, The Supreme Court of Canada ruled that a copyright protected work can be infringed not only by literal reproduction, but also by copying substantial features from a work. In the decision, which awarded damages to the author of a children’s TV show, the court clarified the test for substantial reproduction… or did it?
The case at Bar
The facts of Cinar Corporation v Robinson are straightforward. Mr. Robinson was the author of a children’s TV show and shared his creation with a number of TV studios in hopes of having his show produced. Without licensing or purchasing rights to the show from the author, one of these studios developed its own similar show after the meeting. Robinson then sued for copyright infringement, claiming the studio reproduced his work not literally, but a sufficiently substantial portion to infringe his copyright.
In order to rule on infringement, the court had to first decide what constitutes reproduction of a substantial portion of a work, as protected by the Copyright Act.
Statutory Protection from Reproduction
Copyright is a bundle of rights that affords authors of original works legal protection for those works. One goal of copyright protection is to ensure the economic interests of the author, while balancing those against the public interest. To achieve this, any reproduction of a work, or a substantial portion of it may only be done by the author. The Canadian Copyright Act defines copyright as follows:
3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof... (emphasis added)
While the statute unambiguously protects reproduction of an entire work, there is no legislative guidance on what constitutes a substantial part. As such, courts have been left to interpret this legislative phrasing.
One of the original authorities on this area of Canadian copyright law is Ladbroke Football Ltd v William Hill Football Ltd  1 WLR 273, an English case where reproducing the arrangement of football games on a betting card was found to be copyright infringement. In Ladbroke, the court stated it was not the quantity, but the quality of reproduction which would decide if it was a substantial part. Later cases dealt with whether this principle could be extended to not only the literal copying of parts of a work, but also its underlying characters and themes. There are dangers associated with extending protection beyond the expression of a work as copyright protection is not afforded to abstract ideas that exist firmly in the public domain. As such, there are two questions that courts must be concerned with: how far, if at all, does copyright protection extend beyond the expression of a work and into the underlying ideas; and, if copyright can protect the underlying ideas, how many of those ideas would have to be reproduced to constitute a substantial part of a work?
Analysis in Cinar
In Cinar, the Court addressed both issues together, and reiterated that the overall test for substantial reproduction is to consider the work at issue and determine if it contains a substantial portion of the claimant’s work. The appellant TV studio argued that the correct approach is to first determine which parts of the first work were original, exclude any elements not protected by copyright, and then compare what was reproduced to the protected remainder. This “abstraction-filtration-comparison” model has been previously used in the United States, and discussed by Canadian courts in Delrina Corp v Triolet Systems Inc. In Cinar, the Court did not preclude using the abstraction-filtration-comparison approach when appropriate, but found it inappropriate where a work does not lend itself to a reductive analysis, as the Court concluded was such in the case of a TV show. The Court endorsed the trial judge’s approach of a holistic analysis, which involved considering the two works in their entirety. This led the Court to conclude there was sufficiently substantial reproduction to constitute infringement.
Was the Test Clarified?
At its conclusion, the analysis on appeal in Cinar does not largely change the law on reproduction of a substantial part. The Court left open the door for the possibility of other courts to use the abstraction-filtration-comparison approach, as opposed to a qualitative/holistic comparison that it had applied. One suggestion given by the Court was to avoid using the abstraction-filtration-comparison model when works do not lend themselves to reduction. Computer software does not easily lend itself to a reductive analysis, but it seems unclear from the Court’s reasoning what makes it so, as opposed to a TV show. Perhaps trends will emerge that will provide assistance on determining the appropriate model for substantiality analysis; it may be that certain classes of works will call for different approaches. Given the relative rarity of non-literal copyright infringement cases, it is likely to take a very long time before any clear patterns emerge.
Alex Buonassisi is an IPilogue Editor and a JD Candidate at the University of British Columbia.