Intellectual Property: An Overview

• Author: David Vaver
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 1-20

CHAPTER

1

INTELLECTUAL

PROPERTY:

AN

OVERVIEW

A. INTRODUCTION

What is intellectual property law? It starts from the premise that ideas

are free as the air — a common resource for all to use as they can and

wish. It then proceeds systematically to undermine that principle.

Some trace the desire to privatize the fruits of the mind back to time

immemorial, but the common law recognized no such right and,

indeed, legislation was needed to create it.1 The regulation of patents

protecting industrial inventions, the oldest form of intellectual prop-

erty, goes back to a Venetian decree of 1474 (or the English Statute of

Monopolies of 1624, depending on one's taste and chauvinism), but the

practice of encouraging new enterprise by granting monopolies may be

even older. Copyright started as a response to the protectionist bent of

the early eighteenth century London book trade, then reeling from the

demise of its role as the Crown's censor of books. France repackaged

this protectionist urge more attractively as a basic human right after the

French Revolution of 1789. In that guise, copyright expanded to cover

the whole gamut of the creative arts and beyond, into the murky world

of tax tables, lottery numbers, and now computer programs. Industrial

1

Donaldson

v.

Beckett

(1774),

4 Burr. 2408, 1 E.R. 837 (H.L.), rejecting a common

law copyright for published works outside the Copyright Act, 1710 (U.K.), 8 Anne

c. 19.

1

2 INTELLECTUAL PROPERTY LAW

design protection came out of late eighteenth-century England to give

the textile trade lead time against foreign competition. Trade-marks

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 attitudes led to systems of

national trade-mark registration in the second half of the nineteenth cen-

tury. More recently, semi-conductor chip makers and seed companies

have persuaded the relevant authorities that integrated circuit topogra-

phies and new plant varieties need and deserve protection as well.

The argument has always been that, without protection, people

would not let the public have the benefit of the 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.

Even before Confederation, Canada's settlers took the need to pro-

tect intellectual property as a self-evident truth. Today's copyright,

patent, trade-mark, and industrial design laws are direct descendants of

laws tracing back before 1867. Upper Canada passed a trade-mark law

in 1860, anticipating Britain's by fifteen years, but Canadian statutes

were mostly modelled on earlier British and, occasionally, U.S. laws.

Although recent Canadian revisions have moved away from their for-

eign forebears in form, they are typical of those established by other

major nations in substance.

This outcome is no accident. The late nineteenth century saw the

creation of two major international multilateral treaties on intellectual

property. The Paris

Convention

for the Protection of Industrial Property of

1883 covered patents, trade-marks, designs, and unfair competition.

The Berne Convention for the Protection of Literary and Artistic Works of

1886 covered authors' rights. Britain, as an initial signatory, brought

itself and its empire into these folds. So, early in its history, Canada

came to protect foreign authors and enterprises alongside its native

born — at least those native born descended from settlers. Both the

Paris and the Berne conventions were highly Eurocentric treaties that

ignored the culture of indigenous peoples. Native culture was thought

to be free for the taking, the product of many and so the preserve of

none — except when it was transformed by the mediation of Europeans,

whereupon it magically gained cultural legitimacy.

The pattern of reciprocal and intensifying international protection

continued after Canada attained full control over its foreign policy in

the early twentieth century. Canada actively participated in the periodic

revisions of Paris and Berne that took place during the century. But,