Teresa Scassa - Blog

"La langue et la justice: La transformation du droit", (1997) 1 Revue de la Common Law en Français" 247.

“Intellectual Property in the Digital Age”, Book chapter, in Karen Adams & William F. Birdsall, eds., Access to Information in a Digital World, Canadian Library Association, 2004 (pp. 31-62).

“Table Scraps or a Full Course Meal? The Public Domain in Canadian Copyright Law”, in Intellectual Property at the Edge: New Approaches to IP in a Transsystemic World, Proceedings of the Meredith Lectures, Editions Yvon Blais, 2007, pp. 347-376.

While the concept of the public domain has long been an important part of U.S. copyright case law and commentary, its role has been relatively minor in Canada. References to the public domain in Canadian cases have, until very recently, been rare, made largely in passing, and have done little to define or explore the concept. The Canadian public domain is, in some significant respects, much smaller than that in the United States, and Canadian copyright legislation and case law has not traditionally favoured a robust public domain engineered through deliberate policy choices. Rather, the public domain has been constituted by leftovers: things that cannot be monopolized by virtue of fundamental axioms of copyright law, works in which copyrights have expired, and things that do not fit within the definitions of works.   The public domain as it is currently constituted is also a fragile thing: vigilance is required in interpretations of key copyright concepts so as not to further shrink its scope. The historical role of the public domain stands in interesting contrast to its sudden assumed importance in recent Supreme Court of Canada decisions.

In this paper, I explore the scope of the public domain in Canada using illustrations drawn from “real life”. The illustrations chosen, which relate to Crown copyright and to the reproduction of works in which copyright has expired, offer insights into the scope and fragility of the public domain in Canada. Crown copyright is an example of the narrow horizons of the Canadian public domain as set out in the legislation. The issue of the reproduction of works in which copyright has expired allows for an exploration of the scope of the public domain as a matter of statutory interpretation – more specifically, the interpretation of the threshold standard of originality. This is an area of enormous significance as it is through interpretation that courts wield enormous power in constituting the public domain.

"Sentencing Intimate Femicide:  A Comment on R. v. Doyle", (1993) 41 Dalhousie L.J. 270

"The Best Things in Law are Free:  Towards Quality Free Public Access to Primary Legal Materials in Canada", (2000) 23 Dalhousie Law Journal 301-336

This paper examines the move, in the 1990s in Canada, towards making primary legal materials freely available to the public over the internet.   The paper begins by assessing the situation in Canada at the time of writing, and the need for a centralized and harmonized electronic portal for primary legal materials.  I consider initiatives in other jurisdictions aimed at providing comprehensive free public access, and explore the rationales for developing and providing such access.  I explore some of the implications and questions raised by the provision of publicly accessible primary legal materials.  These include the concepts of  “public” and “access”, concerns about information monopolies, the role of lawyers as "infomediaries" and the normative implications of "freeing" the law.

"Patents for Second Medical Indications:  Issues and Implications for Pharmacare in Canada", (2001) 9 Health Law Journal 23-59

This issue of second medical indication patents and their implications is an important one, as it has the potential to raise costs significantly for already cash-strapped provincial drug programs.  It may also have implications for privately funded drug plans, and hence for the cost of private drug insurance programs.  At the very least, it may impose costs on provincial health departments to defend themselves in any potential patent infringement actions taken against them.  It has also been argued that to list drugs as only partially interchangeable in provincial drug formularies will place difficult burdens on pharmacists and those who prescribe drugs, and may expose them directly to patent liability issues.  This paper considers both the issues raised by the decision in Apotex v. Ontario, and the implications for health departments, doctors and pharmacists.

"Intellectual Property on the Cyber-Picketline:  A Comment on British Columbia Automobile Assn v. Office and Professional Employees' International Union, Local 378", (2002) 39 Alberta Law Review 934-962

This paper is a lengthy and critical comment on the decision of the British Columbia Supreme Court, British Columbia Automobile Assn v. Office and Professional Employees' International Union, Local 378.. The case remains an important decision on issues of passing off, trademark and copyright infringement relating to websites, domain names and meta tags.  In this paper I explore these issues, all of which may commonly arise in situations of alleged competition between websites.  The case thus provides a context for exploring legitimate and unlawful uses of domain names and meta tags, copyright infringement, and web site design, and touches on the role of s. 22 of the Trade-marks Act.  Because BCAA also occurs in the context of a labour dispute, it raises further issues about intellectual property rights and freedom of expression.  In this context, I examine the balance being struck between monopolistic intellectual property rights and the fundamental right of freedom of expression.

“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.

“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.

“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.