Mathieu Crochetière-Rousseau c. 9107-0235 Quebec Inc., 2015 CF 1219 (LeBlanc J.)
October 29, 2015
René Duval of Me René Duval, LL.L., for Mathieu Crochetière-Rousseau (Applicant)
Nicolas Papirakis of Avocat Nicolaos Papirakis, for 9107-0235 Quebec Inc. (Respondent)
This is an action in which Mathieu Crochetière-Rousseau (the “Applicant”), a web programmer claims $49 999 in damages ($20,000 loss in revenue and profit and $29 999 in punitive damages) for copyright infringement of the modifications he made to the website of 9107-0235 Quebec Inc. (the “Respondent”).
The parties agreed that the work would be performed for a fixed amount of $2,700. The only written document between the parties was the estimate provided by the Applicant, which did not contain any intellectual property clauses.
The relationship between the parties deteriorated. The Applicant took longer than anticipated to deliver the work product and, according to the Respondent, the Applicant did not deliver what was promised. The Applicant believed he delivered everything that had been agreed to between the parties. The parties exchanged a few letters through their respective attorneys. In one of them, the Respondent informs the Applicant that he had no choice but to completely reprogram the website given the major deficiencies and that the new programmer had started from scratch, keeping nothing of what the Applicant had done.
The Applicant commenced an action alleging that the software is a protected work under the Copyright Act and that the Respondent violated the Applicant’s rights in using the software (prior to its re-programming) without giving any compensation to the Applicant and by using a reprogrammed site that is a substantial reproduction of his work. The Respondent initially counterclaimed for $25,000 but the Respondent later abandoned these claims.
There was no debate that the software was a protected “literary” work. The Applicant’s expert witness testified that the reprogrammed version is the result of partial but important copying of the Applicant’s version of the software and the Court accepted this conclusion given that the evidence was not contested. However, the Court concluded that there was no copyright violation given that there was an implied license for the Respondent or someone acting on its behalf to modify the software. The Court ruled that the fact that the Applicant had not been paid upon delivery of the work was irrelevant to the existence of an implied license. What mattered to the Court is that the parties had freely agreed to compensation for the work to be performed; recovery of the amount owed is a matter of contract law, not copyright.
By: Cindy Belanger, Legault Joly Thiffault