Canadian intellectual property law
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Canadian intellectual property law governs the regulation of the exploitation of intellectual property in Canada.[1] Creators of intellectual property gain rights either by statute or by the common law.[1] Intellectual property is governed both by provincial and federal jurisdiction, although most legislation and judicial activity occur at the federal level.[1]
Jurisdiction
Under the Constitution Act, 1867, patent and copyright law are the exclusive jurisdiction of the Federal Government of Canada.[1] While trademarks and industrial design are not specifically mentioned by the Constitution Act, the federal government has enacted legislation governing both. Canadian courts have upheld these pieces of legislation as being properly under the federal government's control.[1]
Intellectual property rights
Copyright
Protections for copyright are governed by the Copyright Act of Canada. The Act was first passed in 1921, and has been amended several times over the years.
Purpose
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.
Patents
A patent gives inventors the right to exclude others from making, using, or selling an invention. A patented invention must be something new, useful, and ingenious. Patents can be obtained for products, apparatuses, manufacturing processes, chemical compositions, and significant improvements to existing inventions. Patents may not generally be obtained for scientific principles, abstract theorems, ideas, methods of conducting business, computer programs, and medical treatments. Some exceptions have been made. Patents are protected in Canada by the Patent Act (R.S.C., 1985, c. P-4).[5]
Trademarks
A trademark is a word, symbol, or design used to identify wares or services of a person or company. Trademarks are protected in Canadian law by the Trade-marks Act (R.S.C., 1985, c. T-13).[6]
Industrial design
An industrial design is the fixed, visible shape, pattern, or ornamentation applied to a useful article that is mass-produced. Industrial designs are protected in Canadian law by the Industrial Design Act (R.S.C., 1985, c. I-9).[7]
Integrated circuit topographies
An integrated circuit topography is the 3-dimensional configuration of the layers of semiconductors, metals, insulators, and other materials used to implement an integrated circuit. Integrated circuit topographies are protected in Canadian law by the Integrated Circuit Topography Act (S.C. 1990, c. 37).[8]
References
- ^ a b c d e McCormack, Stuart C. (2010-10-01). Intellectual Property Law of Canada - Second Edition. Juris Publishing, Inc. ISBN 9781578232642.
- ^ Compo Co. Ltd. v Blue Crest Music et al., [1980] 1 SCR. 357
- ^ Théberge v Galerie d'Art du Petit Champlain Inc. [2002] 2 SCR. 336
- ^ Feist Publications Inc. v. Rural Tel. Service. Co., 499 U.S. 340 (1991)
- ^ Branch, Legislative Services. "Consolidated federal laws of canada, Patent Act". www.laws-lois.justice.gc.ca. Retrieved 2017-08-03.
- ^ Branch, Legislative Services. "Consolidated federal laws of canada, Trade-marks Act". laws-lois.justice.gc.ca. Retrieved 2017-08-03.
- ^ Branch, Legislative Services. "Consolidated federal laws of canada, Industrial Design Act". laws-lois.justice.gc.ca. Retrieved 2017-08-03.
- ^ Branch, Legislative Services. "Consolidated federal laws of canada, Integrated Circuit Topography Act". laws-lois.justice.gc.ca. Retrieved 2017-08-03.