Canadian intellectual property law

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

Patents in Canada are governed by the Patent Act.[1]

Trademarks

Trademarks are protected in Canadian law under both the common law and under the Trade-marks Act.[1]

Industrial design

Industrial designs are protected by the Industrial Design Act.[1]

References

  1. 1 2 3 4 5 6 7 8 McCormack, Stuart C. (2010-10-01). Intellectual Property Law of Canada - Second Edition. Juris Publishing, Inc. ISBN 9781578232642.
  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)
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