Perspectives from Canada
Queen Mary Studies in Intellectual Property series
Edited by Ysolde Gendreau
Chapter 11: When Intellectual Property Rights Converge – Tracing the Contours and Mapping the Fault Lines ‘Case by Case’ and ‘Law by Law’
Myra J. Tawfik* Where then does this leave us as judges and lawyers? The challenge, as I see it, is to work out, case by case, law by law, a framework which recognizes the benefits to be obtained from regarding ideas as property, while delineating the limits on those property rights, which a society increasingly dependent on the free flow of ideas must permit, as a matter of practicality and morality.1 One of the more daunting challenges confronting intellectual property scholars, jurists and policy-makers alike is the task of identifying and circumscribing the nature and scope of the established categories of intellectual property rights. Born centuries ago, these venerable bodies of law – copyright, patent, trademarks and industrial designs – emerged at a particular time and place and have evolved in ways that may not have remained true to whatever underlying objectives had originally fashioned them. And while the law does not remain static and, indeed, should adapt to meet current economic, social and cultural needs, there is growing concern that intellectual property laws are now being extended and expanded beyond acceptable parameters.2 With each measure to * The author would like to thank Michelle Mulchan for her research assistance and the Law Foundation of Ontario for its financial support. 1 Beverley McLachlin ‘Intellectual Property. What’s it all About?’ in Gordon F. Henderson, ed., Trade-Marks Law of Canada (Scarborough: Carswell, 1993) 391 at 397. 2 See for example, David Vaver, ‘Need Intellectual Property Be Everywhere? Against Ubiquity and Uniformity’ (2002) 25:1...
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