Intellectual Property: An Overview

AuthorDavid Vaver
What is intellectual property (IP) law? It starts from the premise that
ideas are free as t he air — a common resource for all to use as they can
and wish. It then proceeds system atically to undermine that principle.
Some trace the desi re to privatize the fruits of t he mind back to
time immemorial, but the common l aw genera lly recognized no such
right1 and legislation was needed to create it.2 The regulation of patents
protecting industrial inventions, the oldest form of IP, goes back to a
1 Courts did, however, develop doctrines to protect trade-ma rks and business
goodwill, and to prevent the mis appropriation of conf‌idential information and
trade secret s: see L. Bently, C. Ng, & G. D’Agostino, “Emerging Divergence s in
the Common Law of Inte llectual Property,” in C. Ng, L. Bently, & G. D’Agostino,
eds., The Common Law of Intellectual Property: Essays in Honour of Professor David
Vave r (Oxford: Ha rt, 2010) [Ng, Common Law] at 4.
2 Jefferys v. Boosey (1854), 4 H.L.C. 815 at 966–69 & 977–78, denying common
law right to prevent cop ying of inventions or published works of a rt or literature
[Jeffer ys]; Apotex Inc. v. Sanof‌i-Synthelabo Canada In c., [2008] 3 S.C.R. 265 at
[12], approving Commissione r of Patents v. Farbwerke Hoechst AG, [1964] S.C.R.
49 at 57 (“[t]here is no inherent common l aw right to a patent”); H.B. Abrams,
“The Historic Foundat ions of American Copyr ight Law: Exploding the My th of
Common Law Copy right” 29 Wayne L. Rev. 1119 (1983) and R. Deazley, “The
Myth of Copyr ight at Common Law” (2003) 62 Cambridge L.J. 106, explain ing
Donaldson v. Beckett (1774), 2 Bro. Parl. Cas. 129 (H.L.); M.D. Howe, ed., Holmes-
Pollock Letters (Cambridge, Ma ss.: Harvard University P ress, 1946) at 53 (“[t]he
Venetian decree of 1474 (or the English Statut e of Monop olies of 1624, de -
pending on one’s taste and chauvinism), but the practice of encouraging
new enterprise by granting monopolies m ay be even older. Copyr ight
started as a response to the protectionist bent of the early eighteenth
century London book trade, t hen reeling from the demi se of its role as
the Crown’s censor of books. France repackaged this protectionist urge
more attractively a s a basic human right after the Revolution of 1789. In
that guise, copyright expanded to cover the whole gamut of the creative
arts and beyond, into the murk y world of ta x tables, lottery numbers,
computer programs, electronic databases, websites, and e-mails. Indus -
trial design protection came out of late-eighteent h-century England to
give the tex tile t rade le ad time again st foreig n compet ition. Tr ade mar ks
were used by ancient merchants to identify their goods, and later by
guild craftsmen as guarantees of quality. Modern trade-mark law is,
however, a product of the Industrial Revolution, when judges started
protecting business names and symbols. Such steps led to systems of
national trade-mark reg istration in the second half of the nineteenth
century. More recently, semi-conductor chip makers and seed compan-
ies persuaded the re levant author ities that integr ated circuit topograph-
ies and new plant varieties need a nd deserve protection as well.
The drive for ever more protection and control is relentless. And why
not? Every business dreams of ways to put off competitors and copycats.
Everyone would like the life of a re ntier who gets a cut of what others
make without working for it. Sporting bodies want control over who
repor ts what an d where about t heir act ivities, not just for t he money but
also to keep the image of the sport from being sullied by what the play-
ers get up to on and off the f‌ield.3 And the control-seekers sometimes
win their game. Olympic associations in particular have obtained über-
trade-mark legislation that gives them control over who can use Olym-
pic symbols and the word “Olympic,” and for how much.4 Such moves
supplant the “hands-off ” position the law usual ly takes:
notion that [copyri ght] could exist at Common law or be worked out by it seem s
to me an imbecil ity”) [Howe].
3 D. Carvajal, “Spor ts groups clash with me dia over pictures” New York Times (16
December 2007). Past legal c laims have failed: Krouse v. Chrysler Ca nada Ltd.
(1973), 1 O.R. (2d) 225 (C.A.) [Krouse]; National Hocke y League v. Pepsi-Cola
Canada Ltd. (1995), 122 D.L.R. (4th) 412 at 418 (B.C.C.A.); Victoria Park Racing
& Recreation Grounds Co. Ltd . v. Taylor (1937), 58 C.L.R. 479 (Austl. H.C.); Na-
tional Basketb all Assn. v. Motorola Inc., 105 F.3d 841 (2d Cir. 1997).
4 Olympic and Paralympic Marks Act, S.C. 2007, c. 25.
Intellectua l Property: An Overv iew 3
There is no tort of copying. There is no tort of t aking a man’s market
or customers. Neither the market nor the customers are [a business’s]
to own. There is no tort of maki ng use of another’s goodwil l as such.
There is no tort of competition.5
The counter-argument has always been that, without protection,
people would not let the public have the benef‌it of t he good ideas they
had, through fear of competition from imitators. Those who sowed had
to be protected from those who wanted to reap without sowing. The
Bible could be used to support that sentiment, although little empir-
ical data did. Most people are content to reap only partially from what
they sow. Like Robert Burns’s farmer, they do not mind the occasional
mouse supping on their crop: “I’ll get a blessing wi’ the lave/An’ never
miss it.”6 Or, as an American judge said more expansively:
As a general matter, the law sometimes protects investors from t he
“free riding” of others; and sometimes it does not . . . . [T]he man
who clears a swamp, the developer of a neighborhoo d, the academ ic
scientist, the school teacher, and millions of others, each day create
“value” (over a nd above what t hey are paid) that the l aw permits
others to receive without charge. Just how, when and where the law
should protect investments in “intangible” benef‌it s or goods is a mat-
ter that legislators ty pically debate, embodying the results in spe cif‌ic
statutes, or that common law courts, carefully weighing relevant
competing interest s, gradually work out over time.7
Even before Confederation, Canada’s settlers took the need to pro-
tect IP as a self-evident tr uth. Today’s copyright, patent, t rade-mark,
and industrial design l aws are direct descendants of laws traci ng back
before 1867. Upper Canada passed a trade-mark law in 1860, antici-
pating Britain’s by f‌ifteen years, but Canadian statutes were mostly
modelled on earlier British and, occasionally, American laws. Although
recent Canadian revisions have moved away from their foreign fore-
bears in form, they are typical of those e stablished by other major na-
tions in substance.
This outcome is no accident. The l ate nineteenth century saw t he
creation of two major international multilateral treaties on IP. The Paris
5 Hodgkinson Corby Ltd. v. Wards Mobility Servi ces Ltd., [1994] 1 W.L.R. 1564 at
1569 (Ch.).
6 Robert Burn s, To a Mouse on Turning up in her Nest with the Plough, November
1785 .
7 WCVB-TV v. Boston Athletic Associati on, 926 F.2d 42 at 45 (1st Cir. 1991) [WCVB-
TV] [emphasis in origi nal].

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