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207 Cards in this Set
- Front
- Back
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What do Contract disputes often revolve around? (3 things) |
- The existence of the contract - The conduct of the parties at the time the contract was negotiated - Performance of obligation under contract |
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What are the three kinds of Mistake? |
- Shared mistake - Misunderstanding - One-sided mistake |
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When it comes to mistakes, what do the parties (usually) want to happen to the contract? |
They want it to remain VALID. |
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What does a Shared Mistake constitute? |
When both parties made the same mistake (had the same misunderstanding about the terms of the contract) |
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What can you do if you have made a Shared Mistake? |
The contract is now voidable - you can either void it due to lack of consensus... OR, if you just incorrectly wrote down the terms of the contract, you can have it rectified by the courts to reflect your true intent. |
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What is a Misunderstanding? |
It means each party has a different understanding of the terms of the contract. |
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What will a court do with a Misunderstanding? |
They will figure out which of the parties has the most reasonable interpretation, and enforce that interpretation. IF both interpretations are equally reasonable, the contract is void.
Write a better contract next time, you jerks. |
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What is a One-Sided Mistake? |
It means one person has misunderstood the contract. |
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What does a One-Sided Mistake mean for the contract? |
Caveat Emptor, buddy. It's still valid.
UNLESS one of the parties misrepresented the actual content of the contract in such a way that the person who made the mistake had no way of knowing they were making a mistake. Then it's voidable. |
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What does "Non est factum" mean? |
Literally, "It is not my act". Basically, if you don't know what the document you're signing actually is, you can't be held responsible for the fact you signed it... unless you were careless (i.e. DIDN'T READ IT), then that's on you. |
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How does a court interpret a contract? |
- Terms and words are given "reasonable meaning" - Industry usage is applied for technical terms. |
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What are the other terms for Exemption Clauses? |
Exculpatory, Exclusion, or Limitation clauses |
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What does an Exemption Clause do? |
It attempts to limit or eliminate liability for one party to the contract. |
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How do the courts interpret exemption clauses? |
Extremely narrowly (limited to the wording of the agreement), against the favoured party (y'all better not be vague). |
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What MUST be done when you are presenting someone a contract with an exemption clause? |
The clause MUST be brought to the attention of the other party.
These clauses are found in most standard-form contracts, so watch out, 'cause they ain't your friends. Or, as Paris' slides put it: they "create an unequal bargaining position" |
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What is a Misrepresentation? |
- A false and misleading statement which induces a person to enter a contract - A statement of fact (not opinion - unless you're an expert) - If this is a term of the contract, can be sued for breach. - Silence is NOT a misrepresentation - unless you have a duty to disclose. |
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What are the three kinds of Misrepresentation? |
- Innocent Misrepresentation - Fraudulent Misrepresentation - Negligent Misrepresentation |
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What in an Innocent Misrepresentation? |
When you mislead another without knowing you're misleading them, and when there's no way you should have known. |
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What is the remedy for Innocent Misrepresentation? |
As a general rule, rescission: cancelling the contract and returning the two parties to the condition they would have been in if the deal hadn't been made. If rescission is impossible, or the contract has been affirmed, you're out of luck. |
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What is Fraudulent Misrepresentation? |
When you intentionally and knowingly mislead somebody in order to induce them to enter a contract. Don't do that. It's a dick move. |
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What remedies are available for Fraudulent Misrepresentation? |
Recission, damages, or both. Sometimes the court will grant punitive damages, in extreme cases. |
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Is it possible for an Innocent Misrepresentation to become Fraudulent? |
YES, if you learn that your statement was false and fail to correct it, it becomes fraudulent. |
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What is the most difficult form of Misrepresentation to sue for? |
Fraudulent Misrepresentation |
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Fraudulent Misrepresentation is related to a specific kind of tort. What kind? |
Deceit.
Fun fact: Fraud is also a criminal act. In general, if you commit a Fraudulent Misrepresentation, you're gonna have a bad time. |
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When there's been a Misrepresentation, in general, what will happen to the contract? |
It will be VOID. |
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What are the three kinds of (David Bowie Voice) Under Pressure contract issues? |
- Duress - Undue Influence - Unconscionability |
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What is Duress? |
"I'll make him an offer he can't refuse."
