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CBL - CH11 - Intellectual Property - Coggle Diagram

- - - - It protects a broad range of works, the different types have different rights attached to them.
        
        Books, magazines, and newspapers
        
        music, both recorded and written
        
        computer programs
        
        plays and movies
        
        paintings, drawings, charts, maps, and photographs
        
        sculptures and architectural works.
      - it prevents people from reproducing a creative work without the permission of the copyright holder.
      - Illegal reproduction includes copying or plagiarising part or all of a work
      - additional rights, such as the right to translate a work, to convert it to another medium, to adapt it, and to publicly perform it, are also protected by copyright law.
      - Scope of copyright protection
        
        Copyright applies to the expression of ideas but not to the ideas themselves. A writer, for example, can protect the arrangement of words in an article through copyright but cannot prevent others from writing on the same subject matter.
        
        Copyrights are protected by common law, which means registration is not necessary to protect them, although they may be registered pursuant to the copyright act.
        
        registered or not, copyrights do not last forever
        
        Copyright holders might permit others to reproduce their works in whole or in part.
        
        Canadian copyright law is enforceable outside Canada in countries that are signatories of the Berne Convention
      - Length of protection
        
        once copyright protection expires, a work is said to be "in the public domain" meaning that the public is free to use it.
        
        In general, unless the Copyright Act contains a specific provision to the contrary, a work becomes part of the public domain 50 years after the calendar year following the creator's death.
        
        Canada amended legislation, now sound recordings is 70 years protected.
        
        this applies only to the particular artist's performance in a sound recording. It does not apply to the copyright of the music itself, which will be protected for 50 years after the death of its composer
      - Originality and fixation, for a work to enjoy copyright protection, originality and fixation must be met
        
        originality demands that the work be new in some way and come from the creator
        
        Fixation demands that the work be more than simply an idea, since ideas themselves cannot be protected by copyright.
        
        To be copyrightable ideas must be fixed in a material form, such as written pages, digital data, or a video or audio recording.
      - The copyright symbol, is a mark used by the owner to alert others that the work is copyright protected. there is no requirement to use it, a work is protected nonetheless it has the symbol or not.
      - Copyrights Protected in Common Law: Registration Optional, The advantage in registering the copyright is that it provides an evidentiary advantage: the person who registered it is presumed to be the owner and the burden to disprove this would be on anyone who has infringed the copyright or otherwise wishes to challenge it. But all in all, all creative works are automatically protected in Canada when created.
      - Fair Dealing and Other Exemptions
        
        Copyright infringement, unlawful interference with someone else's rights, in this case, the copyright owners when someone else copies the copyrighted material.
        
        Copyright infringement is not tied to commercial gain
        
        copyright infringement tied to commercial gain presents a greater risk, since damages can be significantly higher.
        
        copyright owners have rights over public performance of their work, which means that private performance of certain works is permissible
        
        the chief defense to infringement is fair dealing it allows copying of the work if the purpose is to research, privately study, criticize, review, parody, or report on the work.
        
        where the work is used for anything that is permitted, it needs to be attributed, meaning that the source needs to be sufficiently acknowledged
        
        you cannot copy a substantial amount of the work, it is not a fair dealing if use of the work is a thinly disguised means of actually distributing the work.
        
        other exeptions apply to educational institutions, museums, archives, and libraries, and to the conversion of works for the perceptually disabled.
        
        recent amendements to Canada's copyright law provide exemptions for "user-generated content" created by integrating or building on the copyright-protected work of another.
        
        This can only apply if the new work is used solely for non-commercial purposes
      - Software and digital media, a person or business that purchases software does not become the owner of the copyright, the purchaser is given the right to use the software, with certain conditions or restrictions imposed by the copyright owner.
        
        software piracy is the illegal copying or distribution of another's intellectual property.
        
        Canadian copyrights law permits a user to make a copy of software for backup purposes, to safeguard against damage to the original copy, beyond that, its ellegal to copy or distribute the software in any way prohibited by the licence.
        
        it is also illegal to tamper with or break digital locks that are used to prevent unauthorized duplication of software, DVDs, or other digital media
        
        Infringement of software copyrights carries the risk of civil liability, in cases where it is done for commercial gain, may lead to criminal prosecution with risk of fines and/or imprisionment.
      - Ownership and Assignment of Copyright, the author is deemed to be the first owner of a work and is entitled to its copyright, but where work is created during the course of employment by an employee whose job is to create the work, the copyright in the work will belong to the employer.
        
        transfer of ownership of copyright is called assignment.
        
        although not required it may be prudent for a business that acquires copyright ownership through assignment to register the copyright with CIPO
      - Copyright collectives, permits copyright holders to form collectives for the purpose of administering rights. Several collectives operate in Canada to administer rights to music, dramatic works, and published works.
        
