Drassinower, Abraham --- "Canadian Originality: Remarks on a Judgment in Search of an Author" [2008] ELECD 368; in Gendreau, Ysolde (ed), "An Emerging Intellectual Property Paradigm" (Edward Elgar Publishing, 2008)

Book Title: An Emerging Intellectual Property Paradigm

Editor(s): Gendreau, Ysolde

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847205971

Section: Chapter 7

Section Title: Canadian Originality: Remarks on a Judgment in Search of an Author

Author(s): Drassinower, Abraham

Number of pages: 24

Extract:

7. Canadian originality: remarks on a
judgment in search of an author1
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 copy-
right 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 ...