When you are forced to enter a contract because of coercion - threats of violence, financial loss, scandal, etc. Could be against you, your family, your property, or business. |
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What is Undue Influence? |
The abuse of a trust relationship (family, doctor, lawyer, guardians, trustees, parents, etc.) |
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What is Unconscionability? (other than difficult to type?) |
Taking advantage of a vulnerable person's situation (somebody poor, mentally impaired, etc.)
Basically you'd be taking advantage of your position to victimize somebody else. |
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What makes Undue Influence substantially different from Unconscionability? |
You MUST be in a position of trust for Undue Influence to apply. |
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What is (usually) the state of an Under Pressure contract? |
It's voidable. If you want to do legal business with that guy who threatened your momma's pizzeria, you go right ahead. |
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What does Privity of Contract mean? |
Only the parties to a contract are bound to it, or can enforce it. |
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What are some EXCEPTIONS to Privity of Contract? |
- Interests in Land bind subsequent owners of the property. - Trusts (beneficiaries can enforce) - Life Insurance (beneficiaries can enforce) - Some statutory exceptions |
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What are some MORE exceptions to Privity of Contract? |
- Agents acting for Principals (agent isn't a party, but acts on behalf of one) - Novation (one person taking over obligations of another - requires a new contract) - Employees (Contract clauses will extend to employees, and ignore privity) |
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What is Assignment? |
When you transfer your benefit under a contract to a third party. (i.e. if you told your job to send your pay cheques directly to pay for your credit card bill) |
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Who can sue if a debtor fails to pay in an Assignment case? |
The assignor (in the example, you) and assignee (your credit card company) can sue the debtor (your job). The assignee can also sue directly if the assignment is absolute, in writing, and proper notice was given to the debtor. |
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Can you Assign a debt? |
Nope. Tough luck, son. |
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What is a Negotiable Instrument? |
- It's controlled by the federal Bills of Exchange Act - It's freely transferable from party to party. - Innocent third party (called a holder in due course) may enforce a negotiable instrument against the person who made it - Includes promissory notes, cheques, and bills of exchange |
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What is a Promissory Note? |
When one person promises to pay another a certain sum of money at some future date, or on demand. Basically an IOU. I don't know if you guys read Archie Comics, IOU's came up a lot in those things. Jughead always needed those burgers. He had a problem. |
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What is a Cheque? |
It's an order to the bank to pay a certain sum of money to a third party (the payee) on demand. |
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What is a Bill of Exchange? |
An order to any person or business to pay money to someone either now or at a future time. |
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What is a Holder in Due Course? |
- An Innocent Third Party who acquires posession of instrument - Right to collect whether original obligations were met or not - If instument is endorsed, that person can laos be held liable for amount owed. |
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What are the four methods to discharge a contract? |
Performance, Breach, Frustration, or Agreement. |
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What is Performance? |
When the parties perform as required under the contract. i.e. they fulfill all the Conditions (Warranties can be left undone and the contract will still be strictly speaking complete) |
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What are Conditions and Warranties? |
Conditions - the major terms of the contract. Breach these, and the contract is OVER (if the other party wants that)
Warranties - the minor terms of the contract. Breach these, and the contract holds up, but you might be chased after for damages. |
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What is Substantial Performance? |
It means that all the obligations have been fulfilled, except a Condition has been breached in a minor way. You might seek compensation for that small part remaining. |
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What is Tender of Performance? |
It means you showed up ready and willing to fulfill your half of the bargain, but the other party won't let you. That frees you from all obligations to perform. UNLESS you're dealing with a debt. Then, you still owe the money, but it becomes the debtor's job to chase you down and pay for collection. |
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What does it mean to end a contract by Agreement? |
Well- that's pretty obvious isn't it? The two parties agree to change the conditions of the contract in order to end it. They can also modify it, but that's not what I asked, is it?
All of the elements of a contract still have to be there- Consensus, Capacity, yadda yadda. If the change only gives one side Consensus, it is NOT binding. |
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Can a contract already contain conditions that will change/end obligations? |
You bet. |
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What does it mean when a contract is Frustrated? |
Frustration means an outside, unforeseen event that neither party can control has taken place. It leaves the contract impossible to perform, or completely different than what the parties intended. |
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What kind of things can cause Frustration? |
Illness, destruction of subject matter (like a building), government actions, natural disasters
Can we all take a moment and appreciate the fact "government actions" and "natural disasters" are on the same level, here? |
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What happens when a contract is Frustrated? |
"Let the loss lie where it falls". TOUGH LUCK, SON.
