Product packaging can be protected by copyright. This protection
subsists concurrently with trademark protection.
The expression of brand image and other information on product
packaging may be protected under the Copyright Act.
Copyright protection in Canada does not depend on registration or
other formal steps. Copyright subsists automatically without any
act beyond the creation of an original literary or artistic work or
compilation. Registration is permissive but prudent if it is likely
an action will be brought for infringement.
Copyright subsists only in original works. The
originality required by the Act relates to the expression of
thought in which the work is presented. For a work to be
"original" it must be more than a mere copy of another
work. At the same time, it need not be creative in the sense of
being novel or unique.
What is required for protection is an exercise of skill and
judgment. Skill means in this context the use of an
individual's knowledge, developed aptitude or practiced ability
in producing the work. Judgment means the use of one's capacity
for discernment or ability to form an opinion or an evaluation by
comparing different possible options in producing the work.
The exercise of skill and judgment will necessarily involve
intellectual effort. A purely mechanical exercise will not be
sufficient. For example, any skill and judgment that might be
involved in simply changing the font of a work to produce another
work would be too trivial to merit copyright protection as an
The amount of skill and judgment required cannot be defined in
precise terms and each case must be decided on its own facts. In
addition, the type of work in issue may influence the
determination; for example a photograph is considered in different
terms than other works.
Copyright has nothing to do with the literary or artistic merit
of the author's work.
Generally speaking a work which is a slavish copy of an earlier
work will not be entitled to copyright as it is not original. Skill
and judgment relating solely to the process of copying cannot
confer originality. However, a work which is substantially derived
from pre-existing material may still be the proper subject matter
of copyright if sufficient skill and judgment have been bestowed on
The owner of copyright is not entitled to a monopoly in the
protected work. Other individuals may produce the same work so long
as they do so independently and their work is original in the sense
in which that word is used in the Act.
Trademark Act Amendments: What You Need To Know? September 12,
I am speaking at a webinar for the Osgoode Hall Professional
Development Group regarding Bill C-31. The Bill, which contains the
most significant amendments to Canada's trademark legislation
since 1954, has now received Royal Assent. Trademark owners
and their advisors need to understand how these amendments work and
the opportunities that will be available to them.
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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