Go to content Go to navigation Go to search

Remarks to the Copyright / Electronic Rights Committee*

by Normand Tamaro

*Prepared for The Writers’ Union of Canada Committee on Copyright and Electronic Rights, which convened May 7-8, 2001

Table of Contents

When I entitled the paper I presented at the meeting on trade-related aspects of intellectual property rights (TRIPS) at Cancopy headquarters on October 5, 2000, Forget the Wording—It’s the Enforcers You Have to Worry About, what I was trying to highlight was the trend that has been developing over the last ten years whereby the “powers that be” are beginning to see, with the help of the information management industry, the important role copyright plays. However, what has become clear from the TRIPS discussions is that this interest is motivated by purely economic concerns. The issue is whether literary, musical or other artistic works should be seen simply as “content” that should circulate freely from country to country. But, in this context, it is no longer the courts that decide what international trade rules should be followed. Rather, it is certain arbitration forums, primarily focussed on trade issues, which have become the judges of the “copyright” legislation that has been adopted in the various countries. To a great extent, it is now big business, rather than elected institutions, that decides these kinds of questions.

Indeed, in our era when “globalization” has become such a prominent buzzword, you have to be metaphorically blind not to see that international business does not like barriers to free trade, even when such barriers are erected to protect public health. And even when public health concerns require some measure of restraint on free trade, these concerns have to be reinforced by support from important organizations and enormous amounts of publicity before effective restraint can be exercised.

In an effort to grapple with its huge AIDS problem, South Africa has tried to make AIDS medication available to a population that is, by and large, very poor. The South African government attempted to accomplish this by limiting the scope of the patent-based monopolies exercised by the multinational pharmaceutical companies and thereby help the poor have access to AIDS drugs. Although the initial reaction of the big drug companies was to take the matter to court, in the end, they “buckled” to well publicized pressure from various community organizations and other groups on the international scene to accept the situation and come to an arrangement with the South African government. Powerful images of thousands of destroyed lives ultimately made the multinationals yield, despite their main argument that violation of their patent rights would decrease their profits and leave less money available for research. While this particular situation was settled out of court, it is very probable that if the South African courts had not ruled in their favour, the multinationals would have turned for recourse to international arbitration forums, notwithstanding the losses in human life their action could entail.

Coming back to the issue of copyright, we are faced with the question: What type of legislation can restrain the free commercial movement of literary and other artistic work? The sole answer is the moral rights of authors whereby they can ensure that the way their work is disseminated is consistent with their reputation.

On the other hand, in international discussions, creators’ moral rights are ignored in a context were the main focus is simply to facilitate the free movement of “content” by making sure the copyright legislation in individual countries does not impede trade. In other words, creators’ moral rights should be sacrificed in the interests of free trade.

In my previous paper, I referred to the fact that Canadian courts have shown great respect for copyright rights, in keeping with more than a century of jurisprudence in this country that has been based on the premise that copyright is designed to protect authors and the important role their works play in society.

For instance, in keeping with this premise, the Federal Court recently stated:

“The protection of authors and ensuring that they are recompensed for their creative energies and works is an important value in a democratic society in and of itself.”1

An often-ignored truism is the fact that marketers are consistently accorded more importance than creators in a spirit of “the main thing is to make money and it’s just too bad if the creators don’t get much of the pie.”

I would like to use this paper to make the reader aware of a number of salient realities. First, the application of copyright is the same in all parts of Canada; second, authors’ moral rights are also covered by existing legislation either specifically or by texts of broader scope that deal with the reputation of individuals; and, finally, if Canadian lawmakers let authors’ moral rights be superseded by commercial imperatives, then they are, in effect, sacrificing individuals’ reputations for purely monetary considerations. I would now like to illustrate part of what I am trying to say by giving some explanations about the decision on the Desputeaux case that the Court of Appeal rendered on April 18, 2001, since this decision sheds light on some important underlying principles of authors’ rights.

