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MAIN DEDICATED INTELLECTUAL PROPERTY LAWS AND REGULATIONS NOTIFIED UNDER ARTICLE 63-2 OF THE AGREEMENT
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| WORLD TRADE ORGANIZATION
IP/N/1/CAN/L/1
27 February 1997
(97-0820) |
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| Council for Trade-Related Aspects of Intellectual Property Rights |
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| MAIN DEDICATED INTELLECTUAL PROPERTY LAWS
AND REGULATIONS NOTIFIED
UNDER ARTICLE 63.2 OF THE AGREEMENT |
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| 129. The Integrated Circuit Topography Act is amended by adding the following after section 2: |
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HER MAJESTY
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| 2.1 This Act is binding on Her Majesty in right of Canada or a province. |
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| “Commissioner” “commissaire” |
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| “commissioner” means the Commissioner of Patents; |
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| “WTO Agreement” “Accord sur l’OMC” |
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| “WTO Agreement” has the meaning given to the word “Agreement” by subsection 2(1) of the World Trade Organization Agreement Implementation Act; |
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| “WTO Member” “membre de l’OMC” |
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| “WTO Member” means a Member of the World Trade Organization established by Article I of the WTO Agreement. |
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| (1) The Act is amended by adding the following after section 7: |
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| Government may apply to use registered topography |
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| (1) Subject to section 7.2 the Commissioner may, on application by the Government of Canada or the government of a province, authorize the public non-commercial use of a registered topography by that government. |
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| (2) Subject to section 7.2, the use of the registered topography may be authorized for such purpose, for such period and on such other terms as the Commissioner considers expedient, but the Commissioner shall settle those terms in accordance with the following principles: |
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| (3) The Commissioner shall notify the owner of the registered topography of any use of the registered topography that is authorized under this section. |
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| (4) Where the use of the registered topography is authorized, the authorized user shall pay to the owner of the registered topography such amount as the Commissioner considers to be adequate remuneration in the circumstances, taking into account the economic value. |
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| Termination of authorization |
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| (5) The Commissioner may, on application by the owner of the registered topography and after giving all concerned parties an opportunity to be heard, terminate the authorization if the Commissioner is satisfied that the circumstances that led to the granting of the authorization have ceased to exist and are unlikely to recur, subject to such conditions as the Commissioner deems appropriate to protect the legitimate interests of the authorized user. |
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| Authorization not transferable |
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| (6) An authorization granted under this section is not transferable. |
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| 7.2 The Commissioner may not, under section 7.1, authorize any use that is a prescribed use unless the proposed user complies with the prescribed conditions. |
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| 7.3 Any decision made by the Commissioner under section 7.1 or 7.2 is subject to appeal to the Federal Court under the Patent Act. |
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| (1) The Governor in Council may make regulations for the purpose of implementing, in relation to registered topographies, paragraph 2 of Article 37 of the Agreement of Trade-related Aspects of Intellectual Property Rights set out in Annex 1C to the WTO Agreement. |
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| Definition of “WTO Agreement” |
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| (2) In subsection (1), “WTO Agreement” has the same meaning as in subsection 4(5). |
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| Integrated Circuit Topography Act |
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| An Act to provide for the protection of integrated circuit topographies and to amend certain Acts in consequence thereof |
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| [Assented to 27th June, 1990] |
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| Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: |
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| 1. This Act may be cited as the Integrated Circuit Topography Act. |
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| 2(1) “commercially exploit” « exploitation commerciale » |
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| “commercially exploit” means to sell, lease, offer or exhibit for sale or lease, or otherwise distribute for a commercial purpose; |
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| 2(1) “filing date” « date de dépôt » |
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| “filing date”, in respect of an application for registration of a topography, means the filing date of the application as determined in accordance with section 17; |
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| 2(1) “integrated circuit product” « circuit intégré » |
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| “integrated circuit product” means a product, in a final or intermediate form, that is intended to perform an electronic function and in which the elements, at least one of which is an active element, and some or all of the interconnections, are integrally formed in or on, or both in and on, a piece of material; |
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| 2(1) “Minister” « ministre » |
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| “Minister” means the Minister of Industry; |
