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Copyright - Infringment

. Pyrrha Design Inc. v. Plum and Posey Inc.

In Pyrrha Design Inc. v. Plum and Posey Inc. (Fed CA, 2021) the Federal Court of Appeal considered basics of copyright infringment and the doctrine of originality:
[38] In Phillip Morris Products SA v. Marlboro Canada Ltd., 2010 FC 1099, 374 F.T.R. 213 (Philip Morris FC) (affirmed on appeal on the issue of copyright 2012 FCA 201 (Philip Morris FCA), 434 N.R. 207, leave to appeal refused [2012] SCCA No. 413, [2012] C.S.C.R. No. 413), the Federal Court held, at paragraph 315, that in order to establish infringement, two essential elements must be established:
First, there must be a sufficient similarity between the works in question such that the allegedly infringing work could be considered a copy or reproduction of the protected work. In other words, there must be proof of substantial similarity between the original work and the allegedly infringing work. Whether the Defendants have infringed copyright by taking a substantial part of a copyrighted work is essentially a question of fact. Second, the Plaintiffs must prove that the Defendants had access to the work protected by copyright; that is to say, that the copyrighted work was the source from which the allegedly infringing work was derived. This is sometimes referred to as a “causal connection”.
[39] In Cinar Corporation, cited above, the Supreme Court considered what is required to demonstrate that a "“substantial part”" of a work has been reproduced. At paragraph 26 the Court held:
A substantial part of a work is a flexible notion. It is a matter of fact and degree. “Whether a part is substantial must be decided by its quality rather than its quantity”: Ladbroke (Football), Ltd. v. William Hill (Football), Ltd., [1964] 1 All E.R. 465 (H.L.), at p. 481, per Lord Pearce. What constitutes a substantial part is determined in relation to the originality of the work that warrants the protection of the Copyright Act. As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author’s skill and judgment expressed therein.
[40] A reviewing court is required to engage "“in a qualitative and holistic assessment of the similarities between the works”" (Cinar Corporation, paragraph 41). The perspective of a layperson was said in Cinar Corporation to be a "“useful”" perspective, however the question of whether a substantial part of a plaintiff’s work has been copied "“should be answered from the perspective of a person whose senses and knowledge allow him or her to fully assess and appreciate all relevant aspects — patent and latent — of the works at issue. In some cases, it may be necessary to go beyond the perspective of a lay person… and to call upon an expert to place the trial judge in the shoes of “someone reasonably versed in the relevant art or technology””" (Cinar Corporation, paragraph 51).


[62] In Robertson v. Thomson Corp., 2006 SCC 43, [2006] 2 S.C.R 363, the Supreme Court wrote at paragraph 81:
In CCH, originality was held to encompass the exercise of “skill and judgment” by an author: see para. 16. Every copyrighted work — individual or collective — is the product of the exercise of skill and judgment. In determining, therefore, whether a work like a newspaper, or “any substantial part thereof”, has been reproduced, what will be determinative is the extent to which the item said to be a reproduction contains within it, in qualitative rather than quantitative terms, a substantial part of the skill and judgment exercised by the creator of the work: see Édutile Inc. v. Automobile Protection Assn., 2000 CanLII 17129 (FCA), [2000] 4 F.C. 195 (C.A.), at para. 22.

(Emphasis added)


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