Chapter 13: Intellectual Property Flashcards
LO 13.1 Identify five main types of intellectual property and distinguish them from other forms of personal property
LO 13.1 Identify five main types of intellectual property and distinguish them from other forms of personal property
Intellectual property
personal property in the form of ideas and creative work
is a subcategory of intangible personal property
referring to ideas, information, and creative works
Balance between protection of a product of a persons mental effort and the free flow of new and innovative ideas
Real property
refers to land and things attached to it
Personal property
can be tangible or intangible.
Tangible personal property
consists of movable things in the form of goods or chattels.
Intangible personal property
refers to rights or claims that one person has that have value and can be enforced in the courts, such as the right to collect a debt
These rights are often referred to as a chose in action or a right to sue
Most legislation protecting intellectual property is federal, with copyright and patent legislation being exclusively granted to the federal
government in the ___________
Constitution Act, 1867
The Copyright Act
first enacted in 1928 and amended several times since then, is still in place
Copyright Modernization Act
came into force in November 2012, was enacted to bring Canadian copyright law in line with international treaties and to address the issues raised by technological advances in the online storage of and access to copyrightable resources
Canadian copyright law
specifically protects computer software and also protects original works published on the internet.
Trademark law
applies to physical symbols, such as brand names and company logos as well domain names and website logos.
Copyright
LO 13.2, 13.3, 13.4
Copyright
LO 13.2, 13.3, 13.4
How long is copyright protection?
Copyright protection is extended to authors and artists to the end of the calendar year in which they die, and for a further 50 years after that date, and in Canada this protection applies without any formal registration of the copyright.
Copyright definition
control over the use and reproduction of the expression of creative work;
type of intellectual property
The actual finished product, not the idea!
Public domain
the category of works that are no longer copyrighted and may be used by anyone
When is copyright date reduced?
This period is reduced to just 50 years (from the
date of creation) when a corporation is involved, the author is not known,
or the work involves such things as movies, photographs, performances,
or sound recordings
Table 13.1 (Page 1837)
Literary works
Dramatic works
Musical Works
Artistic works
Performances
Sound recordings
Communication signals
Creation of the work generates copyright protection, although registration at CIPO is often advised
Integrated Circuit Topography Act
to protect the design of the integrated circuit expressed in the computer chip itself. The actual three-dimensional design has to be registered, and
the protection granted is for a period of 10 years
To obtain copyright protection in Canada, you must:
be a citizen
or resident of Canada or a citizen, subject, or resident of one of the
countries that adhere to the Berne Copyright Convention
Persons whose country is a member of the World Trade Organization can also secure
copyright protection through its Agreement on Trade-Related Aspects of
Intellectual Property Rights
Moral rights
an author’s right to prohibit others, including any new owner of a creative work, from distorting or degrading it, associating the work with particular causes or entities, and the right of attribution (to be named)
Example: Sarah McLagulin
Three moral rights
1) Attribution
2) Integrity
3) Association
These three moral rights (attribution, integrity, and association) allow the artist, author, or performer to
demand that
(1) her name (or a pseudonym) continue to associated with the work as its author;
(2) the work not be distorted, mutilated, or
otherwise changed in such a way as to degrade it and bring harm to the reputation of the author; and
(3) the work not be associated with any
products, causes, services, or institutions in a way that is prejudicial to the author’s reputation
2012 Amendments to the Copyright Act
2012 Amendments to the Copyright Act
Digital locks, which attempt to secure online content from unauthorized access and use, were not protected prior to the 2012 amendments.
Now it is against the law to circumvent access control locks, with some exceptions, such as unlocking a cell phone
Software and content distribution companies can now protect what they create and sell
Even where the material is downloaded for personal use, research, or study purposes (which are fair dealing exceptions), the user will be in violation of this provision if he circumvents the locks to gain access
Fair Dealing
use of copyrighted material (as permitted under Canadian law) for the purposes of research or private study, criticism or review, or news reporting
Plagiarism (copying another’s work and claiming it as your own) is also a __________________
violation of copyright
Other categories of users to whom exceptions are granted are
(1) libraries, archives, and museums;
(2) persons with perceptual disabilities;
and
(3) people making private copies of commercially recorded music or sound recordings
Interlocutory injunction
a court order issued before a trial to stop an ongoing injury
To obtain an
interlocutory injunction
the plaintiff must establish a prima facie case:
(1) that there has been an infringement of copyright;
(2) that if the injunction is not granted, irreparable harm will be suffered that could not properly be compensated for by an award of damages at the trial; and
(3) that the balance of convenience is also in the plaintiff’s favour
Balance of convenience
determination of who will suffer the greatest injury if the damage were allowed to continue
Anton Piller order
a court order to seize offending material before trial; name derives from a
prominent English case where the order was first used
Permanent injunction
a court order prohibiting offending conduct
If the defendants were unaware they were violating copyright, the only remedy under the Copyright Act is _______________________
an injunction
Delivery up
an order directing the defendant to deliver all copies of the infringing items in her possession or control to the copyright owner
Where the infringement took place knowingly, ___________________ and or _____________ may be obtained
damages or an accounting
An award of __________ is calculated to compensate the victim for the losses suffered, including the lost profits that would have been earned had the copyright not been infringed
damages
An __________ is often given where it would be difficult to determine what actual damages have
been suffered
accounting
The court may also award __________ in cases of flagrant violation to punish the offender rather than simply to compensate the victim of the infringement
punitive damages
Statutory damages
a new remedy enabling a court to award damages that it “considers just” under the circumstances, without requiring proof of damage or lost profits
with a general limit of between $500 and $20 000
The Copyright Act also provides a copyright owner with three additional
remedies
1) Statutory damages
2) Wider or enhanced injunction
3) Summary procedures
Summary procedures
an arrangement allowing a court to make a decision based on affidavit evidence
Tariffs
are set fees that users must pay for using certain
copyrighted material
Patents
LO 13.5 Describe the rights protected by patent laws
Patents
LO 13.5 Describe the rights protected by patent laws
Patent definition
a government-granted monopoly prohibiting anyone but the patent owner and licensees from making, using, selling, or importing the invention
Unlike copyright, patent protection extends to the
abstract conception of the idea rather than the physical expression of it.
