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Articles 1 - 27 of 27
Full-Text Articles in Law
Critical Copyright Law & The Politics Of ‘Ip’, Carys J. Craig
Critical Copyright Law & The Politics Of ‘Ip’, Carys J. Craig
Carys Craig
Since its explosion late in the twentieth century, the field of intellectual property scholarship has been a vibrant site for critical legal theorizing. Indeed, it is arguable that US-based intellectual property scholarship effectively generated a resurgence or ‘second wave’ of Critical Legal Studies. Exploring critical engagement with the very idea of ‘intellectual property’ and its conceptual counterpart, the ‘public domain,’ this chapter suggests that a vast swath of copyright scholarship that has bloomed over the past few decades, as copyright has expanded in its reach and relevance, builds implicitly or explicitly on insights gleaned from legal realism, Critical Legal Studies, …
Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig
Carys Craig
Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor should doubt remain as to …
Globalizing User Rights-Talk: On Copyright Limits And Rhetorical Risks, Carys Craig
Globalizing User Rights-Talk: On Copyright Limits And Rhetorical Risks, Carys Craig
Carys Craig
Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically …
Technological Neutrality: Recalibrating Copyright In The Information Age, Carys Craig
Technological Neutrality: Recalibrating Copyright In The Information Age, Carys Craig
Carys Craig
This article aims to draw the connection between how we conceptualize legal rights over information resources and our capacity to develop technologically neutral legal norms in the information age. More specifically, it identifies and critically examines three competing approaches to the idea of technological neutrality apparent in copyright jurisprudence. Ultimately, it is argued that true technological neutrality requires not simply the seamless expansion of legal rights into new technological contexts, but the careful, contextual recalibration of rights and interests in light of shifting values and changing circumstances. As a normative principle, technological neutrality in copyright law thus demands a nuanced …
Symposium: Reconstructing The Author-Self: Some Feminist Lessons For Copyright Law, Carys J. Craig
Symposium: Reconstructing The Author-Self: Some Feminist Lessons For Copyright Law, Carys J. Craig
Carys Craig
No abstract provided.
The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig
The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig
Carys Craig
This essay explores the important body of scholarship that has emerged on the substance, nature, and role of the public domain in intellectual property law. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a reasonably comprehensive but concise review of the academic public domain movement, which has been directed towards substantiating and politicizing the concept of the public domain, second, I hope to re-situate …
Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig
Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig
Carys Craig
The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of "prescriptive parallelism" according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment. Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity …
Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig
Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig
Carys Craig
This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors …
Technological Neutrality: (Pre)Serving The Purposes Of Copyright Law, Carys J. Craig
Technological Neutrality: (Pre)Serving The Purposes Of Copyright Law, Carys J. Craig
Carys Craig
No abstract provided.
Locking Out Lawful Users: Fair Dealing And Anti-Circumvention In Bill C-32, Carys J. Craig
Locking Out Lawful Users: Fair Dealing And Anti-Circumvention In Bill C-32, Carys J. Craig
Carys Craig
This chapter examines the potential impact of the proposed fair dealing and anti-circumvention provisions in Canada’s most recent copyright reform bill, Bill C-32. I suggest that the minimal expansion of the fair dealing defence to cover “new” purposes, as well as the addition of a few new user exceptions, while welcome, is insufficient to ensure the breadth of user defences that the copyright balance demands. Moreover, the extensive protection of technological protection measures without any regard for lawful uses of copyright material has the potential to effectively eviscerate fair dealing in the digital age. Many acts permitted in relation to …
Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig
Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig
Carys Craig
The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of "prescriptive parallelism" according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment. Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity …
The Changing Face Of Fair Dealing In Canadian Copyright Law: A Proposal For Legislative Reform, Carys J. Craig
The Changing Face Of Fair Dealing In Canadian Copyright Law: A Proposal For Legislative Reform, Carys J. Craig
Carys Craig
No abstract provided.