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| 2(1) “national” « ressortissant » |
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| “national”, in respect of a country, includes an individual who is a citizen or resident of, or is domiciled in, that country; |
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| “prescribed” Version anglaise seulement |
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| “prescribed” means prescribed by regulations; |
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| 2(1) “register” « registre » |
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| “register” means the register kept pursuant to section 15; |
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| 2(1) “registered topography” « topographie enregistrée » |
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| “registered topography” means a topography that is registered under this Act; |
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| 2(1) “Registrar” « registraire » |
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| “Registrar” means the Registrar of Topographies designated pursuant to section 25; |
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| 2(1) “topography” « topographie » |
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| “topography” means the design, however expressed, of the disposition of |
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| 2(2) Deemed importation or commercial exploitation |
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| (2) For the purposes of this Act, where an integrated circuit product forms part of an article that is imported or commercially exploited, the integrated circuit product shall be deemed to be imported or commercially exploited, as the case may be. |
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| 2(3) First commercial exploitation of topography |
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| (3) For the purposes of this Act, a topography is first commercially exploited when the topography or a substantial part thereof, or an integrated circuit product that incorporates the topography or a substantial part thereof, is commercially exploited for the first time in any place in the world by or with the consent of the person who owns the right to so commercially exploit the topography at that time and in that place. |
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| 2(4) Deemed creator of topography |
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| (4) For the purposes of this Act, where a topography is created in the course of employment or pursuant to a contract, the employer or party to the contract for whom the topography was created shall be deemed to be the creator of the topography unless the employer and employee or the parties to the contract, as the case may be, otherwise agree. |
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| 1990, c. 37, s. 2; 1992, c. 1, s. 145(F); 1995, c. 1, s. 62. |
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| 2.1 Binding on Her Majesty |
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| 2.1 This Act is binding on Her Majesty in right of Canada or a province. |
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| 3(1) Exclusive right on registration |
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| (1) Subject to this Act, the registration of a topography under this Act, unless shown to be invalid, gives to the creator of the topography or, where the topography has been transferred, the successor in title thereto, an exclusive right in the topography for the duration of the period referred to in section 5. |
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| 3(2) Scope of exclusive right |
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| (2) The exclusive right in a registered topography consists of the exclusive right to |
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| 3(3) Rights not conferred |
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| (3) Nothing in this section confers any rights in relation to any idea, concept, process, system, technique or information that may be embodied in a topography or an integrated circuit product. |
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| 4(1) Conditions of registration |
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| 4(3) Combinations of elements or interconnections |
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| (3) Where a topography consists of a combination of elements or interconnections that are commonplace among creators of topographies or manufacturers of integrated circuit products, the topography shall be considered to be original only if the combination, considered as a whole, meets the conditions referred to in subsection (2). |
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| 4(5) “Commissioner” « commissaire » |
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| “Commissioner” means the Commissioner of Patents; |
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| 4(5) “WTO Agreement” « Accord sur l’OMC » |
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| “WTO Agreement” has the meaning given to the word “Agreement” by subsection 2(1) of the World Trade Organization Agreement Implementation Act; |
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| 4(5) “WTO Member” « membre de l’OMC » |
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| “WTO Member” means a Member of the World Trade Organization established by Article I of the WTO Agreement. |
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| 1990, c. 37, s. 4; 1993, c. 15, s. 25; 1994, c. 47, s. 130. |
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| 5 Duration of exclusive right |
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| 5. The exclusive right in a registered topography shall subsist for a period |
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| 7(1) Transfer of topography |
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| (1) A topography, whether registered or unregistered, is transferable, either as to the whole interest therein or as to any undivided portion thereof. |
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| (2) A topography, whether registered or unregistered and either as to the whole interest therein or as to any portion thereof, may constitute the subject-matter of a licence. |
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| 7.1(1) Government may apply to use registered topography |
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| (3) The Commissioner shall notify the owner of the registered topography of any use of the registered topography that is authorized under this section. |