Legislation usually makes sure that people get paid for the benefits/services they've already provided and that deposits are repaid, though. |
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What is Breach of contract? |
- Incomplete or improper performance of a contract. - Repudiation - breach by refusal to perform |
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Tell me about Anticipatory Breach.
(That's not a question, but you get the gist.) |
Repudiation before performance is due gives victim two options - Treat contract as breached - Continue to demand performance |
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So what happens if you treat a contract as breached? |
You can sue right away, but the contract is OVERRRRR. |
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What happens if you demand performance? |
Unexpected events might discharge both parties. Or maybe they'll man up and you'll get your sweet party boat, or whatever else you signed a contract for. |
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What happens to a victim of repudiation if they don't continue to perform during the waiting period? |
They'll be in breach themselves! |
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Exemption Clauses usually do what for a breach? |
Try to lessen liability. |
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What is a fundamental breach? |
Something that breaches the very essence of a contract. |
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Can the breach of a contract be criminal? |
You betcha. |
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What are the remedies for a breach? |
- Rescission: Everybody goes back to where they started. - Damages: Compensation to put the victim in the position where they would have been if the contract was completed (maybe $$ for stress/pain) - Liquidated Damages: Contract-defined amounts for damages for specific breach. - Expectation, Consequential, Reliance Damages - Deposits (may be forfeit) - Down payment (likely forfeit) |
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What must a victim of a breach do? |
Mitigate their losses. You've got to do your best to make up the difference, or you can't complain. |
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When would Equitable Remedies be used for a breach? |
Only if the damages aren't sufficient, if there is no wrongdoing by the claiming party, and if there is no innocent third party affected. |
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What are Equitable Remedies? |
- Accounting (disclosure of financial records & dealings) - Injunction (Stopping a person from doing something) - Specific Performance (Demanding breaching party to perform contract) - Quantum Meruit (Pay a price for services rendered) |
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Phew. PHEW. That was ONE CHAPTER YOU GUYS. THIS IS 65 FLASH CARDS IN. GIVE YOURSELF A ROUND OF APPLAUSE. SWEET BABIES. Go pour yourself an iced tea. Or like- an egg nog. Or something. I hope these sickness-addled flashcards are helping you out, man. Or lady. Ready for Chapter 6? |
What the hell were you expecting on the other side of the card? Get back to studying. |
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What is an Agent? |
Someone who represents another (the principal) in dealings with a third party. Could be an employee, or an independent contractor. Agents usually enter into contracts on the principal's behalf. |
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How do you create an Agent? |
Grant them authority on your behalf. That's usually done by contract, but can also be inferred from the way you behave, so watch out. |
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What is Expressed Authority? |
When the principal directly grants authority to their agent. |
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What is Implied Authority? |
When expressed terms and surrounding circumstances suggest they should have authority. |
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What is Apparent Authority? |
When the principal does something to lead a third party that their agent has authority. You CAN'T TAKE THIS BACK AFTER THERE'S BEEN A PROBLEM. The third party has the right to count on that and can use an Estoppel to prevent you from denying it. |
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What happens when an Agent exceeds their actual/apparent authority? |
The principal isn't bound by their choice, but can ratify the deal (either expressly or inadvertently by taking a benefit from the deal), thereby granting retroactive authority. |
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What are some of the restrictions on ratification? |
- It must have been possible to enter the contract at the time of ratification - It must have been possible to enter the contract at the time the agent purported to act - Must be ratified a reasonable time after the agent's unauthorized conduct |
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What is Vicarious Liability? |
When one person is held responsible for the torts committed by another. i.e. A principal/employer will be responsible for his agents/employees who are acting within their scope of work. |
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How does Vicarious Liability change for independent contractors? |
- The Principal is only liable if the tort causing injury takes place during actual exercise of granted authority. - Usually restricted to fraud and negligent misstatement - If agent passed information on innocently, then only principal who gave info is liable. |
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What kind of Vicarious Liability is commonly imposed by statute? |
Vehicle accidents! If you permit somebody to use your car (expressly or implied) then you may be liable! This goes for work situations too. |
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When can a third party sue an Agent? |
- If the Agent exceeds their authority (tort of "breach of warranty of authority") - If the Agent does not disclose they are working for a principal, or refuses to reveal their principal |
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What happens when the third party learns the identity of the principal of the agent they're trying to sue? |
They have to decide whether to sue the agent or the principal. This decision is binding! |
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An agent has a fiduciary duty to their principal. What does this mean? |
They: - Have a duty of good faith - Cannot take personal advantage of business opportunities principal could make use of - Must disclose all conflicts of interest - Must make full disclosure of all information - Must act only for one side in a transaction - Must not profit at the expense of principal - Has duty of accounding - Cannot take secret commissions - Has duty to act competently - Cannot delegate responsibility (unless industry practice dictates they can) |
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When does an Agency's authority end? |
- The job is finished - The agent receives different instructions - Employment/agency relationship changes or ends - Or when the project becomes illegal, the principal dies, goes bankrupt, or insane. All of those things pretty much wrap things up too. |
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When an Agent is no longer acting for an employer, and held apparent authority, what must be done? |
The employer needs to make sure that customers & suppliers and anybody else who dealt with that agent knows that the relationship has ended. |
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What are the two tests to tell if you're employed or a contractor? |
The Control Test and the Organization Test. |
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What is the Control Test? |
Look at the conditions of the person's work.
