COPYRIGHT |
Infringement |
Pyrrha Design Inc. v. 623735 Saskatchewan Ltd.
A-220-04
2004 FCA 423, Linden J.A.
13/12/04
7 pp.
Appeal from Federal Court decision ((2004), 30 C.P.R. (4th) 310) granting summary judgment dismissing appellants' claim for copyright infringement in relation to certain jewellery designs--Appellant Pyrrha Design Inc. jewellery design company, based in Vancouver, owned by appellants Danielle Wilmore, Wade Papin--Appellants issuing statement of claim alleging respondents had infringed copyright in certain of jewellery designs--Motions Judge finding jewellery in issue "clearly" "useful article" under Copyright Act, s. 64(2), action should be dismissed as no relevant issues remained to be decided--Decision not correct in law, must be set aside, allowing matter to proceed to trial on merits--Under Copyright Act, s. 64(2), copyright may exist in design of useful article, but if useful article produced in quantity of more than 50, not infringement of copyright for others to reproduce similar articles--Where copyright exists in such articles produced in what might be considered commercial quantities, action for copyright infringement may not lie, but remedy must depend upon registration system under Industrial Design Act--More than 50 copies admittedly produced by appellant--Sole disputed matter whether items denied protection of Copyright Act because jewellery "useful article", defined as "an article that has a utilitarian function", in turn defined as "function other than merely serving as a substrate or carrier for artistic or literary matter"--Motions Judge persuaded jewellery in issue "useful article"--Test to decide whether summary judgment should be issued that there must be "lack of genuine issue" to be tried--Not clear no genuine issue to be tried herein--Issue of whether articles of kind involved here useful in copyright law not litigated before in Canada--Necessary, in deciding such question, to have more evidence about jewellery's usefulness, lack thereof--Such difficult issue should not have been decided in summary way--Not enough to hold without evidence that because jewellery "worn", ipso facto useful--Doubtful whether usefulness of work of art can be determined solely by existence--Must be practical use in addition to esthetic value--Some items of jewellery worn may be useful whereas others may not be--Appeal allowed--Copyright Act, R.S.C., 1985, c. C-42, s. 64 (as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 11)--Industrial Design Act, R.S.C., 1985, c. I-9.