Canadian Law: Common Law, Statutes, and Intellectual Property

Law

Common Law + Equity + Statutes (L = CL + E + S)

Common Law

Judge-made, based on precedent (stare decisis).

Precedent

Lower courts must follow higher courts in the same province.

Stare decisis

Principle of deciding based on prior rulings.

Equity

Supplements common law with fairness-based remedies.

Statutes

Laws made by Parliament; override CL & Equity (Parliamentary supremacy).

Law vs. Morality

Law is enforceable by the state; morality consists of ethical/personal standards, not legally binding.

Substantive Law

Defines rights and duties.

Procedural Law

Enforces substantive law.

Public Law

Government vs. individual (e.g., criminal).

Private Law

Individual vs. individual (e.g., contracts, torts, family).

Civil Code

Codified, rigid, less precedent (Quebec).

Common Law (rest of Canada)

Judge-made, precedent-driven.

Division of Powers

Federal (s.91): Trade, criminal, banking, IP; Provincial (s.92): Education, health, property, civil rights.

Paramountcy

Federal law prevails in conflicts.

1867

Confederation - division of powers established.

1982

Constitution Act - independence from the UK + Charter of Rights & Freedoms.

Charter of Rights and Freedoms

Guarantees freedoms: conscience/religion, expression, assembly, association; rights: democratic (vote), mobility (move/live anywhere), legal (due process), equality (no discrimination, allows affirmative action).

Civil vs. Criminal

Civil: Initiated by Plaintiff for compensation; Criminal: Initiated by Crown for punishment.

Burden of Proof (Civil)

Balance of probabilities.

Burden of Proof (Criminal)

Beyond reasonable doubt.

Civil Litigation Process

1. Notice of claim; 2. Pleadings; 3. Discovery; 4. Trial; 5. Remedies & Enforcement.

Class Action Lawsuits

Many plaintiffs with a common issue = one representative case; requires court approval.

ADR (Alternative Dispute Resolution)

Includes negotiation (informal discussion, no), mediation (neutral facilitator, no), arbitration (neutral 3rd party makes a decision, yes).

Civil Law

Compensation.

Criminal Law

Punishment.

Burden of Proof

Differs (BoP vs. Beyond reasonable doubt).

ADR

Offers flexibility but lacks binding precedent.

Class Actions

Allow group claims for efficiency.

Intellectual Property (IP)

Intangible assets that provide business value.

Copyright

Protects expression of ideas, not the idea itself.

Copyright Requirements

Must be original and fixed in a tangible form.

Copyright Coverage

Covers: art, books, code, music, recordings.

Copyright Duration

70 years after the author's death.

Moral Rights

Name attribution + protection from distortion.

Employer Ownership

Employer owns work created during employment.

Fair Use Exceptions

Education, research, criticism, parody, accessibility.

Patents

Protect new, useful, and non-obvious inventions.

Patent Coverage

Covers: processes, machines, compositions (not medical procedures).

Patent Duration

20 years from filing; must be used.

Patent Requirements

Requires disclosure and registration.

Trademarks

Protects names, logos, slogans, designs.

Trademark Requirements

Must be distinctive and registered.

Trademark Duration

10 years, renewable.

Trademark Loss

Can be lost if it becomes generic (e.g., 'escalator').

Trade Secrets

Must be not public and harmful if disclosed.

Trade Secret Examples

Recipes, formulas, client lists.

Trade Secret Protection

Protected through contracts (NDA) or fiduciary duties.

IP Infringement Remedies

Damages (monetary), Injunction (stop use), Anton Piller order (search and seizure), Criminal charges (in some cases), Accounting of profits.

Amazon Case

Amazon.com, Inc. v. Canada (Attorney General) (2011 FCA 328).

Amazon Case Background

Amazon applied for a patent on its '1-Click' online ordering system.

Amazon Case Issue

Can a business method be patentable in Canada?

Amazon Case Ruling

Confirmed that business methods are not automatically excluded from patentability.

Amazon Case Significance

Clarified that software and business methods may be patentable if they have a technological or practical effect beyond just an abstract idea.

Jurisdiction Rule

Jurisdiction applies where there's a real and substantial connection to the dispute.

Challenges in Jurisdiction

1. Determining applicable law. 2. Enforcing online contracts and judgments.

Best Practice for Contracts

Include governing law and jurisdiction clause in contracts.

Jurisdiction Factors

1. Where contract formed. 2. Where performance occurs. 3. Residence of parties. 4. Location of issue/goods. 5. Strength of connection. 6. Whether choice of law favours a stronger party.

B.C. Court Jurisdiction

B.C. has jurisdiction if: 1. Defendant resides, agrees, or submits to B.C.; or 2. Case has a close connection to B.C.

Foreign Judgments

Foreign judgments not enforced if process or law was unfair.

Arbitration Awards

Canadian arbitration awards more likely to be enforced.

Key Takeaway on Online Disputes

Online disputes depend on connection strength and jurisdiction clauses.

AI and Intellectual Property Overview

IP laws assume a human creator or inventor. Protection requires originality, inventiveness, and human authorship.

Copyright and AI

Only human-created works qualify for copyright. Fully AI-generated works = public domain (no protection).

Trademark and AI

Trademarks must be registered by a human or company. AI cannot own or register marks.

AI-Generated Marks

AI-generated marks can be registered if a human claims ownership. Must still be distinctive.

AI-Assisted Inventions

AI-assisted inventions: patentable; human inventor recognized.

AI-Generated Inventions

AI-generated inventions: unclear; most systems reject non-human inventors.

Patentability of AI Systems

AI systems (algorithms/models) can be patented if: Computer-implemented invention, and Shows a technical effect beyond existing tech.

Disclosure Requirement for Patents

Must specify AI's inputs, process, and design. Lack of transparency can block patents.

Legal Trends in AI

Courts accept AI-generated outputs with demonstrable technical effect. Still unclear if AI itself can be named inventor.

Copyright Summary

Copyright: human authorship required.

Trademark Summary

Trademark: only humans/legal entities can register.

Patent Summary

Patents: protect AI systems and AI-assisted inventions; AI-only inventions remain uncertain.

Patent Approval Essentials

Full disclosure and technical effect are essential for patent approval.