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Little attempt to stipulate an underlying theory or rationale to explain and influence the interpretation of the copyright legislation.
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On at least two occasions, the SCC has described the approach to interpreting the CA as simply statutory interpretation.
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See Compo Co. v. Blue Crest Music Inc.
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Leading theory on copyright today is pragmatic school:
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CR should be determined by statute law based on an analysis of all the interests involved, with emphasis on the public interest.
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Pragmatic analysis of these interests leads one to express the rights granted in terms of exclusive rights of authors.
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Concern with the underlying social philosophy of copyright law is unwarranted unless different theories lead to different conclusions.
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The US is more based on a social contract theory.. article 1 §8 if the Constitution stipulates that copyright legislation by the congress must "promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive right to their respective writings and discoveries."
The Scope of Government -
Canadian jurisprudence had difficulties with demarcating the boundaries of CR protection.
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Historically, there was little need to seek a more precise formulation of the scope of CR because the influence of copyright in the marketplace and beyond the context of objectives of aesthetic appeal was limited.
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Original form of expression presents the crucial requirement of "copyrightability".
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If not present, the subject matter is either protectable by other areas of OP or is in the public domain.
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If CR protection is recognised regardless, then it is being used as a judicially imposed measure against copying simpliciter, in effect against "unfair competition" by misappropriation.
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Difficulty is in defining original and settling the demarcation between protectable form of expression and unprotect able subject matter.
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Traditionally it was said to be established simply if the work was not copied from another source.
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Generally adequate, but fails in some instances.
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Examples:
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Concepts that can only be expressed in a certain number of ways; e.g. a circle.
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More complicated but still routine, a form with spaces for name, address, phone, etc.
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Compilations of facts, information or data, presented in a routine (e.g. alphabetical)
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Non-distinctive routine instruction, such as "follow the clinic procedure for aftercare. If proper procedures are followed, no risk of viral infections can occur."
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A single word. Consider words such as aftercare, Exxon, Wombles. Are they original?
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If Exxon were copyrightable, would there be a need to retain trademark law?
CHAPTER 2: Basic Elements of Copyright Law -
Conditions for Subsistence of Copyright
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§5(1)(a)-(c)
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Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
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(a) In the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country:
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(b) in the case of a cinematographic work, whether published or unpublished, the mater, at the date of the making of the cinematographic work,
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(i) if a corporation, had its headquarters in a treaty country, or
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(ii) if a natural person, was a citizen or subject of, or a person ordinarily resident in, a treaty country; or
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(c) In the case of a published work, including a cinematographic work,
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(i) in relation to subparagraph 2.2(1)(a)(i), the first publication in such quantity as to satisfy the reasonable demands of the public, having regard to the nature of the work, occurred in a treaty country, or
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(ii) in relation to subparagraph 2.2(1)(a)(ii) or (iii), the first publication occurred in a treaty country.
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First Publication
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§ 5(1.1) of the Copyright Act states:
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The first publication described is deemed to have occurred in a treaty country notwithstanding that it in fact occurred previously elsewhere, if the interval between these two publications did not exceed thirty days.
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History
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Prior to amendments to the Copyright Act effective from January 1, 1994, Canada may not have been in compliance with the Berne and Universal Copyright Conventions.
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The requirements of the Berne and UCC oblige Canada to go further than the present law, in order to protect works of creators of convention countries regardless of the country of first publication of the work and works of non-convention nationals first published in a convention country. In addition, equity dictates that all works created while an author was domiciled or resident in Canada should receive protection.
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Explanation
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§ 5 of the Copyright Act, prior to January 1, 1994, required in the case of a published work that the author both be a citizen of a Berne Convention country or a resident of the Commonwealth and first publish in a Berne country.
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The qualification of citizenship or residency excluded residents, but not citizens, of Berne Convention countries outside of the commonwealth.
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The Berne Convention 1928 covers citizens or residents of Berne Convention countries and, in the case of published works, either authors who are citizens or residents or authors who are not citizens or residents of Berne Convention countries but whose works are first published in a Berne Convention country.
Milliken & Co. v. Interface Flooring Systems -
First held that for copyright to subsist in a work created by a citizen of a foreign country (per the Berne Convention), it must also be first published in that same foreign country of which the creator is a citizen.
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Reversed, by Strayer J, finding that although the English text of § 5 supported this view, the French text allowed first publication in any of the countries adhering to the convention.
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Went with the interpretation that is most consistent with the original version of the Convention.
Mascot International v. Harman Investments Ltd. -
What is the purpose of this case?
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Plaintiffs allege copyright infringement on "ornamental items each of which features an animal or insect made of gold plated metal and crystal"
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Plaintiffs provided copies of the certificates of copyright registration.
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Defendants said that didn't show that they were first published in a convention country.
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Judge said it was.
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