In the recent case of Cinar Corporation v Robinson, the Supreme Court of Canada considered the scope of copyright in a children’s television show. The defendants’ show, Robinson Sucroë, was, frankly, so similar in its essential elements to that developed by plaintiff Claude Robinson that few people, if any, were surprised by the Court’s finding of infringement. More surprising was that the Court took the opportunity to make, in passing, some important and groundbreaking pronouncements about the proper approach to establishing infringement—of musical works. This aspect of the judgment, in our opinion, struck exactly the right note. Unfortunately the timing was a little off; the judgment was released only a day or two after our recent chapter, Out of Tune: Why Copyright Law Needs Music Lessons, was sent to the presses. In this post, we take the opportunity to reflect on how the Court’s statement in Robinson bears on the arguments we advanced in the chapter. We like to think that our chapter, together with the passage in Robinson, strikes a consonant—if arpeggiated—chord.
Let’s begin with the chapter, which appears in the new Irwin Law book Intellectual Property for the 21st Century: Interdisciplinary Approaches, edited by by the wonderful Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur and Teresa Scassa, and available online under Creative Commons license. Although, of course, we recommend reading the full article (a portion of which was recently featured on Slaw.ca as the Thursday Thinkpiece), a summary of key ideas should be helpful here. Broadly, we take issue with the way that music is treated in copyright infringement actions, adopting the view that music’s features and compositional processes are sufficiently different from most other categories of copyrighted works so as to warrant somewhat different treatment in evaluating claims of infringement. We argue that musical culture depends on the borrowing and reworking of previous musical ideas in referential ways, such that a strict application of copyright’s substantial similarity test may well chill musical creativity, undermining copyright’s objective of encouraging the creation and dissemination of such works. We argue that the “reasonable listener” test, which uses a musical layperson’s ears as the determiner of substantial copying, is an odd way of going about determining whether a substantial portion of a musical work has been copied. Following J Michael Keyes, we point out that this little-known sibling of tort law’s “reasonable person” presents more problems for adjudication of copyright infringement than he or she solves. We argue, with the use of a musical recording, that the ear alone can be misled, and, by a showcase composition replete with instances of potential but imperceptible infringement, we challenge the assumption that effective infringement analysis best relies on the aural experience of music. On the whole, we (gently) accuse most courts of being insufficiently aware of the ways musical works differ from cookbooks and computer programs, and of approaching the analysis of infringement in music in both legally and musically unsatisfactory ways.
Amongst our proposed solutions, we recommend a greater use of musicological experts to assist the court in moving beyond the average person’s musical perception and understanding. Musicologists applying the principles of music theory―the study of the structure of music―can provide useful insights into the world of music, helping courts to separate common musical devices and standard compositional techniques from more original patterns that may merit protection. We demonstrate how a music theoretical approach can thus assist the court in rendering a more musically just decision. In particular, such an approach can help courts to resist the mistaken assumption that every similarity recognizable to the layperson is probative of unlawful copying.
So let us now look more closely at the Court’s judgment in Robinson. After affirming (as expected) that the “perspective of a lay person in the intended audience for the works at issue is a useful one” (para 51) in determining whether a substantial part of a plaintiff’s work has been copied, the Supreme Court then nuances this view by that adding that, “[i]n some cases, it may be necessary to go beyond the perspective of a lay person in the intended audience for the work, and to call upon an expert” (ibid.). To illustrate such a scenario, the court chose this specific example:
 To take an example, two pieces of classical music may, to the untrained ear, sound different, perhaps because they are played on different instruments, or at different tempos. An expert musician, however, might see similarities suggesting a substantial part has been copied ― the same key signature, the same arrangement of the notes in recurring passages, or a recurrent and unusual harmonic chord. It will be for the judge to determine whether the similarities establish copying of a substantial part, to be sure. But in making that determination, the judge may need to consider not only how the work sounds to the lay person in the intended audience, but also structural similarities that only an expert can detect.
We were thrilled to see the Court endorse a strong music-theoretical approach to deciphering the language of music. The Court supposes here that analyzing harmonies advances a clearer picture of musical composition, and that most people are unable to satisfactorily pursue such analyses. While the Court’s example, like our own, speaks to the possibility of substantial similarities going unheeded by the layperson, it is at least equally true that a layperson may perceive similarities that a court, with the assistance of a musical expert, should dismiss as insubstantial or irrelevant. In short, the Court recognizes the limits of untrained ears as reasonable arbiters of substantial copying, and hints toward endorsing many of our article’s central claims about why music is special and how music theory offers useful tools to assist in the adjudication of music infringement cases. Moreover, the Court’s acknowledgement of a role for expertise in the determination of substantial similarity may reduce the risk of potential overreaching by copyright owners calling for a “holistic assessment” of similarities between works in the wake of Robinson.
It is interesting to consider how this particular example may have come about, given the rather technical musical language it features. No doubt the well-reasoned intervenor submission of Music Canada (prepared by Osgoode adjunct professors Sookman, Mason and Glover) played an important role. But it is also noteworthy that, unlike many other courts, the Supreme Court boasts uncommonly significant musical expertise on its bench. For example, prior to studying law, Justice Thomas Cromwell graduated from Queen’s University with a bachelor’s degree in music, and for many years thereafter took brief moments away from his legal career to organize summer church music seminars and organ performance competitions. Justice Abella is also an experienced musician, having received a diploma in classical piano performance from the Royal Conservatory of Music in her youth. Can we assume that paragraph 52 is the voice of musical experience speaking?
However it came about, we were pleased to see the Court address the specific challenges of determining substantial copying in relation to musical works. Copyright law may still be in need of some music lessons, but it looks like the Justices of Canada’s Supreme Court have already taken a few; insofar as this important statement by the Court in Robinson is concerned, we think they struck the right note.
Dr. Carys Craig is an Associate Professor at Osgoode Hall Law School. Guillaume Laroche received his LLM from Osgoode Hall Law School in October 2012.
 As determined from reading his Supreme Court biography together with http://www.dal.ca/academics/convocation/ceremonies/honorary_degree_recipients/hon_degree_2010/hon_justice_cromwell.html and http://sicm.ca/osborne/history.html