Obiter Dicta Issue 12 - March 9, 2015 | Page 17

OPINION Monday, March 9, 2015   17 Grey market » continued from page 9 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