Guérin published a collection of stories for schools including segments of a copyrighted work by an author Doric Germain who had assigned the publisher (Prise de Parole Inc.) exclusive rights to negotiate the copyright as well as exclusive publishing rights. Prise de Parole and Germain brought action for damages and an injunction for copyright infringement as well as infringement of moral rights.
- Was there an infringement of copyright?
- Was there an infringement of the author's moral rights?
Injunction granted and damages of $10,000 awarded to the author and the publisher.
- The court found that the infringement of copyright under s.27 of the Copyright Act was obvious given the facts. The court applied the following test:
- Who holds the copyright: shown here to be Prise de Parole Inc.
- Has the copying being done with consent: no
- Is there fair dealing: no
- The court applied the test for infringement of moral rights used in Snow v Eaton Centre Ltd.:
- Subjective component (creator’s perspective): the author was frustrated by the changes, arguing that it is such a clumsy reproduction of his work that he would rather not have his name associated with it
- Objective component (perspective must be reasonably arrived at): the court found there had been no damage to the author's reputation or honour; there had been no change in the amount of Germain's public appearances, no ridicule or mocking by associates, no people who had complained of the editing.
As a result of their being no objective evidence of damage to the author's reputation, the court found no infringement of moral rights.
To bring action for infringement of moral rights the plaintiff must prove in an objective manner that their reputation or honour has been damaged.