This morning I attended the oral hearing for Euro Excellence v. Kraft Foods, the Supreme Court of Canada's latest foray in copyright law in Canada. The case involves the parallel importation of Toblerone (the mountain) and Cote D'Or (the elephant) chocolates from Europe into Canada. The hearing involved some almost comical discussion about the creativity associated with the mountain and the elephant, punctuated by Justice Bastarache quizzing the lawyer for Kraft (who is trying to block the imports) whether "you really want us to believe that you want to protect an artistic work" and Justice Binnie asking whether the counsel thought that people purchase Toblerone because of the picture of a mountain on the package.
While it is notoriously difficult to predict what the court will do based on the hearing, the court virtually gave Euro Excellence a free pass, while challenging Kraft at every turn. Should the court overturn the Federal Court of Appeal and rule for Euro Excellence, there are two points worth keeping an eye on. First, Justice Binnie noted that this case felt like an attempt to do through copyright what Kraft is unable to do through trademark law. The court has been quick to dismiss attempts to substitute one form of IP right for another (consider the Mega Blocks case where the court rejected an attempt to use trademark law after a patent had expired) and might well do the same here.
Second, the court might wade into the doctrine of copyright misuse.
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Many readers will know that over the summer I launched a 30 Days of DRM series that focused on the concerns associated with DRM and anti-circumvention. Day Seven called for DRM-free library deposits. Well, one down and 29 to go – my weekly Law Bytes column (Ottawa Citizen version, homepage version, BBC international version) highlights recent changes to Canada's legal deposit regulations designed to accommodate the emergence of online publications and to address the DRM issue. Canada introduced mandatory legal deposit in 1953, requiring publishers to provide copies of all published books to the National Library of Canada. With little fanfare, the rules for legal deposit have gradually been adapted to the Internet and digital technologies. In 2004, the government granted the Library and Archives Canada, the successor the National Library, the right to sample web pages in an effort to preserve noteworthy Canadian websites. The Internet sampling provision has been used to gather copies of political party websites as well as a handful of notable blogs.
As of January 1st of this year, the rules have changed yet again as Canadian Heritage Minister Bev Oda introduced new regulations to accommodate the emergence of online publications and to address the concerns raised by digital technologies that potentially impede access. The latest changes will require many online-only publishers to begin submitting their publications to the LAC. The rules disappointingly stop short of requiring all publishers to submit electronic versions of paper-based documents, however. Such a requirement should be considered in the future to facilitate the creation of a national digital library.
The new rules also address mounting concern about the potential impact of DRM to deny future generations access to the publications in digital form.
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Appeared in the Ottawa Citizen on January 16, 2007 as Centuries-Old Library Program Enters the 21st Century Appeared in the BBC on January 22, 2007 as Preserving Printed and Digital Heritage In 1537, French King Francis I launched an ambitious initiative to collect and preserve all documents published in France. […]
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