“I’m the author of an independent, self-published novel, and I sent copies of it to a number of film studios and production offices to see if they would be interested in optioning it. One studio, which never replied to me, has announced a project with a plot and characters that are very similar to my book. What are the laws around this kind of suspected plagiarism?”
In Canada, every original literary, dramatic, musical and artistic work is covered by copyright if the author is a Canadian citizen or resident[1]. The work does not need to be registered for copyright or published in order to receive copyright protection. The Copyright Act gives copyright holders the sole right to “produce or reproduce the work” or any “substantial part” of the work. Anyone else who attempts to exercise these rights is liable for copyright infringement.[2]
While this situation is unlikely because most studios require a signed submission agreement to avoid this issue, it is possible that the studio has copied a substantial part of the work. It is not necessary that the new work be an exact copy to show that the copyright has been infringed. For example, in Cinar Corp v Robinson[3] the Supreme Court held that although the new work changed the species of the characters from animals to humans, their personalities were similar enough to hold that the copyright of the original work had been infringed. Ultimately, whether the copying was “substantial” is determined by asking whether the features copied represent the skill and judgment of the work’s author.
A person who has their copyright infringed can bring an action to recover damages suffered and receive any profits produced by the new work. A court who finds a defendant liable may also order an injunction to prevent further use of the work by the infringer[4].
Although all works produced by a Canadian citizen or resident are subject to copyright protection, there are benefits to registering the copyright. According to the Copyright Act,registration is evidence of the existence of the copyright and who its owner is[5]. Secondly, a copyright must be registered in order to recover damages if the infringer is not aware that the copyright existed[6]. Copyrights can be registered online at the following link: https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03915.html.
Under Canadian law, there are exceptions to copyright protection called “fair dealing” which allows others to use the work if it is for research, criticism or news reporting. Since a studio production would likely fall under commercial use, it would not be protected by these fair dealing laws[7]. For more information, see the Copyright Act (https://laws-lois.justice.gc.ca/eng/acts/c-42/page-1.html) and the Government of Canadas’s guide to copyright (https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html).
[1] Copyright Act, RSC 1985, c 42, s 5(1)
[2] Copyright Act, RSC 1985, c 42, s 3(1)
[3] Cinar Corp. v Robinson, 2012 SCC 25
[4] Copyright Act, RSC 1985, c 42, s 34
[5] Copyright Act, RSC 1985, c 42, s 53(2)
[6] Copyright Act, RSC 1985, c 42, s 39(1)
[7] Copyright Act, RSC 1985, c 42, s 25
The Queen’s Film & TV Research Group are not lawyers, and this is not legal advice! For more information on copyright law, please see the Copyright Law section of this site. Find out more about Queen’s Law on their website, and Pro Bono Queen’s at the PBSC Queen’s site.