        Collectives negotiate licences with users, collect fees, and distribute royalties to the copyright holders.
        
        it makes it easier for a club or school to negotiate if they want to distribute copies or play music for their learning purposes.
        
        Access Copyright, representes many publishes and authors and negotiates with copy centres, libraries, and educational institutions, providing for payment of royalties for photocopying of copyrighter works.
        
        SOCAN, administers the performing rights of its music industry members by collecting fees in exchange for providing licensing rights to use or perform musical works publicly.
      - Moral rights, are separate from copyright, they belong to the creator alone. Moral rights may not be assigned to anyone, including an employer or publisher.
        
        The right to be identified as the author or creator and, if preferred, the right to remain anonymous or use a pseudonym.
        
        the right to prevent changes to the work that might dishonour the creator's reputation, such as drawing a moustache on a portrait.
        
        the right to prevent the work from being used in association with a product, service, cause, or institution where the association might dishonour the creator's reputation.
        
        Moral rights may not be assigned, they may be waived, meaning the author can choose to not enforce their moral rights.
  - - - Scope of Patent Protection, the Patent Act is a federal statute enforceable across Canada, it requires that an application be made to the government before it will grant a patent for an invention.
        
        General details
        
        There is no automatic right to one's inventions.
        
        Inventions require registration. Patent protection demands more effort than Copyright protection.
        
        Protection of a patent is limited to the country in which is registered, in order to get protection, the patent must be filed in each country.
        
        However, for those in states that are signatories to the Patent Cooperation Treaty, a single international application can be filed and that single application can activate national patent application in the other PCT states
      - Length of Protection
        
        a patent is protected for 20 years form the day on which the patent application is filed, in exchange for the patent granted, the patent holder must disclose the invention to the public in its entirety.
        
        Pantent applications become public after 18 moths after they are filed.
        
        having access to the patent information can provide inspiration for other innovations, the patent protects the invention from being used, sold or manufactured by others without permission
        
        After 20 years, the invention enters the public domain and can be used by anyone.
      - Patent eligibility
        
        "an art, process, machine, manufacture or composition of matter" are inventions that are patentable.
        
        to be elegible to be patented, the invention must be new, useful, and not obvious.
        
        New, the invention must not have been published by the applicant more than one year before the applicant submits the patent application. (publishing means displaying it at an invention convention or gibing media interviews about it.)
        
        Utility, the invention has some "use" as set out in the patent application. the threshold for utility is quite low, but invention must be capable of a use specified or predicted in its application.
        
        usefulness do not mean measured in market value, nor it is required for it to be safe.
        
        if something is not deemed useful, it might not be patentable.
        
        not be obvious, in order to be patentable, an improvement in the manufacturing of maple syrup must not be obvious to someone skilled in maple syrup manufacturing.
      - Improvements are patentable, most inventions build on earlier inventions, the Patent Act provides that improvements are patentable.
        
        to be patentable, improvements cannot be superficial or cosmetic, the improvement must involve an inventive step.
        
        it is important thatt if an improvement is made on an invention where a patent is still in force, there can still be an infringement of the original patent.
        
        if a business invents an improvement to a patented process or machine, it may be required to negotiate a licensing agreement with the owner of the original patent.
        
        The patent act does provide a process by which the original patent owner may be mandated to provide a compulsory licence to the inventor of the improvement.
      - Not elegible for patent protection, process and methods can be patented a theory cannot.
        
        a patent will not be granted for a new theory of aeronautics, but a patent can be obtained for the design of an aircraft, the product that results from the practical application of the theory.
        
        scientific principles and mathematical formulas are also not patentable.
        
        some things in Canada are not patentable as a matter of public policy, such as a new method of administering medical treatment, since it should be available for others who may benefit from it.
        
        Canada does not allow the patenting of "higher life forms" such as genetic material of animals, but Europe the US and Japan do allow this.
        
        Organ like or tissue like structures may be patented on a case-by-case basis, organs and tissues themselves are not patentable.
      - Application for a Patent
        
        a patent must be registed and the process starts with the filing of an application with the CIPO Patent Office
        
        The patent office grants a patent to the party who is first to file an application.
        
        Efficient filing is often essential to avoid having a competing invention take priority.
        
        Once submitted a patent application can take years to complete.
        