Perfume By Any Other Name May Smell As Sweet…But Who Can Say?: A Comment On L’Oreal V. Bellure, Carys J. Craig
Perfume By Any Other Name May Smell As Sweet…But Who Can Say?: A Comment On L’Oreal V. Bellure, Carys J. Craig
Carys Craig
L’Oréal v. Bellure is a remarkable case. The ruling of the European Court of Justice, as reluctantly applied by the Court of Appeal of England and Wales, protects the plaintiff’s trade-mark rights against free-riding and prohibits the defendants from taking any commercial advantage of the reputation attaching to the plaintiff’s famous perfume brands. In doing so, it limits free competition and commercial expression without identifying any real harm (consumer confusion, blurring or tarnishment of the marks) or providing any clear public benefit that would justify such intervention. In this article, I argue that the case reflects a perception of trade-mark …
Reconstructing The Author-Self: Some Feminist Lessons For Copyright Law, Carys J. Craig
Reconstructing The Author-Self: Some Feminist Lessons For Copyright Law, Carys J. Craig
Carys Craig
Copyright law currently forces all intellectual production into a doctrinal model shaped by individualistic assumptions about the authorial ideal. To the extent that the truly original author-owner is conceptualized as an individual (and not a function or fiction), he depends upon Enlightenment ideals of individuation, detachment, and unity. A competing view of the author sees her as necessarily engaged in a process of adaptation, translation and recombination. This version of authorship coheres with a view of the individual as socially constituted: her expression is the result of the complex variety of texts and discourses that she encounters (and by which …
Introduction - Copyright, Communication & Culture: Towards A Relational Theory Of Copyright Law, Carys J. Craig
Introduction - Copyright, Communication & Culture: Towards A Relational Theory Of Copyright Law, Carys J. Craig
Carys Craig
In this provocative book, Carys Craig challenges the assumptions of possessive individualism embedded in modern day copyright law, arguing that the dominant conception of copyright as private property fails to adequately reflect the realities of cultural creativity. Employing both theoretical argument and doctrinal analysis, including the novel use of feminist theory, the author explores how the assumptions of modern copyright result in law that frequently restricts the kinds of expressive activities it ought to encourage. In contrast, Carys Craig proposes a relational theory of copyright based on a dialogic account of authorship, and guided by the public interest in a …
Putting The Community In Communication: Dissolving The Conflict Between Freedom Of Expression And Copyright, Carys Craig
Putting The Community In Communication: Dissolving The Conflict Between Freedom Of Expression And Copyright, Carys Craig
Carys Craig
This paper is concerned with the relationship between freedom of expression and copyright law — and, more specifically, with what this relationship reveals about the nature and purpose of the copyright interest. I argue that the source of the apparent conflict between copyright and free expression is the prevailing characterization of both as individual rights vested in the liberal subject. The key to dissolving the conflict lies in the recognition of the social values that these rights affirm: the value that we attach to communication, to interaction between members of society and to participation in a social dialogue. If copyright …
Trade-Marks And Unfair Competition Law In Canada: Cases And Commentary, Second Edition, Bita Amani, Carys Craig
Trade-Marks And Unfair Competition Law In Canada: Cases And Commentary, Second Edition, Bita Amani, Carys Craig
Carys Craig
The legal protection afforded by statutory and common law to brands, logos, and "source-identifiers" in the marketplace is a significant and growing area of concern. Trade-marks are often among a business's most valuable assets, making trade-mark law a vital component of any corporate or commercial practice. The Amani-Craig collaboration produces a timely and current volume that comprehensively covers the law and jurisprudence on trade-mark protection in Canada, providing background and comparative discussion where relevant, and offering insightful commentary to facilitate reader comprehension.
The Canadian Public Domain: What, Where, And To What End?, Carys Craig
The Canadian Public Domain: What, Where, And To What End?, Carys Craig
Carys Craig
No abstract provided.
The Evolution Of Originality In Canadian Copyright Law: Authorship, Reward And The Public Interest, Carys J. Craig
The Evolution Of Originality In Canadian Copyright Law: Authorship, Reward And The Public Interest, Carys J. Craig
Carys Craig
Originality is a foundational concept in copyright law: it defines the works to which copyright attaches and delineates the scope of protection they receive. The Supreme Court of Canada, in its recent ruling in CCH Canadian Ltd. v. Law Society of Upper Canada, appears to have settled the conflict between creativity and sweat-of-the-brow standards for originality, espousing a compromise position requiring "skill and judgment." In this paper, the author aims to locate the evolution of the originality doctrine within the context of a foundational shift in Canadian copyright theory. When "benefiting authors" was copyright's only recognized purpose, originality was determined …
Technological Neutrality: (Pre)Serving The Purposes Of Copyright Law, Carys J. Craig
Technological Neutrality: (Pre)Serving The Purposes Of Copyright Law, Carys J. Craig
Carys Craig
In the realm of law, neutrality is widely hailed as a fundamental principle of fairness, justice and equity; it is also, however, widely criticized as a myth that too often obscures the inevitable reality of perspective, interest or agenda.The principle of technological neutrality, recently articulated by the Supreme Court of Canada when applying copyright law to online activities, seems similarly fundamental in the copyright realm — and equally mythical. In what is now dubbed the Supreme Court’s “Copyright Pentalogy” — five copyright judgments released concurrently by the Court in June 2012 — the unprecedented importance accorded by the Court to …
