Category Archives: Intellectual Property

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

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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.

Major Update of the Canadian Government Login Process for Businesses

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The Canadian government finally seems to have realized allowing individual agencies to create and manage credentials individually, for each business that may want to interact with governmental online services, simply does not make sense, including from a cybersecurity standpoint. Starting soon, users who want to login will have to go through a whole new system.

CIPO (the Canadian Intellectual Property Office) recently started offering information and training on the upcoming changes, so as to allow businesses to make the transition, including those that may need to interact with I.P.-related services, for example as to patents, trademarks or industrial designs.

The new system being deployed by the Canadian government will do away with ISED, the former system whereby businesses could create user IDs to login and interact with governmental online services.

The new identification process will involve each business creating an ID (called the GCKey) to which authorized individual users will have to be linked. The system will also require individuals to go through identification and authentication, to make sure they are the actual individual they purport to be and that they are indeed authorized by the organization at issue. Though you may think this was already the case, it was not.

One offshoot of this new method of allowing access by users on behalf of their organization is that it will do away with the sharing of credentials. Once implemented, it will no longer be possible for all users of an organization to “share” a single user ID (account), as was so frequently until now, for purposes of accessing governmental online services.

The new system will also force all user to use 2-step verification to login into their online account, also something most large organizations have been requiring for a while now. The actual implementation of the changes start March 28.

Confirmation on Appeal of the Pyrrha Copyright Decision Involving Alleged Copying of Jewelry Design

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The Federal Court of Appeal (the “FCA”) recently confirmed a first instance decision from 2019 and relating the alleged copying of certain pieces of jewelry. The decision at issue is Pyrrha Design Inc. v. Plum and Posey Inc. (2022 FCA 7).

As one may remember, the original decision involved a dispute between competing designers of jewelry who both produced and sold certain pieces based on antique wax seals. Though there was unmistakable resemblances between the products at issue, the Federal Court held this did not amount to copying for the purposes of copyright law. Indeed, the concept of the jewelry at issue being the same, did not amount to actually copying works protected by copyright. Given the exact work by the original designer has not been copied (as opposed to the concept of such pieces, for example), no copyright infringement occurred in this case.

On appeal, the FCA validated the reasoning originally applied by the Federal Court, including how it analyzed the issue of the resemblance between the works at issue and whether there had been reproduction of a substantial portion of the original works. As held in the 2019 decision, the FCA decision confirms that, in order to ascertain whether there was infringement, it is appropriate to adopt  a two-step process, whereby one first determines whether there is substantial similarity between the works at issue, then ascertaining whether this resemblance actually relates to portions of the original works that were the fruit of the original artist’s actual contribution to the end result, meaning those that resulted from the exercise of his/her creativity, choices and judgment. In other words, though two works may look like one-another, if the overlap actually relates to pre-existing elements (in the public domain, as in this case) legally we should conclude there was no real copying and, thus, no infringement.

In so doing, the FCA confirmed it is preferable to adopt a holistic approach (by looking at the works at issue as a whole), by contrast to seeking to compare discreet elements/components side-by-side.

Here, one should note that the original artist’s treatment of the antique seals to turn them into jewelry was limited to slight changes to their borders and applying certain effects like oxidation and polishing. As such, these aspects were what his creative efforts resulted in, not the whole of the piece of jewelry, as such. Under such circumstances, the FCA confirms the scope of protection should be limited, as most of what constitutes the works at issue did not result from the exercise of the author’s skill and judgment.

This decision is also a good reminder that copyright law does not deal in concepts, methods or ideas. Having an idea to use antique wax seals as a basis for pieces of jewelry may be neat, but it is not something copyright law protects. The concrete expression of that idea, in designing actual pieces -yes, but not the idea itself. Though a competitor may have “stolen your idea”, it does not mean that we can necessarily do something about it, especially not through copyright law.