Tuesday January 28
There is a struggle between the owners/creators and users of intellectual property.
• The law tries to find a balance between legitimate competing interests.
• Some people believe that information should be free, open, and shared with no
restrictions or limitations. Others believe that information is like any other type of
property and should be dealt with in the same way.
• The struggle is between the freedom of information and the control of that
• Historically, intellectual property wasn’t considered property
o It is a recent idea
• Intellectual property has now been recognized as a valuable resource, and the
government has taken steps to reward those who create it
o We have laws that protect people’s rights to intellectual property
• There has been a backlash against these intellectual property laws
o eg. the large scale downloading of copyrighted music (it showed that
practically, the law couldn’t really control this)
o eg. the creator of WikiLeaks (the law said they couldn’t share this
information, but they did)
o eg. Aaron Schwartz took resources from a database that were available to
the public, but you had to pay to have access to (like JSTOR). He wrote a
software program that downloaded these documents and posted them to a
website. He was charged with a criminal offence for making public
information publicly available.
• There is a sense that the control and monopolization of intellectual property has
gone too far.
o How much protection should be given to owners of intellectual property?
o What should the limits on intellectual property be?
Arguments in favour of control:
• Incentive – we have to provide an incentive to people if we want them to be
innovative and creative
o eg. music, art, scientific discoveries
• Moral argument – if you create something, you should get to decide who can
use it or see it
o eg. if you write a song or make a scientific discovery, you should be able
to control who hears it or what they do with it
• Hybrid argument – you are entitled to the rewards of your effort
• Example: Copyright Act in Canada came out last year in favour of owners and
creators Arguments against control:
• You have to balance the interests of society with the interests of the
o Societal rights are more important than individual rights
o eg. if someone comes up with a medical breakthrough that can save lives
but decides they don’t want it to be used, society’s rights trump their
• Information has very little value unless it’s shared
o eg. many of the world’s art masterpieces are locked away in vaults where
no one will ever see them
• People can still be creative without incentive
o eg. Would Bill Gates have invented Microsoft for $10 billion instead of $50
o Many of the art and scientific masterpieces were not motivated by profit
o eg. Isaac Newton didn’t discover the principle of gravity for royalties
o It’s only recently that we have had the idea that people will only do things
of value for society if they are paid a lot of money to do it
• There is no moral entitlement to the proceeds
o eg. Even Bill Gates took the building blocks for Microsoft from government
programs and incorporated them into his software. Though he combined
it in an innovative way, he didn’t invent it (and the people who invented the
programs in the first place got nothing).
Example: Open Source Software
• Traditionally, software was under the intellectual property model
o People had to sign license agreements to say they wouldn’t copy it or
• Open source software involves people creating solutions to problems without
compensation on the agreement that they will contribute whatever they create to
the public good
• Open source software is a threat to the traditional model of control and
o Steve Jobs said that no Apple device would ever run it
Property is a relationship between people.
• We are trying to describe our rights and obligations in terms of things (that are
• Creations of the mind – inventions, discoveries, art, music, culture
• Intellectual property law does not protect ideas.
o It protects the expression and application of those ideas. Trademarks
• Trademarks include words, logos, or symbols that distinguish goods or services.
o It differentiates one thing from another.
• Trademarks fall under federal law.
o If you have a trademark in Canada, you don’t have one in the United
o eg. There are no Burger Kings in Australia because the trademark for
Burger King was taken (in Australia they are called ‘Hungry Jack’s)
• Trademarks may be registered or unregistered.
Registered trademarks provide:
• Rights of use across Canada
• Protection against a challenge based on prior use after 5 years
o eg. if someone comes along and says they were using that mark first after
a period of 5 years, it doesn’t matter because you have a trademark
• 15 years of protection (renewable)
• When you register a mark, it goes in a trademarks journal
o It could be opposed if someone was using an unregistered mark first
• You can still have a trademark that isn’t registered
• There are rights, but only in the geographical area in which it is in use
• If you are using an unregistered mark, you should do a careful search to see if
someone else is using a similar mark (you could run into problems if they
Other rules with trademarks:
• Trademarks are different than business names