In Andrews v McHale, 2016 FC 624, Justice Southcott dismissed an application for declaratory relief and damages for alleged copyright infringement and infringement of moral rights relating to software systems.
The dispositive issue in the case was authorship. Justice Southcott considered case law from the UK and USA but cautioned against its use, instead relying on the Canadian principle of “skill and judgment” in expression:
85 I am conscious of the caution that must be exercised in relying on foreign authorities. It is clearly the case in Canadian copyright law that the author of a work entitled to copyright protection is he or she who exercised the skill and judgment which resulted in the expression of the work in material form (see New Brunswick Telephone Co v John Maryon International Ltd (1982), 141 DLR (3d) 193 (NBCA)). The focus on the expression being the subject of the protection was explained as follows in Delrina Corp v Triolet Systems Inc, (1993), 47 C.P.R. (3d) 1 (Ont Gen Div), at 41, aff’d (2002), 17 CPR (4th) 289 (CA):
5. Copyright does not subsist “in any arrangement, system, scheme, method for doing a particular thing, procedure, process, concept, principle, or discovery, but only in an author’s original expression of them. Consistent with accepted thinking in copyright law, therefore, a particular expression of a mathematical algorithm or other procedure for solving a problem or accomplishing some end in the form of sets of instructions or statements may be protected by copyright, but the mathematical algorithm or other procedure as such cannot be protected by copyright”, (Sookman, Computer Law, p. 3-96).
Mr. Andrews, a self-represented litigant, argued that he provided the “context and content” in the development of the software. The evidence relied upon by Mr. McHale states that a Dr. Xu alone wrote the code for the software in question. Mr. Andrews involvement in the software systems was limited to for example “obtaining the necessary information from the clients (i.e. full names and birthdates of the clients’ employees and contractors); inputting this information into a spreadsheet; coordination of the training of staff, contractors, clients and associated user groups; ensuring implementation of the Software; ensuring presentations and tools were made available to clients, coordinating client feedback on report layouts; and implementing strategies to assist with client-based difficulties.”
Justice Southcott found that Mr. Andrews failed to present sufficient evidence to conclude that his contributions represent an exercise of skill and judgment of the type of necessary for authorship. Mr. Andrews presented no evidence leading to the linkage between his contributions and the expression of the software.
While Mr. Andrews did contribute to the software in question his contributions “fall outside the type of intellectual effort protected by copyright law and in many respects are similar to contributions found in the UK decisions in Fylde and Cyprotex to be outside the kind of skill and judgment necessary to constitute authorship.”
In respect of moral rights, Justice Southcott held that Mr. Andrews has not presented any evidence that the defendants use of the software had modified or distorted the software so as to interfere with its integrity in a manner that would offend moral rights.
Even though Mr. Andrews was found not to be an author, Justice Southcott refrained from expunging Mr. Andrews from the relevant copyright registrations with the Register of Copyrights as Mr. McHale had not put in a cross-application for expungement and therefore the Federal Court lacked jurisdiction.
A copy of the decision can be found here.