Intellectual Property Law and Practice in Canada and the Impact of International Trade - Term Paper Example

Introduction Intellectual Property laws are a means by which business competition is regulated so as to provide for free and open markets. This is accomplished by making provisions which are calculated to protect owners of intellectual property from counterfeiting and to set parameters for the exclusive use of intellectual property. The concept of intellectual property rights have consistently been defined and regulated so as to ascertain that the protection granted does not function to impede the rights of others.1 . Dr. Margaret Llewelyn notes that intellectual property rights protection and regulation is necessarily founded on the concept that ‘increased innovation” makes it possible for the production of: “new products for the market place and leads to increased profits and economic growth.”2 Canada subscribes to these concepts and its array of intellectual property rights laws adequately prove this. However, in an article written by Myra J. Tawfik, Canada by its ascension to the North American Free Trade Agreement (NAFTA) has been forced to reconcile its domestic intellectual property rights laws with those of its trade partners under NAFTA3. This paper examines Canada’s intellectual property laws and how its obligations under NAFTA have influenced its developments as discussed by Myra Tawfik in the article Intellectual Property Laws in Harmony with NAFTA: The Courts as Mediators Between the Global and the Local. Canada’s Intellectual Property Laws Cumulatively, Canadian intellectual property rights are contained in several difference types of property which include, trademarks, patents, copyright, “industrial designs, integrated circuit topography and plant breeders’ rights.”4 The breadth of the Canadian Intellectual property rights protection encapsulate the exclusive right of the licensed owner of intellectual property to permit others to use the protected property and to take steps to prevent unauthorized use of the protected property.5 Essentially a trade mark is a unique identifying element such as words and/or designs that distinguishes the product from any other.6 Canadian intellectual property laws recognize two distinguishing features of note, the “distinguishing guise” and the “certification mark.”7 A distinguishing guise generally refers to the manner in which the product is presented to the public. In Daniel Shear’s example, the unique shape of the Coca Cola bottle is a distinguishing guise.8 Likewise the certification mark is a distinguishing mark used to identify a product which meets minimum standards.9 Under Canadian law, a trade mark can be protected under the tort of passing off notwithstanding that it has not been registered.10 This is made possible under the tort of passing off and is founded upon principles of goodwill and reputation. In other words once a product can be identified and distinguished from other like products by virtue of its unique features and has gained relative success on the market, imitations of the product that are marketed in such a way that it confuses the imitation with the original can give rise to a claim under the tort of passing off.11 Be that as it may, the best method of trade mark protection in Canadian law is by virtue of registration.12 Canadian law allows for certain remedies in the event of trade mark infringement. Those remedies include an accounting of profits on the part of the party who uses the trade mark without permission.13 Other remedies include court ordered injunctions forbidding further use of the trade mark and search and seizure orders permitting the trade mark owner to seize the infringing material.14 Canadian copyright laws generally refer to works such as: “...books, manuals, seminar materials, maps, paintings, sculptures, sound recordings, music, software (programming code and possibly screen display) databases (if some creativity went into their creation)...”15 Once an author creates any of the works listed copyright arises automatically and it is not necessary to register the copyright works.16 Like trade mark protection laws, copyright owners can obtain injunctions together with profit accounting and damages for infringement of copyright.17 Criminal penalties can also be attached.18 Canadian patent protection laws are designed to protect innovated ideas and inventions.19 The invention or idea must be original in order for it to be patented.20 Unlike copyright material, patented goods are ideas rather than the sole “expression of the idea.”21 Unlike trade mark and copyright laws a patent requires registration to obtain protection and the application for patent registration and protection must be made within one year from the release of the patent to the public.22 The perpetuities period for registered protection is 20 years.23 Industrial designs also require registration in order to obtain protection.24 Industrial designs are similar to trade marks in that they relate to the physical characteristics of a product.25 Industrial designs are primarily the manner in which a product is packaged and marketed and in order to qualify for registration it must be original.26 Registration lasts for five years although it can be renewed upon application for renewal.27 Remedies for infringement of industrial designs are essentially the same as trademark infringement remedies.28 Integrated circuit designs refer to the design of an integrated computer circuit but not the actual circuit idea. The design is required to be original and registration is required. Registration is required at least two years before or after the product is marketed.29 Plant breeders’ rights are vastly similar to patent protection and covers “new variety of plants” and this could include “genetically” altered plants.30 In order to obtain exclusive rights to a plant it must be capable of distinction from all other plants.31 