Intellectual Property

This term is used to describe rights which protect the results of intellectual and creative activity: items such as a new product, a book or painting, or a marketing slogan.

Normally, property ownership involves 2 essential elements: control over the property by the owner and the ability to exclude others from using or interfering with the property. In intellectual property, these elements must be adapted. The underlying idea usually takes some external form; for example, the invention is seen in a product or process; the design in a pattern or shape; the trademark in a name or logo. In most cases, the owner of the right must register the creation of the property and mark the idea in order to inform the public of the existence of the right.

Exclusivity

The right to exclude others from using the property is the most important feature of intellectual property. The owner has the exclusive right to use the property, or to allow someone else to use it. The value of the property is in its exclusiveness or in the revenue which can be generated from licensing others to use it. The area of intellectual property consists of 4 major components:

1. Copyright applies to original creations in the literary, dramatic, musical and artistic fields (Copyright Act).

2. Industrial designs protect elements of shape, pattern or configuration applied to articles in an industrial process (that is shape or pattern, not function) (Industrial Designs Act).

3. Trademark covers names, logos or drawings used to indicate the identity or reputation or a business (Trademark Act).

4. Patents are granted over new, useful and commercially viable products or processes (Patent Act).

Each of the areas is governed by a federal statute which sets out the conditions for creation, the process of registration (mandatory for all except copyright), the right of the registered owner, the remedies for infringement and the rights of the public to use the property.

Indicator of Identity and Culture

The intellectual property industry is extremely valuable in itself and as an indicator of Canadian identity and culture. For example, the music industry relies on copyright protection for its existence; recent issues centre around the imposition of blank tape levies and right to receive royalties for radio and television play time. In the patent area, debate revolves around the ability of manufacturers to produce generic versions of patented drugs and around the ability to protect by patent various aspects of genetic engineering and technology. The most recent example are plant strains or a genetically defined mouse to be used for medical research purposes.

Each statute, in effect, creates a time-limited monopoly for the owner of the rights. The statute attempts to create the appropriate balance between private activity and public interest.

SeeCOPYRIGHT LAW; PATENT; TRADEMARKS.