A proposed approach to the analysis of computer program copyright infringement in Canada

Abstract

Canadian computer program copyright infringement decisions are' characterized by prolix reasoning and inconsistent methodological approaches. In this context, there exists a need for the explication of a revised approach to the analysis of infringement vis-a-vis production and reproduction rights. Herein the author explicates a proposed approach, which holds true to the dictates of the idea/expression dichotomy and the requirement of originality. It recognizes a difference between "copyrightable" and "protected by copyright" regarding parts of a computer program, rejects the U.S. abstraction-filtration-comparison test, allows a court to consider all admissible evidence when making the assessment of copying in fact, restrains the taking of parts of a computer program that in quality constitute original expression, and provides justification for the "weeding-out" favoured by the courts. The proposed approach provides a sound foundation for courts and lawyers to deal with issues looming on the litigation horizon as regards computer program copyright infringement.