DAOD 3008-0, Intellectual Property

Table of Contents

1. Introduction
2. Policy Direction
3. Consequences
4. Authorities
5. References

1. Introduction

Date of Issue: 2005-04-29

Date of Last Modification: 2017-02-07

Application: This DAOD is a directive that applies to employees of the Department of National Defence (DND employees) and an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Approval Authority: Assistant Deputy Minister (Materiel) (ADM(Mat))

Enquiries: Director Materiel Policy and Procedures (DMPP)

2. Policy Direction

Context

2.1 Intellectual property (IP) refers to creations of the mind such as inventions, literary and artistic works, designs, and symbols, names and images used in commerce. The creation need not necessarily be innovative, ground-breaking or revolutionary as long as it is intellectual.

2.2 The principal means for the legal protection of IP are the following:

1. patents for scientific and non-scientific inventions;
2. copyrights for literary (including computer programs), artistic, musical and dramatic work;
3. industrial designs for the ornamental or aesthetic aspect of an article; and
4. trade-marks for words, phrases and designs.

2.3 While not specifically protected by provincial statute except Quebec, trade secrets are subject to protection under the common law. Trade secrets are governed in Quebec by articles 1472 and 1612 of the Civil Code of Québec.

2.4 Legal protection provides the owner of IP with the right to preclude third parties from using the protected IP. Unauthorized use of protected IP constitutes infringement of the rights of the owner. The Copyright Act provides, however, that certain uses of IP do not infringe copyright.

2.5 IP is an intangible asset and like a physical asset it has value. The value of specific IP is influenced by factors such as:

1. whether the IP is an improvement or an innovation;
2. the market demand for products derived from the IP; and
3. the goodwill associated with the IP.

2.6 IP that is managed ineffectively can diminish in value and, as a result, provide no benefit or become a burden to the Crown.

2.7 In the DND and the CAF, the following IP scenarios are often encountered:

1. IP created by a DND employee or a CAF member;
2. IP created by the private sector;
3. IP created under a contract or agreement; and
4. any combination of the above scenarios.

2.8 Under any of the scenarios in paragraph 2.7, validating ownership is an essential component in determining the Crown’s right to the IP. It is important to note that the author or creator of IP does not necessarily own the rights to the IP. Rather, in the context of the Crown, ownership is normally determined by:

1. laws such as the Copyright Act and the Public Servants Inventions Act;
2. the terms of contracts and agreements; and
3. policies such as the Treasury Board Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts.

Policy Statement

2.9 The DND is committed to the effective management of Crown-owned IP and IP licensed to the Crown. The DND and the CAF are committed to the protection of Crown-owned IP managed by the DND in order to maximize and preserve its value, maximize its benefits and prevent third parties from misusing it. The DND and the CAF are also committed to avoiding the infringement of the IP rights of third parties.

Requirements

2.10 The DND and the CAF must:

1. ensure that DND employees and CAF members follow applicable IP-related laws, Government of Canada IP policies, and DND and CAF IP policies, directives, orders and instructions;
2. establish a process for:
   1. reporting IP created by DND employees and CAF members;
   2. legally protecting Crown-owned IP managed by the DND, and enforcing its protection;
   3. maximizing and preserving the value of Crown-owned IP managed by the DND;
   4. approving or denying use by third parties of Crown-owned IP managed by the DND;
   5. safeguarding Crown-owned IP and IP licensed to the Crown; and
   6. recognizing and rewarding the effective management of Crown-owned IP and IP licensed to the Crown;
3. implement effective management of Crown-owned IP and IP licensed to the Crown;
4. be vigilant concerning possible IP mismanagement, unauthorized use or other issues;
5. provide IP tools for the DND and the CAF;
6. take measures to enforce section 291 of the National Defence Act; and
7. establish a process to support commercialization by Canadian industry of Crown-owned IP managed by the DND.

3. Consequences

Consequences of Non-Compliance

3.1 Non-compliance with this DAOD may have consequences for both the DND and the CAF as institutions, and for DND employees and CAF members as individuals. Suspected non-compliance may be investigated. The nature and severity of the consequences resulting from actual non-compliance will be commensurate with the circumstances of the non-compliance. Consequences of non-compliance may include one or more of the following:

1. the ordering of the completion of appropriate learning, training or professional development;
2. the entering of individual observations in performance evaluations;
3. increased reporting and performance monitoring;
4. the withdrawal of any authority provided under this DAOD to a DND employee or CAF member;
5. the reporting of suspected offences to responsible law enforcement agencies;
6. liability of Her Majesty in right of Canada;
7. the application of specific consequences as set out in applicable laws, codes of conduct, and DND and CAF policies and instructions; and
8. other administrative or disciplinary action, or both.

Note – In respect of the compliance of DND employees, see the Treasury Board Framework for the Management of Compliance for additional information.

4. Authorities

Authority Table

4.1 The following table identifies the authorities associated with this DAOD:

5. References

Acts, Regulations, Central Agency Policies and Policy DAOD

• Copyright Act
• Industrial Design Act
• Integrated Circuit Topography Act
• National Defence Act
• Patent Act
• Public Servants Inventions Act
• Trade-marks Act
• Civil Code of Québec
• Framework for the Management of Compliance, Treasury Board
• Policy on Title to Intellectual Property Arising Under Crown Procurement Contracts, Treasury Board

Other Reference

• Division of Functions Transferred to DRDC of IP Roles and Responsibilities from ADM(Mat), April 2000 (available in English paper copy only)