- Independent Contractors control their own hours and how they do the work.
- Employees work under directions of an employer and can be told what to do and how to do it. |
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What is the Organization test? |
Is the individual an integral and essential part of the organization?
If so, they must be an employee. A contractor works for themselves. They shouldn't be that vital to your business. |
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What are the obligations of an employer? |
They must provide: - Safe workplace - Appropriate direction - Tools (where appropriate) - Wages - Reimbursement for expenses - Any other requirements as per employment contract |
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What are the obligations of an employee? |
An employee must: - Be reasonably competent - Have the skills claimed - Be honest, punctual, loyal - Perform the work agreed to - Owe a fiduciary duty to manager or key employee |
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What are the two ways you can terminate an employee? |
- Just Cause - Reasonable Notice (or severance pay, in lieu of notice) |
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What is considered reasonable notice? |
- Depends on the length of service, importance of their job, age, likelihood of finding other employment, etc. - Employment Standards Act establishes minimum required notice. |
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What is Just Cause? |
Acting seriously unreasonably at work. For example: - Being dishonest with your employer - Convicted of a crime that interferes with your ability to perform your job - Disobeyed lawful instruction from employer - Lied on resume - Committed Actionable wrong on the job |
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What are the three types of cause for termination that require a bit more work for the employer? |
- Incompetence (employee must be informed and given opportunities to improve. Evaluations must show lack of improvement) - Unacceptable Conduct (unless very serious, reprimands & counseling must be provided. Termination should be last resort) - Inability to perform work (human rights legislation says you must accommodate disabled employees - unless it is a burden on the business) |
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Is lack of work due to an economic downturn considered Just Cause? |
NOPE. People who are fired don't get EI, so make sure you're laid off in cases like this rather than letting it get registered as a termination. |
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What is Wrongful Dismissal? |
- Usually a dispute over whether or not adequate notice (or pay in lieu) was given. - Claim is for difference in notice received and notice that should have been given. - Any harm to the employee's reputation may increase the notice period. - Regular bonuses and benefits must also be factored in. |
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What must an employee do if they are wrongfully dismissed? |
Try to mitigate their losses. Just like breach of contract. Oh wait - this IS a breach of contract. WE'VE GONE FULL CIRCLE. |
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What is Constructive Dismissal? |
When an employee is demoted, transferred, or otherwise has their employment conditions changed, which makes them so uncomfortable that they will quit. |
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What can an employee do if they are a victim of Constructive Dismisssal? |
They can sue for wrongful dismissal. If they're offered an alternate position, they might have to take it, due to their obligation to mitigate. Their employer should negotiate an appropriate arrangement with them. |
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Under what conditions can an employee quit for cause? |
If they: - are given dangerous or illegal instructions - are not properly paid - are put into dangerous situations - can no longer perform duties due to disability or illness - have had any important term of their employment contract breached |
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Do employees need to provide notice when terminating their contract? |
Yes, although it's usually much less than the employer's, unless they have a special role.
