The Emergence and Development of Intellectual Property Law in Canada

2017 ◽  
Author(s):  
Daniel Gervais
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Complex Relationship ◽  
Canadian Law ◽  
The Supreme Court ◽  
Important Trading Partner ◽  
The Impact

This chapter reviews the emergence of intellectual property (IP) norms in the areas of copyright, trademarks, patents, and designs in Canadian law from the early days of the Dominion’s complex relationship with British IP statutes and policy to a time of progressive independence from those statutes. It then reviews more recent changes, some of which were made to bring Canada’s laws into line with major international registration systems. Canada has also been ready to experiment with variations on IP themes. This is visible both in statutes and in decisions by the Supreme Court of Canada. The impact of the bijural nature of Canada’s legal system and its proximity to the United States are also discussed: Canada has integrated civil law notions into an edifice constructed mostly of common law bricks, and must confront demands from its most important trading partner in adapting its intellectual property framework.

Is Religious Freedom Impossible in Canada?

2010 ◽  
Vol 8 (2) ◽  
pp. 266-284 ◽  
Author(s):  
Lori G. Beaman
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Public Discourse ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Roman Catholicism ◽  
Canadian Law ◽  
The Supreme Court ◽  
Nuanced Understanding ◽  
Point Of Departure

The idea of religious freedom is not new in Canadian law or wider public discourse, although it has taken on a life of its own in the post- Charter era (1982 onward) and certainly in the last several years. As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is “religion” and how can it be defined in a manner that is inclusive and meaningful? This article takes as its point of departure the provocative and compelling argument made by Winnifred Sullivan in her book, The Impossibility of Religious Freedom (2005), that religious freedom as a legal promise is untenable. In this article I argue that while plausible and convincing in the context of the United States, Sullivan’s thesis may be less applicable in Canada for three key reasons. First, the embeddedness of Roman Catholicism in Canadian social structure has resulted in a textured and nuanced understanding of religion, or, at the very least, a recognition that religion is in some measure a multifaceted notion. Secondly, the recognition of group rights, however defined, means that there is a space created for alternative religious discourses, in part because of the constitutional recognition of multiculturalism. Thirdly, the recent turn by the Supreme Court of Canada to an understanding of the subjectivity of religious freedom strengthens the idea that religion must be conceptualized in relation to the ways in which individuals understand and practice it in their day to day lives.

scholarly journals ECONOMY LAW AND ECONOMIC ANALYSIS OF LAW AND THE IMPACT ON INTELLECTUAL PROPERTY IN THE COMMON LAW SYSTEM

2019 ◽  
Vol 7 (2) ◽  
pp. 474
Author(s):  
Marcelo Negri Soares ◽  
Marcos Eduardo Kauffman ◽  
Raphael Farias Martins
Keyword(s):  
Intellectual Property ◽  
Industrial Revolution ◽  
Common Law ◽  
The United States ◽  
Economic Analysis Of Law ◽  
Law System ◽  
Legal Literature ◽  
The Common ◽  
Common Law System ◽  
The Impact

This article analyses the concept of economics applied to law in order to understand the school's analysis of legal phenomena by economic principles that emerged in 1960 in the United States of America, tracing the impacts on intellectual property law in the Common Law system. This study relies on the hypothetical-deductive method, with a focus on economic and legal literature, to conclude that intellectual property legislation is frequently modernized, especially at the time of major socio economic transformations such as an industrial revolution with the effect of boosting development and innovation, ensuring economic growth with the proper security and protection of industrial secrets and expertise.

scholarly journals Publicity exploitation of celebrities: protection of a star's style in Quebec civil law

2005 ◽  
Vol 32 (2) ◽  
pp. 301-340
Author(s):  
Susan H. Abramovitch
Keyword(s):  
United States ◽  
Intellectual Property ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Property Right ◽  
Intellectual Property Right ◽  
The Right

The use of celebrity imagery, or style, in advertising has become prevalent in recent times. Occasionally advertisers have used photographs of celebrities without having first obtained their consent. The author examines the possible legal bases existing in Quebec civil law which may serve to protect the celebrity against such non-consesual use of his or her picture, drawing on the experience of France, common law in Canada and the United States. Concluding that the right to style is an intellectual property right, the author applies this basis to other instances of style appropriation : the use of voice, sound-alikes, look-alikes and typical expressions.

