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.
Aristocratic Century: The sinews of power: political
In his excellent book on the Secretaries of State, Mark Thomson offered ‘the paradox of continuing domination of the aristocracy and the simultaneous insignificance of the House of Lords, per se ’. It is true that, by the beginning of the eighteenth century, the supremacy of the House of Commons in financial matters was a wellestablished convention. The claims of the Commons to an undisputed control over money matters, which had been urged before the Civil War, were resumed immediately after the Restoration and a protracted dispute with the House of Lords began. In 1661 the Lords resolved that there were no precedents in history for this new claim by the House of Commons. In 1671, the Commons retorted that taxation ought not to be questioned by the Lords and in 1678 they reiterated that supply was ‘the undoubted and sole right of the Commons’ and ‘ought not to be changed or altered by the House of Lords’. The Lords' attempt in 1692 to assess their own taxes was also abandoned, though they retired under cover of a rather insubstantial smoke-screen that they maintained their power of amendment to be a ‘fundamental, inherent and undoubted right from which their lordships can never depart’. That established, they departed. Geoffrey Holmes quotes a nice example from 1702 when the bishop of Carlisle found himself the only peer answering to a money bill, ‘no other lord in the House regarded what was doing, this being only (pro forma) to preserve a seeming right to dissent from, or amend, any part of a money bill’.