As is well-known, one of the more unusual features of Canadian law that somehow remains perpetually understated in IP circles is that our federal laws are proclaimed in two official languages, English and French; as per Section 18(1) of the Charter, both versions of the law are equally authoritative. Similarly, decisions from many adjudicative boards and courts are published in both English and French and both versions are also, at least in theory, equally authoritative. Given this trait, as a point of habit in my research, I often compare important passages of a legal text (statute, decision, etc.) published in English with the equivalent passages in the French version (and vice-versa), to see if any identifiable differences exist between the two.

I’ll return to the linguistic duality of Canada’s legal system in just a moment, but for now, let’s shift gears over to some fundamental principles of copyright law. As every student of copyright in this country is taught, “copyright shall subsist in Canada [...] in every original, literary, dramatic and artistic work” (s 5(1) of the Copyright Act), with the added nuance that copyright law protects only the original expression of ideas, not the ideas in and of themselves (Moreau v St Vincent, [1950] 3 DLR 713 (Ex Ct), at 203). The question of what constitutes “original expression” in a work, though, required an answer from the Supreme Court, given that the Copyright Act does not itself define the terms (nor the term “original” by itself). As every student of copyright in this country also learns, in CCH, Chief Justice McLachlin wrote that:

“What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.” (CCH at para 16, my emphasis)

This passage is well-known, and is often taken as the definition of “original expression” in Canadian copyright law. Original expression involves skill and judgment. Such a phrase is repeated ad infinitum in law schools across the country.

What seems less well-known, though, is how this oft-cited and crucial observation from CCH was presented in the French version of the decision:

“L’élément essentiel à la protection de l’expression d’une idée par le droit d’auteur est l’exercice du talent et du jugement.” (my emphasis)

For readers with even a most rudimentary understanding of French, a surprising nuance jumps out here. The term ‘skill’ in English is translated as ‘talent’ in French. Linguistically speaking, this is somewhat unusual. My own term for translating ‘skill’ is ordinarily ‘habileté’ ; as it turns out, the Government of Canada’s Translation Bureau (proxied here via Termium Plus, “the Government of Canada’s terminology and linguistic data bank” for matters of translation) agrees with me that this is the normal, so-called ‘correct’ translation. Nowhere in any given translation of the term ‘skill’ does the word talent (in French) appear as an option. The inverse is also true: searching for translations of the word talent (in French) does not yield the term ‘skill’ in English. Unsurprisingly, in that latter case, the term ‘talent’ (in English) is suggested.

So, “original expression” is skill and judgment in one language, and talent and judgment in the other. This is a rather interesting choice, to say the least.

How are we to think about this difference, given that both texts are supposedly equally authoritative? One could be tempted to write off the translation as an error and move on to more pressing matters. Yet that sits somewhat uncomfortably as an argument, in that it presumes that the Supreme Court does not actually mean what it claims black on white that it means. There is also a problem in implicitly asserting that the French version is by default a translation of the English version; given the collaborative nature of SCC decision-writing (see McInnes, M., J. Bolton, & N. Derzko, "Clerking at the Supreme Court of Canada" (1994) 33 Alta L Rev 58), for all we know, the paragraph first originated in French, and was later translated into English. Finally, there is some danger in presuming that the nation’s most careful group of writers inattentively let one go by, no matter how small the nuance. Even though bilingualism is not a formal requirement of acceding to the Supreme Court’s bench, most Justices of the Court are nonetheless at very least functionally bilingual, with many achieving complete fluency. These linguistic competences should in both theory and practice ensure that most Justices are attuned to the nuances of judicial translation. Then there is the fact three Justices involved in deciding CCH list French as their first language (Bastarache, LeBel, Deschamps). As a default position, then, assuming that the Court means what it says black on white seems like the more prudent (and legally defensible) position.

Therefore, given the difference between using the term ‘skill’ in English and the term talent in French, what do we make of that? To illustrate the wiggle room the nuance between the two terms opens up, consider the following pairs of sentences. Is there any meaningful difference between the first and second statement?

“François is a skilled cook.”

