Changes to Canada's Trade-marks Act will soon permit, for the first time, the registration an... more Changes to Canada's Trade-marks Act will soon permit, for the first time, the registration and enforcement of unused trademarks. Far from a mere legal technicality or practical exigency, this shift fundamentally alters the nature of trademarks and the trademark system. Traditionally, it is the use of trade indicia in the marketplace that determines title and acquisition of trademark rights; use that defines the scope and duration of rights; and use that gives rise to claims of infringement. By virtue of the "Jus of use", the trademark system has remained, over time, reasonably true to its rationale, encouraging and rewarding honest economic activity and fair competition. This article examines the implications of removing use as a precondition of trademark registration. Not only will the statutory amendments present stark practical problems likely to disadvantage weaker commercial actors, but they will undermine the basic tenets of Canada's trademark system, casting...
A Standing Committee of Canada’s House of Commons recently conducted a statutorily mandated revie... more A Standing Committee of Canada’s House of Commons recently conducted a statutorily mandated review of the Canadian Copyright Act, culminating in a final report that was released in June 2019. This Comment provides an overview of the context, substance, and significance of this surprisingly sensible and well-balanced Industry Committee report, and contrasts it against an earlier report of the Canadian Heritage Committee as well as recent copyright-expansionist developments in Europe. While “sensible” might seem like faint praise indeed, we live in a world in which common sense copyright policy is, alas, surprisingly far from common. This comment argues that supporters of balanced copyright, genuinely consultative processes, and evidence-based policy-making should therefore be rallying around the example set by Canada’s Copyright Act Review, for it reveals a possible route towards what is, unfortunately, an increasingly radical aspiration: a reasonably sensible copyright system.
American University of International Law Review, 2017
Around the world, the focus of copyright policy reform debates is shifting from the protection of... more 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 examines the recent embrace of the language of “users’ rights” to frame fair use, fair dealing, and other non-infringing acts. This terminology has been adopted to varying degrees by courts in Canada, Israel, and the United States and is increasingly employed by public interest advocates and policy-makers at the domestic and international level. In this Pap...
In a context of great technological and social change, existing intellectual property regimes suc... more 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, for example, 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 of traditional copyright law and the assumptions of possessive individualism that pervade it. We then offer a brief description of the open access movement and the way in which it reflects or responds to this criticism. In doing so, we discover vital synergies between this branch of feminist legal theory and the open acce...
This Article aims to draw the connection between how we conceptualize legal rights over informati... more 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 and relational understanding of the rights at play, and the social values that they seek to foster as technologies evolve.
Changes to Canada's Trade-marks Act will soon permit, for the first time, the registration an... more Changes to Canada's Trade-marks Act will soon permit, for the first time, the registration and enforcement of unused trademarks. Far from a mere legal technicality or practical exigency, this shift fundamentally alters the nature of trademarks and the trademark system. Traditionally, it is the use of trade indicia in the marketplace that determines title and acquisition of trademark rights; use that defines the scope and duration of rights; and use that gives rise to claims of infringement. By virtue of the "Jus of use", the trademark system has remained, over time, reasonably true to its rationale, encouraging and rewarding honest economic activity and fair competition. This article examines the implications of removing use as a precondition of trademark registration. Not only will the statutory amendments present stark practical problems likely to disadvantage weaker commercial actors, but they will undermine the basic tenets of Canada's trademark system, casting...
A Standing Committee of Canada’s House of Commons recently conducted a statutorily mandated revie... more A Standing Committee of Canada’s House of Commons recently conducted a statutorily mandated review of the Canadian Copyright Act, culminating in a final report that was released in June 2019. This Comment provides an overview of the context, substance, and significance of this surprisingly sensible and well-balanced Industry Committee report, and contrasts it against an earlier report of the Canadian Heritage Committee as well as recent copyright-expansionist developments in Europe. While “sensible” might seem like faint praise indeed, we live in a world in which common sense copyright policy is, alas, surprisingly far from common. This comment argues that supporters of balanced copyright, genuinely consultative processes, and evidence-based policy-making should therefore be rallying around the example set by Canada’s Copyright Act Review, for it reveals a possible route towards what is, unfortunately, an increasingly radical aspiration: a reasonably sensible copyright system.
American University of International Law Review, 2017
Around the world, the focus of copyright policy reform debates is shifting from the protection of... more 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 examines the recent embrace of the language of “users’ rights” to frame fair use, fair dealing, and other non-infringing acts. This terminology has been adopted to varying degrees by courts in Canada, Israel, and the United States and is increasingly employed by public interest advocates and policy-makers at the domestic and international level. In this Pap...
In a context of great technological and social change, existing intellectual property regimes suc... more 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, for example, 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 of traditional copyright law and the assumptions of possessive individualism that pervade it. We then offer a brief description of the open access movement and the way in which it reflects or responds to this criticism. In doing so, we discover vital synergies between this branch of feminist legal theory and the open acce...
This Article aims to draw the connection between how we conceptualize legal rights over informati... more 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 and relational understanding of the rights at play, and the social values that they seek to foster as technologies evolve.
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Papers by Carys Craig