Electronic Thesis and Dissertation Repository

Thesis Format

Monograph

Degree

Doctor of Philosophy

Program

Law

Supervisor

Wilkinson, Margaret Ann

Abstract

Moral rights, prohibited marks, and geographical indications (GI) appear in Canadian intellectual property (IP) statutes and international IP instruments – but do not mirror the characteristics of the classic IP triad (patents, copyrights, and trademarks). The classic triad are alienable (tradeable, licensable, able to be transferred away by their owners). Moral rights, prohibited marks, and GI are inalienable (not able to be transferred to others by the persons entitled to them) and thus distinguishable from classic IP. This research demonstrates another characteristic setting moral rights, prohibited marks, and GI apart from classic IP: a common preoccupation with reputation or esteem.

The Copyright Act’s moral rights exist in performances and literary, dramatic, musical and artistic works, linking works and performances to their creators’ identities (rights of paternity) and giving creators non-transferable rights to maintain their works’ and performances’ integrity. Listed in the Trademarks Act, prohibited marks are not to be used as trademarks, being reserved for designated persons, institutions, and governments to use.

Found in the Trademarks Act, GI are not trademarks but symbols linked to quality and reputation which indicate place of origin on certain types of products.

Protecting people’s reputations is the tort of defamation’s historic role, however, studying reputation in defamation is hampered by the continuing role of juries in Canadian civil and criminal defamation proceedings. Because Canadian jury deliberations are secret, even judges presiding over jury trials do not learn how juries use evidence when making findings involving reputation. The preponderance of Canadian defamation decisions arise from jury trials and discuss reputation only in generalities and abstract terms. In the judge-alone trials studied, no more specific reputation findings were found than in jury trials. Theoretical work on reputation in defamation (including that of Robert C. Post), then, was found not transferable to moral rights, prohibited marks or GI. Analyzing reputation in defamation, therefore, is not helpful to understanding reputation across moral rights, prohibited marks, and GI. Nonetheless, examination of moral rights, prohibited marks. and GI themselves demonstrates reputation in the sense of esteem and uniquely distinguishes the set of moral rights, prohibited marks, and GI from classic IP.

Summary for Lay Audience

Copyright, trademark, and patent are classic intellectual property: tradeable, licensable, and transferable. As well as including copyright, Canada’s Copyright Act includes moral rights, giving authors and performers rights to be named on works and performances, to insist on the integrity of works and performances, and to decide if works or performances can be used with products, services, causes or institutions. In addition to trademarks, Canada’s Trademarks Act protects both prohibited marks (like the Red Cross or any country's flag) that Parliament designates as unavailable for trademark use, and geographical indications (names and symbols stemming from their place of origin protecting the quality and reputation of products). These three types of protection appeared much later than copyright, trademark, or patent. Not one of them is tradeable, licensable, or transferable, clearly distinguishing them from classic intellectual property, but do they form a unique set of their own? If they do, is their common characteristic ‘reputation’? This research determined that reputation is involved in all three: in moral rights, in the concept of integrity; in prohibited marks, in the history of the marks’ protection; in geographical indications, as one of the set of characteristics that can create a geographical indication.

Reputation in law is most consistently linked with the concept of reputation identified in the common law of defamation: can this ‘reputation’ be connected with that found in moral rights, prohibited marks and geographical indications? Exploring reputation in Canadian jurisprudence, this research shows the preponderance of jury trials in defamation, and the secrecy to which Canadian juries are bound, means reputation’s meaning in Canadian defamation jurisprudence is largely undiscoverable. In the more rare non-jury actions, judges did not link discussion on reputation to specific evidence. Asking whether legal theory scholarship about reputation in defamation could be linked to moral rights, prohibited marks or geographical indications led to the finding it could not. Nonetheless, exploring moral rights, prohibited marks, and geographical indications each in its own historical, international, and Canadian jurisprudential context led to the finding that reputation as ‘esteem’ links all three, creating a common set distinguished from classic intellectual property.

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