OPINION
Monday, March 9, 2015 17
Grey market
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intellectual property rights because it is only natural that these rights will have the effect of limiting
competition as that is the very purpose they seek
to achieve. However, it is in the degree of that limitation that the Competition Act addresses itself.
A distinction is made between acts that lessen or
limit competition and acts that unduly limit competition, which fall under the scope of section 32 of
the Act whereas the former do not. Though claims
for copyright infringement may not directly contravene the provisions of the Act, where an intention to limit or prevent competition can be shown,
this could be used by the defendant to support a
defence of unclean hands or allegations of copyright misuse; see Volkswagen Canada Inc. v Access
International Automotive Ltd. and Havana House
Cigar & Tobacco Merchants Ltd. v Worldwide
Tobacco Distribution Inc. The implication from this
is that even where a remedy would otherwise be
barred by a failure to meet statutory requirements,
it would not necessarily bar the defendant from raising an equitable defence.
Finally, the practice of using copyright law to fill
the gap where trademark law ends raises concerns
over whether Parliament intended for intellectual property rights to overlap in this manner. The
argument made against overlapping rights is that
the consequences of this practice lead to “double
dipping,” where owners enjoy an additional layer
of protection that potentially results in the rights
holder being overcompensated. In addition, this
practice shows how the law can easily be manipulated to stifle competition as copyright moves away
from its core function of protecting cultural products into the realm of ordinary industry and commerce. Copyright law is meant to protect culture and
less about protecting businesses from competition.
Commentators have argued that using copyright to
prohibit importation of non-copyrightable goods is
simply not in accordance with the underlying purpose of the Copyright Act. Altho