The Art of Selling Chocolate: Remarks on Copyright's Domain

FROM "RADICAL EXTREMISM" TO "BALANCED COPYRIGHT": CANADIAN COPYRIGHT AND THE DIGITAL AGENDA, Michael Geist, ed., Irwin Law, 2010

31 Pages Posted: 11 Jun 2008 Last revised: 23 Oct 2010

See all articles by Abraham Drassinower

Abraham Drassinower

University of Toronto - Faculty of Law

Date Written: October 22, 2010

Abstract

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.

Keywords: copyright, Canada, user rights, independent creation, fair dealing, parallel imports, trade-mark, concurrent protection, infringement, reproduction

Suggested Citation

Drassinower, Abraham, The Art of Selling Chocolate: Remarks on Copyright's Domain (October 22, 2010). FROM "RADICAL EXTREMISM" TO "BALANCED COPYRIGHT": CANADIAN COPYRIGHT AND THE DIGITAL AGENDA, Michael Geist, ed., Irwin Law, 2010, Available at SSRN: https://ssrn.com/abstract=1143324

Abraham Drassinower (Contact Author)

University of Toronto - Faculty of Law ( email )

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