Copyright is universally applicable in Canada

In practice, it is relatively common to hear two versions of the Canadian law on copyright. It is an almost caricatural situation in which, on the one hand, it is said that the Canadian law on copyright reflects a British influence whereby the emphasis is on the ownership and distribution aspects of works to the detriment of the authors’ personal interests—a viewpoint that appeals to marketers and those who objectively support them. On the other hand, it is also said that Canadian law is concerned with protecting authors’ personal interests—a viewpoint that others take for hypersensitivity.

Legally speaking, there is no such thing as two types of copyright in Canada. Copyright is the responsibility of the central government and is similarly applied throughout the country, reflecting the oft-repeated Supreme Court guiding principle that federal acts should be interpreted the same in all Canadian provinces and territories. Moreover, it is a mistake to believe that federal legislation derives inspiration from British jurisprudence alone. In practice, Canadian legislation can look to many other models such as common law, civil law, and international agreements.2

Thus, although we often hear that the Canadian Copyright Act is based on its 1911 British predecessor, you only have to read several of the Canadian act’s provisions in parallel with the Berne Convention to realize our law derives just as much from the latter source, which has also been used many times for interpretive purposes by the various levels of our court system, including the Supreme Court of Canada.3

Thus, our first conclusion is that copyright is the same everywhere in Canada and our Copyright Act derives inspiration from several sources, such as British law and the Berne Convention, with the latter source explicitly acknowledging authors’ moral rights. The national applicability of the Copyright Act means that a decision rendered by the Ontario Court of Appeal is valid for its Quebec counterpart, and that a decision by the Quebec Court of Appeal is similarly valid for its British Columbia counterpart; the same goes for an Alberta Court of Appeal decision in New Brunswick, and so on.

An author’s moral rights are covered in Canada by the Copyright Act, and the rules of comparative law can be used for its interpretation

Long before moral rights were officially acknowledged by Canadian legislation, the Supreme Court of Canada referred to the concept of moral rights, as recognized in the French law, in pointing out that it is incorrect to envisage the sale of a creative work in the same perspective as the sale of an item like lumber. You also have to take into account the creator’s personal interests.4 The Supreme Court also drew on an old source in British law to come to the same conclusion.5

Closer to home, Judge LaForest, prior to his appointment to the Supreme Court, handed down a decision for the New Brunswick Court of Appeal6 that was based on the French concept of moral rights.

It is therefore not surprising to read a succinct comment from the Supreme Court of Canada stating to the effect that presenters cannot make limitless changes to a work of art.7

Crystal clear conclusions can be drawn from the preceding—namely, that moral rights are applicable everywhere in Canada and such moral rights are to be interpreted primarily on the basis of the recognized rules of French law. Indeed, we could just as well say that they should be interpreted on the basis of the recognized rules of German or Spanish law, notwithstanding the statements of certain “purists” that the copyright protection for Canadian authors is derived from British law.

In a decision that was severely criticized for its conclusions but which should also have been appreciated for some of its comments, the Quebec Court of Appeal wrote as follows in commending statements by the trial judge:

[TRANSLATION] “We believe, however, that the moral connection between a work and its author persists even after the work has been transferred. When the legislature grants authors the privilege to suppress ‘any deformation, mutilation or other alteration’ to their works that would ‘harm their honour or reputation,’ it implicitly enshrines the prerogatives of natural law that are associated with the act of intellectual creation itself. What such a moral right means is that authors are entitled to supervise the artistic integrity of their works as they become available to the public. Artists who turn over their works for free of for some monetary consideration lose ownership of their pieces but not of any potential for fame their work might bring them.”8

So, here is ample proof that it is neither being hypersensitive nor using personal interpretation to claim that creators possess certain special prerogatives linked to their creative activity: all creations of the human mind retain a certain connection with their creators, even when the creators transfer their copyright privileges on such works.

