The Case of Théberge and Why it Matters

Written by Madelaine Pries

Luckily for the average Canadian consumer, Canada’s Copyright Act is known to lean towards the rights of the user in the balance sought between user and creator rights (Scassa, 2004). One important case that is often referred to in discussions of user rights, particularly with the recent changes made regarding Canada’s copyright laws, is that of Théberge v. Galerie d’Art du Petit Champlain Inc.


 "Supreme Court of Canada" by Peregrine981 - Own work. Licensed under Public Domain via Wikimedia Commons -

"Supreme Court of Canada" by Peregrine981 - Own work. Licensed under Public Domain via Wikimedia Commons -

The case, which made its way up to the Supreme Court of Canada, tells the story of an art gallery that was transferring the print of posters purchased from Quebec artist Claude Théberge onto canvas. When he found out, Théberge cried copyright infringement. He was upset that the gallery had changed the medium of his art, and sought to reclaim all materials, posters and canvases alike, displaying his work.

The first stop in his fight was Quebec court, which offered a ruling in his favour to have his art retrieved. However, Théberge’s victory turned out to be short lived as the Quebec court’s ruling was overturned by the Supreme Court of Canada, according to whom there had been no infringement of copyright. Why? Because since the number of copies of the artwork in existence had not increased, there had technically been no occurrence of reproduction. The transferring process used by the art gallery involved transferring the ink from the posters to canvas, leaving the posters blank.

The importance of this case in copyright law, especially in a world where copyrighted works are increasingly being shared online, is clear. Firstly, the case was ruled in favour of “technological neutrality,” meaning that no matter in what medium or technology a work is reproduced, copyright laws surrounding use of the work remain the same (Craig 2013). Also, the Supreme Court ruled in favour of maintaining “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (2002). According to Michael Geist, professor of law at the University of Ottawa Law School, this is important in avoiding a future of “curtailed innovation,” as is what happened in the United States (2002). Because of the U.S.’s strict copyright laws that lean towards creator rights, people became too afraid to share their work for fear of being charged with copyright infringement (Geist, 2002). Luckily for Canadians, Geist says that the Supreme Court of Canada’s defense of “fair copyright balance” had “indirectly provided the most important submission on the (then) current digital copyright reform consultations” (2002). As they are often referred to in discussions of the current Copyright Act, the conclusions drawn from Théberge v. Galerie d’Art du Petit Champlain Inc. still apply today.

So even though there is current movement to crack down on illegal online file sharing of copyrighted material, nobody will be fined the price of their house for watching Frozen online. Here in Canada the user has rights, and the Court is in defense of that.

Works Cited

Craig, Carys J. “Technological Neutrality: (Pre)Serving the Purposes of Copyright     Law.”The copyright pentalogy: How the Supreme Court of Canada shook the foundations of Canadian copyright law. Ed. Michael Geist. University of Ottawa Press, 2013. 291-325. Web.

Geist, Michael. (2002, April18). Key Case Restores Copyright Balance. The Globe and Mail. Retrieved from

Scassa, Teresa. "Recalibrating copyright law?: A comment on the Supreme Court of Canada’s Decision in CCH Canadian Limited et al. v. Law Society of Upper Canada." CanadianJournal of Law and Technology 3.2. 2004. 89-100. Web.

Théberge v. Galerie D'Art Du Petit Champlain Inc., 2002 SCC 24, McLachlin C.J. Web.