Substantial Similarity After Cinar Corp v Robinson

Abstract:

In recent years, the Supreme Court of Canada has rendered a series of illuminating and balanced judgments in the area of copyright law. Cinar Corp v Robinson is a departure from this tradition. The court’s endorsement of a holistic approach, and its refusal to consider the use that is made of the borrowing in the alleged infringing work, appears to strengthen substantial similarity doctrine in favour of copyright holders; however, the impact of these rulings will likely turn on how lower courts interpret the ambiguities of the judgment. On one view, copyright protections will be bolstered even more by expanding the enquiry to include latent or structural elements of a work without in any way limiting the scope of this broader analysis, as well as the failure to provide any meaningful guidance on making substantial similarity comparisons. On another view, the court’s silence on key issues, together with the ambiguity in how it executed the substantial similarity assessment, provides an opportunity for lower courts to refine the substantial similarity analysis in a more balanced fashion.