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| 7.1(4) Payment of remuneration |
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| (4) Where the use of the registered topography is authorized, the authorized user shall pay to the owner of the registered topography such amount as the Commissioner considers to be adequate remuneration in the circumstances, taking into account the economic value of the authorization. |
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| 7.1(5) Termination of authorization |
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| (5) The Commissioner may, on application by the owner of the registered topography and after giving all concerned parties an opportunity to be heard, terminate the authorization if the Commissioner is satisfied that the circumstances that led to the granting of the authorization have ceased to exist and are unlikely to recur, subject to such conditions as the Commissioner deems appropriate to protect the legitimate interests of the authorized user. |
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| 7.1(6) Authorization not transferable |
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| (6) An authorization granted under this section is not transferable. |
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| (1) The Governor in Council may make regulations for the purpose of implementing, in relation to registered topographies, paragraph 2 of Article 37 of the Agreement on Trade-related Aspects of Intellectual Property Rights set out in Annex 1C to the WTO Agreement. |
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| 7.4(2) Definition of “WTO Agreement” |
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| 8(1) Action for infringement |
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| (1) An action for infringement of the exclusive right in a registered topography may be brought in any court of competent jurisdiction by the owner of the registered topography or by a licensee of any right therein, subject to any agreement between the licensee and the owner. |
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| 8(2) Each owner to be party |
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| (2) Each owner of a registered topography shall be or be made a party to any action for infringement of the exclusive right therein. |
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| 9 Power of court to grant relief |
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| 9. In an action for infringement of the exclusive right in a registered topography, a court of competent jurisdiction may make such orders as the circumstances require, including orders providing for relief by way of injunction, the payment of royalties and the recovery of damages or profits, for punitive damages, and for the disposal of any infringing integrated circuit product or any article of which an infringing integrated circuit product forms a part. |
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| 10. Where the exclusive right in a registered topography is infringed by reason of the commercial exploitation or importation of an integrated circuit product that incorporates the registered topography or a substantial part thereof and the defendant in an action for infringement establishes that, at the time the defendant acquired the integrated circuit product, the defendant did not know and had no reasonable grounds to believe that the integrated circuit product was manufactured and sold for the first time without the consent of the owner of the registered topography, the defendant |
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| 11(1) Infringement after commercial exploitation in Canada |
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| 13 Changes in register not applicable |
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| 13. If any person has relied to the detriment of that person on any entry in the register as it read before being expunged or amended pursuant to this Act or any other Act of Parliament, a court of competent jurisdiction may order that the expungement or amendment not apply in any action for infringement of the exclusive right in a registered topography taken against that person or against any other person who has acquired from that person an integrated circuit product that incorporates the topography or a substantial part thereof. |
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| 14(1) Detention of infringing integrated circuit products |
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| (1) Where it is made to appear to a court of competent jurisdiction that an integrated circuit product has been imported into Canada or is about to be commercially exploited in Canada contrary to this Act, the court may make an order for the interim detention of the integrated circuit product or any article of which the integrated circuit product forms a part, pending a final determination of the legality of the importation or commercial exploitation in an action commenced within such time as is specified in the order. |
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| 14(4) Lien, disposal and indemnity |
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| 14(5) Who may make applications |
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| (1) There shall be kept under the supervision of the Registrar a register for the registration of topographies and of information and material relating to each registered topography. |
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| 15(2) Register to be evidence |
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| (2) The register is evidence of the particulars entered therein and documents purporting to be copies of entries therein or extracts therefrom, that are certified by the Registrar, are admissible in evidence in any court without further proof or production of the originals. |
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| 16(1) Application for registration of topography |
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| (1) The creator of a topography or, where the topography has been transferred, the successor in title thereto may apply to the Registrar for registration of the topography. |
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| 16(2) Content of application |
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| (2) An application for registration of a topography shall contain the following information and material: |
