The \u27Jus\u27 of Use: Trademarks in Transition

Changes to Canada\u27s Trade-marks Act will soon permit, for the first time, the registration and enforcement of unused trademarks. Far from a mere legal technicality or practical exigency, this shift fundamentally alters the nature of trademarks and the trademark system. Traditionally, it is the use of trade indicia in the marketplace that determines title and acquisition of trademark rights; use that defines the scope and duration of rights; and use that gives rise to claims of infringement. By virtue of the Jus of use , the trademark system has remained, over time, reasonably true to its rationale, encouraging and rewarding honest economic activity and fair competition. This article examines the implications of removing use as a precondition of trademark registration. Not only will the statutory amendments present stark practical problems likely to disadvantage weaker commercial actors, but they will undermine the basic tenets of Canada\u27s trademark system, casting doubt on its historical justifications and its constitutional legitimacy. If this reflects the international trajectory of trademarks in transition , it also gives rise to an overarching concern: with the global shift towards a right-by-registration system, consumer protection rationales increasingly cede to market efficiency concerns, as the trademark further (d)evolves from source signifier to simple commodity

Consultation on How to Implement Canada\u27s CUSMA Commitment to Extend the General Term of Copyright Protection

As a group of Canadian Intellectual Property Law scholars, we write regarding the Ministers’ recently launched consultation on extending the term of copyright protection in order to meet Canada’s CUSMA commitments. With this letter, which we jointly submit in response to the call for comments, we wish to express our shared concerns about both the proposed term extension and, more immediately, the inappropriately curtailed nature of this consultation process

A Modern Copyright Framework for the Internet of Things (IoT): Intellectual Property Scholars\u27 Joint Submission to the Canadian Government Consultation

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and the Internet of Things (IoT). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian, US, and international intellectual property law.In what follows, we explain:•The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, within the broader framework of the Constitution;•That the modernization of the Copyright Act requires a careful examination of the copyright framework within larger observable trends of dominant positions in the marketplace and anti-competitive practices, of the extraction of big (personal) data, and of market and legal infrastructures’ heavy reliance on non-negotiated standard form contracts;-That the growing prevalence of the IoT shows more clearly than ever before why Technological Protection Measures (TPMs) need to be recalibrated in keeping with the objectives of copyright, the Constitution, property rights, and of promoting competitive markets.As such, we recommend:-To narrow the scope of the TPM prohibitions under the Copyright Act, whereby the circumvention of access controls or copy controls for non-copyright-infringing purposes would be lawful, with a non-exhaustive list of such purposes to provide greater legal certainty. The same treatment would apply to the dealing in TPM circumvention technology enabling the exercise of non-copyright-infringing purposes.In the alternative, the Copyright Act should be amended to:-Introduce a new exception that would confirm that the TPM provisions (and other relevant exclusive rights in the Copyright Act) do not apply to the right to repair, including for maintenance and diagnostics purposes.-Introduce a new exception to encourage follow-on innovation.-Additionally, just as copyright holders should not be allowed to contract out of exceptions to copyright infringement through non-negotiated standard form agreements, neither should they be allowed to opt out of exceptions to TPM prohibitions by contract

A Modern Copyright Framework for Artificial Intelligence: IP Scholars\u27 Joint Submission to the Canadian Government Consultation

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and artificial intelligence (AI). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian and international intellectual property law.In what follows, we explain:- The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, consistent with a robust principle of technological neutrality.- The importance of ensuring that text and data mining (TDM) activity can be undertaken in Canada without the threat of potential copyright liability. We therefore propose both an opening up of Canada’s fair dealing doctrine to better accommodate TDM activities, and the enactment of a specific statutory provision to confirm that uses of copyright works and other subject matter for TDM (whether commercial or non-commercial) do not infringe copyright.- The importance of resisting calls to extend copyright protection to AI-generated outputs. We therefore propose maintaining and confirming the existing principled requirements of human authorship and original expression as preconditions of copyright protection, and we caution against any move to establish new neighbouring or sui generis rights in respect of AI outputs. Works generated by AI should remain in the public domain.As such, we recommend:- Enacting a broad statutory provision confirming that use of a work or other subject matter for TDM does not infringe copyright. This specific exception should be available to all users, apply to commercial and noncommercial uses, permit the retention and sharing of copies, and be protected from contractual override.- Amending section 29 of the Copyright Act to make the list of purposes an illustrative list (“for purposes such as”) and adding TDM or data/informational analysis as an enumerated purpose therein.- Confirming in section 2 of the Copyright Act that “author” means a human being/natural person; and confirming in section 5 of the Copyright Act that copyright shall not subsist in a work created without a human author

The \u27Jus\u27 of Use: Trademarks in Transition

Changes to Canada\u27s Trade-marks Act will soon permit, for the first time, the registration and enforcement of unused trademarks. Far from a mere legal technicality or practical exigency, this shift fundamentally alters the nature of trademarks and the trademark system. Traditionally, it is the use of trade indicia in the marketplace that determines title and acquisition of trademark rights; use that defines the scope and duration of rights; and use that gives rise to claims of infringement. By virtue of the Jus of use , the trademark system has remained, over time, reasonably true to its rationale, encouraging and rewarding honest economic activity and fair competition. This article examines the implications of removing use as a precondition of trademark registration. Not only will the statutory amendments present stark practical problems likely to disadvantage weaker commercial actors, but they will undermine the basic tenets of Canada\u27s trademark system, casting doubt on its historical justifications and its constitutional legitimacy. If this reflects the international trajectory of trademarks in transition , it also gives rise to an overarching concern: with the global shift towards a right-by-registration system, consumer protection rationales increasingly cede to market efficiency concerns, as the trademark further (d)evolves from source signifier to simple commodity

Trade-marks and Unfair Competition Law in Canada: Cases and Commentary

This text offers a thorough and accessible survey of the Canadian law of trade-marks and unfair competition. The legal protection afforded by statutory and common law to brands, logos, and source-identifiers in the marketplace is a significant and growing area of concern. Trade-marks are often among a business\u27s most valuable assets, making trade-mark law a vital component of any corporate or commercial practice. The Amani-Craig collaboration produces a timely and current volume that comprehensively covers the law and jurisprudence on trade-mark protection in Canada, providing background and comparative discussion where relevant, and offering insightful commentary to facilitate reader comprehension.https://digitalcommons.osgoode.yorku.ca/faculty_books/1044/thumbnail.jp

Trade-marks and Unfair Competition Law in Canada: Cases and Commentary

This text offers a thorough and accessible survey of the Canadian law of trade-marks and unfair competition. The legal protection afforded by statutory and common law to brands, logos, and source-identifiers in the marketplace is a significant and growing area of concern. Trade-marks are often among a business\u27s most valuable assets, making trade-mark law a vital component of any corporate or commercial practice. The Amani-Craig collaboration produces a timely and current volume that comprehensively covers the law and jurisprudence on trade-mark protection in Canada, providing background and comparative discussion where relevant, and offering insightful commentary to facilitate reader comprehension.https://digitalcommons.osgoode.yorku.ca/faculty_books/1044/thumbnail.jp