They cannot take confidential information, customer lists, or persuade customers to come with them to a new business. They also need to comply with restrictive covenants in their contract (if reasonable). |
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Collective Bargaining is literally restricted to like a single slide on this, what the heck. Alright, I guess I'm winging it. |
I can't be held liable for any of the answers on the next few cards, I ain't an expert. |
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What is it called when an employer refuses to allow employees to work until conditions are met? |
A lock-out |
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What is it called when unionized employees refuse to continue to work for their employer until conditions are met? |
A strike |
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What does LRB stand for? |
Labour Relations Board |
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Okay that's about enough of that. Go read the section on unions, though, man. They're important. They're the reason we have weekends. And like- safety standards. |
What even, why isn't that included in the slides. WHATEVER, PARIS. CHAPTER 7 TIME. |
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What are the three types of business structure we studied? |
- Sole Proprietorship - Partnership - Incorporated Company |
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How many people operate a sole proprietorship |
One! |
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What are the good things about sole proprietorships? |
Fewer regulations, no formal process to create the business, and you have complete control! Sweet. |
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What are some bad things about sole proprietorships? |
You have unlimited liability - so you're financially and legally responsible for everything that business does, including torts of employees. Insurance can help with that, though.
Oh, also, you pay personal tax rates. Ouch. |
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How many people are involved in a partnership? |
Two OR MORE! |
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Is there a formal process to register a partnership? |
Maybe. Some government agencies require it. |
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What does being a partner entail? |
Sharing the costs and responsibilities of running a business, and ultimately sharing in the profits - assuming there are any. |
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Are partnerships taxed at personal tax rates? |
They sure are! That sucks. |
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What statute legislates partnerships? |
The Partnership Act. In retrospect, that's predictable.
Fun fact: the Partnership Act also describes the exceptions of things that don't create a partnership, such as: - profiting off of jointly-owned property - commissions or bonuses based on business performance |
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How do you create a partnership by express contract? |
Create a written agreement that indicates the rights and obligations of partners. Provisions of this agreement can potentially modify how the Partnership Act applies to the partnership - but if you don't make a rule, the Act's rules will apply. |
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How do you inadvertently create a partnership? |
Jointly contribute capital, manage the business, and share the net profits. The business has to be ongoing. If you didn't write a partnership agreement, the Partnership Act rules. |
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How does a partnership get created by estoppel? |
Even if there is no partnership, if you act as if (or allow somebody else to act as if) there is a partnership, then you're liable as if there was one. Yikes! |
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What kind of liability does a partner carry? |
They carry unlimited liability of all debts and obligations - including those caused through vicarious liability for employees and other partners. Normally the financial obligations would be split evenly, unless the agreement says otherwise, but if one partner can't cover it - the others have to make up the difference. |
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Can each partner bind the partnership into an agreement? |
They sure can. Pick your partners wisely, and get yourself some quality insurance. |
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How are decisions made in a partnership? |
- Day-to-day decisions require a majority vote. - Major decisions require UNANIMOUS agreement, and this cannot be changed. |
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Do partners get a salary? |
NO. They get a share of the profits - usually an equal share, unless the agrement says otherwise. |
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Do partners have a fiduciary duty? |
Hell yes they do. They have to disclose all relevant info, can't take personal advantage of business deals, can't compete with the parnership, must account for all their expenses/income, etc. |
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How do you end a partnership? |
Dissolution! That might result from: - Death or bankruptcy/insolvency of a partner - notice by one partner - completion of a project/specified time - activity of partnership becomes illegal (yikes) - court order for dissolution |
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What happens after dissolution of partnership? |
The assets are used to pay off debts and expenses - and the remaining amount is distributed to the partners. |
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What is a Limited Partner? |
A partner whose liability is limited to the amount they have invested. |
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How can you become a limited partner? |
If: - There is at least one general partner - The limited partnership is registered - The limited partner's name is not in the name of the business - The limited partner does not participate in the management of the business. |
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What is a limited liability partnership (LLP)? |
A partnership that is available to certain professionals, and protects the partners from the negligent acts or omissions of the other partners. All the partners must have liability insurance. |
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What is a corporation? |
A person! |
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Ha-ha, very funny. Seriously, what's a corporation. |
Seriously, legally it becomes its own person, but it's all kind of made up BS. It's basically a different way to form a business that protects you from liability. |
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How do you make a corporation? |
Register it. Methods include: - Memorandum of Association & Articles of Association are filed, Certificate of registration issued (Nova Scotia) - Letters Patent, granting a charter that creates an incorporation, is issued (Quebec & PEI) - Articles of Incorporation filed, certificate of incorporation is issued (Federally, most provinces) |
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What are incorporating documents? |
