Week 11 Flashcards
Real Property
Land and everything permanently attached to it
Aboriginal Title
Unique form of title in certain lands in Canada belonging to Indigenous peoples
Personal Property
All property, other than land and what is attached to land
Chattles
Personal property that is movable, the value of which comes from its physical form
Choses in Action
Personal property, the value of which comes from legal rights.
Right to Exclude
*Excluding others from entering an owner’s land, or interfering with an owner’s use of the land
*Right to prohibit others from copying or modifying a copyright work (such as a book)
Rights to possess and use
Land ownership can be separated, where one party has ownership, and another party has possession rights.
(lease)
Right to transfer or dispose and exceptions
Dispose or transfer property to someone else.
Exceptions: land ownership for the duration of one’s life only
Personal property that was borrowed
What is intellectual property?
Intellectual property (IP) is a legal term that refers to creations of the mind (rather than things people built) .
There are other specialized types of IP such as plant varieties, circuit topographies, and personality rights.
Patents
A monopoly to make, use, or sell an invention.
They exclude others from using new technology.
They can include processes such as pay-per-use billing systems and compositions such as compounds.
What do patents protect
They protect Inventions and are essential to businesses in the pharmaceutical, electronics, chemical and manufacturing industries.
What can’t be patented?
Things that receive protection under other areas of law (software programs and they are protected under copyright)
Things that do not meet the definition of a patent (scientific principals)
Things that are, for policy reasons not patentable (surgical treatment)
Requirements for patent ability
New (doesn’t have to be absolutely new if it had not been disclosed publicly)
Useful (must solve some practical problem and work)
Unobvious (must be some ingenuity or inventive step involved in the invention)
Industrial designs
Visual features of shape, configuration, pattern, ornamentation, or any combination of these, applied to a finished article.
Industrial design protection for
Protection for the appearance of mass produced (more than 50) useful articles or objects
Requires registration
Industrial design requirements for registration
Normally a written description and a graphic depiction, photogrammetry it’s drawing is required.
The owner is entitled to make the application
The basic principle is that the designer is the owner unless the design was ordered and paid for by another
Industrial design protection
Registration lasts for 10 years.
The owner gets exclusive right to make, import or sell any article in respect to which the design was registered
Proper marking D with circle around it next to name of proprietor
It is not mandatory to make the design as registered.
Trademark
A word, symbol, design or any combination of these used to distinguish the source of goods or services.
Trademark examples
A word, words or slogan (Just do it)
A design (McDonald’s Golden Arches)
A series of letters (BMW)
Numbers (lotto 649)
A symbol (Nike swoosh)
A distinguishable guise (Coca-Cola bottle)
Any combination of above
Unregistered trademark
- often referred to as a common law trademark
- it comes into existence when a business simply adopts and uses it
- infringement can be addressed through the tort of passing off
- it only has rights in the geographic area in which it has been used
registered trademark
Has more protection than unregistered
- protection is national
- it creates a presumption of ownership, validity
Copyright
The right to prevent others from copying or modifying certain works
- governed by the copyright act
- doesn’t protect against underlying ideas
-applies to every original artistic work.
Copyright: Originality
The work must originate from the author, not copied from another
Copyright: Fixation
The work must be expressed in some forced form, such as paper or diskette
Copyright Registration
Copyright arises automatically
- an optional registration process
- you can mark your work but isn’t mandatory
- generally lasts life of author +50 years
Exception to copyright
When an employee creates the work as part of their job
Rights under copyright law
- Reproduction
- Public performance
- Publication
- Translation
- Adaption
- Mechanical reproduction
- Rental
- Moral rights
Copyright: reproduction
The right to reproduce the work or a substantial part of it in any material form
Copyright: public performance
The right to perform the work or a substantial part of it.
Copyright: adaptation
The right to convert works into other formats (book to a movie)
Copyright: mechanical reproduction
The right to make sound recordings or cinematographic recordings
Copyright: rental
The right to rent out sound recordings and computer program’s
Copyright: Moral rights
The authors rights to have work properly attributed and no prejudicially modified or associated with products.
Moral rights include:
Paternity right, integrity right, and association
Copyright Exceptions
For libraries, museums, archives, people with disabilities and educational institutions.
