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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]
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]
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.
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.
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]
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]
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]
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]
Trade secrets are a type of intellectual property that consists of certain information, expertise or knowhow that has been developed or acquired by firms. This knowledge frequently gives firms their competitive edge in the market and it has to be kept as a secret. In Canada any information that a firm or its employees produces or acquires for the purpose of the firm's business can constitute confidential information that courts are willing to protect. All that is required is that the creator of the information “has used his brain and thus produced a result which can be produced by somebody who goes through the same process”. [9] Trade secrets are generally considered to include information set out, contained or embodied in, but not limited to, a formula, pattern, plan, compilation, computer program, method, technique, process, product, device or mechanism; it may be information of any sort; an idea of a scientific nature, or of a literary nature, as long as they grant an economical advantage to the business and improve its value. [10] Additionally, there must be some element of secrecy. Matters of public knowledge or of general knowledge in an industry cannot be the subject-matter of a trade secret. [11] While most areas of Canadian intellectual property law are within the purview of Parliament and the Federal government, the Supreme Court of Canada ruled in MacDonald v. Vapor Canada Ltd. that civil remedies pertaining to trade secrets fall within the provincial power over property and civil rights. [12]
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, copyrights, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems.
Trade secrets are a type of intellectual property that includes formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily ascertainable by others, and which the owner takes reasonable measures to keep secret. Intellectual property law gives the owner of a trade secret the right to restrict others from disclosing it. In some jurisdictions, such secrets are referred to as confidential information.
An industrial design right is an intellectual property right that protects the visual design of objects that are purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921. Current copyright law was established by the Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988, 1997, and 2012. All powers to legislate copyright law are in the jurisdiction of the Parliament of Canada by virtue of section 91(23) of the Constitution Act, 1867.
Innovation, Science and Economic Development Canada is a department of the Government of Canada. ISED is responsible for a number of the federal government's functions in regulating industry and commerce, promoting science and innovation, and supporting economic development. The department was known as Industry Canada (IC) prior to 2015.
Industrial property is one of two subsets of intellectual property, it takes a range of forms, including patents for inventions, industrial designs, trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, geographical indications and protection against unfair competition. In some cases, aspects of an intellectual creation, although present, are less clearly defined. The object of industrial property consists of signs conveying information, in particular to consumers, regarding products and services offered on the market. Protection is directed against unauthorized use of such signs that could mislead consumers, and against misleading practices in general.
The Canadian Intellectual Property Office is responsible for the administration and processing of the greater part of intellectual property (IP) in Canada. CIPO's areas of activity include patents, trademarks, copyright, industrial designs and integrated circuit topographies. Structurally, CIPO functions as a special operating agency (SOA) under Innovation, Science and Economic Development Canada. CIPO is based in Gatineau, Quebec, part of the National Capital Region. CIPO’s current interim Chief Executive Officer is Konstantinos Georgaras.
Intellectual property rights (IPRs) have been acknowledged and protected in China since the 1980s. China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are extremely common in the PRC. The American Chamber of Commerce in China surveyed over 500 of its members doing business in China regarding IPR for its 2016 China Business Climate Survey Report, and found that IPR enforcement is improving, but significant challenges still remain. The results show that the laws in place exceed their actual enforcement, with patent protection receiving the highest approval rate, while protection of trade secrets lags far behind. Many US companies have claimed that the Chinese government has stolen their intellectual property sometime in 2009–2019.
The Integrated Circuit Topography Act is legislation passed by the Parliament of Canada in 1990 that regulates the intellectual property of integrated circuit topographies. It came into force in 1993. The Act provides exclusive rights for the creator of the integrated circuit topography and remedies to deter infringement. The exclusive right is transferable. To receive the exclusive right to an integrated circuit topography the topography must be registered at the Canadian Intellectual Property Office. Between 1993 and 1999 there were about 38 registrations under the Act.
Canadian trademark law provides protection to marks by statute under the Trademarks Act and also at common law. Trademark law provides protection for distinctive marks, certification marks, distinguishing guises, and proposed marks against those who appropriate the goodwill of the mark or create confusion between different vendors' goods or services. A mark can be protected either as a registered trademark under the Act or can alternately be protected by a common law action in passing off.
Kirkbi AG v. Ritvik Holdings Inc., popularly known as the Lego Case, is a decision of the Supreme Court of Canada. The Court upheld the constitutionality of section 7(b) of the Trade-marks Act which prohibits the use of confusing marks, as well, on a second issue it was held that the doctrine of functionality applied to unregistered trade-marks.
Intellectual property law in Romania has developed significantly in the period since the Romanian Revolution of 1989 because of the need to enforce various regional and international treaties and agreements, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the European Directives on Biotechnological Inventions, on Trademarks and Geographical Indications, and on Supplementary protection certificates, the Trademark Law Treaty, the Patent Law Treaty, and the European Union regulation on the Community Trademark, and the need to harmonize domestic patent law with the European Patent Convention (EPC) and with the European Union.
In copyright law, related rights are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". Neighbouring rights is a more literal translation of the original French droits voisins. Both authors' rights and related rights are copyrights in the sense of English or U.S. law.
Canadian patent law is the legal system regulating the granting of patents for inventions within Canada, and the enforcement of these rights in Canada.
The following outline is provided as an overview of and topical guide to intellectual property:
The Swiss Federal Institute of Intellectual Property, based in Bern, is an agency of the federal administration of Switzerland responsible for patents, trademarks, geographical indications, industrial designs and copyright.
Layout designs (topographies) of integrated circuits are a field in the protection of intellectual property.
The Semiconductor Chip Protection Act of 1984 is an act of the US Congress that makes the layouts of integrated circuits legally protected upon registration, and hence illegal to copy without permission. It is an integrated circuit layout design protection law.
A patent holder in Canada has the exclusive right, privilege and liberty to making, constructing, using and selling the invention for the term of the patent, from the time the patent is granted. Any person who does any of these acts in relation to an invention without permission of the patent owner is liable for patent infringement.
In Canada, trade secrets are generally considered to include information set out, contained or embodied in, but not limited to, a formula, pattern, plan, compilation, computer program, method, technique, process, product, device or mechanism; it may be information of any sort; an idea of a scientific nature, or of a literary nature, as long as they grant an economical advantage to the business and improve its value. Additionally, there must be some element of secrecy. Matters of public knowledge or of general knowledge in an industry cannot be the subject-matter of a trade secret.