scholarly journals Du Maintien des Appels a la Cour Supreme du Canada en Matiere de Droit Civil

1969 ◽  
pp. 144
Author(s):  
Gérald A. Beaudoin
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Private Law ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Common ◽  
Le Canada ◽  
Article Analyse

L'auteur de cet article analyse la question du maintien des appels en droit civil la Cour Supr&me. Dans le contexte fSdSral canadien, il se declare favorable au maintien de ces appels. II trouve plus d'avantages que de disavantages. Le Canada ayant deux systdmes de droit privi, il convient que le plus haut tribunal du pays se prononce en ces matidres il s'agit d'une richesse pour notre pays. 11 moyen d'assurer la purete" de Vun et de Vautre systdme. The author of this article analyses the question of the retention of the civil law appeals to the Supreme Court of Canada. He is in favour of such appeals in our federation. We have in Canada two private law systemss one inspired from the Common Law of England and the other from "le droit civil" of France. It is appro priate for our highest tribunal to render judgments in both systems. This is great advantage for our country. Steps may be taken to assure the purity of both systems.

scholarly journals Making Sense of Juristic Reasons: Unjust Enrichment after Garland v. Consumers' Gas

1969 ◽  
pp. 399
Author(s):  
Mitchell McInnes
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Civil Law ◽  
Supreme Court Of Canada ◽  
Unjust Enrichment ◽  
Making Sense ◽  
The Supreme Court

This article considers the effect of the recent decision of the Supreme Court of Canada in Garland v. Consumers' Gas. The author suggests that lacobucci J. 's judgment replaces the traditional common law approach, which relies on the presence of unjust factors, with a unique version of the traditional civil law approach, which relies on the absence of juristic reasons. That decision is criticized as being contrary to precedent and principle. The author then suggests how, with slight modifications, the new test of restitutionary liability may be made more workable and coherent.

scholarly journals The Law of Forcible Entry

1969 ◽  
pp. 271
Author(s):  
W. F. Foster ◽  
Joseph E. Magnet
Keyword(s):  
United States ◽  
Criminal Law ◽  
Common Law ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Civil Process ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Criminal Matters

The author considers the two contradictory interests which the law on forcible entry must try to harmonize, namely the inviolability of the citizen's dwelling place as against the effective enforcement of the criminal law and civil process. He discusses the common law attitude towards forcible entry in civil and criminal matters and its view of the need for announcement prior to such entry. He also deals with developments in the United States in this area and considers the present state of the law of forcible entry in Canada in the light of the decision of the Supreme Court of Canada in Eccles v. Bourque [197S\ S.C.R. 739.

scholarly journals Breakdowns in the Democratic Process and the Law of Canadian Democracy

2012 ◽  
Vol 57 (2) ◽  
pp. 299-347 ◽  
Author(s):  
Michael Pal
Keyword(s):  
The United States ◽  
Structural Theory ◽  
Supreme Court Of Canada ◽  
Democratic Process ◽  
Political Actors ◽  
Law And Politics ◽  
Theoretical Approaches ◽  
Canadian Law ◽  
The Supreme Court ◽  
The Law

In this article I seek to develop a theoretical framework through which to view the law of democracy in Canada. Such a framework has been largely absent from the jurisprudence of the Supreme Court of Canada. I argue that a defining problem in the law of democracy is the existence of incentives for political actors to manipulate election laws to ensure self-serving ends. I summarize and critically evaluate the main competing theoretical approaches to the law of democracy in the United States, namely structural theory and rights theory. I conclude that structural theory provides a more accurate descriptive understanding of the law of democracy than rights theory and a more convincing normative framework through which to evaluate existing democratic institutions. Applying structural theory to Canadian democracy, I find ample reason to be concerned about self-interested manipulation of the democratic process. I develop a preliminary typology of breakdowns in the democratic process, which I label partisan, incumbent, and interest entrenchment breakdowns, and provide examples from Canadian law and politics. I conclude by suggesting future directions for research, particularly on judicial doctrine and the role of intervening institutions.

Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate

2010 ◽  
Vol 11 (6) ◽  
pp. 656-670
Author(s):  
Kate Sutherland
Keyword(s):  
Academic Freedom ◽  
Common Law ◽  
Scholarly Work ◽  
Academic Journal ◽  
Canadian Law ◽  
The Common ◽  
The Impact ◽  
Defamation Law

Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

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