“François is a talented cook.”

“The concert featured a very skilled soloist.”

“The concert featured a very talented soloist.”

To my linguistic senses, while the terms “skill” and “talent” are related, they are not quite fully interchangeable either. To me, talent appeals to some higher capacity than skill. While I would happily eat a meal prepared by a skilled cook any day, one prepared by a talented cook seems even more appetizing; and while hearing a skilled soloist perform in concert sounds great, hearing a talented one sounds even better. Anecdotally, people here at Osgoode Hall with whom I’ve discussed this observation agree that there seems to be a bit a gap - not a large one, but a noticeable one nonetheless - between skill and talent. The term ‘skill’ points more toward the technique involved in performing an activity, be it writing poetry, composing music or coding software. Talent, on the other hand, implies some aptitude that requires skill and technique, yet pushes beyond these categories in such a way that some kind of quasi-innate personal creative spark is recognizable. For instance:

 “Jordan is a skilled basketball player.”

“Jordan is a talented basketball player.”

Talent again seems to come in one notch ahead of skill. Where does this nuance come from? One possible answer is the divergence between civil law and common law, as represented on the bench of the Supreme Court. Whereas in the English common law, copyright is understood in a more Lockean labour-oriented perspective, en français, civil law jurists in the droit d’auteur tradition have long adopted a more personality-oriented Kantian view of copyrighted products, such that poems, songs and even academic articles represent the inalienable essence of a person. To be sure, this is of course a gross oversimplification of how Canada and Canadians as a whole understand the copyright/droit d’auteur divide. Yet it is also a useful categorization, insofar as it helps reconcile the divide between the English ‘skill’ and French ‘talent,’ in that the former is more labour-oriented, whereas the latter is more personality-oriented. Given the Supreme Court bench ordinarily comprises of three civil law jurists, this may in part explain how this ‘discrepancy’ came up. Since these civil law jurists come from Québec, and Supreme Court jurists from Québec almost unequivocally show complete command of the French language, a civil law-based standard that requires talent instead of habileté for original expression here is likely to find greater favour among those jurists of the bench who speak French. That this nuance would then show up in the terminology of the decision, intentionally or not, is therefore not all that surprising.

Whatever the difference’s origin, one crucial point about it remains: it is entirely possible that the language in which one reads CCH may influence one’s reading of the standard required of expression for it to qualify as original. If, as I show above, talent actually is understood as being one notch ahead of mere skill, then it follows that a judge of the Federal Court of Canada hearing a copyright action in Québec City in French may grasp a slightly different meaning from CCH than another judge hearing a similar action that same day in Vancouver in English. While the two meanings are hardly irreconcilable (and the shared meaning principles of R v Daoust, [2004] 1 SCR 217 would probably make short work of any differences between the two meanings, should the topic come up in court), the nuance is still a most interesting one to notice as a proxy for how different modes of legal thought and analysis operate and come together at the highest court in the land (or not, even when the Justices themselves claim they do).

Guillaume Laroche is a Graduate Student Member of IP Osgoode and an LLM candidate at Osgoode Hall Law School, where he researches issues on music and copyright.

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The idea that the purpose of copyright law is to provide incentives for creativity is among the most fundamental and most established ideas in North American copyright discourse.[1] There can be no doubt, of course, that copyright discourse in North America is highly contested. Some regard it as nothing less than the site of so-called “copyright wars,” of intense struggles—intellectual as much as practical, political as much as theoretical—between copyright maximalists and copyright minimalists, advocates of high copyright protection and advocates of low copyright protection. [2] This manifest presence of vibrant, vigorous, and vivid controversy, however, obscures the depth of the latent agreement that frames it. Few, if any at all, would contest the bedrock idea that copyright law is about providing incentives for creativity.[3] The pervasiveness of the hold that instrumentalism has over the North American copyright imagination is paralleled only by the ease with which that imagination summarily rejects or dismisses rights-based accounts of copyright law—accounts rooted in a vision of the inherent dignity of authorship.