Opposite of copyright as the idea is protected and not the finished product
IT MUST BE REGISTERED (CIPO)
To qualify for a patent
the invention must be new, in the sense that no one else has been given a patent for it and that it has not been disclosed to the public in Canada or elsewhere more than a year prior to application
The invention must also be unique and distinguishable from other products.
It must be a development or improvement that would not have been obvious to others working with the technology involved.
It must have some utility or perform some useful, commercial or industrial function.
It must also be possible to construct and use it on the basis of the information supplied to the patent office
The process of obtaining a patent is complex
First, the patent records must be searched to see if a patent already exists, and then an application with supporting documentation and the prescribed fee must be submitted to the appropriate patent office
The patent office then assigns an examiner, who may
require further submissions from the applicant, and when all conditions have been met, the patent will be granted
Pursuant to international agreements, once a Canadian patent application has been filed, application can be made for patents in other jurisdictions, but priority in those countries will be based on when the application was first made in Canada.
Patents time length
A patent gives its holder a monopoly for a
maximum period of 20 years from the date of application, but it requires
that the inventor publicly disclose how to make the item in documents
that are open to public inspection 18 months after filing
A patent will even protect someone who
merely develops a variation of the product, providing that variation satisfies the three basic criteria for patentability:
(1) it must be new and original;
(2) it must be inventive, displaying ingenuity on the inventor’s part and not simply an obvious improvement; and
(3) it must be useful, functional, and operational
Trademarks
LO 13.6 Distinguish between trademarks and industrial designs
Trademarks
LO 13.6 Distinguish between trademarks and industrial designs
Trademark definition
any terms, letters, numbers, symbols, designs, colours, sounds, or combination of these, that identifies business services or products and distinguishes them from those of a competitor
A trademark identifies the
source or manufacturer of the goods rather than the product itself
Registered trademarks are protected by the federal _______________
Trade-marks Act
Examples of Trade Marks
The Apple logo, the Nike swoosh, and the McDonald’s arches are memorable examples of symbols that quickly and positively identify brands
Goodwill definition
a business’s reputation and ongoing relations with customers and product
identification
Applying for trademark registration is a complicated process
requiring the services of an expert, and once registered, a trademark must be used
Registered vs unregistered trademark
Also, whenever the trademark appears it should be
marked with the symbol “®” (indicating that the trademark has been
registered). An unregistered trademark can be marked with “TM.”
Passing-off
the tort of misleading the public about the identity of a business or product
Two other federal acts protect intellectual property
1) Through registration under the federal Industrial Design Act an inventor can protect a unique
design, shape, or pattern that distinguishes a manufactured article, such as the Coca-Cola bottle
2) The Integrated Circuit Topography Act
The Integrated Circuit Topography Act
is specifically
intended to protect the 3-D design of integrated circuits
Confidential Information
private information, the disclosure of which would be injurious to a business; a type of intellectual property
Trade Secrets
confidential information that gives a business competitive advantage
Examples: Customer lists, formulas, processes, source code, specific technical knowledge, and other unique features unknown to competitors are trade secrets
Restrictive covenant
in property law, a condition imposed by the seller as to what the purchaser can use the land for; in employment law, a commitment not to
work in a certain geographical area for a designated period of time
Where someone wrongfully discloses information causing harm
the remedies of injunction, damages, and accounting may be available
Regulating Information Technology
LO 13.8 Describe how the growth of the internet and
information technology has impacted intellectual property and business
Regulating Information Technology
LO 13.8 Describe how the growth of the internet and
information technology has impacted intellectual property and business
The Privacy Act
protects information held by government institutions, limits its collection, and provides for limited
access where appropriate
The Personal Information Protection and Electronic Documents Act (PIPEDA)
covers all areas of federal jurisdiction and the provinces as well, unless they have passed
similar legislation.
The acts restrict the use of all health-related
information, customer lists, consumer purchasing habits, credit and entertainment information, information gathered from websites, subscriptions to magazines and internet services, or any other personal
information held by a company that relates to identifiable individuals.
Netiquette
a code of conduct for online activities
Copyright belongs to
The person wo created the work or where the employer where the work was created as part of employment (unless employment contract specified differently)
