Simon's Megalomaniacal Legal Resources

Copyright - Moral Rights

. French v. Canada (Royal Canadian Mounted Police)

In French v. Canada (Royal Canadian Mounted Police) (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a claim for 'moral rights':

[8] This appeal concerns the Poppy Puppy, a plush toy created by the appellant, Leonard B. French, in 1998. Essentially, it represents a Dalmatian dog whose spots appear as poppies. The Poppy Puppy is the object of industrial design and copyright registrations in Canada. The industrial design registration, No. 97954, expired in 2013. Mr. French also obtained a design patent and a copyright registration in the United States in relation to the Poppy Puppy.

[9] In 2003, Mr. French sold 150,000 units of the Poppy Puppy (in two sizes) to the respondent, the Royal Canadian Legion (Dominion Command) (the Legion). The Legion is an organization that advocates for veterans and their dependents, and sells Poppy and Legion branded items through its Legion Supply Catalogue and its website.

[10] The Legion made no purchases of the Poppy Puppy from Mr. French after 2003. Many years later, in 2020, Mr. French became aware that the Poppy Puppy was still being advertised in the Legion Supply Catalogue, and with the following statement:

These toys have been [or “This toy has been”] developed by the Legion to act as an aid in teaching children about the Poppy and the Poppy’s role in Remembrance.

[11] The Federal Court, in its decision under appeal (2023 FC 749, per Justice Michael D. Manson), found that this statement appeared in the Legion Supply Catalogue from 2004 until 2021 (see paragraph 52 of the Federal Court’s reasons).

[12] In 2021, Mr. French commenced an action against the Legion in the Federal Court claiming infringement of copyright and moral rights in the Poppy Puppy. In support of his claim of copyright infringement, Mr. French alleged that the Legion had switched to an alternative supplier for the Poppy Puppy. However, the Federal Court found that there was no evidence to support this allegation. It also found that the copyright infringement claim was barred by a limitation period. Accordingly, Mr. French is not pursuing the copyright infringement claim in this appeal.

[13] In support of his allegation of infringement of moral rights, Mr. French cited the statement in the Legion Supply Catalogue reproduced in paragraph 10 above, which he argued was a false claim of authorship of the Poppy Puppy. He argued that the statement infringed his right to be associated with his work as its author or to remain anonymous, as contemplated in subsection 14.1(1) of the Copyright Act.

[14] The Federal Court found it unnecessary to decide the question of moral rights infringement because it found that any acts by the Legion that might otherwise have constituted infringement fell within subsection 64(2) of the Copyright Act, and hence avoided infringement. Despite this finding, the Federal Court was clearly concerned that the statement in question in the Legion Supply Catalogue was problematic. At paragraph 54 of its reasons, it stated:

There is a stark difference between remaining silent as to the authorship of a work and, as the Legion did, falsely claiming authorship of a work. There is no valid basis whatsoever for why the Legion claimed to have developed the Poppy Puppy itself, in place of the Plaintiff, whether the Plaintiff wanted to remain anonymous or not.

....

[29] Nevertheless, we still have the question as to what limits Parliament intended to place on the defence against infringement provided for in subsection 64(2). If the defence was intended to be available in respect of all acts of infringement, then presumably Parliament would not have chosen such detailed and careful wording. The answer to the limits that Parliament intended to place on the defence provided for in subsection 64(2) does not come from that provision. It comes from another provision of the Copyright Act, subsection 14.1(1), which defines an author’s moral rights as follows:

14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

14.1 (1) L’auteur d’une oeuvre a le droit, sous réserve de l’article 28.2, à l’intégrité de l’oeuvre et, à l’égard de tout acte mentionné à l’article 3, le droit, compte tenu des usages raisonnables, d’en revendiquer, même sous pseudonyme, la création, ainsi que le droit à l’anonymat.

[30] Section 28.1 of the Copyright Act defines infringement of moral rights:

28.1 Any act or omission that is contrary to any of the moral rights of the author of a work or of the performer of a performer’s performance is, in the absence of the author’s or performer’s consent, an infringement of those rights.

28.1 Constitue une violation des droits moraux de l’auteur sur son oeuvre ou de l’artiste-interprète sur sa prestation tout fait — acte ou omission — non autorisé et contraire à ceux-ci.

[31] Subsection 14.1(1) contemplates two aspects of moral rights: integrity of the work and authorship. Only the authorship aspect is relevant in this appeal. The text relevant to authorship is limited to a right "“in connection with an act mentioned in section 3”". Section 3 of the Copyright Act defines the rights associated with copyright, including the sole right to produce, reproduce, perform and publish the work, and to authorize any of the foregoing activities. The reference in subsection 14.1(1) to these rights ties an author’s moral rights to copyright in the work in much the same way that subsection 64(2) is tied to a use of copyright. This suggests that the defence to infringement of moral rights provided for in subsection 64(2), including paragraph 64(2)(d), is intended to cover any infringement of the author’s moral rights. For there to be an infringement of moral rights, it must be in connection with the copyright; if there is no act in connection with copyright, there is no infringement of moral rights. Though it is not binding on this Court, I note that a similar view of the law was expressed in Dolmage v. Erskine, 2003 CanLII 8350 (ON SCSM), 23 C.P.R. (4th) 495, [2003] O.J. No. 161 at paras. 77–80 (Ont. Sup. Ct., Sm. Cl. Div.). This interpretation of subsection 64(2) and the scope of moral rights is also consistent with the broad purpose and general idea of subsection 64(2) as described in paragraph 4 above.

[32] Given the limited scope of moral rights contemplated in subsection 14.1(1), I cannot see how the false statement by the Legion concerning authorship could fall outside paragraph 64(2)(d) as Mr. French argues (because it was not associated with a reproduction of the design of the Poppy Puppy), and yet still be an infringement of moral rights. Either paragraph 64(2)(d) benefits the Legion as a defence to infringement of moral rights (if the false statement was associated with a reproduction of the Poppy Puppy), or there was no infringement of moral rights in the first place (because the false statement was not associated with a reproduction of the Poppy Puppy). Either way, the Legion is not liable for infringement of Mr. French’s moral rights. It is not necessary to decide whether a reproduction of the Poppy Puppy actually appeared in the Legion Supply Catalogue.