Case information

Intellectual property ? Copyright ? Licence ? Whether Court of Appeal erred in law in giving restrictive definition of “work of joint authorship” under s. 2 of Copyright Act and wrongly determined that that term does not include software ? Whether Court of Appeal erred in substituting its assessment of evidence for that of judge, and whether it erred in law (i) as regards nature and scope of “consent” required to find that authorization to do act in context of development of joint project and during negotiation of complete written agreement amounts to grant of [TRANSLATION] “non exclusive licence” for all reserved acts, (ii) in holding that owner did not formalize writing as required by Act, which is essential condition for granting copyright, (iii) in holding that “non exclusive licence” makes it possible, without writing, to do everything reserved for owner with respect to all of owner’s protected works for indefinite period — including new software — and without territory, language and financial conditions being specified, and to grant those rights to third parties without owner’s participation, and (iv) in holding, in absence of written agreement, that licence was not exclusive, without considering parties’ intention and factual reality of exploitation of works ? Whether Court of Appeal erred in law (i) in not giving effect to notices validly given in 2011 to terminate any authorization, (ii) in finding that “reasonable time” for ceasing use instead began on date of trial judgment, (iii) such that it incorrectly set aside award of material and exemplary damages for nearly seven years of use without entitlement and without agreement on payment ? Copyright Act, R.S.C. 1985, c. C 42, ss. 2, 13(4) and 27(1).

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The applicant, Les Éditions Québec Amérique inc. (QA), designed and published Le Visuel, a thematic dictionary in which words can be found based on an illustration or theme. An electronic version, Le Visuel multimédia, was launched in 1996. The respondent, Druide informatique inc., designed the Antidote writing assistance software launched in 1996. In 1998, the parties entered into an oral agreement to create an electronic bridge between their respective products to promote them to users of each other’s software. In 2004, the parties launched a new version of their respective software and agreed to change the electronic bridge by incorporating Le Visuel’s index into the Antidote software. Between 2005 and 2009, the parties continued to work together to integrate Le Visuel into the Antidote software, and Druide designed and developed two interfaces called Le Visuel nano and Le Visuel intégré at its own expense. In 2009, the two interfaces were deployed when the new version of Antidote HD was launched. Le Visuel nano was automatically incorporated into Antidote HD, where the illustrations from Le Visuel multimédia were presented in a larger format to encourage Antidote users to purchase it. Le Visuel intégré was offered and sold separately through Antidote and incorporated QA’s work in full. The parties agreed orally that they would share the revenues from the sale of Le Visuel intégré equally. In 2010 and 2011, the parties discussed but did not enter into a written agreement concerning the use of QA’s works by Druide. In June 2011, QA sent a notice of revocation of authorization in which it ended any non exclusive copyright authorization that may have been granted to Druide and ordered Druide to remove its works from the Antidote HD software. The revocation date was postponed to January 2012 because of continuing discussions between the parties. In August 2012, QA filed a motion for an order requiring Druide to cease all use of its works immediately. Druide filed a cross demand. The Superior Court granted the motion in part and dismissed the cross demand. The Court of Appeal allowed the appeal.