Early this year PBS announced that it would cease to carry the Canadian animated children’s TV show “Caillou” (which means “pebbles” in French) after twenty years on the network. Since Caillou is a series not without controversy, some parents no doubt breathed a sigh of relief while others pondered their electronic babysitting options.
To those of you who don’t have young children in your life (at the moment or previously), Caillou may not be on your radar. There is a whole world out there—characters, vocabulary, controversy—forming part of the children’s entertainment scene that is familiar to many, and almost unknown to others. If you have had children, or looked after young children—yours, those of others, your grandkids etc.—names like Dora the Explorer, Peppa Pig, Curious George and, of course, Caillou, will be well known to you. How else to get through the period of preparing dinner with a four-year old around your ankles?
The demise of Caillou on PBS—it will continue to be broadcast on the Family Jr. channel in Canada and may be picked up by some other outlet in the US—will no doubt not end the controversy over the main character’s behaviour. Parents either love or loathe the little bald boy. Caillou was produced between 1997 and 2010 under licence to CINAR and has aired in 70 countries around the world. The books on which the series is based have been translated into over a dozen languages and sold 15 million copies. This makes it one of the more successful Canadian cultural exports, although some who dislike Caillou’s behaviour when he is frustrated have wondered whether his occasional histrionics reflect lax parenting standards in Canada. The smouldering discontent with Caillou burst into open flames a couple of years ago when he was featured in one of Canada’s two national dailies, the National Post, under the title, “Caillou is an aggressively bad show ruining the world’s children … and it’s all Canada’s fault”.
To parents who don’t like Caillou’s portrayal of a four-year old’s behaviour, I say, “change the channel”. Maybe four and five year old kids enjoy watching a show that portrays how someone their age actually reacts to things beyond their control rather than having to absorb a morality play. I must say I have never been able to force myself to actually watch a full episode of Caillou—although I have read the newspaper or books while it has been on the screen and have thus listened with one ear—but I don’t recall anything especially obnoxious. I do recall certain homilies and virtues being emphasized, but I don’t think that my grand-daughter’s behaviour was any better—or worse—for having watched it. All I know is that she enjoyed it and, for a certain period of her young life, when asked what she wanted to watch on TV, the response was invariably “Caillou!”.
While Caillou has generated lots of controversy among parents and even child psychologists, it also has an interesting legal and copyright history which, no surprise, is why I am blogging about it here. Caillou was created by Quebec writer Christine L’Heureux in 1989. L’Heureux had founded Chouette Publishing two years earlier. The Caillou books were illustrated by artist Hélène Desputeaux. Like so many artistic collaborators (Gilbert and Sullivan, Simon and Garfunkel, Abbot and Costello…) L’Heureux and Desputeaux had a falling out. And, yes, it was about copyright, and money.
As with many cases of this nature it is complicated. Originally the two (Chouette Publishing of which L’Heureux was the majority shareholder on the one hand and Desputeaux on the other) formed a partnership for the purpose of creating the books. They entered into contracts with each other as co-authors, including assigning the reproduction rights for the use of the Caillou character to Chouette Publishing. This covered merchandising and audiovisual works. Desputeaux was to be paid if she provided illustrations for any works using the character. Moral rights were waived by both parties. Subsequently there was a dispute over the terms of the contracts. The dispute went to arbitration under Quebec’s civil code. The arbitrator upheld the contracts, concluded that Chouette held the reproduction rights and determined that the work was of joint authorship (copyright held jointly) because both parties had signed the contracts as co-authors. Desputeaux’s position was that she held the sole copyright for the illustrations of the Caillou character and in the character itself.
Desputeaux challenged the arbitral decision and asked the Quebec Superior Court to annul it. She argued that the arbitrator had exceeded his mandate and, rather than just ruling on the validity of the contracts, had intervened on the question of intellectual property and the status of the parties as co-authors. Her challenge was dismissed and the Superior Court upheld the arbitral decision. Desputeaux then appealed to the Quebec Court of Appeal, where she had better results. The Court of Appeal upheld her appeal, ruling that any determination of copyright fell within the domain of the federal government under the Copyright Act and was not subject to provincial arbitration.
At this point, we need to step back briefly into history and look at the Quebec Code of Civil Procedure under which the arbitration took place. The Quebec civil code goes back to the Quebec Act of 1774 which reinstated French law in civil matters as part of an attempt to win the loyalty of French Canadians by preserving the French language and French institutions (civil law and role of the church) after the British conquest. British law had prevailed during the brief period from 1763, when France ceded control of Quebec to Britain, and the passage of the Quebec Act. A civil code ultimately based on the Napoleonic Codes in France was formally adopted in Quebec (Lower Canada) in the 1860s and, with minor changes and updates, has prevailed in Quebec ever since, operating alongside British criminal law principles and federal laws. The civil code required arbitration in matters of disputes between professional artists and promoters.
With the provincial Court of Appeal having ruled in favour of Desputeaux the illustrator, L’Heureux and Chouette appealed that decision to the Supreme Court of Canada (SCC). The SCC ultimately determined that the federal Copyright Act does not prevent an arbitrator from ruling on the question of copyright. The arbitrator’s mandate includes everything closely connected with the agreement they are adjudicating and in this case, the question of co-authorship was intrinsically related to other questions raised within the terms of the agreement in question. Even though copyright affirms rights against all third parties globally, two parties to a copyright dispute should not be denied the right to arbitration, the SCC ruled. L’Heureux’s appeal and joint authorship was upheld. A more learned explanation of the outcome of the case can be found here.
It doesn’t end there, however. Two years after the SCC ruling, the two parties were back in court again but finally reached an agreement which remained confidential for ten years until it was released in 2015. Basically, this agreement affirmed Desputeaux’s rights to her original illustrations of Caillou but gave Chouette permission to license and create subsequent versions, including through its agreement with CINAR for the animated television production. Desputeaux was to be granted a percentage of the royalties. Desputeaux agreed to limit production of Caillou depictions for a 5 year period. Was this the final end to the dispute? Regrettably, it was not.
As outlined in a blog posting just two years ago “This Precedent-Setting Cartoon is Back at it Again”, Desputeaux subsequently applied for a judicial declaration that L’Heureux had no claim to co-authorship of Caillou following the 2005 settlement agreement. She wanted the Court to declare that the 2005 settlement agreement prevailed over the original arbitral decision and that its terms precluded L’Heureux from claiming moral rights in the works or to be their co-author. The application was dismissed in November 2018 on the basis that this was a disguised form of appeal of a case that had already been decided by the SCC. It’s never over until it’s over, as they say.
How is it all going to end? I know that Caillou believes in “sharing” because I have heard him say so. But what constitutes a fair share can depend on your perspective, which perhaps explains why Caillou’s bad temper seems to have rubbed off on his creators. More than two decades of copyright litigation has surrounded this little character who continues to either enthrall or enrage parents and kids—and his co-authors as well. Maybe there is a moral lesson hidden in there somewhere.
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