Refereed Book Chapters

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.

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Faster, Higher, Stronger: The Protection of Olympic and Paralympic Marks Leading up to Vancouver 2010

“Faster, Higher, Stronger: The Protection of Olympic and Paralympic Marks Leading up to Vancouver 2010”– edited reprint of refereed article, in Vassil Griginov, ed., The Olympics: A Critical Reader, Routledge, 2010, pp. 344-357

The original (and longer) version of this book chapter appeared in the U.B.C. Law Review in 2008 (listed under refereed publications). The chapter evaluates Canada’s Olympic and Paralympic Marks Act of 2007, with a particular focus on ambush marketing.

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Copyright Reform and Fact-Based Works

“Copyright Reform and Fact-Based Works”, in M. Geist, ed. From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda, (Irwin Law, 2010), 571-597. PDF available here.

In recent years we have seen a dramatic growth in the number of websites, databases, tools and applications which use data from a variety of public and private sources to offer innovative information-based services to a wide range of users. In many cases, the innovators are upstarts – individuals or small companies that see opportunities for new and useful applications. Although developers may rely upon the copyright doctrine that there is no copyright in facts when they create their tools, the state of the law in this area reveals many uncertainties. In an innovation economy, clarity around the status and use of data in new works is crucial; and the public interest is best served by facts remaining in the public domain. This chapter provides an overview of the current state of the law in relation to the protection of fact-based works in copyright law. It then considers the extent to which Bill C-32 clarifies, ignores or makes worse the state of the law in this area.

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