One of the nodal points of the copyright wars is the ongoing discussion about the expansion of copyright scope and copyright subject matter since the enactment of the Statute of Anne,[4] the world’s first copyright statute, in eighteenth century England. Predictably, whereas copyright minimalists object strenuously to this expansion, copyright maximalists support it. Equally unsurprisingly, both maximalists and minimalists formulate their position from the shared standpoint of instrumentalist copyright theory.

My purpose here is to offer minimalists some words of both caution and comfort. The cautionary aspect is that minimalism ought to be far more suspicious than it actually is about the instrumentalist hegemony in copyright discourse. Instrumentalist discourse is, in my view, part and parcel of the very expansion that minimalism seeks to counter. Copyright protection has consistently expanded since Donaldson v. Beckett [5] affirmed (a) the supremacy of the Statute of Anne over common law copyright, and (b) the still prevailing view that copyright law is not a juridical recognition of rights inherent in the act of authorship but rather a policy instrument designed to promote the public interest in creativity. Thus, historically speaking, copyright expansion has taken place and continues to take place under the supremacy of instrumentalism. To be sure, this historical correlation is not by itself sufficient to persuade us that instrumentalism is necessarily complicit in the constriction of the public domain. It does strike me as sufficient, however, to generate significant unease about any uncritical adoption of the instrumentalist paradigm in the name of the expansion of the public domain.[6]

The comfort I seek to offer is that there are, of course, alternative accounts of copyright law. These accounts are none other than the rights-based accounts that, in its habitual endorsement of instrumentalism, minimalism dismisses far too summarily. One of the major complaints that minimalism levels against rights-based discourse is that, once enshrined as a matter of inherent dignity, the rights of authors under copyright law cannot be easily constrained. With this complaint in mind, I want to emphasize that, on the contrary, rights-based discourse envisions not only the claims of authorship but also, and therefore, those of the public domain as a matter of inherent dignity. The rights-based account of authorship is also a rights-based account of the public domain. My purpose is, in short, to generate minimalist unease about instrumentalism and to evoke the as yet largely unexplored potential of a rights-based minimalism.[7] At the very least, I seek to undo the widespread apprehension that rights-based accounts are necessarily maximalist accounts.

Following a sketch of the shared terrain on which the copyright wars take place (Part II), I make some observations about minimalism as a critical stance seeking to oppose a particular normative conception of copyright law to the realities of copyright expansion (Part III). I then briefly describe the historical correlation between instrumentalism and copyright expansion (Part IV). I conclude with some remarks about the absence in instrumentalist discourse of an account of the necessary role of the public domain in copyright law, and about the presence of such an account in rights-based discourse (Part V).

[1] See William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 168, 169–73 (Stephen R. Munzer ed., 2001).

[2]  See, e.g., WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARS 1–41 (2009). For discussion of copyright maximalism and copyright minimalism, see Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 285–88 (1996). For discussion of copyright politics, see JESSICA LITMAN, DIGITAL COPYRIGHT (2001).

[3] For examples of such contestation, see ROBERTA ROSENTHAL KWALL, THE SOUL OF CREATIVITY 23, 53 (2010); Abraham Drassinower, Authorship as Public Address: On the Specificity of Copyrightv vis- `a-vis Patent and Trade-mark, 2008 MICH. ST. L. REV. 199; Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1548 (1993); Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287, 303–04 (1988); and Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 518 (1990). See also Maurizio Borghi & Stavroula Karapapa, Non-Display Uses of Copyrighted Works: Google Books and Beyond, 1 QUEEN MARY J. INTELL. PROP. 21 (2011) (arguing for protection of non-display uses of digital works through data protection law in order to account for authorship rights more adequately than traditional copyright law); Kim Treiger-Bar-Am, Kant on Copyright: Rights of Transformative Authorship, 25 CARDOZO ARTS & ENT. L.J. 1059 (2008) (calling for a recognition of the tradition of authors’ rights extant in the Anglo-American copyright regime).

[4] 1710, 8 Ann., c. 19 (Eng.)

[5] 1774, 1 Eng. Rep. 837 (H.L.)

