“Robinson Curiosity”

• 1. It is important to not conduct a substantiality analysis by dealing with the copied features piecemeal. The “abstraction” of a work to the essence of what makes it original and the exclusion of non-protectable elements at the outset of the analysis would prevent a truly holistic assessment. This approach focuses unduly on whether each of the parts of the work is individually original and protected by copyright law. Rather, a cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial part of the author’s skill and judgment expressed in his work as a whole.

• 2. The question of whether there has been substantial copying focuses on whether the copied features constitute a substantial part of the plaintiff’s work – not whether they amount to a substantial part of the defendant’s work. The alteration of copied features or their integration into a work that is notably different from the plaintiff’s work does not necessarily preclude a claim that a substantial part of the work has been copied.

• 3. Disgorgement under Sec. 35 of the Copyright Act goes no further than is necessary to prevent each individual defendant from retaining a wrongful gain. Defendants cannot be held liable for the gains of co-defendants by imposing liability for disgorgement on a solidary basis.

• 4. As regards punitive damages, they cannot be awarded on a solidary basis. The punitive damages regime under the Charter is autonomous from the extra-contractual civil liability regime established under the Civil Code of Quebéc. Article 1526 of the Civil Code of Quebéc applies to extra-contractual fault causing injury and cannot ground the solidarity of punitive damages awarded under the Charter. Both the objectives of punitive damages and the factors relevant to assessing them suggest that awards of punitive damages must be individually tailored to each defendant against whom they are ordered. This requirement of individualization militates against awarding punitive damages on a solidary basis.