Perfume by Any Other Name May Smell as Sweet…But Who Can Say?: A Comment on L’Oreal v. Bellure

L’Oréal v. Bellure is a remarkable case. The ruling of the European Court of Justice, as reluctantly applied by the Court of Appeal of England and Wales, protects the plaintiff’s trade-mark rights against free-riding and prohibits the defendants from taking any commercial advantage of the reputation attaching to the plaintiff’s famous perfume brands. In doing so, it limits free competition and commercial expression without identifying any real harm (consumer confusion, blurring or tarnishment of the marks) or providing any clear public benefit that would justify such intervention. In this article, I argue that the case reflects a perception of trade-mark rights as private property, and the owner of a valuable trade-mark as morally entitled to absolute protection due to his investment in the creation of the brand. In Canada, we should learn from this ruling, prepare to avoid the mistakes of the ECJ in future comparative advertising cases, and protect the rights and interests of Canadian traders and the public against any similar expansion of trade-mark protection

Resisting Sweat and Refusing Feist: Rethinking Originality After CCH

In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada ostensibly settled the debate between the sweat school and the creativity school regarding the meaning of copyright\u27s originality requirement. While rejecting a labour-based formulation of the originality standard, the Supreme Court also refused to adopt the minimal degree of creativity test established by the U.S. Supreme Court in the famous Feist case. The appropriate threshold for originality, according to the Supreme Court of Canada, falls between these two extremes and requires an exercise of skill and judgment. This paper explores the significance of the skill and judgment test by contrasting it with previous articulations of the standard in Canadian jurisprudence, and against the current approach to originality in the United Kingdom and the United States. In particular, it examines the theoretical, political, and pragmatic considerations that may explain the Court\u27s reluctance to explicitly include either labour or creativity among the relevant ingredients of original authorship. It suggests that the absence of these concepts is the key to understanding the nature and role of Canada\u27s new originality standard in copyright policy: When assessing copyrightability, Canadian courts should put aside both labour- and personality-based theories of entitlement. In this way, the CCH decision has the potential to clear the path for an instrumental application of the originality doctrine that furthers the public policy goals of the copyright system

The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest

Originality is a foundational concept in copyright law: it defines the works to which copyright attaches and delineates the scope of protection they receive. The Supreme Court of Canada, in its recent ruling in CCH Canadian Ltd. v. Law Society of Upper Canada, appears to have settled the conflict between creativity and sweat-of-the-brow standards for originality, espousing a compromise position requiring skill and judgment. In this paper, the author aims to locate the evolution of the originality doctrine within the context of a foundational shift in Canadian copyright theory. When benefiting authors was copyright\u27s only recognized purpose, originality was determined with reference to the author\u27s rights: the emergence of a creativity threshold in Canada was infused with a personality-based vision of the author\u27s rights, the industriousness threshold was informed by a perceived need to reward an author\u27s labour. However, the Supreme Court in Theberge v. Galerie d\u27Art du Petit Champlain insisted that furthering the public interest in the production and dissemination of intellectual works is also a primary purpose of copyright. The CCH decision at the Supreme Court represents the first occasion on which a Canadian court has taken the public interest side of the copyright balance seriously when defining and applying the originality standard. The author argues that this elevation of public interest considerations provides a more suitable framework for developing copyright policy, particularly in the information age. However, given the case-by-case nature of originality determinations and the tensions inherent in the Theberge balancing act, the author cautions that the actual consequences of this development remain to be seen

Feminist Aesthetics and Copyright Law: Genius, Value, and Gendered Visions of the Creative Self

