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.

Intellectual property regimes

• Statutory – Patents, Copyright, Trademark, Industrial designs (esthetic value rather than function), Integrated-circuits topography, Plant-Breeders’ Rights, and Geographical indications (e.g. Champagne)
• Common Law – Non-registered trademarks, Trade secrets, Misappropriation of facts, Appropriation of personality, Contracts (e.g. non-compete clause in employment contract)
• Norms Based Regimes – Academic plagiarism (copying, citing without attribution), Credits in films, Stand-up comedians

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Statutory basis

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

Copyright Act

Copyright Act may refer to:Canada* Copyright Act of CanadaHong Kong*Copyright Ordinance 1997India*New Zealand* Copyright Act 1994United Kingdom...

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.

Legal doctrines of intellectual property law

• Copyright Law - Protects various “original forms of expression” including novels, movies, musical compositions, and computer software programs.
• Patent Law - Protects inventions and some kinds of discoveries.
• Trademark Law - Protects words and symbols that identify for consumers the goods and services manufactured or supplied by particular persons or firms.
• Trade-Secret Law - Protects commercially valuable information (soft-drink formulas, confidential marketing strategies, etc.) that companies attempt to conceal from their competitors.
• Right of Publicity - Protects celebrities’ interests in their images and identities.

Why “intellectual”? Why “property”?

Vaver sees “Intellectual Property” as somewhat of a misnomer, and that “neither the “intellectual” nor the "property” parts of IP can be taken too seriously”. Intellectual property is similar to tangible property because of the granting of exclusive or restricted use. However, the use of intellectual property doesn’t necessarily have to be to the detriment of the owner. Therefore, it is inappropriate to assume that intellectual property attracts (or should attract) the same rights of ownership as other types of property.

Utilitarian Theory

The utilitarian theory posits that property rights should maximize net social welfare. Under this theory, laws intend to strike a balance between exclusive rights stimulating the creation of inventions/works and the tendency of such rights to curtail widespread public enjoyment of these creations. Intellectual products are distinct in that they are easily replicated and that enjoyment of them by one person doesn’t prevent others from also enjoying them. As a result, a risk exists that creators won’t be able to capture the “cost of expression.” Others who can replicate the product at a lower cost can sell it for less. This danger may deter people from creating socially valuable intellectual property. Mindful of this danger, we grant creators exclusive rights, for a limited time, to make copies of their creations (an economically more efficient outcome).

Labour/Natural Rights Theory (Locke)

This theory focuses upon resources that are either unowned or held in common. A person who labours upon these resources is said to have a natural property right to the fruits of his or her efforts. The state has a duty to both respect and enforce that natural right. This theory is especially applicable in IP because the resources (e.g. facts and concepts) are held in common and the person’s labour is crucial to the value of the finished product.

However, the acquisition of property through labour is only legitimate if others do not suffer net harm. Net harm includes constricting the set of resources available for use and others being left poorer than they otherwise would have been under a regime that didn’t allow acquisition of property through labour. This theory does not view the assignment of patent rights as causing net harm. While the assignment of patent rights to inventors limits the access of others to the invention, the invention wouldn’t have existed at all without the inventors' efforts. Therefore, consumers benefit from the issuance of patents.

Two limitations are placed on the inventor’s entitlements:

1. If someone subsequently invents the same product independently, they must be permitted to make and sell it. Otherwise net harm would occur by them being made worse off by assigning the patent to the first inventor. It should be noted that under current patent law (unlike current copyright law), there is no safe harbour for subsequent independent inventors.
2. Patents should only last as long as it would have taken a subsequent inventor to invent the same device, had knowledge of the invention not disabled them from independently inventing it.

Personality Theory (Kant and Hegel)

This theory holds that property rights are crucial in satisfying some fundamental human needs. Policymakers must recognize this and strive to create and allocate resource entitlements in a manner that best enables people to fulfill those needs.

Intellectual Property rights can be justified on one of two grounds:

1. They shield from modification or appropriation artifacts which express authors or artists “wills” (an activity central to “personhood”).
2. They create socioeconomic conditions conducive to creative intellectual activity (which in turn is central to human flourishing).

Derived from Hegel’s Philosophy of Right are three guidelines concerning the proper shape of the intellectual-property system:

1. More legal protection should be accorded to the fruits of highly expressive intellectual activities (e.g. writing of novels), than to the fruits of less expressive activities (e.g. genetic research).
2. A person’s “persona” (public image, including his physical features, mannerisms, and history) is an important “receptacle of personality”. Therefore, it deserves legal protection, despite the fact that ordinarily it does not result from labour.
3. Authors and inventors should be permitted to earn respect, honour, admiration and money from the public through either selling or giving away copies of their work. However, they should not be permitted to surrender their right to prevent others from mutilating or misattributing their works.

Social planning theory (Legal Realists, early Marx, Jefferson)

This theory holds that property rights generally, and IP rights specifically, should be shaped to foster achieving a just and attractive culture. It envisions a robust, participatory and pluralistic society – teeming with “unions, churches, political and social movements, civic and neighbourhood associations, schools of thought, and educational institutions.”

Civil society is seen as vital to the perpetuation of democratic political institutions. Copyright law can help foster civil society in two ways:

1. Production: It provides an incentive for creative expression on an array of political, social, and aesthetic issues. This leads to the foundations of democratic culture and civic association.
2. Structural: It supports a creative and communicative activity sector that is relatively free from relying on state subsidy, elite patronage or cultural hierarchy.

