Prise de parole Inc. v. Guérin, éditeur Ltée
T-917-93
Denault J.
27/11/95
12 pp.
Guérin, éditeur Ltée published collection of stories for schools including substantial extract from work La vengeance de l'orignal by plaintiff Doric Germain, who had assigned exclusive right to print and publish work and to negotiate copyright to Prise de parole Inc.-Copyright infringement not in issue-Dispute related essentially to remedies and damages to which plaintiffs entitled-Between 1981 and 1991, average of 1,000 copies of work sold every year-Sales slowed considerably when Guérin published its school collection containing extract-As regards general damages under s. 35(1), plaintiffs claiming (1) damages based on sales made by defendant, (2) loss of future sales, and (3) profits made by defendant-(1) Plaintiff Prise de parole lost $18,000 because of sales by defendant, and plaintiff Germain lost $4,309.20-(2) In light of lifespan of textbooks and books sold in schools, loss of future sales estimated at $15,000 for plaintiff Prise de parole and $3,600 for Germain-(3) Plaintiffs not entitled to profits made by defendant inasmuch as such profits non-existent-Plaintiff Germain alleged moral rights infringed because work distorted-Under Act, s. 28.2(1) (providing for claim based on right to integrity of one's work) author must show work distorted, mutilated or otherwise modified to prejudice of honour or reputation-Latter justifying use of subjective criterion (author's opinion) in assessing whether infringement prejudicial-However, objective evaluation of prejudice, based on public or expert opinion, also required-Evidence did not show that, objectively, as required by Act, s. 28.2(1), work modified to prejudice of honour or reputation-Therefore not entitled to moral damages-Act not expressly providing for exemplary damages (for flagrant, fraudulent or malicious infringement), but does not preclude them-Because of defendant's wilful and intentional conduct and evident disregard for plaintiffs, plaintiffs each entitled to $10,000 compensation-Permanent injunction issued requiring defendant to cease publishing, selling, printing or distributing collection incorporating work La vengeance de l'orignal-Copyright Act, R.S.C., 1985, c. C-42, ss. 28.2(1) (enacted by S.C. 1994, c. 47, s. 60), 35(1).