Supreme Court of Canada
An original work is the expression of an idea through an exercise of skill and judgment ... Infringement consists of the unauthorized taking of that originality.
However, the Act does not protect every “particle” of an original work, “any little piece the taking of which cannot affect the value of [the] work as a whole” ...
A substantial part of a work is a flexible notion. It is a matter of fact and degree. “Whether a part is substantial must be decided by its quality rather than its quantity” ...
What constitutes a substantial part is determined in relation to the originality of the work that warrants the protection of the Copyright Act. As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author's skill and judgment expressed therein.
A substantial part of a work is not limited to the words on the page or the brushstrokes on the canvas. The Act protects authors against both literal and non-literal copying, so long as the copied material forms a substantial part of the infringed work. As the House of Lords put it ...
... the “part” which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part ... the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original
[Designers Guild Ltd. v. Russell Williams (Textiles) Ltd.,  1 All E.R. 700 (H.L.), at p. 706, per Lord Hoffmann; see also Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2nd Cir. 1930), per Learned Hand J.]
Robinson c. Films Cinar inc. |
2013 CarswellQue 12346 at para. 24-27 |
McLachlin C.J.C. (LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver JJ. concurring)
... “if an artistic work is merely a reproduction with minor improvements or variations on a previous one, it is not an original work, but if the additions and improvements are substantial, there may be copyright”: see [Fox, The Canadian Law of Copyright and Industrial Designs, 2nd ed. (1967)], at p. 152.
DRG Inc. v. Datafile Ltd. |
1987 CarswellNat 896 at para. 23 |