In view of the important rights at stake, Parliament, out of respect for its citizens in general and its creators in particular, cannot cede creators’ moral rights

Hélène Desputeaux is a Quebec illustrator whose books have been published around the work. A forerunner in this field in Quebec, she was probably one of the first Quebec illustrators to have works selected by international book fairs. In addition to being a talented illustrator, she was also a trained infant educator with a distinguished career in teaching. Since the late 1970s, like all other creators in her field, she has been attending book fairs to make contact with publishers.

In the late 1980s, she created a series of illustrations for babies that depicted a little character named Caillou. Since then, the Caillou books have sold thousands of copies, not to mention similar quantities of records, CDs and videos, as well as buckets, hats, pyjamas and balls—in a nutshell, all sorts of items that can be used to dress babies or decorate their surroundings.

Despite all this, Hélène Desputeaux has become a creator who genuinely wonders whether it is truly worthwhile to live in Canada in a context where she has to deal with numerous lawsuits against people who take advantage of her work and, without any reference to her, market all sorts of products in a way that she feels has adulterated their original purpose.

In one case in particular that is still before the courts, the publisher involved requested that Hélène Desputeaux be prohibited from attending any book fairs or any other place where the publisher herself was present—what an incredible, not to mention unthinkable, request in a democratic country!

Thus, although some people think she must be a millionaire because of the well over a million Caillou books that have been sold, in actual fact, Hélène Desputeaux has been forced to return to teaching in order to make a living.

Despite the many legal obstacles she is facing, a glimmer of hope has just appeared in a recent decision from the Quebec Court of Appeal.

The facts of the matter are that Hélène Desputeaux had signed a series of overly complex contracts with her publisher. Because the publisher said that her company was a very small operation with few resources, Hélène Desputeaux agreed to design illustrations for much less than the going market rates. Also, both her first and last contracts named her as the author of her illustrations. For reasons that we will not go into here, Hélène Desputeaux had also signed a contract proposed by her publisher in which the publisher was designated as a co-author.

Consequently, after the publisher took action to have the contracts interpreted, the question came before an arbitrator who was assigned to interpret the series of contracts and Hélène Desputeaux’s nightmare began.

As it happened, the arbitrator eventually came to the conclusion, on the basis of the Copyright Act, that Hélène Desputeaux and her publisher were co-authors of Hélène Desputeaux’s books and then proceeded to interpret the contracts with this understanding. In so doing, the arbitrator ignored the last signed contract stating that Hélène Desputeaux was the author of her own illustrations. As a result, various levels of government have continued to subsidize the publisher, even though Hélène Desputeaux has informed them that she has not received all the royalties that are her due. Certainly, Caillou products make money, but look what has happened to the illustrator that created the character in the first place. One marketer even went so far as to tell Hélène Desputeaux that an ethical approach doesn’t make him any money.

Why did Hélène Desputeaux’s nightmare come about? Over and above the arbitrator’s conclusions, she wonders how someone can logically state that certain books are the result of collaboration when that person has never seen the books in question or heard testimony on how they were created. The Superior Court of Quebec found for the arbitrator on the grounds that the parties concerned were co-authors and there was therefore no cause for the Court to intervene in the arbitrator’s decision, which seemed to be sound. Little wonder that Hélène Desputeaux lost all faith in the legal system!

For four years, Hélène Desputeaux lost control over her illustrations and did not even receive the royalties that even her publisher admitted she was owed, but then her case was finally heard by the Quebec Court of Appeal. Although this decision has not an end to the lawsuits—far from it, it has at least restored Hélène Desputeaux’s faith in our court system.

In her presentation to the Court of Appeal, Hélène Desputeaux made two major criticisms of the arbitrator: first, she argued that in not making any factual or judicial representation concerning the question of co-author status, the arbitrator had contravened principles of natural justice by disposing of the question without hearing the parties; and second, she pointed out that the arbitrator had failed to apply the binding provisions of a Quebec act, the Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, which requires that contracts between creators and marketers contain certain specific details.

