| Théberge v. Galerie d'Art du Petit Champlain Inc. | |||||||||
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| Hearing: October 11, 2001 Judgment: March 28, 2002 |
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Chief Justice: Beverley McLachlin |
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Majority by: Binnie J. |
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Théberge v. Galerie d'Art du Petit Champlain Inc. [2002] 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.
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Galerie d'Art du Petit Champlain bought the rights to make a limited number of paper copies of Mr. Théberge's paintings in order to create posters from them. Through a chemical process the gallery was able to lift the ink off the paper and put it onto a canvas. This transferring destroyed the paper version in the process. The gallery then sold the paintings for a substantial premium over the cost of the paper posters.
Théberge had a bailiff seize the paintings as violations of his copyright and his moral rights. By the time the case reached the Supreme Court, Théberge had yet to proceed with his case on the merits.
The issues before the 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 C.J. Iacobucci, and Major JJ. concurring, held that there was no reproduction involved as no new copies were made. There was only the transfer of ink which is considered a modification rather than a copy. 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.
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. (in dissent) took an artist-oriented approach. They interpreted the purpose of the copyright act as a means of protecting the rights of artists, and as such must take a broader interpretation of "reproduction". In their definition "reproduction" does not necessarily involve making additional copies, rather a "reproduction" was merely a "fixation". That is, a new physical structure or "production" of the work.