Reputation as the Key Link Amongst Moral Rights, Prohibited Marks, and Geographical Indications
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.