[6] For varying formulations of that unease, see Anne Barron, Copyright Infringement, ‘Free-Riding’ and the Lifeworld, in COPYRIGHT AND PIRACY 93 (Lionel Bently et al. eds., 2010); Maurizio Borghi, Copyright and Truth, 12 THEORETICAL INQUIRIES L. no. 1, art. 2 (2011), http://www.bepress.com/til/default/vol12/iss1/art2; Maurizio Borghi, Owning Form, Sharing Content: Natural-Right Copyright and Digital Environment, in 5 NEW DIRECTONS IN COPYRIGHT LAW 197 (Fiona Macmillan ed., 2007); Abraham Drassinower, From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law, 34 J. CORP. L. 991 (2009) [hereinafter Drassinower, From Distribution to Dialogue]; Abraham Drassinower, A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law, 16 CANADIAN J.L. & JURIS. 3 (2003) [hereinafter Drassinower, A Rights-Based View]. See also Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 350–51 (1970) (arguing that instrumentalist account provides a weak general case for copyright protection); Diane Leenheer Zimmerman, Copyright as Incentives: Did We Just Imagine That?, 12 THEORETICAL INQUIRIES L. no. 1, art. 3, at 29, 54–58 (2011), http://www.bepress. com/til/default/vol12/iss1/art3 (juxtaposing instrumentalist account of copyright law with issues concerning the nature of the creative process).

[7]  See Hugh Breakey, Natural Intellectual Property Rights and the Public Domain, 73 MOD. L. REV. 208 (2010); Abraham Drassinower, Taking User Rights Seriously, in IN THE PUBLIC INTEREST 462 (Michael Geist ed., 2005).

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In the department, policy making is overseen by the Strategic Policy Sector.  The sector consults stakeholders, academics, and experts in order to determine how existing policies can be ameliorated or enhanced to allow the Canadian economy to adapt to changes in the marketplace.  The Copyright and International Intellectual Property Policy Directorate focuses on copyright and international IP issues.  For the Copyright team – my team – their work this past fall meant assisting the Minister and his staff with the legislation of Bill C-11 (the Copyright Modernization Act), engaging with Canadian Heritage and stakeholders who may be affected by the Bill, and following the Supreme Court of Canada copyright cases that were heard last December.

I began my placement hoping to gain as much exposure to my strongest interest – the process of IP policy analysis and policy development.  My internship was a roller coaster of experiences, to say the least.  On the one hand, working with the copyright policy team at the time Bill C-11 was tabled meant that it was an exciting phase for our team.  On the other hand, it was also a busy and unpredictable phase. My tasks alternated between responding to urgent requests from senior management within 24 hours and having lengths of time to develop policy reports on the side.

Perhaps least surprising, I learned foremost how to think like a policy maker.  Policy development is about questions and answers.  Policy makers ask the right questions to lead them to the right answers – the right answer being that policy balance that would treat different stakeholders fairly.  The Supreme Court cases concerning online music downloading, for instance, touch on more issues than statutory interpretation.  A policy maker would delve into the purpose of copyright provisions and ask whether online music services ought to compensate copyright owners in a context where the works are not used or altered, merely delivered.  Similarly, deciding that a cinematographic soundtrack does not include individual sound recordings included in the film could change the way film industries incorporate music into cinematographic works.  Therefore, policy work involves a close understanding of how industries might react to legal changes, and likewise, how to implement changes to steer that reaction.

My internship with Industry Canada also showed me that policy work consists of translating extensive webs of theoretical concepts into practical solutions.  In many cases, this means boiling down reams of legal details into high-level, essential points to convey to senior management.  What I learned is that these skills are not merely germane to policy development but to almost all areas outside of law.  The law is saturated with details and intricacies which may be important to lawyers but not to those outside our profession.  Learning to glean the central issues is an important way to ensure that the legal profession is not disengaged from the “outside world.”

Alysia Lau is a JD student at Osgoode Hall Law School. Here, she reports on her experience at Industry Canada, while interning there as part of the inaugural offering of the Intellectual Property Law and Technology Intensive Program (IP Intensive) at Osgoode.

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