The Art of Selling Chocolate: Remarks on Copyright's Domain
On July 27, 2007, the Supreme Court of Canada released a significant decision dealing with copyright and parallel imports, Euro-Excellence Inc. v. Kraft Canada Inc. [Euro-Excellence]. This paper frames Euro-Excellence in light of (a) the evolving roles in Supreme Court of Canada copyright jurisprudence of the concepts of "balance," "reproduction," and "user rights" in the copyright system, and (b) the distinctions between copyright, patent and trade-mark as autonomous yet related legal regimes. More specifically, the paper analyzes Bastarache J.'s judgment in Euro-Excellence in order to tease out the ways in which the concept of copyright's own specific domain - as distinct from that of other modes of intellectual property protection - interacts with that of copyright's purpose, and to speculate about the implications that this interaction holds for our understanding of copyright subject-matter and copyright infringement. The upshot of the discussion is a distinction between "patterns of ink" and "works of authorship" affirming and developing the familiar proposition - contained in the defense of independent creation and the defense of fair dealing - that the mere physical identity of patterns of ink in the plaintiff's and the defendant's respective works need not give rise to copyright liability. Physical identities are not by that token alone infringing copies.
The Right of Exclusive Access: Misusing Copyright to Expand the Patent Monopoly
Copyright legislation has been amended in many countries to provide legal protection to access- and use-controlling technology. Canada is considering similar provisions in Bill C-60. This article examines the policy issues that arise when copyright law, in conjunction with anticircumvention technology, is invoked to provide concurrent protection for a patented or patentable device. It discusses the philosophical justification for IP rights protection, including the notion of balancing owner and user interests, and the importance of respecting the different balances on which each intellectual property right lies. The article argues that technology, with its legal protection, can be used to expand the patent monopoly, or even supplant it, effectively eliminating the concept of intellectual property rights' balance. The article identifies and analyses the effects of access- and use-controlling technology on the patent monopoly and, drawing on the experience of other jurisdictions with similar provisions, offers two suggestions to mitigate the risk that the inclusion of anticircumvention provisions in the Copyright Act can be misused to expand the patent monopoly. One recommendation is to change the proposed provisions in Bill C-60 to connect the circumvention of DRM technology with actual copyright infringement and to narrow down the definition of access-controlling technology. The second suggestion is to introduce into Canadian copyright law a statutory cause of action, or defence, similar to the American equitable defence of copyright misuse, which could be invoked to address the improper use of any copyright rights.
A "Wiseguy"'s Approach to Information Products: Muscling Copyright and Patent into a Unitary Theory of Intellectual Property
For a time, it was fashionable for copyright scholars to make their mark by questioning the relationship between the First Amendment and the Copyright Clause.' They began by pointing out the inherent inconsistency between these two provisions, the constitutional clause granting Congress power to create law suppressing expression; the amendment barring Congress from creating law suppressing expression. The authors then argued that although the latter could be read as overriding the former, history indicates that this was not the intent, and that there are indeed principles within copyright providing for enough access to expression to make the two provisions work compatibly. Typically cited were a series of limits on the ability to acquire exclusive rights in information and other necessities of speech, including the dichotomy between ideas