Perspectives from Canada
Queen Mary Studies in Intellectual Property series
Edited by Ysolde Gendreau
Chapter 7: Canadian Originality: Remarks on a Judgment in Search of an Author
1 Abraham Drassinower The standard of originality in Canadian copyright law has recently undergone significant transformation. Traditionally a jurisdiction that, in the eyes of many, had adopted a ‘sweat of the brow’ standard, Canada is now a ‘skill and judgment’ jurisdiction.2 This chapter (1) describes and contextualizes the shift; (2) analyzes its presuppositions in respect of the Canadian conception of the purpose of copyright law; and (3) identifies difficulties and ambiguities that may preclude its full development. I will argue that the doctrinal shift is in tension with certain 1 I would like to thank Ysolde Gendreau for the opportunity to contribute to this discussion of Canadian copyright and its implications. I would also like to thank Bruce Chapman, Andrea Slane, and Arnold Weinrib for helpful conversations during the preparation of this paper; Arnold Weinrib and an anonymous reviewer for comments on an earlier draft; Sooin Kim for her excellence as a librarian; and the Social Sciences and Humanities Research Council of Canada and the Centre for Innovation Law and Policy at the University of Toronto Faculty of Law for ongoing support. 2 See CCH Canadian Ltd. v. Law Society of Upper Canada,  1 S.C.R. 339 at para. 16 [CCH]. For commentary, see Teresa Scassa, ‘Original Facts: Skill, Judgment, and the Public Domain’ (2006) 51 McGill Law Journal 253; Ramón Casas Vallés, ‘Bibliotecas jurídicas y propiedad intelectual: El caso de la Gran Biblioteca del Colegio de Abogados de Ontario’ (2005) 4 Revista Jurídica de Catalunya...
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