Fair Dealing
A defence to copyright infringement that permits the copying of works for particular purposes
2 step test for analysis of fair dealing
Confidential business information
information that provides a business advantage as a result of the fact that it is kept secret
Examples of confidential business information
Strategic business information
Products
Compilations
Technological secrets
Assignment
The transfer of rights by an assignor to an assignee
License
Consent given by the owner of rights to someone to do something that only the owner can do.
Bailment
Temporary transfer of possession of property from one person to another (lending friend a car)
Bailor
The owner of property who transfers possession in a bailment
Bailee
The person who receives possession in a bailment
Common law liability of bailees
Bailment for value
Gratuitous Bailment
Bailment for value
Bailment involving payment for use of property or service.
(Most commercial Bailment date based on this)
Gratuitous Bailment
Bailment that involves no payment- only benefits one of the parties (bailor or bailee) but not both
If Bailment benefits both parties?
Then the bailer must treat the item as a reasonable and careful person would
Common law liabilities of bailees for gratuitous benefit of bailor
If Bailment is gratuitous and for the benefit of the bailor, the standard of care is low. The bailer must avoid deliberately or recklessly damaging the item.
(Storing car in bailees driveway)
Common law liabilities of bailees if gratuitous and for benefit of bailee
If Bailment is gratuitous and for the benefit of the bailer the standard is high. The bailer must treat the item as if it were their own and is responsible for even the slightest carelessness.
Real property
Land or real estate, including mineral rights and leases.
Buildings, fixtures, and associated legal rights.
Real property has constitutional, statutory and common law features
Fee simple
The legal interest in real property that is closest to full ownership.
Coowners rights
Coowners have equal rights to the use and enjoyment of the property
Tenancy in common
Coownership whereby each owner of an undivided interest can dispose of that interest as they see fit.
Joint Tenancy
Co-ownership whereby the survivor inherits the undivided interest of the deceased.
Leasing a space creates
A landlord tenant relationship
Tenant
The party in possession of land that is leased
Landlord
The owner of land who grants possession to the tenant
A lease
A least is a contract, records rights for both parties, and is an interest in land. It can be commercial or residential.
How are residential leases regulated
They are regulated by provincial legislation
Are commercial leases regulated?
They are regularly unregulated. They are negotiated by the landlord and the tenant.
Exclusive possession
-This is the key feature of a lease.
-It refers to the tenant’s right to control the land during the term of the lease.
-The lease continues even if the owner sells the land.
Landlords basic obligations
Are to refrain from interfering with the tenants use or enjoyment of the property and the provide any benefits or services promised in the lease.
Easements
The owner of the land gives someone the right to use a part of the land for a specific purpose.
- the owner of the land cannot block the easement and the person who benefits from the easement must care for it.
Property rights: ownership/ fee simple
- right to use (exclusive to you and indefinite)
- possess
- alienate and bequeath
How do you acquire ownership?
Purchase or sale
Parties involved in ownership
Buyer and seller
Ownership process of registration
To register a transaction, official record with everything in writing
This is important because it is a notice to the public if a change of ownership, so no one can claim it and you can search the documentation to find people of interest
Forms of Ownership
- Single
- Several (joint tenancy, tenancy in common)
Joint tenancy
If one of the owners dies, his shares go to the other owner. Only way to avoid it is in your life time, sell it to yourself to break the title.
Tenancy in Common
Two parties or more own a property and their shares does to whoever they will it to.
Registry
- birth adoption and all other document are with land in this system
- paper based
- fraud is very possible if the buyer didn’t check for a good chain of title the turfed is on the buyer.
- older form of registration that’s almost phased out but still used in PEI
Land title
A newer form of registration
- guarantees good title
- digital
- database called “providence of Ontario land registration system” and a software called terraview
- PIN numbers are recorded for a property and you can look up anything to do with that property
- all consent of people with property need to be there for title (2 owners need consent of both sides)
Life interest
If you had a new wife but wanted to leave things behind for your precious kids
- exclusive and indefinite processes without the right to alienate
- use and processes but goes back to nothing when she dies
- you keep some residual rights and they refer back to whoever they designate it to.
Lease
Exclusive but not definite
You can not pass it on, alienate or bequeath it.
Alienate
Means transfer
Bequeath
Pass on to heirs
Ownership
exclusive and indefinite legal right to use, possess, alienate or bequeath
What is easement
Easement grants others the right to use land for a particular purpose (such as installing a water line).
