|Théberge v Galerie d'Art du Petit Champlain Inc|
|Hearing: October 11, 2001 |
Judgment: March 28, 2002
|Full case name||Galerie d'Art du Petit Champlain Inc., Galerie d'Art Yves Laroche Inc., Éditions Multi‑Graph Ltée, Galerie d’Art Laroche, Denis Inc. and Serge Rosa v Claude Théberge|
|Citations|| 2 S.C.R. 336, 2002 SCC 34|
|Prior history||Appeal from the Quebec Court of Appeal, 9 C.P.R. (4th) 259|
|Ruling||Appeal allowed. Order of the Quebec Court of Appeal vacated.|
|A transfer of a work from one medium to another that does not create a new copy does not infringe copyright|
|Chief Justice: Beverley McLachlin |
Puisne Justices: Claire L'Heureux-Dubé, Charles Gonthier, Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie, Louise Arbour, Louis LeBel
|Majority||Binnie J., joined by McLachlin C.J. Iacobucci and Major JJ.|
|Dissent||Gonthier J., joined by L'Heureux-Dubé and LeBel JJ.|
|Bastarache and Arbour JJ. took no part in the consideration or decision of the case.|
Théberge v Galerie d'Art du Petit Champlain Inc  2 S.C.R. 336 , 2002 SCC 34 is one of the Supreme Court of Canada's leading cases on copyright law. This case interprets the meaning of "reproduction" within the Copyright Act of Canada, and touches on the moral rights to copyrighted material and how much control an author has over his work once it is in the hands of a third party.
The Supreme Court of Canada is the highest court of Canada, the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. Its decisions are the ultimate expression and application of Canadian law and binding upon all lower courts of Canada, except to the extent that they are overridden or otherwise made ineffective by an Act of Parliament or the Act of a provincial legislative assembly pursuant to section 33 of the Canadian Charter of Rights and Freedoms.
The Copyright Act of Canada is the federal statute governing copyright law in Canada. It is jointly administered by the Department of Industry Canada and the Department of Canadian Heritage. The Copyright Act was first passed in 1921 and substantially amended in 1988 and 1997. Several attempts were made between 2005 and 2011 to amend the Act, but each of the bills failed to pass due to political opposition. In 2011, with a majority in the House of Commons, the Conservative Party introduced Bill C-11, titled the Copyright Modernization Act. Bill C-11 was passed and received Royal Assent on June 29, 2012.
The respondent, Claude Théberge, a painter with a well-established international reputation, assigned by way of contract the right to publish reproductions, cards and other stationery products representing certain of his works to a publisher. The appellant art gallery, Galerie d'Art du Petit Champlain, purchased cards, photo-lithographs and posters embodying various of the artist's works from the publisher, and then transferred the images to canvas. Galerie d'Art du Petit Champlain bought the rights to make a limited number of paper copies of Théberge's paintings in order to create posters from them. The process used involved lifting the ink that was used in printing a paper poster and transferring it entirely onto a canvas, leaving the poster blank and keeping the number of reproductions constant. Théberge applied for an injunction, an accounting of profits, and damages against the appellants at the Quebec Superior Court.The case was appealed to the Court of Appeal for Quebec and ultimately to the Supreme Court of Canada.
The Superior Court of Quebec is the highest trial Court in the Province of Quebec, Canada. It consists of 157 judges who are appointed by the federal government. Appeals from this Court are taken to the Quebec Court of Appeal.
The issues before the Supreme Court were whether transferring the work from paper to canvas violated the Copyright Act by creating an unauthorized reproduction, and to what extent does an artist have control over the reproduction of their work. The resolution of these issues would determine the pre-judgment authority the author has to seize the works.
Binnie J, with McLachlin CJ, Iacobucci, and Major JJ concurring, held that there was no reproduction involved because no new copies were made. There was only the transfer of ink, which was considered modification, not a copy. The respondent is responsible to find authority for the seizure in the Code of Civil Procedure read in the light of the Copyright Act. If he can not do so then the seizure was wrongful and all loss of the appellant's sales and reputation should be fixed. The Court found the artist's legitimate economic interests were not changed by the transferring of the ink from paper to canvas. It also found that if they considered the creation of the canvas as a "reproduction" despite the lack of multiplication, they would be reading in the American right of derivative works, a concept without statutory basis in Canadian copyright law.
The Court criticized the plaintiff for trying to make a moral argument where the issue is one of economics when there is a claim of copyright infringement as opposed to moral right infringement. In a claim of moral rights the plaintiff could have sued on the modification of the art, but no argument was made by the party. The Court also ruled that pre-judgment seizure is not available to an artist who claims a violation of his moral rights.
In the end the court felt that it should not put too much power in the hands of the artist over the purchaser of the art, as it would overly limit the ability of private property owners to do what they will with their possessions.
Copyright in this country is creature of statute and the rights and remedies it provides are exhaustive:
This is not to say that Canadian copyright law lives in splendid isolation from the rest of the world. Canada has adhered to the Berne Convention for the Protection of Literary and Artistic Works (1886) and subsequent revisions and additions, and other international treaties on the subject including the Universal Copyright Convention (1952), Can. T.S. 1962 No. 12.
In reaching his conclusion, Binnie J. made several statements regarding the purpose and nature of Copyright law in which he characterized it as a balance between interests.
He characterizes the use of Copyright as a limited economic right:
Significantly, as well, he acknowledges the need for a public domain:
L'Heureux-Dubé, Gonthier and LeBel JJ dissented. They interpreted the purpose of the Copyright Act as a means of protecting the rights of artists, which would require a broader interpretation of "reproduction". In their definition, "reproduction" did not necessarily encompass making additional copies. Instead, a new "fixation" (a new physical structure or "production" of the work, such as the "re-fixation" of the ink onto canvas) constituted a "reproduction".
Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work allows the author to object to alteration, distortion, or mutilation of the work that is "prejudicial to the author's honor or reputation". Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.
CCH Canadian Ltd v Law Society of Upper Canada,  1 SCR 339, 2004 SCC 13 is a landmark Supreme Court of Canada case that established the threshold of originality and the bounds of fair dealing in Canadian copyright law. A group of publishers sued the Law Society of Upper Canada for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.
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In copyright law, a derivative work is an expressive creation that includes major copyright-protected elements of an original, previously created first work. The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.
The copyright law of the United States is intended to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death. In the United States, any music composed before January 1, 1923, is generally considered public domain.
Théberge or Theberge may refer to:
It is an infringement in Canadian copyright law for any person to do, without the consent of the owner of the copyright, anything that only the copyright owner has a right to do as covered in the Copyright Act..
Fair dealing is a statutory exception to copyright infringement, and is also referred to as a user's right. According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users. To qualify under the fair dealing exception, the dealing must be for a purpose enumerated in sections 29, 29.1 or 29.2 of the Copyright Act of Canada, and the dealing must be considered fair as per the criteria established by the Supreme Court of Canada.
Canadian intellectual property law governs the regulation of the exploitation of intellectual property in Canada. Creators of intellectual property gain rights either by statute or by the common law. Intellectual property is governed both by provincial and federal jurisdiction, although most legislation and judicial activity occur at the federal level.
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