The Art of Selling Chocolate: Remarks on Copyright's Domain

• Author: Abraham Drassinower
• Pages: 121-150

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  

The Art of Selling Chocolate:

Remarks on Copyright’s Domain

Abraham Drassinower*

A. INTRODUCTION

On  July , the Supreme Court of Ca nada released a signif‌icant de -

cision dea ling with copyright and parallel imports, Euro-Excellence Inc. v.

Kraft Canada Inc. e decision is truly extraordinar y. It of‌fers an oppor-

tunity to study systematically the interaction of several copyright issues:

including the r ights (or lack thereof) of exc lusive licensees as plaintif‌f s in

* Earlier vers ions of this paper were pres ented at the University of Ot tawa Faculty

of Law Torys LLP Technolog y Law Speaker Ser ies; Torys LLP Intellec tual Propert y

CLE Progra m; ALAI Ca nada (Montreal) Spe aker Series; AL AI Canada ( Toronto)

Speaker Ser ies; and the Universit y of Toronto Faculty of Law “Lega l Conceptions

of Reputation” Col loquium. I want to tha nk participa nts in those workshops for

their comments , including Jane Ba iley, Mario Boucha rd, Jennifer Cha ndler, Jeremy

DeBeer, Ysolde Gendreau , Vincent de Grandpré, El izabeth Judge, Ia n Kerr, Howard

Knopf, Andre a Rush, Andrew Sh aughnessy, Barry S ookman, Simon Ster n, Sam

Trosow, Peter Wells, and Peter W ilcox. I also want to t hank Bruce Cha pman, Yoav

Mazeh, Lau ra Murray, Andrea Sl ane, and Arnold Weinr ib for discussion s during

the composition of t he paper, Ariel Kat z and two anonymous rev iewers for helpfu l

comments on an ea rlier draft, an d Diana Lee for her rese arch assistance. It go es

without sayi ng that the responsib ility is all m ine. e Social Sci ences and Human-

ities Researc h Council of Cana da and the Centre for Innov ation Law and Policy at

the Universit y of Toronto Faculty of Law provided s upport during the c ompletion of

the paper.

  SCC , http://csc.lexum.umontreal.ca/en//scc/scc.html

[Euro-Excellence].

Abraham D rassinower

parallel import situat ions, the distinction between exc lusive licensees and

assignees, t he nature of works of authorship, the charac teristics of copy-

right infri ngement, the status of copyrightable works when used as trade-

marked logos, the limits (if any) of concurrent copyr ight and trade-mark

protection, and e ven the distinction between trade-mark , copyright, and

patent as autonomous yet related legal regimes.

If that were not enough, the deci sion has yet another at traction. It re-

gales us not with one or t wo, but w ith nothing less t han four dif‌ferent

judgments. In addition to the reasons for judgment by Justice Rothstei n

(writing for himsel f, Binnie and Deschamps JJ), we have a dissent by Jus-

tice Abella (wr iting for herself and McLachlin CJC), a set of concurring

reasons by Justice Fish, a nd yet another set of reasons by Justice Bast a-

rache (writing for himse lf, LeBel and Cha rron JJ), conc urring in result,

but developing a marked ly distinct aspect of the c ase, and in fact dissent-

ing from t he reasons of‌fered by Justice Rothstein to reach the very same

result. e ef‌fect of these overlapping yet distinct and concur ring judg-

ments, which both partial ly agree and partially d isagree with e ach other

in multiple respects, is that, aside from the relative ly easy statement that

the defendant parallel importer won the case, it is dif‌f‌icult to identify with

clarit y or conviction what the law of parallel imports of copyri ghted works

is in Canada. One would be forgiven for jesting that Euro-Excellence is a law

professor’s dream.

I suspect that one would also be forgiven for fail ing to engage direc tly

in the immediate controversies th at the case dramatizes through its judg-

ments, and for c hoosing instead to emphasiz e certain aspect s of the case

with a view to plumbing its contri bution to an ongoing juridical conversa-

tion in Can ada about the nature and s cope of copyright protection—th at

is, a conversation about how to def‌ine and how to lim it copyright. is

conversation is certainly worthy of our attention, all the more so when the

recurrent agitations of copyright reform threaten both to distract us from,

and to compel us toward, the e xigencies and serenities of clear thi nking.

e most sa lient recent moments in that conversat ion are the well-

known Supreme Court of C anada decisions in éberge v. Galerie d’Art du

Petit Cha mplain inc.and CCH Canadian Ltd. v. Law S ociety of Upper Can-

ada. I want in what follows to frame Euro-Excellence as another iteration

 éberge v. Galerie d’Art du Petit Ch amplain inc.,  SCC , http://csc.lexum.umon-

treal.ca/en//scc/scc.html [éberge].

 CCH Canadian Ltd. v. Law Societ y of Upper Canada,  SCC , http://csc.lexum.

umontreal.ca/en//scc/scc.html, []  S.C. R.  [CCH].