Copyright

AuthorInternational Law Group

Claude Theberge is a Canadian painter with a well-established international reputation who agreed to assign to a publisher the right to publish reproductions, cards and other stationery products representing some of his works. The Galerie d'Art du Petit Champlain Inc., Galerie d'Art Yves Laroche Inc., Editions Multi-Graph Ltee, Galerie d'Art and Laroche, Denis Inc. later bought cards, photolithographs and posters of some of the artist's works from the publisher. They would then move the images to canvas by lifting the ink that was used in printing a paper poster and moving it onto a canvas surface. Since this process leaves the poster blank, it does not increase the total number of reproductions.

Theberge applied for an injunction, accounting, and damages against the galleries in the Quebec Superior Court. He also had the court issue a writ of seizure before judgment which included all of the canvas-backed reproductions embodying his works. He claimed to have a deemed right of ownership in those items under the Copyright Act.

Section 38(1) of the Act provided that the owner of the copyright in a work may recover possession of all infringing copies of that work. The Act defines an "infringing" work as "any copy, including any colourable copy, made or dealt with in contravention of this Act."

The galleries moved to quash the seizure. The Quebec Superior Court concluded that transferring an authorized paper reproduction onto canvas did not amount to infringement under the Act and ordered that the seizure be quashed. The Court of Appeal, on the other hand, ruled that there had been infringement, upholding the seizure with respect to the canvas-backed reproductions. On further appeal, the Supreme Court allows the appeal in a 4 to 3 vote.

The Canadian Copyright Act grants an artist both "economic" and "moral" rights to his work. The underlying theory of economic rights basically looks upon artistic and literary works as articles of commerce. An artist can assign these rights, leaving him or her a statutory right to claim only those rights he or she has reserved.

Moral rights, on the other hand, are not assignable; they look upon the oeuvre as a projection of the artist's personality, with a dignity worthy of legal protection. A party violates the integrity of the work only by altering it in such a manner as to prejudice the artist's honor or reputation. Moral rights, as limited by the Act, continue to restrict what buyers can do with a work. The...

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