Канада Жоғарғы Сотында авторлық құқық жөніндегі Théberge ісі

Théberge v Galerie d'Art du Petit Champlain Inc 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.

The respondent, Claude Théberge, a painter with a well established international reputation, assigned by way of contract the right to publish reproductions, cards and other stationery products representing certain of his works to a publisher. The appellant art gallery, Galerie d'Art du Petit Champlain, purchased cards, photo lithographs and posters embodying various of the artist's works from the publisher, and then transferred the images to canvas. Galerie d'Art du Petit Champlain bought the rights to make a limited number of paper copies of Théberge's paintings in order to create posters from them. The process used involved lifting the ink that was used in printing a paper poster and transferring it entirely onto a canvas, leaving the poster blank and keeping the number of reproductions constant. Théberge applied for an injunction, an accounting of profits, and damages against the appellants at the Quebec Superior Court. The case was appealed to the Court of Appeal for Quebec and ultimately to the Supreme Court of Canada.

The issues before the Supreme 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 CJ, Iacobucci, and Major JJ concurring, held that there was no reproduction involved because no new copies were made. There was only the transfer of ink, which was considered modification, not a copy. The respondent is responsible to find authority for the seizure in the Code of Civil Procedure read in the light of the Copyright Act. If he can not do so then the seizure was wrongful and all loss of the appellant's sales and reputation should be fixed. 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.

L'Heureux Dubé, Gonthier and LeBel JJ dissented. They interpreted the purpose of the Copyright Act as a means of protecting the rights of artists, which would require a broader interpretation of "reproduction". In their definition, "reproduction" did not necessarily encompass making additional copies. Instead, a new "fixation" (a new physical structure or "production" of the work, such as the "re fixation" of the ink onto canvas) constituted a "reproduction".