What Is Feminist About Open Access?: A Relational Approach To Copyright In The Academy, Carys J. Craig, Joseph F. Turcotte, Rosemary J. Coombe
What Is Feminist About Open Access?: A Relational Approach To Copyright In The Academy, Carys J. Craig, Joseph F. Turcotte, Rosemary J. Coombe
Carys Craig
In a context of great technological and social change, existing intellectual property regimes such as copyright must contend with parallel forms of ownership and distribution. Proponents of open access question and undermine the paradigm of exclusivity central to traditional copyright law, thereby fundamentally challenging its ownership structures and the publishing practices these support. In this essay, we attempt to show what it is about the open access endeavour that resonates with a feminist theory of law and society - in other words, we consider what is “feminist” about open access. First, we provide an overview of a relational feminist critique …
Resisting "Sweat" And Refusing Feist: Rethinking Originality After Cch, Carys J. Craig
Resisting "Sweat" And Refusing Feist: Rethinking Originality After Cch, Carys J. Craig
Carys Craig
In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada ostensibly settled the debate between the "sweat school" and the "creativity school" regarding the meaning of copyright's originality requirement. While rejecting a labour-based formulation of the originality standard, the Supreme Court also refused to adopt the "minimal degree of creativity" test established by the U.S. Supreme Court in the famous Feist case. The appropriate threshold for originality, according to the Supreme Court of Canada, "falls between these two extremes" and requires "an exercise of skill and judgment." This paper explores the significance of the "skill …
Locke, Labour, And Limiting The Author’S Right: A Warning Against A Lockean Approach To Copyright Law, Carys J. Craig
Locke, Labour, And Limiting The Author’S Right: A Warning Against A Lockean Approach To Copyright Law, Carys J. Craig
Carys Craig
This paper criticizes a Lockean approach to copyright, which sees an author’s right as the natural entitlement to the fruits of her labour. The author’s contention is that the Lockean account mistakenly finds the justification for copyright in the relationship between an author and her work, rather than the persistent presence of this labour-desert rationale in Canadian copyright rhetoric necessarily privileges the interests of the private rights-bearer over the public interest, and so threatens the public policy goals that copyright is intended to further. The author attacks the Lockean copyright theory from two directions. First, she examines the extent to …
Feminist Aesthetics And Copyright Law: Genius, Value, And Gendered Visions Of The Creative Self, Carys J. Craig
Feminist Aesthetics And Copyright Law: Genius, Value, And Gendered Visions Of The Creative Self, Carys J. Craig
Carys Craig
Copyright law is fundamentally concerned with the value of cultural works — both the recognition and the creation of this value. Yet it is seldom acknowledged that copyright law makes or requires any value judgment in the sense of an aesthetic evaluation of copyright’s subject matter. Indeed, it is often emphasized that copyright protects original works of authorship regardless of their quality or merit. That copyright protection demands the satisfaction of only the most minimal of qualitative standards does not, however, dispose of the larger claim that forms the basis of this chapter: our copyright system is dominated by a …
Trade-Marks And Unfair Competition Law In Canada: Cases And Commentary, Bita Amani, Carys Craig
Trade-Marks And Unfair Competition Law In Canada: Cases And Commentary, Bita Amani, Carys Craig
Carys Craig
This text offers a thorough and accessible survey of the Canadian law of trade-marks and unfair competition. The legal protection afforded by statutory and common law to brands, logos, and "source-identifiers" in the marketplace is a significant and growing area of concern. Trade-marks are often among a business's most valuable assets, making trade-mark law a vital component of any corporate or commercial practice. The Amani-Craig collaboration produces a timely and current volume that comprehensively covers the law and jurisprudence on trade-mark protection in Canada, providing background and comparative discussion where relevant, and offering insightful commentary to facilitate reader comprehension.
Copyright, Communication And Culture: Towards A Relational Theory Of Copyright Law, Carys Craig
Copyright, Communication And Culture: Towards A Relational Theory Of Copyright Law, Carys Craig
Carys Craig
In this provocative book, Carys Craig challenges the assumptions of possessive individualism embedded in modern day copyright law, arguing that the dominant conception of copyright as private property fails to adequately reflect the realities of cultural creativity. Employing both theoretical argument and doctrinal analysis, including the novel use of feminist theory, the author explores how the assumptions of modern copyright result in law that frequently restricts the kinds of expressive activities it ought to encourage. In contrast, Carys Craig proposes a relational theory of copyright based on a dialogic account of authorship, and guided by the public interest in a …
Copyright: Cases And Commentary On The Canadian And International Law, Second Edition, Barry Sookman, Steven Mason, Carys Craig
Copyright: Cases And Commentary On The Canadian And International Law, Second Edition, Barry Sookman, Steven Mason, Carys Craig
Carys Craig
Copyright law grants exclusive rights for limited terms to the authors of musical, literary, dramatic and artistic works. With the shift towards an information economy and the rapid development of digital technologies, copyright is fast becoming one of the most dynamic, critical and controversial areas of Canadian law and policy. This casebook presents extracts from the leading cases from both Canadian and international jurisprudence to illustrate the legal concepts, doctrinal evolution and current approaches to copyright issues. The revised second edition reflects the important case law and statutory amendments that have taken place over the past five years, including the …