A few weeks ago, while re-reading CCH Canadian Ltd. v Law Society of Upper Canada, [2004] 1 SCR 339 [hereafter CCH], I paused on a rather peculiar detail from this well-known Supreme Court decision. Intrigued, after a brief search, I was surprised to find that no one in Canadian copyright discourse seemed to have expanded upon or even noticed this detail. Since that was the case, I decided I should share my observation.
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.