Appeal Court Confirms No Moral Rights Issue Triggered by Sale of Books in Discount Stores

The Québec Court of Appeal recently confirmed a 2021 decision about the sale of books from the series Les Chevaliers d’émeraude in discount stores, something the author had objected to, in a lawsuit alleging (inter alia) that the sale of unsold and unsellable copies violated her moral rights to the integrity of her works.

The decision at issue, 91439 Canada ltée (Éditions de Mortagne) v. Robillard (2022 QCCA 76), essentially refused to contradict the initial judgment as to the issue of moral rights, thereby confirming the sale at rebate of unsold copies by the editor, and then by the rebate retailer Dollarama, did not pose a copyright (moral rights) problem, in this specific case anyway.

Though thousands of copies of the books at issue were sold off in a manner that resulted in left-over copies being essentially sold off (at $2.00) in certain discount stores (from the Dollarama retail chain), the court concludes there simply was insufficient evidence as to the actual condition of the copies that went on sale at Dollarama stores to be able to conclude anything as to the integrity of the works.

In short, though some other author may eventually be able to make such an argument, if a similar case ever gets to court, the plaintiff would have to bring forth much more evidence that the works had been defaced, cut short, deformed or somehow affected by the poor condition of the books at issue, before a Canadian court can entertain the idea that it should be equated to a violation of moral rights.

A Good Little Example of the Importance of Respecting the Moral Rights of Creators, in Canada, Yes Even After Securing a License as to a Work

A Québec lower court recently provided us with a good (albeit modest) example of the problem that moral rights can be for Canadian businesses, when handling third-party creations such a photographs, without first obtaining an adequate waiver from creators. The case at issue was: Lavigne (Valmedia) v. 9061-6632 Québec inc. (2021 QCCQ 13322).

This case stemmed from a relationship between a Québec publication called “Journal Accès” and a free-lance photographer who provided certain of his pictures for reuse in the publication at issue. This case was not concerned with whether the publication could publish the 3 photographs at issue, as the creator had consented to the publishing. The issue rather involved how the photographs were presented, upon actual publication, namely after making certain changes to the photos at issues and, worse yet, without acknowledging who the author was.

For the author, the problems in this case included the removal of his logo from the photos, Access’ failure to credit him for taking the 3 pictures at issue, in addition to the publication making unauthorized changes to the photographs, included adjusting colors and cropping them.

Moral rights are a idiosyncrasy of Canadian copyright law, though technically distinct from “copyrights” per se. In effect, “moral rights” generally allow authors to insist that third parties which handle their creations not modify them to any degree one might consider would affect their integrity in a manner that may be prejudicial to the author. Moral rights also allow creators to insist on being acknowledged as the author, whenever a work is used, unless the parties agreed otherwise.

In the case at issue, the photograph had agreed to the publication of his photos but had NOT agreed to the modification of these photos, nor that they could be published without acknowledging he was the author. This justified the photographer taking Accès to court (in small claims court, but still), to obtain redress further to the alleged violation of his moral rights.

At the end of the day, the judgement does confirm that there really was an issue with moral rights in this case, albeit only as to the issue of identifying the photographer as the creator of the photos at issue, and nothing else. Indeed, thought Accès did modify the photographs to a certain extent, including correcting colors and cropping the images, the judge essentially came to the conclusion that such changes were minor enough to be unlikely to have a real effect on the photographer’s reputation, notwithstanding whatever else he may be claiming.

That said, for the judge, the omission of the photographer’s logo, as originally included on the 3 photographs at issue, coupled with the omission of his name next to the photographs pretty clearly constituted a violation of this moral rights. That being the case, one could apply the rules relating to statutory damages, to come up with a “damages” figure, with or without actual evidence of prejudice from the plaintiff.

In practice, this lead the court to award very modest damages ($400.00). The decision is nevertheless worth mentioning, if only as a example of the continued importance of keeping moral rights in mind, whenever dealing with the use of Canadian works. Even when an organization has first obtained a license (or even an assignment), the issue of moral rights may rear its ugly head later on, unless a full waiver was obtained. Failing that, the full recourses contained in the Copyright Act may be brought to bear for things like modifications or even the simple failure to acknowledge who the original author was.