Wendy Ann Adams: “Meaning and metaphor: Associative thinking and the unacknowledged images of ‘use’ in intellectual property”(2009) Property things p569,
There is a legitimate regime calling things property. Intellectual property is a socially constructed property system to encourage invention. It is property in the sense that it provides a privilege of use. It provides a guaranteed return on investment as an incentive to inventors and determines a fair price for consumers, not determined by supply and demand (that’s a pretty dumb statement).
Land law does not lend itself easily to IP law. Property rights exist by will of the State. The state makes decisions about the amount and distribution of knowledge assets on governmental policy as opposed to a pricing mechanism.
IP: is an entitlement to use. Unauthorized use is an interference against that entitlement (Monsanto SCC decision).
Family Property (Marital)
Are professional licenses and degrees property? Canada – NO; USA – not even property or is property and awarded in divorce accordingly (this is unjust enrichment argument.
Degrees are non-transferable it is only a personal licence to work.
4 points:
right to exclude
How do you value a degree?
If degrees are property, what the hell else can be considered family property
Caratun v Caratun (1992), ON COA; 571; Dental licence is not matrimonial property
Facts: This is an appeal. At 1st instance, wife gets awarded $15,000 + (child support) for having contributed to her ex-husband’s dentistry license. H and W get married in Romania, for the purpose of immigrating to NA and for him to become a dentist here. Both work hard. 2 days after he obtains the license, he files for a divorce.
Issue: Did she assist him in attaining his ultimate objective? [YES] Is the license property which can then be valued and divided up?
Held: Yes. No: a licence is not property. But a lump sum payment of $30,000 was given to Mrs. C
(Why? : mostly because the court declared that a licence could not be valued and because the licensee had to put in work to “give life” or install value in the licence itself.)
Ratio:
The statutory definition is broadly framed: property means any interest, present of future, vested or contingent, in real or personal property.
If a license is property, it has to fall under this definition somehow.
The only real right granted by a licence is the right to work in a particular profession.
But it is non transferrable. Strike 1.
The licensee has to put in personal efforts or else the license will produce nothing. Strike 2.
The right to work is no different than any other skilled person that, given their acquired experience, will have a right to work in a particular field. Strike 3.
Valuation is speculative. Strike 4 (but this is a very weak argument).
Woodworth v Woodworth, Mich CoA, 1982. 577; Law degree is property
Facts: H & W situation. He goes to law school and she financially supports him. He gets a degree and a big job. They divorce. She wants money in consideration for her contribution to his degree. The case is framed as a property case, where she is taking an action to recover a split ownership asset, the licence.
Issue: Is the licence property? [YES]
Ratio:
It would be unconscionable for him to keep all the value of the property.
So for reasons of equity, she is entitled to get a portion of the gain.
She is awarded $2000 / yr for ten years.
Storey- Bishoff v Storey-Bishoff, 1994, Saskatchewan, Queen’s Bench; 579; M.ed degree not property
Facts: While they are married, wife gets 3 degrees (BA, B.Ed., M.Ed.), he gets a B. Eng.
Issue: Are the degrees matrimonial property? [NO]
Why?: Within the meaning of the Matrimonial Property Act, for something to be called property it must be transferrable.
Law is totally unsettled.
Ratio:
Precedent:
Corless v Corless, 1987: a law degree is property but without value since the title holder had to work for it to have value. So although it was property, the other spouse got nothing for it.
Nunan v Nunan, 1983: a medical degree is not matrimonial property because it cannot be sold or transferred.
Leippy v Leippy, 1987: a commerce degree is not tranferrable so it is not property.
If the wife had become a concert pianist, her skill could not be divided. The degree is the same thing.
Family law / licences: Summary.
Case name
Facts
Property?
Why not?
Caratun v Caratun (571)
Mrs helps Mr get license.
No (but Mrs gets lump sum payment).
Can’t be valued. The value is dependent the labour of the licensee.
