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Overbalancing: The Supreme Court of Canada and the Purpose of Canada’s Copyright Act
“Overbalancing: The Supreme Court of Canada and the Purpose of Canada’s Copyright Act”, (2010) 25:2 Canadian Intellectual Property Review 181-204
This paper examines how this concept of ‘balance’ evolves in decisions of the Supreme Court of Canada, from the landmark decision in Théberge c. Galerie d’Art du Petit Champlain to the most recent decision in Euro-Excellence Inc. v. Kraft Canada. It offers a critique of the notion of “balancing” as developed by the Supreme Court of Canada. The paper argues that this “balancing” approach is not supported by the language of the Copryight Act, that it is incoherent as a tool for statutory interpretation, and that it is ultimately inconsistent with the role of the judiciary. The paper argues that rather than being in opposition to one another, the goals of protecting the rights of creators and encouraging access to and dissemination of works are often served by the same measures. The paper suggests that the deep divisions at the Supreme Court of Canada in Robertson v. Thompson Corp. and in the Euro-Excellence case illustrate the failings of the Court’s “balancing” approach, and it argues for a more nuanced view of the public policy underlying copyright law.
in Refereed Articles
Tags: IP
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Canadian Trademark Law
Canadian Trademark Law, LexisNexis (Butterworths) Canada, Inc., 2010.
This book is a treatise on Canadian trademark law. While a primary focus of the book is necessarily the Trade-marks Act, a number of other statutes are considered, as well as the extensive body of common law relating to trademarks. The book aims to provide a solid grounding in the basic principles of trademark law, while at the same time exploring some of the contemporary challenges in this area of law. These challenges are brought about by the international movement towards harmonization of norms and procedures, as well as phenomena such as the internet and electronic commerce, the growing problem of counterfeiting, and the use of trademarks in critical and parodic expression.
in Books
Tags: Internet IP
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Intellectual Property and the Licensing of Canadian Government Geospatial Data: An Examination of Geoconnections’ Recommendations for Best Practices and Template Licences
“Intellectual Property and the Licensing of Canadian Government Geospatial Data: An Examination of Geoconnections’ Recommendations for Best Practices and Template Licences”, (2010) 54:3 Canadian Geographer 366-374 (with Elizabeth F. Judge) PDF Available here.
In Canada, Crown copyright permits government to assert control over its works. These Crown rights have often been justified on the basis that government must assert intellectual property rights so as to be better able to control the accuracy, integrity, and quality of any information that reaches the public through Crown works. In this article, the authors examine GeoConnections’ template agreements for the licensing of government geographic data. They argue that not only is the basis and scope of claims to intellectual property rights uncertain, the objectives of quality control, data integrity, and accuracy do not appear to motivate the licence terms. The uncertainty as to the legal basis of the intellectual property claims is significant, as licences of this kind may give support to otherwise weak downstream claims by third parties to copyright in data products generated through the use of geographic data provided by the Crown.
in Refereed Articles
Tags: Geospatial IP
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Extension of Intellectual Property Rights
“Extension of Intellectual Property Rights”, Chapter 1, in M. Boyer, M. Trebilcock & D. Vaver, eds., Competition Policy and Intellectual Property, Toronto: Irwin Law, 2009, pp. 17-145
This very long chapter flowed from a report prepared for the Competition Bureau as part of a series of papers exploring the intersection of IP and competition law. In recent years, concerns have been expressed that the traditional balances struck in intellectual property law have been undermined through a range of practices, rules and phenomena that contribute to an extension of intellectual property rights beyond what was originally contemplated by policy-makers. This chapter examines some of the strategies used to extend intellectual property rights under two broad categories. The first is the expansion of intellectual property rights through increasing overlap between areas of protection. The second involves the assertion of weak or uncertain intellectual property rights. In the section on overlapping protection, two issues are considered in detail: the overlap between patents and trade-marks, where trade-mark protection is sought over functional features of articles, and the overlap between copyright and trade-mark. This latter overlap is examined in the context of the use of copyright law to prevent the parallel importation of non-copyright goods, based on rights asserted in trade-mark logos or product wrapper designs. The exercise of weak or uncertain intellectual property rights is examined in the context of reverse-payment settlements in patent disputes between brand name and generic drug companies. These cases, which have proven problematic in the United States, highlight complex issues arising from a combination of factors. The paper provides a detailed exploration of the issues which arise in each example, and explores the possible impact of these practices on innovation and competition.
in Refereed Book Chapters
Tags: IP
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When is de-identified data personal information?
“When is de-identified data personal information?”, Winston Report, Summer 2009, p. 18.
in Other publications
Tags: IP