In Canada, the Criminal Code and the Copyright Act explicitly protect computer software programs while existing patent, trademark/trade secret and fiduciary duty laws also extent their protection to computer software. In this article, the author gives an overview of computer software protection under Canadian laws and analyzes courts’ applications of these laws to software by examining several caselaws. Computer software may be protected as trade secrets and thus may be part of a contractual agreement between parties. In the absence of an explicit agreement, Canadian laws imposes an implied non-disclosure duty on employees concerning trade secrets acquired in the scope of employment. In terms of trade skills acquired in the course of employment, courts evaluate cases by looking at several factors to determine the breach of the parties’ rights. In Canadian Patent Act, Copyright Act and Criminal Code, the legislature gives explicit definitions in protection of computer software and violations thereof. In addition, the Canadian government announced the need to amend its Copyright Act in December 1994. An Information Highway Advisory Council is established to make recommendations to legislation to consider appropriate changes in this ever-developing world of computer and software advancement.
A. David Morrow & P. Bradley Limpert, Intellectual Property Protection of Software in Canada, 14 J. Marshall J. Computer & Info. L. 673 (1996)