The plaintiff, Delrina Corp., sued Triolet Systems Inc. and Brian Duncombe for infringing its copyright of the computer program Sysview by designing similar software, called Assess.
After leaving Delrina Corp., Duncombe began working for Triolet Systems Inc. to design a functionally similar program called Assess, which would compete directly with Sysview.
[1] Delrina Corp. brought an action for copyright infringement against Duncombe and Triolet Systems Inc., alleging that Assess was copied from Sysview.
Delrina Corp. set out four grounds of appeal regarding the dismissed infringement action: whether the trial judge erred in (1) his definition of the term "copying"; (2) excusing similarities between Assess and Sysview based on factors which are irrelevant to copyright law; (3) denying that parts of Sysview were copyrightable; and (4) drawing an adverse inference from the fact that Delrina Corp. did not produce their expert's report.
[7] Delrina Corp. contended that the trial judge erred by excusing similarities between Assess and Sysview based irrelevant factors.
interpreted the trial judge to mean that some similarities between the two programs could have resulted from Duncombe's style and experience, but that does not mean these were accepted as a justification for copying.
[10] Delrina Corp. argued that the trial judge erroneously denied copyright to much of Sysview because of his reliance on United States, instead of Canadian authorities.
As a consequence of a more relaxed application of the dichotomy, some ideas can be protected by copyright in English/Canadian law based on a recognition of the skill and labour required to create a work.
[15] Under this ground of appeal, Delrina Corp. specifically argued that the trial judge erred in applying the American "abstraction-filtration-comparison" method and merger doctrine to deny copyrightability in Sysview.
Delrina submitted that the trial judge erroneously applied the American abstraction-filtration-comparison method in his substantial reproduction analysis.
Delrina Corp. argued that the trial judge erred in relying on the American merger doctrine in Canada to find that certain parts of Sysview were not protected by copyright.
The view of the Court of Appeal is summarized by the following passage: "The merger notion is a natural corollary of the idea/expression distinction which...is fundamental in copyright law in Canada, England and the United States.
[20] Though the trial judge may have alluded to some American authorities, his analysis did not deny Delrina Corp. the benefit of the broader copyright protection afforded by the Canadian system.
The appellant argues that the trial judge erred in drawing an adverse inference from the fact that it did not produce its expert's report.