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| (3) An application for registration of a topography shall be accompanied by the prescribed fee or a fee determined in the prescribed manner. |
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| (2) The Registrar may, in such circumstances as are prescribed, assign a filing date to an application for registration of a topography notwithstanding that the requirements of subsection (1) have not been met. |
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| 17(3) Notice to applicant |
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| 17(4) Obligations of applicant |
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| 18(1) Registration of topography |
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| (2) The Registrar shall not inquire as to the accuracy of any information or material contained in an application for registration of a topography. |
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| 18(3) Registrar may refuse to register |
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| (3) The Registrar may refuse to register a topography if it appears to the Registrar, on the basis of any information or material contained in the application for registration, that the application was filed more than two years after the topography was first commercially exploited or that neither the condition set out in paragraph 4(1)(c) nor the condition set out in subsection 4(4) has been met. |
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| 19(1) Certificate of registration |
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| (1) The Registrar shall issue a certificate of registration in respect of each topography registered under this Act. |
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| 19(2) Contents of certificate |
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| (2) A certificate of registration issued in respect of a topography shall include the filing date of the application for registration of the topography, the date of expiration of the exclusive right therein and such other particulars as may be prescribed. |
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| (3) A certificate of registration issued in respect of a topography that purports to be signed by the Registrar is, without proof of the signature, admissible in any court as evidence of the facts therein alleged and is, in the absence of evidence to the contrary, proof that |
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| 19(4) Correction of errors |
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| (4) The Registrar may, for the purpose of correcting any typographical or clerical error in a certificate of registration, amend the certificate or issue a new certificate in substitution therefor. |
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| 20 Invalidity of registration |
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| 20. The registration of a topography is invalid if |
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| 21(1) Registration of other particulars |
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| (1) The Registrar shall enter in the register particulars of any transfer of an interest or grant of a licence affecting a registered topography on being furnished with evidence of the transfer or grant that is satisfactory to the Registrar. |
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| 21(2) Changes in information |
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| (2) The Registrar may amend any entry in the register, or make new entries, for any of the following purposes: |
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| 22. Subject to the regulations, the register, applications for registration of topographies and material filed with the Registrar in relation to any registered topography shall be made available for public inspection during regular business hours. |
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| Jurisdiction of Federal Court |
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| 23 Concurrent jurisdiction |
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| 23. The Federal Court has concurrent jurisdiction to hear and determine |
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| 24(1) Exclusive jurisdiction |
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| (1) The Federal Court has exclusive original jurisdiction, on application of any interested person, to order that the registration of a topography or any other entry in the register be expunged or amended on the ground that the registration is invalid or that, at the date of the application, the entry as it appears does not accurately express or define the existing rights of any person appearing on the register as the owner of the topography. |
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| 24(3) Definition of “interested person” |
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| 25(1) Appointment of Registrar |
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| (1) There shall be a Registrar of Topographies who shall be designated by the Minister from among persons employed in the Department of Industry. |
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| (2) The Registrar shall perform the duties assigned to the Registrar by this Act and such duties as may be assigned to the Registrar by the regulations or by the Minister. |
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| (3) Where the Registrar is absent or unable to act or the office of Registrar is vacant, the Minister may designate any other person employed in the Department of Industry to perform the duties and exercise the powers of the Registrar for the time being. |
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| 1990, c. 37, s. 25; 1992, c. 1, s. 145(F); 1995, c. 1, s. 63. |
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| 26 Relationship to other law |
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| 26. Except as provided in this Act, nothing in this Act shall affect any right granted by or under any other law. |
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| 27. The Governor in Council may make regulations |
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| (1) Five years after the coming into force of this Act, the Minister shall undertake a review of the provisions and operation of this Act. |
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| 28(2) Report to Parliament |
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| *[Note: Act in force May 1, 1993, see SI/93-68.] |
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