Netupsky et al. v. Dominion Bridge Co. Ltd.

Netupsky et al. v. Dominion Bridge Co. Ltd.

Because the plans were commissioned under a contract that contemplated changes and Netupsky repudiated his obligation to perform those changes, the City (owner) and, through it, the successful contractor/subcontractor held an implied licence to reproduce and to make reasonable alterations necessary to construct the work; the alterations in this case fell within those limits and therefore there was no copyright infringement.

Citation
[1972] SCR 368
Parties
Plaintiff/appellant: Boris Netupsky; Plaintiff/appellant: Netupsky Engineering Company Limited; Defendant/respondent: Dominion Bridge Company Limited
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
5 October 1971
Procedural Posture
Intellectual Property Copyright / Appeal to the Supreme Court of Canada From the British Columbia Court of Appeal (cross‑appeal)
Outcome
Appeal dismissed; cross‑appeal allowed
Legal Topics
Copyright, Implied Licence, Repudiation, Licensing of Plans, Alteration of Drawings, Remedies (damages and Injunction)
Source Language
English
Intellectual Property Contract Law Construction Law Copyright Implied Licence Repudiation Licensing of Plans Alteration of Drawings +1 more

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Parties

Boris Netupsky

Plaintiff/appellant

Netupsky Engineering Company Limited

Plaintiff/appellant

Dominion Bridge Company Limited

Defendant/respondent

Procedural Posture

Intellectual Property Copyright / Appeal to the Supreme Court of Canada From the British Columbia Court of Appeal (cross‑appeal)

Legal Issues

  1. 1 Whether the defendant infringed the plaintiff's copyright by altering and reproducing structural design plans
  2. 2 Whether the owner/architect's contract and the plaintiff's repudiation gave rise to an implied licence permitting alterations and reproduction by the contractor/subcontractor
  3. 3 Scope and limits of any implied licence to alter and reproduce plans

Ratio Decidendi

Because the plans were commissioned under a contract that contemplated changes and Netupsky repudiated his obligation to perform those changes, the City (owner) and, through it, the successful contractor/subcontractor held an implied licence to reproduce and to make reasonable alterations necessary to construct the work; the alterations in this case fell within those limits and therefore there was no copyright infringement.

Court Disposition

Appeal dismissed; cross‑appeal allowed

Orders

  • Appeal dismissed and cross‑appeal allowed, with costs both here and in the Courts below.