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Intellectual property Copyright Act, R.S.C. 1985, c. C 42 Infringement Evidence Steps and tests for determining whether substantial part of work reproduced within meaning of ss. 2 and 3 of Copyright Act Admissibility of expert’s testimony concerning reproduction of substantial part of work within meaning of ss. 2 and 3 of Copyright Act Legal steps for assessing whether substantial part of work reproduced Whether trial judge complied with first step, namely defining work at issue In application of second step, namely comparing two works, whether law allows court to rely on expert’s testimony to identify similarities not detected by average observer Whether, at second step of comparing two works, law requires that all similarities be taken into account Specifically, whether similarities relating to general character traits specific to genre, similarities in public domain and similarities based on idea must be disregarded Whether law requires that differences between two works be taken into account at second step.

In 1982, Claude Robinson, an artist, drew the first sketches of the characters for a proposed children’s television services to be called Robinson Curiosity. A few years later, in 1985, the Copyright Office issued a certificate of registration for Robinson Curiosity listing Mr. Robinson as the author of the work and Les Productions Nilem inc. (“Nilem”), a corporation of which he was the sole shareholder, as the owner of the work.

Starting in 1985, Mr. Robinson and Nilem stepped up their efforts for the promotion and production of Robinson Curiosity, including with Cinar Corporation/Cinar Films Inc., but those efforts were unsuccessful for nearly 10 years. In September 1995, however, the first episode of Robinson Sucroe, a work produced by Cinar Corporation/Cinar Films Inc., France Animation S.A. and Ravensburger Film + TV GmbH, was broadcast in Quebec.

Since Mr. Robinson and Nilem found similarities between their work, Robinson Curiosity, and the work produced as Robinson Sucroe, they brought an infringement action in the Quebec Superior Court, which allowed the action in part. On appeal, the Quebec Court of Appeal upheld in part the Superior Court’s findings concerning the infringers but reduced several aspects of the monetary award made at trial, mainly on the basis of revised calculations of the profits and punitive damages.