It has been suggested that tailoring the copyright regime by doing the following would better advance these objectives:

1. The size of the “public domain” available for creative manipulation should be increased by decreasing the duration of the copyright term.
2. Similarly, the public domain should be increased by decreasing the copyright owners’ authority to control the preparation of “derivative works”.
3. More frequent compulsory licensing systems to balance the interests of artists and consumers of their work.

Market vs. non-market copyright justifications

This justification recognizes problems inherent in non-market supply of goods. Government supply of goods is subject to limitations, unresponsiveness, and bureaucracy. Government grants can be subject to political interference. To address the problems of the supply of goods, the government grants exclusive rights (such as IP rights). It uses market mechanisms to direct investments. However, it creates monopoly prices, limited access and increases the cost of next generation creativity. It is also accompanied by administration and enforcement costs.

Théberge -The Canadian Position

Older Canadian case law took a strict approach- as found in Compo Co. Ltd v. Blue Crest Music. 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

Théberge v. Galerie d'Art du Petit Champlain Inc.

Théberge v. Galerie d'Art du Petit Champlain Inc. is one of the Supreme Court of Canada's leading cases on copyright law. This case interprets the meaning of "reproduction" within the Copyright Act of Canada, and touches on the moral rights to copyrighted material and how much control an author...

. 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. that focuses on public interest without consideration of obtaining a just reward to the creator.

Intellectual property versus other means

Intellectual property is often thought to act as an alternative to government subsidies or other interferences. However, this overlooks the fact that establishing a property right is in itself a subsidy. Unlike most subsidies, the state does not pay out of its general revenues. Rather, it sheds that responsibility by having some people pay others a fee for the benefit of the community as a whole. Additionally, traditional government subsidies and taxes can change depending on government desires, whereas subsidies as rights are more firmly entrenched.

Bargain

Historically, patents were once considered bargains between the inventor and the state. The inventor introduced a new trade or disclosed a new secret, and the state paid the inventor a temporary protection from competition. The public was free to use the invention once the state-granted protection expired. However, legally conceiving of a patent as a bargain creates multiple problems, and the concept is considered outdated.

Balancing owner and user interests

This perspective has two poles in constant tension - strong protection of material and broad rights of use. Courts are to maintain a balance and once a decision to protect has been taken, it must be matched by an equally considered decision on far to extend that protection. Because IP law abridges freedoms it needs to be constantly justified.

Territoriality

IP rights are territorial – a Canadian right is only effective in Canada, and no foreign right applies in Canada. No foreign law can affect title to a Canadian IP right, and no Canadian law can affect a foreign IP right. A foreign owner whose IP rights were infringed in Canada must pursue the infringer in a Canadian court according to Canadian law.

The territoriality principle has some controversial consequences. IP rights may work to create non-tariff barriers to trade by preventing parallel imports. Cross-border jurisdiction and enforcement has become increasingly complex as a result of instantaneous communication technologies. This is aggravated by the fact that the interaction of IP and private international law is constantly in flux.

Overlapping and multiple rights

1. IP rights v. Physical Property Rights – Owning a physical manifestation of something is distinct from holding IP rights in it. For example, someone who buys a book from a bookstore owns that physical copy, and can do many things with it (including destroying it or giving it away). However, purchasing a copy of the book doesn’t affect the book’s IP rights. Conversely, ownership of the book’s copyright doesn’t grant any rights to a given physical copy of the book.
2. Multiple Intellectual Property Rights – Multiple IP rights can be held cumulatively. This results in multiple protection. For example, both the Patent Act and the Plant Breeders’ Rights Act may cover a newly invented plant. Although each IP right is meant to be contained within its own bounds, parties often stack rights and create unlimited monopolies. This has led to judicial inconsistency.

Registration

Many IP rights depend for their existence on registration with the Canadian Intellectual Property Office

Canadian Intellectual Property Office

The Canadian Intellectual Property Office is the patent, trademark, and copyright administration body of Canada. Structurally the CIPO functions as a Special Operating Agency which is associated with Industry Canada....

. Once the right has been registered, it is presumed to be valid in all administrative and judicial proceedings. However, its validity can be challenged with the challenger usually bearing the burden of proof.

Marking optional

Markings referencing IP rights are not mandatory in Canada. However, they can be legally useful. They can discourage others from being “innocent” imitators, as well as preventing material from slipping into the public domain (“shredded wheat cereal” compared to “Shredded Wheat”). Marking can also take the form of online notices, informing users of the legal implications of different actions. Due to enforcement difficulties, these often serve as appeals to the users sense of honesty and fair play.

Constitutional issues

The federal power to legislate in relation to IP law has been given a very expansive range. However, there is the concern that if IP laws lack balance (e.g. preventing public access beyond a copyright period), they may be found unconstitutional. Lastly, although trade-marks are not mentioned in the Constitution Act 1867, they have been found to be a valid exercise of the federal “Trade and Commerce” clause.

Freedom of expression

The fundamentals of Canada’s copyright law were drafted far prior to the Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

. However, since the Charter’s implementation a tension between freedom of speech and IP infringement has developed. Other countries have more thoroughly judicially addressed this tension than Canada. Likely, cases dealing with fair criticism, without commercial gain, will draw close constitutional scrutiny.