Moreover, the plant must not have been previously available in Canada.32 Like other rights contained under intellectual property rights laws in Canada a plant breeder’s rights includes the right to exclusively product and sell the the protected property limited by a term of years. Intellectual Property Laws in Harmony with NAFTA: The Courts as Mediators Between the Global and the Local. The North American Free Trade Agreement was ratified in 1994 and included Canada, the US and Mexico. The agreement set minimum standards for intellectual property protection which are binding on Canada as a member State to the agreement.33 Canada fortified its obligation to NAFTA by implementing the North American Free Trade Agreement Implementation Act (NIA). As a result Canada made a number of modifications to its intellectual property rights laws which include the Copyright Act, the Patent Act as well as the Trade-marks Act.34 Canada’s commitment to NAFTA and its continued commitment to Canada’s national economy and development is manifested by its intellectual property laws which were discussed in the preceding passages. These laws and their application are reflected in the preamble to NIA which reads in part as follows: “Whereas the Government of Canada has entered into the Agreement having further resolved to strengthen Canada’s national identity while at the same time protecting vital national characteristics and qualities.”35 Myra Tawfik submits that the preamble to NIA is a manifestation of Canada’s resolve to make provision for intellectual property rights protection with in the NAFTA regime while at the same time preserving its own national identity and economical growth.36 However, these dual objectives have the potential to create conflicting policies and practices.37 Tawfik argues however, that the difficulty for Canada in trying to reconcile its own intellectual property policies with those contained in NAFTA is that the notion of minimum standards are founded primarily on US initiatives and policies.38 While Canada strives to encourage national innovation, NAFTA strives to remove barriers to trade by promoting the free movement of intellectual property.39 In this sense, Canada’s dual goals as expressed in the NIA are conflicted. NAFTA’s goal for the free movement of intellectual property between its partner states has the potential to compromise Canada’s national identity as valued within the framework of its intellectual property protection policies.40 The challenge for Canada is sustaining its individuality and at the same time benefiting from the harmonization of intellectual property laws under NAFTA. 41 This challenge according to Tawfik can be met by the Canadian courts. They can meet the challenges by adapting their positions to “meet the challenges that globalization places upon them.”42 This Tawfik submits can be accomplished by domestic courts using international treaties and conventions such as NAFTA as guides to interpreting Canadian intellectual statutes. In fact the Canadian Supreme Court has already illustrated a willingness to adapt this approach and has made a number of decisions by adapting this approach.43 The Canadian Supreme Court has taken the position that in the new age of globalization, Canada does not exist “in splendid isolation.”44 In fact Canadian Supreme Court judge Binnie J said in Theberge v Galarie d’Art du Petit Champlain Inc.: “Copyright in this country is a creature of statute and the rights and remedies it provides are exhaustive...This is not to say that Canadian copyright lives in splendid isolation from the rest of the world...in light of the globalization of the so-called ‘cultural industries’, it is desirable, within the limits permitted by our own legislation, to harmonize our interpretation of copyright protection with other like-minded jurisdictions.”45 In a recent Supreme Court of Canada ruling, Binnie J repeated these sentiments adding only that while intellectual property legislation may differ from state to state, Canada’s intellectual property laws have been modified to come into harmony with “like-minded jurisdictions.”46 This kind of thinking and approach by the Supreme Court of Canada has paved the way for a framework within which lower courts interpret intellectual property laws in Canada. The main idea is to take an approach that recognizes that modern technology has opened the door for free and open trade on a global level.47 In other words when called upon to interpret domestic intellectual property laws, the courts in Canada will consider not only Canada’s laws and policies, but international laws and the laws of other like-minded jurisdictions. The underlying objective is to somehow contribute to harmonizing intellectual property laws. Conclusion The intellectual property laws of Canada as discussed in this paper are not intended to duplicate the laws of its trade partners under NAFTA.48 The Canadian intellectual property laws are only intended to address domestic policies and practices. What NIA intends is that courts when interpreting the statutory provisions of Canada’s intellectual property laws is that a fair balance is struck between Canadian policies and laws and the spirit and intent of NAFTA. The overall result is a harmonization rather than a uniformity of laws from one nation to another.49 Bibliography Anderson, R. and Gallini, N. T., (1998) Competition Policy and Intellectual Property Rights in the Knowledge-based Economy, Calgary: University of Calgary Press. Llewelyn, Margaret Dr. Proposals for the Introduction of a Community Utility Model System: A UK Perspective. [1995] 2 Web JCLI http://webjcli.ncl.ac.uk/articles2/llewel2.html Viewed April 9, 2008 Shear, Daniel, R. (2000-2008) ShearLaw Business Handbook Tawfik, Myra.(2003) “Intellectural Propery Laws in Harmony with NAFTA: The Courts as Mediators Between the Global and The Local.” Canadian Journal of Law and Technology. Vol. 2, 213-220 Read More