Intellectual Property Laws

AuthorGeorge Takach
ProfessionAdjunct Professor
Intellectual property laws provide legal protection for products ema-
nating from the minds of people and, accordingly, cover a variety of
computer and information-based technologies and products. The
rationale for intellectual property laws lies in the peculiar economics
associated with intellectual properties. This chapter begins by dis-
cussing several important economic differences between intellectual
properties, on the one hand, and real property and tangible physical,
movable property (goods), on the other hand. Understanding these dif-
ferences will bring into focus the core principles and more subtle
nuances of the various intellectual property law regimes. The chapter
then discusses how the core intellectual property law regimes of trade
secrets/breach of confidence, patents, copyrights, semiconductor chip
protection, and trade-marks apply to information-based products. Of
course, not all questions regarding intellectual property laws and their
application to information-based products are settled. The four dynam-
ics of computer law, namely, the rapid pace of technological change, the
elusive nature of information, and the blurring of private/public and
national/international,1conspire to ensure that the application of intel-
chapter 2
1 These dynamics are important, and are a unifying theme throughout this book.
For a discussion of these dynamics, see chapter 8, section A, “Computer Law:
Dynamics.” In section C.8 of this chapter, “Other Measures of Protection,” the
concept of the four skill sets is introduced — the common law; law reform; con-
tract; and technology — that can be deployed to address the challenges posed by
lectual property laws to software and other information-based assets is
in a constant state of flux. Accordingly, the last part of the chapter dis-
cusses how these laws apply (or may not apply) to software, multime-
dia content, databases, and to activities on the Internet. Finally, in
addition to covering the substantive aspects of intellectual property law
regimes, the material in this chapter explores the process-related ques-
tion of how well, or poorly, the current civil procedure system is
wrestling with these complicated matters. Of particular interest in this
regard are the new domain name dispute resolution procedures creat-
ed for various domain name registries.
In the previous chapter, a number of differences between the agrarian
and industrial eras, on the one hand, and the Information Age, on the
other hand, were highlighted.2Similarly, economic differences exist
among the principal assets of these three epochs. Illustrative of the sec-
ond dynamic of computer law — the elusive nature of information —
information-based assets differ radically from those of tangible assets,
such as land and goods. Understanding these differences is vital to an
appreciation of the rationale and role of intellectual property laws, as
well as the specific substantive provisions of these legal regimes.
Although the following discussion is not comprehensive, a brief
overview of the key concepts will assist the reader to become comfort-
able with the discussion of legal issues that follows.
1) Tangible Assets
The central economic fact governing the traditional assets of land
(including buildings) and goods (such as tables, chairs, and automo-
biles) is natural scarcity. There is a finite amount of land in the world.
Similarly, notwithstanding recycling efforts, natural resources such as
minerals are inherently scarce commodities. Equally, the energy
sources required to transform natural resources into finished goods are
also, for the most part, non-renewable. In a world characterized by
finite physical assets, economics can be understood as the study of the
the four dynamics of computer law. These skill sets are further elaborated on in
chapter 8, section C, “Computer Law: Skill Sets.”
2 See chapter 1, section C.1, “The Information Age.”
computer law
allocation within society of scarce resources. As for the legal system, an
economy based on land and goods that recognizes private property
need only have a criminal law prohibiting trespass (for land) and theft
(for goods). Once the law provides that non-owners cannot occupy the
land and cannot take goods of others, the economic rules of supply and
demand will operate to determine how much of a particular asset is
sold and purchased, and at what price.3Moreover, it is easy to deter-
mine if a non-owner is squatting on someone else’s land or is occupy-
ing someone else’s premises. It is also easy to ascertain whether a car
owner has been deprived of that good; if she wakes up in the morning,
and the car is not in the driveway, it has been stolen.4In essence, tan-
gible, physical goods lend themselves to simple property ownership
regimes. Further, they are not subject to the four dynamics of comput-
er law. They are not nearly as susceptible to technological change, they
are not elusive, and their delimitation both within the private/public
and national/international spheres is simple and constant. Tangible
goods are static, and hence the legal system for their protection can be
quite straightforward.
Of course, ownership of even the traditional assets of land and
goods has become more complicated over time. Real property rights are
now hemmed in and overlaid by a host of public and quasi-public
rights, such as easements in favour of utilities, and zoning restrictions
in favour of the common good.5Through condominium law, for exam-
ple, we have created ownership rights in a type of real property that, in
a sense, is disassociated from the underlying earth; for units on the sec-
ond and subsequent floors, these real property rights literally hang in
midair.6Laws governing relationships also permit security interests and
other contingent ownership rights to be granted in movable goods,
such as automobiles. Nonetheless, we have in our real property and
Intellectual Property Law 75
3 For a seminal elaboration of these concepts by one of the pioneers of the law-
and-economics school of thought, see Richard A. Posner, Economic Analysis of
Law, 4th ed. (Boston: Little, Brown, 1992).
4 Or repossessed by the finance company: see the discussion in chapter 5, section
D.2(a), “Malfunctioning Computers”of Ford Motor Credit Company v. Swarens,
447 S.W. 2d 53 (Ky. App. 1969), where the finance company was held liable
when it repossessed a car due to the failure of its computer to record instalment
payments that had actually been made.
5 For analysis of property as a cluster of rights, and not as a thing, see C.B.
Macpherson, ed., Property: Mainstream and Critical Positions (Toronto: University
of Toronto Press, 1978); and Arnold S. Weinrib, “Information and Property”
(1988) 38 U.T.L.J. 117.
6 See, for example, Ontario’s Condominium Act,1998, S.O. 1998, c.19.

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