        Once patented, manufactured goods can use the word "patented" and display the patent number, it is not necessary to do som but it acts as a warning.
      - Ownership of patent laws, the inventor of the process or product is the first owner and is entitled to the protection of patent law, the employee can actually file the patent and get it granted, but if the employee was hired and in the course of his employment the invention was created and the work he was hired to do was to work on that specific purpose, the employer owns the patent, it works the same if the employment contract indicated that the employer has rights to the invention of an employee.
      - Infringement, is the way patent owners can enforce the exclusive rights over their invention, where the nature of one's business exposes it to the possible risk of patent infringement, legal risk management is crucial. the costs and damages can be fatal to a business.
  - - - Ordinary marks, trademarks may include the name, word or words, letters, numbers, symbols, sounds, slogans, and designs - or any combination of these - that distinguish a business's goods or services.
        
        the key feature of these are that they brand the product or service in a way that distinguishes it from its competitors.
      - Distinguishing guise, the appearance, shape, colour, and packaging of a product can be characterized as a trademark if these attributes distinguish the product from those of its competitors.
      - Certification marks, this type of mark is licenced to businesses for the purpose of showing that their goods or services have met a particular standard, be it safety or quality of goods, the place where the goods were produced, or the working conditions of the workers who made them.
    - - similar to copyrights trademarks are afforded protection both in common law and by statute, both registered and unregistered trademarks are legally protected. Both methods require that a trademark be used in order to claim protection.
      - ownership of a trademark is not tied to the creator, ownership is determined by usage.
      - it does not apply for other countries, if the trademark wants to be enforced in other country you need to get it registered in other country.
      - a trademark can be protected indefinitely.
    - - a common law trademark is protected where the mark is adopted by the business and is associated with the product or service. Violation of an unregistered trademark is addressed by an action for "passing off", an intentional tort
      - passing off involves the misrepresentation of a product or business by using a name or mark that is associated with another, similar product or business. To succeed in a lawsuit on passing off, the plaintiff must prove each of the following elements
        
        use of trademark for sufficient time to demonstrate a market association between the mark and the product or business
        
        confusion between a business's trademark and the use of it by a competitor, or misrepresentation by a competitor in a connection with the trademark;
        
        damage to brand reputation or loss of sales
      - if the copy is sufficiently similar so that confusion may result is enough to prove this.
      - an Unregistered TM can be marked with T&M to alert others of the intention to protect it.
      - It lasts as long as the trademark is in use in association with the product or service.
    - - a registered trademark is one that has been entered in the register of trademarks through the Canadian Intellectual Property Office CIPO
      - Registration grants the sole right to use the mark across Canada
      - it is not necessary to use the (R) symbol, but you can use it to warns others.
      - Registrants are responsible for enforcing their rights in the event of any trademark infringement
      - If a suite follows through, the one who infringes can face damages and an order for the destruction of the goods.
      - it is a very specialized area.
      - Registration is valid for 15 years, and it is renewable indefinitely, is the only type of IP that is renewable.
      - Advantages of Trademark Registration
        
        it provides greater protection over common law trademarks
        
        infringement of a trademark can bring action to prevent others from using the trademark, common law only enables the tort of passing off.
        
        Registration provides a presumption that the trademark is owned by the party that registered it; the duty to disprove this lies with the party that wishes to challenge it.
        
        Trademark infringement is easier to prove than passing off.
        
        a registered owner needs only to establish use of the trademark, the common law trademark owner needs to prove both use and connection to market reputation
        
        establishing registration infringement does not require proof of damage; unauthorized use is sufficient.
        
        registration protects across Canada, common law trademark owners are protected only in the geographic area where the business has established a reputation associated with the mark.
      - Distinctiveness, a trademark must be distinctive to qualify for registration, this means distinctiveness can be achieved from made-up words, phrases, and symbols and is often straightforward, however, common words, colors and the like can be subject to trademark protection if their use over time has associated them exclusively with a particular product or brand.
      - Use it or lose it, trademarks must be used in order to be protected. this means that the protection is for a trademark to facilitate commerce and marketing.
      - INELEGIBLE FOR REGISTRATION, the following types of marks are inelegible for registration
        
        official government symbol
        
        offensive mark
        
        given or family name of someone who is living, including the applicant, or has died within the previous 30 years unless such a given or family name is directly related to the particular good or service, (made up names are acceptable)
        
        mark that generates confusion in relation to another registered trademark
        
        deceptive or misleading description of the product or its place of origin
        
        generic descriptive word that is regulary used to describe the type of product, (such as a firm mattress) that does not distinguish it from competitive products
        
        name of a product that is simply the word for the product in a language other than english or french
      - Trademark infringement, causing confusion
        
        the test
        
        do the marks look or sound alike?
        
        is the mark used in a similar market?
        
