Canadian COMPETITION LAW

February 18, 2014

A lot of advertising law, both in Canada and other major jurisdictions, tends to revolve around two major themes: deception and ownership.  As such, when it comes to reviewing advertising for compliance in Canada, a lot of issues (or potential issues) can be identified with two main questions: first, “is it true” (i.e., false or misleading)?; and second, “do we own it”?

I’ve written a lot about the first theme here over the past few years (e.g., the false and misleading advertising provisions of the Competition Act), but not so much about the second theme.  On the second theme, a small question arose on a recent advertising review for a promotion for one of my clients.  In their draft creative, they were proposing to reproduce images of Canadian currency.

While this is not an issue I deal with frequently, I had recalled giving advice on this in the past.  And, based on essentially querying to myself whether we had rights to reproduce images of the currency, I took a look at the Bank of Canada’s policy on the reproduction of current bank notes.    Not surprising, like many private and public parties that hold copyrights or trade-marks, the Bank of Canada has had (and still does have) rules relating to the reproduction of current bank notes (see: Policy on the Reproduction of Bank Note Images).

The Bank of Canada’s Bank Note Reproduction Policy generally relates to the Criminal Code’s counterfeiting and reproduction of bank note offences (sections 449, 457 and 462) and the Copyright Act.  The Bank’s Policy requires that, generally, permission be obtained from the Bank to reproduce a bank note image in commercial marketing (with a list of information for consent applications and common conditions imposed by the Bank when permission is granted – see: here).

While there is, for example, an exception to the Criminal Code reproduction of bank note offence where certain requirements are met (relating to the size and color of the images, etc.), the Bank takes a broad position with respect to the control of bank note images stating:

“Even in those cases where the reproduction of the bank note image is not an offence under the Criminal Code or the Copyright Act, the Bank is still entitled to enforce its copyright through civil action.”

and:

“To avoid the risk of potential criminal and civil consequences, the Bank’s written permission for the reproduction of bank note images must be obtained before the image is reproduced”.

Some good news for advertisers on this perhaps slightly arcane point (reproduction of current Canadian bank notes): the Bank of Canada does have a written permission process (see above); “generic” or stock photos of money generally can be used rather than copyrighted Bank of Canada imagery (though the same consent/license principles apply before reproducing 3^rd party imagery); and under the Bank’s policy, Bank of Canada permission is generally not required for film or video productions (e.g., television commercials) where some requirements are met.

In any event, I thought this was a good, if slightly obscure, example of one of the two key advertising review questions – i.e., “is it true” and “do we own it”.

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I am a Toronto competition and advertising lawyer offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law.  I also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.

My experience includes advising clients in Toronto, Canada and the US on the application of Canadian competition and regulatory laws and I have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal, pricing and distribution, Investment Canada Act and merger matters. For more information about my competition and advertising law services see: competition law services.

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