An Emerging Intellectual Property Paradigm
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An Emerging Intellectual Property Paradigm

Perspectives from Canada

Edited by Ysolde Gendreau

This book brings together contributions from reputed experts on Canadian intellectual property law which highlight its special features. Situated at the crossroads between legal traditions in Europe and the United States, Canada’s intellectual property laws blend various elements from these regions and can offer innovative approaches. The chapters focus primarily on patents, trademarks, and copyrights, covering both historical and contemporary developments. They are designed to bring perspective and reflection upon what has become in recent years a very rich intellectual property environment.
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Chapter 7: Canadian Originality: Remarks on a Judgment in Search of an Author

Abraham Drassinower


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, [2004] 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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