Copyright law is fundamentally concerned with the value of cultural works — both the recognition and the creation of this value. Yet it is seldom acknowledged that copyright law makes or requires any value judgment in the sense of an aesthetic evaluation of copyright’s subject matter. Indeed, it is often emphasized that copyright protects original works of authorship regardless of their quality or merit. That copyright protection demands the satisfaction of only the most minimal of qualitative standards does not, however, dispose of the larger claim that forms the basis of this chapter: our copyright system is dominated by a particular aesthetic theory or idea. Any attempt to justify the rights established by the copyright system over artistic works must presuppose an aesthetic theory of sorts in order to explain what is protected and why (as well as what is not protected or permitted, and why not). While not based on the quality of copyright’s subject matter, these explanatory efforts will point to its nature as original literary or artistic expression, which thus deserves or requires some form of legally recognized reward. We simply cannot justify the copyright system without ascribing some value to the particular expressive works in which it vests, and the creative acts and actors that it privileges. Seen in this light, it can hardly be claimed that copyright law is aesthetically agnostic. In this chapter, my goal is to uncover, in copyright’s most basic patterns, the hidden aesthetics of copyright law as viewed from a critical feminist perspective. My suggestion is that conceptions of aesthetic value and its production are stitched into the very fabric of copyright law, defining its contours and determining the purposes it serves — and what is more, these conceptions of aesthetic value are fundamentally gendered

Locking Out Lawful Users: Fair Dealing and Anti-Circumvention in Bill C-32

This chapter examines the potential impact of the proposed fair dealing and anti-circumvention provisions in Canada’s most recent copyright reform bill, Bill C-32. I suggest that the minimal expansion of the fair dealing defence to cover “new” purposes, as well as the addition of a few new user exceptions, while welcome, is insufficient to ensure the breadth of user defences that the copyright balance demands. Moreover, the extensive protection of technological protection measures without any regard for lawful uses of copyright material has the potential to effectively eviscerate fair dealing in the digital age. Many acts permitted in relation to owned content can be prevented by the use of TPMs, and would be rendered unlawful by the proposed anti-circumvention provisions. To extend legal protection to TPMs in a manner that fails to guard the contours of fair dealing and user rights from technological encroachment is to undermine the social goals of the copyright system, and to relinquish the policy balancing act performed in their name

Technological Neutrality: Recalibrating Copyright in the Information Age

This article aims to draw the connection between how we conceptualize legal rights over information resources and our capacity to develop technologically neutral legal norms in the information age. More specifically, it identifies and critically examines three competing approaches to the idea of technological neutrality apparent in copyright jurisprudence. Ultimately, it is argued that true technological neutrality requires not simply the seamless expansion of legal rights into new technological contexts, but the careful, contextual recalibration of rights and interests in light of shifting values and changing circumstances. As a normative principle, technological neutrality in copyright law thus demands a nuanced and relational understanding of the rights at play, and the social values that they seek to foster as technologies evolve

Digital Locks and the Fate of Fair Dealing in Canada: In Pursuit of \u27Prescriptive Parallelism\u27

The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of prescriptive parallelism according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment. Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity in Canada\u27s copyright balance. It offers some proposals for digital copyright reform that could meet the principled demands of prescriptive parallelism, limit the impact of digital locks on the cultural landscape, and save fair dealing from its impending fate

Perfume by Any Other Name May Smell as Sweet…But Who Can Say?: A Comment on L’Oreal v. Bellure

L’Oréal v. Bellure is a remarkable case. The ruling of the European Court of Justice, as reluctantly applied by the Court of Appeal of England and Wales, protects the plaintiff’s trade-mark rights against free-riding and prohibits the defendants from taking any commercial advantage of the reputation attaching to the plaintiff’s famous perfume brands. In doing so, it limits free competition and commercial expression without identifying any real harm (consumer confusion, blurring or tarnishment of the marks) or providing any clear public benefit that would justify such intervention. In this article, I argue that the case reflects a perception of trade-mark rights as private property, and the owner of a valuable trade-mark as morally entitled to absolute protection due to his investment in the creation of the brand. In Canada, we should learn from this ruling, prepare to avoid the mistakes of the ECJ in future comparative advertising cases, and protect the rights and interests of Canadian traders and the public against any similar expansion of trade-mark protection