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

Abraham Drassinower is an Associate Professor in the Faculty of Law at the University of Toronto

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 emphasizes certain aspects of the case with a view to plumbing its contribution to an ongoing juridical conversation in Canada about the nature and scope of copyright protection—that is, a conversation about how to define and how to limit copyright.  The most salient recent moments in that conversation are the well-known Supreme Court of Canada decisions in Théberge v Galerie d`Art du Petit Champlain Inc. and CCH Canadian Ltd. v Law Society of Upper Canada [CCH].  This paper frames Euro-Excellence as another iteration of issues treated in those landmark decisions.  It sets forth an interpretation of 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 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 an affirmation of the familiar yet often neglected proposition that substantial similarity or even identity between the plaintiff’s and the defendant’s respective works need not give rise to copyright liability. Neither substantial similarity nor identity are in themselves sufficient for a finding of infringement.  The paper concludes by pointing out that the logic of user rights deployed in CCH and elaborated by Bastarache J. in Euro-Excellence amounts to a questioning of the centrality of the category of reproduction in the copyright system.

The paper, which forms part of Michael Geist’s edited collection, ‘From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda’ (Irwin Law) is available through Irwin Law and SSRN.