In due course, the Court of Appeal concluded that the arbitrator had the right to interpret the contracts, but did not have the right to give an opinion on the basis of the rules of copyright as applied to the respective obligations between the parties. Moreover, even if the arbitrator had been able to rule on these aspects, he should have looked at the Caillou books and heard testimony on how they were created. Being an author is a legally protected status. However, no one is an author on their own say-so; one is an author because one has written a book—and this is why it is important to be able to look at the books in question before saying what one thinks about the issues involved.

In this connection, it is worth hearing what the Court had to say, since what it said gives an accounting of important judicial rules that apply in Canada.

[TRANSLATION] “Copyright is recognized as a means of conferring two types of right: a personality right and a financial right.9. The work protected by copyright is, in effect, a product of the author’s personality and a source of economic benefit. A work is not only a product that one wants to sell; it is also the result of an act of personal creation. Authors communicate their thoughts and feelings in such a way that the work becomes a part of their individual personalities and remains so for the rest of their lives.10

“Under the heading Moral Rights, the Canadian Copyright Act protects this highly personal aspect of the copyright function:

Moral Rights

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.

No assignment of moral rights

14.1(2) Moral rights may not be assigned but may be waived in whole or in part.

No waiver by assignment

14.1(3) An assignment of copyright in a work does not by that act alone constitute a waiver of any moral rights.

Nature of right of integrity

28.2(1):  Any act or omission that is contrary to any of the moral rights of the author of a work is, in the absence of consent by the author, an infringement of the moral rights.

“It is generally considered 11 that moral rights consist of four attributes: the right of disclosure, the right of respect for the name (i.e., the right of authorship), the right of respect for the work (i.e., the right of integrity) and, finally, the right of change of mind (i.e., the right of withdrawal) subject to compensating the assignee for any prejudice suffered.

“The Canadian act only recognizes two prerogatives in terms of moral rights: the right to the integrity of the work and the right to authorship. Generally speaking, the right of integrity is infringed when, to the prejudice of the honour or reputation of the author, the work is distorted, mutilated or otherwise modified [section 28.2(1)]. The right of authorship is laconically defined as the right to be associated with a work as its author by name or under a pseudonym.

“The independent character of moral rights allows lawmakers to declare these rights as non-assignable, while providing for their waiver in whole or in part. Authors therefore cannot derive financial benefit in exchange for waiving the protection of their moral rights.

“In this case, the ownership of the appellant’s copyright is one of the issues at stake. Although this could be viewed in terms of protecting the appellant’s proprietary interests12, the question also involves the latter’s personality. With reference to the right of authorship, Claude Colombet mentions that this is a question of ‘a relationship of parenthood and affiliation between a human being and his or her intellectual product.’13 The right to be correctly seen as the author of one’s work, just as the respect for one’s name, has purely moral connotations relating to the dignity and honour of the work’s creator. In this perspective, the question of the origin of copyright is a matter that cannot be adjudicated.

“It is not necessary to decide whether this moral aspect of copyright would be sufficient in the particular circumstances to disqualify the arbitrator’s jurisdiction in this case; yet, the arbitrator’s current decision should, in my opinion, be nullified because of section 37 of the Act which gives the Federal Court concurrent jurisdiction with the provincial courts to hear and determine all proceedings involving application of the act, except those involving criminal conduct.

“The question of the ownership of copyright, just like disputes concerning the scope and validity of this right, must be exclusively submitted to judicial courts because the decisions that stem from such courts are theoretically capable of being enforced against all parties in a reflection of their essential judicial character.

“In this particular case, the arbitrator had ruled that Hélène Desputeaux and Christine L’Heureux were co-authors of a work that had been created collaboratively and that they had assigned all their proprietary interests, except for those contained in the publishing contracts. The arbitrator had searched the Act for the legal grounds for these conclusions. To elucidate the situation in terms of intellectual property, it is necessary, the arbitrator said, to refer to the Copyright Act where section 63 states that no one can claim copyright that does not comply with the Act itself.

