Teresa Scassa - Blog

Publications - Intellectual Property Law

  • Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition

    “Originality and Utilitarian Works:  The Uneasy Relationship between Copyright Law and Unfair Competition”, (2004) 1 University of Ottawa Technology Law Journal 51-74 PDF Available here

    Courts have struggled with articulating the standard for “originality” in copyright law.  Some judges have leaned towards a “sweat of the brow” theory that rewards authors for their investment of labour in creating a work.  Others, most notably, the U.S. Supreme Court in the landmark decision of Feist Publications Inc. v. Rural Telephone Service Co. Inc., have held out for a standard which requires some “spark” or modicum of creativity. In this article, I examine the concept of “originality” in light of the shifting purposes of copyright law in Canada, and the historical relationship of utilitarian works to copyright law.  Works such as directories and factual compilations owe their value not to their contents, which are often in the public domain, but to the effort that has gone into collecting those contents.  The scope of protection of such “utilitarian works” to be offered under copyright law has generated controversy in case law and commentary.  By examining the treatment of the concept of “originality” in recent Canadian cases dealing with utilitarian works, the author explores the uneasy relationship between unfair competition law and copyright law in Canada.  I argue that the proliferation of utilitarian works protected by copyright, and in particular, information products, has rendered a threshold for originality extremely problematic.  I argue that the problem lies in the tension between copyright and unfair competition, primarily in relation to utilitarian works, and I conclude that copyright is an inapt vehicle for resolving issues of competition in the information economy.






    in Refereed Articles
    Tags: IP
  • Electronic Commerce and Internet Law in Canada

    Electronic Commerce and Internet Law in Canada, CCH Canadian Ltd., 2004 (with Michael Deturbide).

    This book is the first (and only) Canadian treatise on e-commerce and internet law. It covers a range of topics which include electronic contracts, online consumer protection, data protection and privacy, internet domain names and trademark law, copyright law and the internet, software and e-business patents, the regulation of online speech, and jurisdiction and the internet. Since it was published in 2004, much has changed in this area of law. We are currently working on a second edition of the book, which we hope will be published in 2012.






    in Books
    Tags: Internet IP
  • Recalibrating Copyright Law?: A Comment on the Supreme Court of Canada’s Decision in CCH Canadian Ltd. v. Law Society of Upper Canada

    “Recalibrating Copyright Law?:  A Comment on the Supreme Court of Canada’s Decision in CCH Canadian Ltd. v. Law Society of Upper Canada”, (2004) 3 Canadian Journal of Law and Technology 89-100 PDF Available here

    The Supreme Court of Canada’s unanimous decision in CCH Canadian Ltd. et. al. v. Law Society of Upper Canada  has had  major implications for the development of copyright law in Canada.  In this comment, I critically examine the decision of the court, and its implications for the law around originality, fair dealing, and authorization.






    in Refereed Articles
    Tags: IP
  • A Mouse is a Mouse is a Mouse: A Comment on the Supreme Court of Canada’s Decision on the Harvard Mouse Patent

    “A Mouse is a Mouse is a Mouse:  A Comment on the Supreme Court of Canada’s Decision on the Harvard Mouse Patent”, (2003) 3 Oxford University Commonwealth Law Journal 105-118

    On December 5, 2002, the Supreme Court of Canada handed down its long awaited decision in President and Fellows of Harvard College v. Canada (Commissioner of Patents). Known as the Harvard Mouse case, it had its genesis in the Canadian Patent Commissioner’s decision to deny a patent over a genetically engineered creature known as the “oncomouse”.  The mouse, which has been patented in the United States, numerous European countries, and Japan, brought to the forefront in Canada the issue of whether a higher life form could be the subject of a patent.  After dividing opinions below, the issue also split the Supreme Court of Canada, resulting in a somewhat surprising 5-4 ruling that the definition of “invention” in the Patent Act  did not extend to include a higher life form such as the oncomouse.  The split is a profound one.  While the majority of the Court reflects what can almost be characterized as a precautionary approach to patenting higher life forms, the dissenting justices emphasize the economic and global imperatives of interpreting Canada’s patent legislation consistently with that of other Western nations, so as to recognize patents over virtually all forms of innovation. This paper is a comment on the decision in the case.






    in Refereed Articles
    Tags: IP
  • Book Review: The Personal Information Protection and Electronic Documents Act: A Comprehensive Guide, by William Charnetski, Patrick Flaherty, and Jeremy Robinson

    The Personal Information Protection and Electronic Documents Act: A Comprehensive Guide, by William Charnetski, Patrick Flaherty, and Jeremy Robinson (Toronto:  Canada Law Book Inc., 2001) 272pp., (2002) 1:2 Canadian Journal of Law and Technology 101-103. PDF available here






    in Book Reviews
    Tags: IP
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Canadian Trademark Law

Published in 2015 by Lexis Nexis

Canadian Trademark Law 2d Edition

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Electronic Commerce and Internet Law in Canada, 2nd Edition

Published in 2012 by CCH Canadian Ltd.

Electronic Commerce and Internet Law in Canada

Buy on CCH Canadian

Intellectual Property for the 21st Century

Intellectual Property Law for the 21st Century:

Interdisciplinary Approaches

Purchase from Irwin Law