        Would an ordinary purchaser think the products or services came from the same source?
      - Loss of protection, not enforcing one's trademarks may result in losing rights, even if the trademark is registered.
        
        Escalator for example, were originally trademarks but have lost protection by becoming generic terms used to describe the item instead of the specific brand.
      - Trademark versus Trade name
        
        trade name is a name in which a business operates.
        
        It mustt be associated with the product or service and be generally known as indistinguishable one from the other
        
        registration of a business name does not, in and of itself, warrant against trademark infringement.
      - Trade names and domain names
        
        domain name is the unique address of a website
        
        registering a domain name for an illegitimate purpose is known as cyber squatting, it is the registration of a domain name that is the trademark of another, dine in bad faith for either preventing the trademark owner from using the domain name or for the purpose of selling the domain name to the company.
        
        cyber squatting can be solved through the ICANN or CIRA.
  - - - Scope,
        
        industrial designs must be registered
        
        protection is time limited
        
        a registered industrial design is protected for ten years
        
        the owner has the sole right to use it when manufacturing the product and can prevent others, when manufacturing a competing product, from copying or imitating the design.
        
        a business who wants to own the industrial design created by its emplyees, must explicity state that in a contract.
        
        once registered the industrial designs carry a (D) symbol, following the design owner's name.
        
        The use of a symbol allows the owner to claim damages as well as an injuction.
      - Registration, it needs to be registered in the CIPO
        
        the office will not register indistrual designs that have been desclosed previosly or used before the one-year period preceding the application.
        
        The design must be original and not similar to a previously registered design.
        
        It needs to be applied toa finished product.
        
        Functional aspects of a design are not protected by industrial design law.
        
        The creator needs to apply for industrial design for the visual aspect and should apply for patent for the new mechanism if the functionality is to be protected as well.
      - Infringement, An injunction is the most common order made for industrial design infringement, award for damages is also valid, if the product was properly marked with the industrial design symbol on its label or packaging.
  - - - Confidential business information is a term that more broadly includes supplier pricing, customer lists, planned advertising campaigns, designs, blueprints, financial information, business plans, and other types of strategic business information that is not generally known.
      - it is information that a business does not want disclosed to the public or to competitors.
      - no statutory provision sets out rules for confidential business information.
      - breach of confidence, is a tort and will hold a party liable for violating the duty to keep information confidential, however, will not protect information that a business has not itself taken efforts to protect.
      - Scope of protection,
        
        they must be protected indefinitely as long as the following conditions are not met
        
        information is not generally known in the industry
        
        information represents a business advantage, it has economic value (potential) as a result of not being commonly known.
        
        efforts have been made to keep the information from becoming generally known.
      - Duty of confidentiality, the legal obligation to maintain confidential information can arise in a number of ways
        
        expressly states in a contract
        
        implied by a contract
        
        arising from a fiduciary relationship
        
        created by nature of special relationship or circumstances.
        
        express confidentiality do not prevent an employee or consultant from using the skills they have acquired in the course of their work for another employer or client. But confidential information should remain confidential and cannot be used.
        
        The obligation to maintain confidentiality exists in all fiduciary relationships and other positions of trust. An agent has fiduciary duty not to disclose confidential information and not to use it for their own benefit.
      - Breach of confidence, can result in damages, injunction, and other remedies, including punitive damages, three factors are needed to establish breach of confidence
        
        information was confidential
        
        it was communicated to the recipient in confidence
        
        was misused by the recipient to the detriment of the party that disclosed it.
- - - - identifying and documenting the purpose for which personal information is collected.
      - obtaining consent from individuals for the collection, use and/or disclosure of personal information
      - limiting the collection to that which is necessary for the preidentified and consented prupose, and ensuring that it is not used or disclosed for any other purpose.
      - keeping accurate, up-to-date, and complete records of information collected, and retaining information only for so long as is necessary to fulfill the purpose for which it was collected.
      - safeguarding the security of the information
      - informing individuals of the organization's policies and practices for managing personal information and developing and implementing complaint procedures.
- - - - all messages must be permission based; recipients need to have opted in to receive communications
      - messages must contain an easy-to-find unsuscribe link; recipients who unsuscribe must be removed form the message distribution list within ten days
      - the subject line of the message must pertain to the content of the message; it should not be misleading or false
      - the message must identify the sender's name, business, and contact information.
    - - regulations do not apply to messages sent within an organization or between organizations with an existing business relationship
      - communications sent in response to requests, inquiries, or complaints, or to satisfy legal obligations
      - communications providing a quote or estimate for products or services, where requested by the recipient
      - communications providing product updates or upgrades, warranty, product recall, or safety information relating to a product the recipient has purchased.