The constitution of the company. They establish the company's name, share structure, number and power of directors, restrictions on the type of business, etc. |
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What are bylaws? |
Normal operating rules, responsibilities of directors and officers and management organization. |
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Why would a company incorporate federally? |
If they do, they can carry on business in any province. |
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What is a Broadly-held Corporation? |
- AKA: Reporting, public, or offering corporations - Shares are generally traded on the stock market - Highly regulated |
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What is a Closely-held Corporation? |
- Private corporations with few shareholders - Shareholders' agreement extremely important - Restrictions on free transferability of shares |
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What are Shareholders? |
- Members of a corporation that hold no duty to it - Separate from the corporation itself - Right to vote at shareholder meetings to appoint the Directors who control the company - Majority shareholder has ultimate control |
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What are common shares? |
Shares that carry the right to vote and share in dividends, and the right to see certain documents. |
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What are preferred shares? |
Shares that carry no voting rights, but get priority for payment of dividends. |
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Corporations are people? What? |
Yeah, they act just like a person in a business transaction, except all their transactions are carried out by an agent. I mean, duh, because they're fictional. Sort of. Capitalism is bananas, I don't know what to tell you. |
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What are the advantages of being a corporation? |
1) A company's debts and liabilities are its own. The shareholders, directors, and executives aren't liable unless they've really messed up (usually criminal activities/fraud)
2) THOSE TAX BREAKS, THOUGH. |
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Can a corporation "die"? |
Nope. |
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How does the structure work? |
Directors work for the best interest of the company, and management works underneath the directors. The shareholders can kick out the directors, but the directors don't owe them a fiduciary duty. |
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What are the rights of Shareholders? |
- Right to Vote - Right to share in dividends (if declared) - Right to share in assets upon dissolution of the corporation - Right to inspect certain records - Minority shareholders can "dissent" - Oppression Action - Pre-emptive Rights - Representative Action |
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What does it mean if minority shareholders "dissent"? |
It means they disagree with the directors about a major change that's good for the corporation but hurts minority shareholders. |
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What are Preemptive rights? |
It means that shareholders get first dibs on any new shares that are issued, so they can maintain their share %. |
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What is representative action? |
When a minority shareholder brings action for damage on behalf of the corporation - often against the directors. |
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Who elects the Directors? |
The shareholders. |
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Who do the Directors have a fiduciary duty to? |
The Company. To heck with you, shareholders. |
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What kind of duties & liabilities do Directors hold? |
- Cannot declare dividends if company is insolvent - Responsible for certain taxes & deductions - Responsible for certain unpaid wages - Responsible for environmental damage - Responsible for offences under the Competition Act and other legislation, fraud, and criminal activity |
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What are officers? |
People appointed by the directors to help in the management of the company (but not elected). They have a fiduciary duty to the corporation and frequently share in liability with the Directors. |
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What are promoters? |
To be honest the slides are pretty unclear? They have the same duties as directors and officers initially - but then what, they go and become circus clowns?
Also, they can't misrepresent or conceal information from future shareholders. |
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What are things that businesses can do to help detect corporate fraud? |
- Create a Loss-Prevention Team - Publish ethical standards and a code of conduct - Appropriate employee training |
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What is equity financing? |
Funds obtained through the sale of shares. The value of shares are usually determined by the market. The authorized share capital (# of total shares) is determined at incorporation, and the shares issued initially will be less than the total authorized. |
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What is debt financing? |
- Shareholders Loans (taking out security on corporate assets) - Bank - or other creditor - Loans (take security and may require personal guarantees from Directors or Shareholders) - Bonds or Debentures (large debt; issued to the public and then traded on the market) |
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What is a shareholders agreement? |
- Usually for smaller, closely-held corporations - Sets out rights and responsibilities of shareholders that aren't specified in incorporating documents - Can set out any unique provisions - Based on consensus and must comply with any legislation |
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What is a joint venture? |
A contractual relationship in any form to do business for a project - usually for a limited period of time.
The liability is based on the business form chosen. |
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What is a franchise? |
An exclusive agreement for one company to sell the product or services of another, in a specified area, using all the names, logos, and advertising with permission. Usually requires start-up investment and then regular payments based on % of profits. Franchisor rules are usually enforced via standard form contracts. |
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HOLY DEAR GOD 154 FLASH CARDS. ARE YOU STILL WITH ME, CLASSMATES? YOU CAN DO IT. BELIEVE IN ME WHO BELIEVES IN YOU. THAT IS AN ANIME REFERENCE. WHO'S EVEN GOING TO GET THAT REFERENCE? MARNITZ, MAYBE. CHAPTER 9 TIME. |
DRILL TO THE HEAVENS!!!!! |
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What are the four kinds of intellectual property we learned about? |
- Copyright - Patents - Industrial Design - Trademarks |
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What statute protects Copyright? |
The Copyright Act. I know, that was a toughie. |
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How long does Copyright last? |
Until 50 years after the death of the creator.
