Intellectual Property Flashcards
Exclusive source of Canadian Copyright law?
Copyright Act, since Jan 1924
Theberge
Case about painting
and the relationship between the copyright owner and the owner of a lawful copy of the work in a corporeal substrate who utilizes the work on a different substrate.
majority said no reproduction occurred. went for the incentive theory . Reproduction requires an additional copy be made.
Interference that does not cause reproduction can be remedial only as a moral right infringement, characterized separately from copyright and has limitations such as need for prejudice to the honour and reputation of the author.
Test of reproduction is NARROWER than that of the US and Europe.
Concept of reproduction does not give copyright owner the right to control the usage of the substrate containing the work
Need to balance between copyright owners and users of the corporeal containing the work.
The minorities definition of reproduction would not achieve the balance as the copyright owner would have control over the physical substrate, would lessen certainty, would blur distinction between moral and economic rights
minority did not ascribe to the incentive and balance theory, but they did acknowledge a theory of reward for creation from a more natural right. Reproduction will occur if the work is subsequently fixed elsewhere in any subsequent material form. No requirement of additional copy, just a “new materialization”
Reproduction interpreted broadly - includes new technology for reproduction and the expression “ in any material form whatever” encompasses new media
In CCH, the minority from theberge’s idea for a more natural right was rejected unanimously by SCC
CCH
Copyright law in canada is exhaustive in the copyright act as to both owner and user interests
Act must be interpreted in entire context….
Public interests to be served by the incentive theory is the encouragement and dissemination of works of arts and intellect and obtaining a nust reward for the creator → SCC is now unanimous in its adoption of this theory consistent with that of the US
The balance btwn copyright owner and user was drawn more explicitly. Fair dealing “defense” was re-characterized as a “user right” and an “integral oart of the copyright act and the balancing process”
In CCH the concern was the relationship between copyright owner and the use of the incorporeal work itself in a context of clear infringement by reproduction. Question was whether copyright extended to subject matter and whether the dfd activities fell within the fair dealing provisions.
Class notes:
Can change as long as no additional copy is made
Sometimes holder of artwork is restricted in what they can do by statute. 1988 it was inserted in the act that you cant display art unless permission is given from the copyright holder.
1769 case of miller and taylor
Adopts principle from US constitution that copyright is utilitarian in terms of its legal theory. Objective is promotion of dissemination of works of public interest, giving credit to author. This is visible especially in fair dealing provisions of copyright where you can deal with work for purpose of public interest (research, education, criticism etc)
History of Copyright law Canada
Reflects common law tradition (mostly english but also reflects other commonwealth)
Based on 1911 english enactment
US authorities have been considered but a different structure and statutory formulation has led to caution in accepting their pursuasiveness in canada, as seen in theberge and CCH, yet in both the court indicated that harmonization with principles of copyright in other jurisdictions would occur so long as the development would fit within traditional canadian copyright framework
Theberge majority finding could NOT bring harmonizing measure within terms of the act or framework. Le droit d’auteur and US derivative work categorizations were denied
CCH favoured a formulation substantially consistent with US and Europe, which did not require straining the interpretation of the act, over a commonly held understanding of the concept of originality.
It is this type of context where future harmonization will likely be seen.
Traditional Knowledge
includes knowledge and expressions of culture.
Traditional refers to phenomena whose creation and use are part of the cultural tradtions of communities and for which the communities may have prescribed protocols for use, protection and preservation. (doesnt mean only old stuff - dynamic)
WIPO reprot defined it as being inclusive of: folklore, TK, innovatioms, practivces, music, songs, dance, graphics, designs, crafts, textiles, paintings and signs and symbols linked with a community.
Not simply a collection of intangible items or features simpliciter, rather it is the integration of these features into a cultural system.
Remedial Options for TK protection
doing nothing and relying on existing law, amending IP rights and related areas to facilitate inclusion of TK, enacting sui generis protection directed specifically at TK in a manner similar to other specific areas of IP rights, inclduing integrated circuit topographies and plant breeders rights and entering into agreements between gov and traditional communities ultimately resulting in legislating the terms of the agreements.
Christie argues that non ab authorities should not attempt to provide for the protection of ab TK as (1) aboriginal communities can do it themselves and (2) outside measures would simply protect a western/european perception of TK
Perceived limitations of Intellectual Property Law in protection of TK
Individual Ownership
Limitation Period Protection (IP has limited periods of time)
Underlying Theory (commercially based rather than social contract theory - only wkrs on some aspects of TK)
Inventiveness/Originality - Qualitative components required for IP rights, patents must be “novel”, trademarks “distinct” , copyright requires intellectual effort to meet the skill and judgement required. This can prove difficult with TK. ex Public knowledge cant qualify for patents.
Fixation or recording - most ab stuff is oral
Application or Registration - requires application be made to a sovereign state to gain recognition of the state by grant in order to secure IPR validity. (patents and trademarks)
Traditional Law, Practice, or Custom - little or no scope for it in the framework of IPrights. Source of conflict as many systems of self governance exist in traditional communities. Concerns about cultural impact of granting exclusive rights to traditional entitlements and responsibilities in circumstances in hwich the IP rights are not properly understood by traditional communities.
