Reflections on Cinar Corp. v. Robinson (Part I)

In Cinar Corporation v Robinson (2013 SCC 73 [Robinson]), the Supreme Court of Canada (SCC) endorsed a “qualitative” and “holistic” approach to determining when an infringer has copied a “substantial part” of a copyrighted work. The Court’s reasoning, however, is less than clear: the judgment’s circular analysis merely states that the holistic approach is preferable to a reductive one because a reductive approach would prevent a holistic assessment. What the Court fails to explain is that the holistic approach naturally follows from current originality jurisprudence. While the choice of approach likely did not affect the outcome of this case, the lack of meaningful reasoning from the Court leaves judges without much guidance about its future application. Continue reading