“On the basis of the conclusion that the parties were described as co-authors, the arbitrator concluded that section 18.1 of the publishing contracts did not alter the fact that both the illustrator and the narrator had indistinguishably contributed to the creation of the Caillou character. In ruling on the monopoly given to authors by the Act, the author rendered a decision that not only affects the right to ownership of the work, but becomes enforceable on other people involved in the dispute that had been submitted for adjudication.

“…the fact that the parties were recognized as such in written documents enabled the arbitrator to take this fact into consideration, but did not allow him, without exceeding his jurisdiction, to determine whether they were indeed co-authors of a collaborative work within the meaning of the Act.

“It is not the authors of a work who decide what the authorship designation is to be; this question must be decided on the basis of the Act and the facts of the matter. The origin of a work is a question of facts and of degree. In all cases, the courts will want to see the works in question, determine their subject matter and hear testimony from the people involved in creating them before ruling on the existence of the monopoly conferred by the Act.14

“If it were admitted that, in his decision, the arbitrator had only applied the rules of public order contained in the Act, the arbitrator would have made an incorrect application and his decision would have been less valid. Since the arbitrator had received no proof in the form of testimony or documents concerning the work in dispute and the respective involvement of the parties in its creation, he could not, in all fairness, consider the question of how the work was to be characterized within the restricted framework of the contract interpretation function of the arbitration agreement.

“Lastly, the Court should also have invalidated the arbitrator’s decision on the grounds that he had erred in recognizing that the contract in which the parties were recognized as co-authors did not comply with a Quebec law that had been made to protect authors’ interests and which specifies what stipulations contracts in this field should contain.15”

The reader should now be able to understand why we say that if lawmakers allow the moral rights of creators to be left in the hands of international business, they would be implicitly sacrificing the reputation of Canadian creators for commercial profit. But why should the general public have to suffer such damage? There have been many court decisions that have shown that authors create works that make a very substantial contribution to the advancement of knowledge and to the progress of people who become cognizant of these works.

We can only hope that Canadian lawmakers will not leave copyright issues in the hands of business arbitrators.

Notes

1 Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [1997] 2 F.C. 306, 380-381 (F.C.).

2 Q.N.S. Paper Co. v. Chartwell Shipping Ltd. [1989] 2 S.C.R. 683.

3 For an example, see Bishop v. Stevens, [1990] 2 S.C.R. 467.

4 Morang v. Lesueur (1911), 45 S.C.R. 95.

5 Millar v. Taylor, 98 E.R. 201 (C.A., 1769).

6 John Maryon Int’l Ltd. v. New Brunswick Telephone Co. Ltd. (1982), 141 D.L.R. (3rd) 193 (N.B.C.A.), permission to appeal refused with costs [1982] 2 S.C.R. viii.

7 Netupsky v. Dominion Bridge [1972] S.C.R. pp. 378-379

8 Peter Gnass v. La Cité d’Alma et Alma Festival Inc., (unpublished decision) Quebec C.A., No. 09-000032-745, June 30, 1977, Rinfret, Crête and Bernier JJ. (Q.C.A.).

9 C. Colombet. Grands principes du droit d’auteur et des droits voisins dans le mondeMajor Principles of Copyright and Similar Rights in the World. Paris: Litec, 1990, p. 37.

10 M. Goudreau, “Le droit moral de l’auteur au Canada” [“Authors’ Moral Rights in Canada”]. R.G.D., 1994, p. 428.

11 Idem, p. 405 et s.; C. COLOMBET, supra, note 7, p. 37 et s.

12 See B. Toupin, “Moral interests in copyright: the search for their true nature.” 7 C.D.I., 1994-95, p. 154.

13 Supra, note 7, p. 40.

14 See: Éditions Hurtubise HMH Ltée v. CEGEP André-Laurendeau, R.J.Q. 1003 (S.C.), 1989; Dion v. Trottier, J.E. 87-1063 (S.C.); Les productions Avanti Ciné Vidéo inc. v. Favreau, R.J.Q. 1939 (C.A.), 1999.

15 An Act regarding the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, R.S.Q. C. s.32.01.