Canadian intellectual property law

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Intellectual property law attempts to address the problem of supply of public goods. It does this by granting exclusive rights in certain types of information. As a consequence, IP law defines what is not exclusive. It does this by creating institutions that manage the creation, use and exchange of certain types of information. The common object/shared concern of IP law is to encourage investment in new types of information without unduly impairing access to such information by end-users and future creators.

Statutory basis[edit]

Constitution Act 1867

Section 91: …the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say

  • 22. Patents of Invention and Discovery
  • 23. Copyrights

Copyright Act

Section 89: No person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament, but nothing in this section shall be construed as abrogating any right or jurisdiction in respect of a breach of trust or confidence.

Section 34(1): No person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament, but nothing in this section shall be construed as abrogating any right or jurisdiction in respect of a breach of trust or confidence.[1]

Théberge[edit]

Older Canadian case law took a strict approach- as found in Compo Co. Ltd v. Blue Crest Music.[2] It was held that “Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute… The legislation speaks for itself and the actions of the appellant must be measured according to the terms of the statute.

However, the Supreme Court of Canada held in Théberge v. Galerie d'Art du Petit Champlain Inc.[3] that Canadian copyright law is primarily utilitarian. It finds its purpose in promoting the public interest through providing incentives for the creation and dissemination of expressive works. This balance is reached by recognizing the creator’s rights, while also recognizing their limited nature. It is recognized that “it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.” This is contrasted by the American approach in Feist Publications Inc. v. Rural Tel. Co. Ltd. [4] that focuses on public interest without consideration of obtaining a just reward to the creator.

References[edit]

  1. ^ Copyright Act, RS 1985, c C-42
  2. ^ Compo Co. Ltd. v Blue Crest Music et al., [1980] 1 SCR. 357
  3. ^ Théberge v Galerie d'Art du Petit Champlain Inc. [2002] 2 SCR. 336
  4. ^ Feist Publications Inc. v. Rural Tel. Service. Co., 499 U.S. 340 (1991)