Judgment of the Court
RITCHIE J.:-This is an appeal from a judgment of Mr.
Justice Nol of the Exchequer Court of Canada' on a
"special case" directed to be tried by order of the President of that Court, in accordance with the rules thereof, for the purpose of determining certain issues which were common to four separate actions brought by the plaintiff and consolidated for the purpose of determining the issues raised by the "special case".
The actions were for the infringements of the plaintiff's alleged copyright in two sets of "coloured rods of uniform square at centre cross section and of ten different lengths and colours for the teaching of the science of arithmetic in primary school grades". The issues raised by the "special case" were:
1. Is there a copyright in the plaintiff's "rods" which he described as "works" in his various statements of claim?
' [19681 1 Ex. C.R. 493, 37 Fox Pat.
S.C.R.
COUR SUPRkME DU CANADA
2. Who is the author?
3. Who owns the copyright?
It is obvious that a negative answer to the first question is sufficient to dispose of the case and Mr. Justice Noal, in a most comprehensive decision, concluded by saying that Ritchie J. the "rods are not a proper subject matter of copyright in this country".
The rods in question were made in conformity with a system or method of teaching arithmetic which is fully described in a book written by the appellant and entitled Les Nombres en Couleurs, and, as has been indicated, they were referred to in the plaintiff's pleadings as "works". Paragraph 8 of the Statement of Claim reads as follows: Each of the said works is an original production in the scientific domain and is one of the works referred to by the expression 'every literary, dramatic, musical and artistic work' in section 4(1) of the Copyright Act.
The relevant provisions of the Copyright Act, R.S.C. 1952, c. 55, read as follow:
4. (1) Subject to the provisions of this Act, copyright shall subsist in Canada for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work,...
The italics are my own.
Section 2.(v) provides that:
'every original literary, dramatic, musical and artistic work' includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets, and other writings, lectures, dramatic or dramatico-musical works, musical works or compositions with or without words, illustrations, sketches, and plastic works relative to geography, topography, architecture, or science.
The italics are my own.
In aid of the construction which appellant's counsel seeks to place upon these sections of the statute, he relies upon the presumption which he contends is created by s. 20(3) of the Act which reads:
20. (3) In any action for infringement of copyright in any work, in which the defendant puts in issue either the existence of the copyright, or the title of the plaintiff thereto, then, in any such case, (a) the work shall, unless the contrary is proved, be presumed to be a work in which copyright subsists; and
(b) the author of the work shall, unless the contrary is proved, be presumed to be the owner of the copyright; ...
The question which lies at the threshold of this appeal is whether the rods in question are things in which copyright can be had, and if that question is answered in the negative, it does not appear to me to be necessary to com- ImPN Ts ment on the close analysis to which the learned trial judge has subjected the various statutory provisions.
J. The evidence discloses, and indeed it appears to me to have been admitted, that the plaintiff is not alleging the infringement of copyright in any part of his book Les Nombres en Couleurs. I take, for example, one question and answer on cross-examination where Mr. Osborne asked:
Even if Mr. Cuisenaire's method of teaching could be considered as an "original production. . in the... scientific domain" within the meaning of s. 2(v) of the Act, the originality consisted in the ideas as they were expressed in his book and in my opinion the rods are merely devices which afford a practical means of employing the method and presenting it in graphic form to young children. The
"original" work or production, whether it be characterized as literary, artistic or scientific, was the book. In seeking to assert a copyright in the "rods" which are described in his book as opposed to the book itself, the appellant is faced with the principle stated by Davey L.J. in the case of
Hollinrake v. Truswell , where he says:
This principle was discussed and adopted by President
Thorson in the Exchequer Court of Canada in Moreau v.
St. Vincent', where he said:
COUR SUPRtME DU CANADA of copyright does not give him any monopoly in the use of the ideas with which he deals or any property in them, even if they are original. His copyright is confined to the literary work in which he has expressed them. The ideas are public property, the literary work is his own. Every one may freely adopt and use the ideas but no one may copy his literary work without his consent.
Ritchie J This principle is recognized by Dr. Fox in the 2nd edition (1967) of his work The Canadian Law of Copyright and Industrial Designs where he says, at page 45:
Not only is it not required that there should be any originality in the idea of the work, but a novel idea as distinct from the form in which the idea is expressed is not capable of being the subject of copyright protection.
I have considered the many Canadian cases cited by Dr. Fox, all of which appear to illustrate this principle. What is alleged in the present case is that the respondent has distributed to school trustees and others sets of rods which are substantially the same as those which the appellant claims to have made and that the respondent has thereby "without consent of the plaintiff reproduced and authorized the reproduction of the said works or a substantial part thereof . . ." What has in fact happened is that the respondent has adopted and used the ideas contained in the appellant's literary work and I find that its actions come directly within the language employed by President Thorson in the above quoted excerpt from his reasons for judgment. The matter is graphically illustrated by the brief quotation from the reasons for judgment of Page J. in Cuisenaire v. Reed, cited by the learned trial judge, where the question at issue was whether the use and distribution of "rods" made in conformity with the directions contained in the present appellant's book, constituted a breach of copyright under the Copyright Act then in force in Australia. Pape J. said, at page 735:
Were the law otherwise, every person who carried out the instructions in the handbook in which copyright was held to subsist in Meccano Ltd. v. Anthony Hordern and Sons Ltd. (1918)
18 S.R. (N.S.W.) 606, and constructed a model in accordance with those instructions, would infringe the plaintiff's literary copyright. Further, as Mr. Fullagar put it, everybody who made a rabbit pie in accordance with the recipe of Mrs. Beeton's Cookery Book would infringe the literary copyright in that book.
[1963] V.R. 719.