Other Obstacles to Overcome in Achieving Protection
1) Need for global framework - to facilitate international enforcement
2) Global diversity of both TK and traditional communities - frustrates attempts at the specificity needed for enforceable legal responses. Nature and scope of TK also frustrates comprehensiveness in formulating remedial provisions at the state and international levels
3) The absence of unified political will - further influenced by the absence of a detailed idea of the content of and adequate infrastructure for the subject area. Naturally, such uncertainties lead to lack of consensus.
4) Reconciling commerce and trade with human rights - IP rights and TK are components of both. The linkage between commercial and trade contexts and human rights have their own conceptions, theories, and values.
Ex. of protecting specific forms of cultural heritage through agreement
Clause 17, S5 of the agreement btwn canada and the nisgaa nation provides that the final agreement is binding and can be relied on by all persons, clause 35 states from time to time they will use reasonable efforts to facilitate access to artifacts that are held in public or private collections. These items are tangible and include intangible cultural asepcts. IP law is left unchanged in its application to nisgaa.
WIPO report lists as objectives for adequate protection of TK
conservation, preventing unauthorized exploitation, encouraging innovation and creativity, preventing misappropriation, distortation, encouraging innovation and creativity, preventing misappropriation, distortion, or other prejudicial actions, and the protection of dignity and moral rights of traditional innovators and creators.
Preventing exploitation and encouraging innovation are econ related and consistent with IP theories.
Others are more related to human rights, public interest
Why Protect TK?
(1) Need to protect aligns with with reconciliation. Specifically from reconciliation procedures in relation to land.
(2) Provides an effective foundation for national recognition but falls short of providing sufficient infrastructure for extending internationally. Particularly with respect to communications of intangible interests
(3) Justice and fairness of bringing TK within the global IP regime - recognize a market value and exclusivity of enjoyment in TK favouring ab communities.
Prevention of 3rd party acquisition of IP rights over TK (without contract)
(4) The integration of knowledge systems - value for whole society as encourages innovation, creativity, research and dev.
(5) A perception of need for non-economic/ Moral rights protection - Ab seek protection against distortion, mutilation or modification of TK in ways that cause prejudice to the TK holders. Similar to moral rights protection in copyright law, but moral rights engender a large range of acceptance and rejection. WTO excludes moral rights in their agreement on trade related aspects of intellectual property rights. World Intellectual Property Association is more likely to include moral rights equivalents drawing upon authors rights rather than copyright. Whatever international mechanism is used, it must be adopted by individual states.
Amending Existing IP Rights to protect TK
Advantage is existing infrastructure nationally and internationally via IP rights treaties.
Disadvantages are the limitations
National statutes have not been specifically amended for TK interests but case law has been interpreted as to favour indigenous claims to IP rights protection.
Combos of common law and equitable concepts such as fiduciary obligations have been relatively successful as indirect recognition of ab rights in australia.
Limitiations of the developments in australia include the fact that there was a current copyrighted work held by a current artist. Copyright protection was therefore available. Not always the case with older work for which IP rights have expired. For this only sui generis protection can help (this is ongoing in new zealand).
No specific culturally focused amendments were made in canada IP legislation yet. But 1999 Working Paper from Dept of Indian and Northern Development indicates Copyright and Trademark is being used in creative ways to apply to ab interests. Less use of patents and industrial designs, some use of trade secrets.
Christie suggests defensive measures to prevent appropriation of TK by third parties. But problem is that without non ab protection, enforcement is hard.
These defensive measures need to consider whether a sufficient linkage is made to identifiable cultural feature of a community or if the expression is in the general public domain
Amendments that modify the copyright requirement of fixation (recording, writing etc) by allowing oral traditions would be helpful to indigenous communities. Developments have been made in Australia Recognizing communal ownership and a role for law and customs of the particular community.
Patent changes could include clarification of relationship between TK and prior art for patentability (but normally TK is too general as it is currently defined - but some instances of narrow and specific TK may constitute prior art)
Bulun Bulun case
Third parties recipient of protected confidential info can be readily enjoined so long as the info is still relatively secret
Ab artist who created the painting was bound not to exploit it accordance with custmary law of the people. Artist had fiduciary obligation requiring him to take steps to remedy infringement by a third party. Court rejected native title, community title, equitable title or express trust in favour of community.
Fiduciary obligtion is limited to an in personam context (right to recover from the fiduciary without any claim to the property itself). BUT the court did note that the occaision might exist for equity to impose a remedial constructive trust upon the copyright owner to strenghten the standing of the beneficiaries to bring proceedings to enforce the copuright. (ex if owner cant be found and beneficiaries are unable to join the legal owner of the copyright). Therefore a significant recognition of a community interest in an IP right
Milpurrurru v Infofurn Pty Ltd
court held communal ownership cant be recognized in favour of traditional owners whose claim to ownership was derived from aboriginal law. Did allow damages from personal suffering to take account of cultural features.
Noted that although onlu the right of the individual copyright owners could be regonized, there may be scope for the distributions of the proceeds to be made to traditional owners who have legitimate entitlements according to ab law to share compensation paid by someone who has without permission reproduced artwork by ab artist. In this ab law, artists are responsible for all infringements by third parties.
