In a union drive in Nova Scotia, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW) produces leaflets, posters, etc. with unauthorized reproductions of the Michelin name and logo (Bibendum: the Michelin Tire Man). Compagnie Générale des Établissements Michelin (Michelin) holds copyrights in both and seeks damages on the bro nn unds of intellectual property rights violations and a permanent injunction against its use. CAW offers a constitutional defend e: if the relevant sections of the Copyright Act prohibit them from using the symbols in an organizing drive, then the sections are unconstitutional restrictions on their freedom of expression protected by s.2(b) of the Charter.
- Is parody a form of "criticism" under s.29.1 of the Copyright Act?
- Do the relevant sections of the Copyright Act violate the freedom of expression guaranteed in s.2(b) of the Charter?
- Do the works warrant the title "expression"?
Found guilty of infringement for some of the reproductions; injunction granted and a hearing ordered to determine damages.
- The court ruled that parody is not a form of criticism under s.29.1. Found the American precedent unpersuasive and cites a "longstanding trend to deny parody as an exception". Several reasons why American fair use is not the same as our fair dealing (our list is exhaustive, their definition is open-ended, etc.). So, even if parody could be included as fair dealing, the provision requires the source be cited in order for it to qualify.
- The court held that the defendant’s right to freedom of expression was not restricted because the Charter does not confer the right to use priate property (the plaintiff’s copyright) in the service of freedom of expression. Their leaflets, etc. do constitute expression, but not within the sphere of conduct protected by freedom of expression.
- The court applied a test for infringement: is the act complained of only an act that the copyright owner could do under s.27(1), including reproduction of original or substantial part of work? The court held that a "substantial part" of Bibendum has been reproduced – even though mental energy has been spent to change it, it does not become an original work.
The right to freedom of expression was not restricted because the Charter does not confer the right to use private property (including copyright) in the service of freedom of expression. Parody is not a form of "criticism" under s.29.1 of the Copyright Act, and thus not exempted.