The slides clarify: "Only 50 years if corporate owner, author unknown or movies, photos or sound recordings are involved." |
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Where is copyright often assigned? |
To the publisher. The creator gets royalties from the net proceeds. |
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A creator retains moral rights even if their copyright is assigned or sold. What does this mean? |
It means they have the right to be recognized as the creator and the work cannot be modified, distorted, or defaced without their permission. |
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When would an employer be entitled to the copyright of their employee? |
If the work is made during the course of their employment |
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Copyright applies to...? |
Every original literary, dramatic, musical and artistic work, including performer's performance, sound recording, and communication signals. Also, computer programs. The work must be original and fixed in some permanent form. |
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Do you have to register your copyright in Canada? |
No, but registration offers protection in other countries. |
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What are the exceptions to the restricted use of copyrighted material? |
- Use of small portions for research or private study - May reproduce for review, criticism, reporting - Educational institutions (and some others) have rights for research & educational purposes - Reproduction to facilitate someone who is blind or deaf |
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What are some important groups related to copyright? |
- Access Copyright (Non-profit body that collects fees for use and distributes them to authors) - SOCAN (Same function for musicians and composers of recorded music) - Copyright board (Sets royalty fees and may arbitrate disputes) |
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What are some flaws in Canadian Copyright law? |
- Does not provide appropriate protection for artists, authors and producers - Does not impose restrictions on uploaded and downloading of music, video etc. from internet - Expect that this will change soon, Canada! |
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What statute governs Patents? |
The Patent Act. What a doozie. |
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How long does Patent protection last? |
20 years, brah. |
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Do you have to register a patent? |
Yes, through registered patent agents, and it sounds like it is pretty much the worst thing ever. You have to disclose all your drawings, plans, and information so that it's clear what the invention is and how it works. It's also expensive. Registering is important, though, because the first person to register gets the patent. |
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Does registration protect the product, or the idea? |
The idea! |
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What makes something patentable? |
It must be useful, new, and contribute to improving society. (...I think they stretched the rule on that last one more than a few times.)
You can't patent if it's an obvious improvement of an existing design, or could be discovered by reverse engineering. |
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What kind of things can/can't be patented? |
- Higher lifeforms CAN'T be patented - Modified genes CAN, though! - Some business models can be patented - Some computer software, too. - Also, patented drugs are a thing. You can protect that patent with "Evergreening" to extend the patent another 20 years. |
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Once you patent something, what do you have to do? |
USE that patent! Make the product! Distribute it! |
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Do patents provide protection in other countries? |
Some of them. The ones we have treaties with. |
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Can employers claim patents the way they can claim copyright? |
Only if that is the purpose of their employment. Otherwise, nope. |
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Can you assign patents to third parties? |
Yep. |
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What statute covers Industrial Design? |
The Industrial Design Act.
I'm really just using these slides as transition. |
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How long does Industrial Design registration last? |
THE SLIDE IS A LIE.
