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Pay InvoiceBusiness Voice - June 2011
Protecting Creativity: Intellectual Property and the Law“IP is an umbrella term that refers to a set of property rights that can exist in property rights of the mind,” says Graham Reynolds, an IP law professor at Dalhousie University.
This umbrella includes three main branches of property law: copyright, trade-marks and patents. The concepts are quite different and how one goes about obtaining them differs dramatically.
While these three topics won’t affect every business owner, it’s important people have an understanding of what they are and how this might affect them.
The topic of copyright is the one that’s probably least likely apply to businesses, but is more likely to apply to individuals.
“Copyright protects the expression of an idea,” says Stewart Hayne, alawyer with Cox & Palmer. “In particular, it protects things like literary works, musical works and artistic works. It gives the copyright owner the sole right to produce or reproduce a substantial part of that. You can take a little bit, but you can’t reproduce a substantial portion of those works without authorization from the copyright owner.”
It’s also very easy for somebody to get copyright protection.“ For copyright, you don’t have to do anything to register,” Reynolds explains. “As soon as you take your pen away from the paper, as soon as you hit the save key or take your brush off the canvas, [you’re protectedby copyright].”
In other words, you’re granted copyright simply by its creation. In Canada, copyright exists for the duration of a person’s life, plus 50 years. It can also be registered and this would be helpful if a disputewere to go to court.
“It doesn’t have to be published to get copyright, but if you’re going tochallenge someone else and say they infringed on your copyright, then you do need to establish that somehow,” Hayne says. “You can’t just say, ‘I did it before and I have no evidence of it.’”
Issues surrounding trade-marks are more likely to apply to businesses.“A trade-mark is a mark, a symbol, a word [that gives] some indication of the source, the origin or even the quality of a particular product orservice,” Hayne says. “So it really is something that identifies in the mind of the public.”
Examples include the Pillsbury Doughboy and the word Coca-Cola andits logo. Obtaining a trade-mark is similar to that of the copyright process.
“You get trade-mark rights by using that trade-mark out in the marketplaceand generating a reputation,” Hayne says. “So when people come to make the connection between that product and that person by way of the trade-mark being stamped on the goods, you get trade-markrights.” One can also register for a trade-mark. This gives the trade-mark owner expanded rights, including trade-mark protection across Canada, rather than just the local marketplace.
Not surprisingly, this can be expensive as it does require the appropriate authorities to do a significant amount of homework.“ You’re essentially asking for a monopoly in Canada on using a certainmark or words in association with services,” says Nick Mott, a lawyer with Wickwire Holm who focuses on trade-mark and copyright issues.“ You’re effectively asking that the rest of Canada be excluded from doing that.”
A good way of starting the process is to go through the CanadianIntellectual Property Office’s (CIPO) website, cipo.ic.gc.ca. The site offers detailed information about all areas of intellectual property.
A registered trade-mark lasts 15 years and gives somebody the exclusive right to use their trade-markacross Canada. Once that term is up, it’s renewable. Having things trade-marked can prove to be very beneficial down the road, aside from obvious trade-mark infringement situations. A registered trade-mark can be helpful when selling a business.“ One of the things you would sell would be the good will associated with the business and the public association between your services and your logo or your brand name,” Mott says. “What registration does, apart from providing evidence to the world that you own that brand, is it gives you all these statutory protections.”
While it might seem trade-mark protection has to do with protectingbusiness owners, it’s actually about protecting the public.
“The public has an interest when it sees the words Murphy’s on theWater or it sees the Nike Swoosh,” Mott explains. “It knows who is supplying those restaurant services or who is producing that t-shirt. It’s that connection between the mark or the logo and the source of the wares or services that’s protected. It’s not even actually the business owner the system is designed to protect; it’s designed to give the public certainty.”
In terms of what can’t be trade-marked, a proper name is excluded inmost cases, unless the “the name has become identified in the publicmind with certain wares or services,” says CIPO’s website (cipo.ic.gc.ca). For the full list, go to its website, but a few examples it gives include:
• descriptive words (e.g. “delicious” ice cream);
• words that designate a place of origin (e.g. “Atlantic” cod); and
• terms or symbols similar to an existing trade-mark.
The third area of IP is patents and they’re something that often get confused with copyright and trade-marks.“
A patent is a government-granted monopoly on a new and unobvious invention that in exchange for disclosing this invention to the world, the inventor is granted a monopoly to practice that invention for a period of 20 years,” Hayne says.
In order to qualify for a patent, an invention must demonstrate novelty, utility and ingenuity.
One thing that can’t be patented is complex higher life forms, such as a mouse or a plant. The legality of applying patents to these things has gone before the Supreme Court of Canada (SCC) in two separate cases.
In the case of the mouse, it was Harvard College v. Canada. Harvard had developed a mouse that was more susceptible to forms of cancer so that it could be used in research tests. The SCC ruled in 2002 it would be OK to have a patent on a certain gene, but not for the whole mouse.
Similarly, in the case of genetically modified plants (Monsanto CanadaInc. v. Schmeiser), “you can’t get a patent on the plant itself, but you can get a patent on a gene within the plant,” Reynolds says.
Being an expensive and lengthy process, filing a patent is especially beneficial in cases where there’s expensive research and development and the end product will be on the market for a long time, such as pharmaceuticals.For this reason, items with a short life span – such as software– may not be an ideal fit for a patent.
Understandably for businesses, they already have a lot going on that requires immediate attention. Issues of copyright, trade-marks and patents usually aren’t on that list, but it’s crucial that businesses consider these topics and how they relate to their businesses before they become a costly and damaging problem.
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