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COPYRIGHT - Criteria for copyright protection - Originality - Protected subject matter - Architectural works - Infringement - Defences to infringement - Procedure

Thursday, July 27, 2017 @ 8:27 AM  


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Appeal by MacNutt and her business Pier 101 Home Designs Inc. (PIER 101) from the dismissal of their claim for damages for copyright infringement. The appellants were retained by Acadia University (Acadia) in 2013 to prepare concept drawings for a new building, and were paid in full upon submitting the drawings. In 2014, Scott, the architect who proceeded with the project, was featured in a local newspaper article showing the appellants’ design. The appellants were not credited with the designs used in the feature. The appellants commenced an application for copyright infringement, claiming that their copyright in the original drawings had been infringed, the respondents were unjustly enriched, and the appellants suffered significant losses. At trial, the respondents provided expert evidence that the concept designs were not original, as they were based on "mimic architecture" of the original building, according to the requirements of Acadia and the Town of Wolfville, and that the design included many additional, distinct features. The judge dismissed the application. He held that the Copyright Act did not protect the ideas behind an original work, but the expression of those ideas. He found that the appellants’ drawings were based on mimic architecture, and were therefore not distinct and original and subject to copyright infringement. The judge further found that even if the drawings were "original" and capable of copyright, the respondents had established, and the appellants conceded, that the respondents had not been responsible for submitting the drawings to the newspaper, or in not crediting them. The judge awarded the respondent university and the respondent Scott costs of $16,250 plus disbursements, each. The appellants appealed, arguing that the judge made errors of law and fact, that they were denied procedural fairness, and that the judge erred in awarding costs against McNutt personally. They also sought leave to adduce fresh evidence.

HELD: Appeal dismissed. The appellants were not denied procedural fairness. As this matter proceeded by application, not action, there was no requirement for a trial readiness conference. Furthermore, no pre-trial conference was requested by the appellants and they had not demonstrated that they had suffered any prejudice. While the appellants’ expert had to attend for cross-examination on short notice, the expert did not raise any concerns about the short notice. There was no basis for the appellants to now complain they did not have adequate notice that their expert might be required for cross-examination, nor were they prejudiced by the manner in which he was presented for cross-examination. The proposed fresh evidence could have been adduced at trial, was not relevant and would not have affected the result. The allegation of copyright infringement had no merit. The judge’s factual findings were unassailable. While the costs decision and the resulting order could have been clearer, the judge intended to and did order joint and several costs against the appellants.

MacNutt (c.o.b. PIER101 Home Designs Inc.) v. Acadia University, [2017] N.S.J. No. 238, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., J.E. Fichaud and E. Van den Eynden JJ.A., June 20, 2017. Digest No. TLD-July242017011