Par Sarah D. Pinsonnault
Under s. 13(3) of the Copyright Act, RSC 1985, c. C-42 (“Copyright Act”), employers own the copyright in the works produced by their employees during the course of employment. While there may exist certain exceptions to this rule, in Lachance c. Productions Marie Eykel inc., 2014 QCCA 158, we learn that the degree of creativity used during the creation of the works holds no place when determining who owns the copyright therein.
By way of background, Passe-Partout is a well-known children’s television series in Québec that aired over 283 episodes between 1977 and 1998. It was produced by Radio-Québec, which later became Télé-Québec. In 1972, the Appellant became project leader of a group responsible for creating and developing this television series. He remained there until 1993, at which point he took his retirement. It bears noting that, at no point during this tenure, did the Appellant claim any rights in relation to this television series.
In 2006, Télé-Québec granted the Respondents a licence for the commercialisation of the first 125 episodes of Passe-Partout in DVD format. As part of this agreement, Télé-Québec guaranteed the Respondents that it owned all of the rights in the television series and that it was the sole legal entity authorised to enter into operating licences with third parties with respect to Passe-Partout.
The DVD release proved to be quite a success and it was not until 2007 that the Appellant claimed, for the first time, his title as copyright owner of the works.
In first instance before the trial judge, Passe-Partout was deemed an original work pursuant to the Copyright Act and the Appellant was recognised, along with others, as being one of its authors. However, given that the television series was created throughout the course of employment, the trial judge concluded that, as set out in s. 13(3) of the Copyright Act, the employer was the owner of the copyright therein.
The Court of Appeal concurred with this decision and it was determined that the Appellant could only claim moral rights in the work, thus barring any claim for economic rights. The Court of Appeal found that the trial judge was right in judging that the criteria needed for the application of s. 13(3) of the Copyright Act were met in the case at bar, that being:
(1) The work was made in the course of employment pursuant to a contract of service or apprenticeship;
(2) The work was created while working;
(3) The absence of any agreement to the contrary.
The attorney representing the Appellant nevertheless raised what appears to have been an eloquent plea for change in the interpretation of the criteria needed for s. 13(3) of the Copyright Act. Based on different sources of comparative law, it was argued that an element of creativity should be required in order for copyright to apply and that employees, such as his client, should hold certain economic rights in the works they produce.
This argument was regrettably not addressed in great detail by the Court of Appeal. It was simply concluded that the application of s. 13(3) of the Copyright Act was devoid of any connotation of creativity:
“ Enfin, contrairement à ce que soutient l’appelant, l’application de cet article n’est pas atténuée par le degré de créativité dont il a pu faire preuve dans l’accomplissement de ses tâches, non plus que par la destination de l’œuvre. Bref, la créativité ou la destination ne figure pas parmi les conditions nécessaires à l’application de l’article 13(3).
 En s’appuyant sur certaines sources de droit comparé, dont un texte de loi français, l’avocat de l’appelant a soutenu avec éloquence qu’il y a lieu d’infléchir l’interprétation de la LDA afin que soient reconnus certains droits économiques à un auteur qui, en tant qu’employé, se trouve dans une situation semblable à celle de son client. Bien que séduisante à plus d’un titre, et peut-être de nature à susciter une intervention législative, cette argumentation ne résiste pas à l’analyse qu’imposent les dispositions pertinentes de la loi telles qu’elles existent dans leur état actuel. ”
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