It lasts 5 years, but you can register again to extend that to 10. |
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What statute covers Trademarks? |
The Trade-marks Act. That dash in Trade-marks is so ugly. Gross. Get out of there, dash. |
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What is a Trademark, anyway? |
Names, symbols, logos, or other distinctive marks that are associated with a business. That includes certification marks, official marks used by organizations associated with government, and distinguishing guise. Goodwill is usually associated with these marks. |
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How long does the protection on a Trademark last? |
15 years, but you can renew it OVER AND OVER AND OVER again so "until the end of human civilization" is a conceivable answer. Except if we all become cyborgs, it might not count as human civilization anymore but conceivably our cyborg chassis could be sponsored by Coke. |
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In what courts can you seek remedy for trademark infringement? |
Federal or provincial |
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What does trademark infringement entail? |
Using the mark to confuse the public or devalue the business. |
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How do you register your trademark? |
Apply through a trademark agent. There are some restrictions - it can't represent royalty, or national flags, and must be socially acceptable - usually they don't allow surnames either. It provides proof of ownership for registration in other countries - as a bonus! Also, like a patent, you gotta USE IT or you LOSE IT. |
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What is distinguishing guise? |
The distinctive shape of a product or container. Coke bottle, yo. |
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Does a trademark have to be distinct? |
Yeah, it can't be similar enough to another business' name to get confused. You can also lose your trademark if it becomes used to describe similar products. |
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Who handles trademark disputes? |
The Registrar of Trademarks, with appeals to Federal Court |
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How long after registration can Trademarks be challenged? |
5 years. |
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Can trademarks and associated licenses be assigned? |
Yep. |
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What is Passing-off? |
You know when you see that "Dankey Kang" game at Crystal Mall and you're like "Hey, isn't that like the popular and possibly overrated popular game 'Donkey Kong'?" That game is Passing-off, using a similar mark to mislead you into thinking it is the real thing. That is a tort. Nintendo would not be happy about it damaging its goodwill/reputation, and would be able to sue for damages. |
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What are the remedies available for Intellectual Property Right violations? |
- Damages - Injunction to stop offending practice - Anton Piller Order - Accounting - Punitive Damages (increasingly likely) - Copyright & Patent violations could = criminal offences - Criminal Code also covers Trademark Infringement |
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What the heck even is an Anton Piller order? |
It's an order that offending products or records be seized before they can be destroyed/removed. No destroying the evidence!
In order to get one of these, you need a strong prima facie case, danger of considerable further damage, and they need to be likely to dispose of/destroy the documents/products you're ordering to be seized. |
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What is confidential information? |
Information that needs to be protected by a business. Common law covers this (fiduciary duty or contract). Non-disclosure provisions can be included in contracts, and restrictive covenants can be used for employees.
Make it clear what info is confidential! |
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What are the remedies for confidential information breach? |
Damages, injunction, and accounting. It might also constitute breach of contract, so get yer butt back to the Chapter 4 stuff. |
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Is there common law protection of privacy? |
Nah. That's all federal/provincial legislation. This goes for sharing of personal information particularly, but eavesdropping, surveillance, and unauthorized use of name or portrait are covered in some provinces as well. |
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What does the federal Privacy Act protect? |
It protects personal info in the hands of the federal government. (It established the office of the Privacy Commissioner!) |
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What does PIPEDA stand for? |
Personal Information Protection and Electronic Documents Act |
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What does PIPEDA do? |
It controls the collection, use, disclosure and disposal of personal information in commercial activities. It imposes obligations for information connected to business activities and employee information too. Violations are indictable offences. (Some provinces have adopted similar legislation so you might have to follow both) |
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What policies should businesses have in place related to privacy? |
Policies to: - Make businesses accountable for information - Place limits on the use, collection, retention and disclosure of information - Ensure accuracy and safeguard information - Provide access to and provice process for challenging information's accuracy |
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What about keeping information secure? What does that entail? |
It means you have to preserve it, protect it from corruption, and prevent it from being intercepted or disclosed. Digital storage is super vulnerable to loss, theft and destruction, so make sure you have back-ups in a different location. |
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Is email secure? |
Heck no. That can be hacked or misdirected by accident. |
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What about if it's encrypted? |
That helps, but it doesn't protected 100%. |
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Does deleting information really get rid of it? |
Not really. |
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Are wireless networks vulnerable? |
You bet your ass they are. |
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What about businesses with credit and debit card machines? |
You in danger, gurl. Protect the PIN numbers of your customers, and monitor your employees and machines. Identity theft is a serious issue, and you might be liable for your employees. |
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My employees are untrustworthy jerks. What can I do? |
Well, you probably should have started by not hiring them in the first place. Failing that, monitor their use of your computers and other resources, and lock stuff down with passwords and blocking software. But make sure to let them know you're doing that, or else it's creepy. Also, make sure you tell them what's confidential. |
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Hey whoa. Is that it? Is this the last slide? IT ISSSSSSSSSSSS. WHAT A TIME TO BE ALIVE. CONGRATULATIONS. YOU MADE IT THROUGH. YOU'RE READY FOR THE FINAL. |
Or are you? ...Maybe you should start from the beginning again, just to be sure.
P.S. Noémi is going to be running a law study session in the Copywriting room from 12:15 until 3:00 on Monday. She could be persuaded to start earlier if somebody bribed her with lunchfoods, though. |
