All of the following pertains to commercial exploitation of Crown Copyright and Trademark:
The "units" cannot own anything because they exist at the discretion of the Crown. All of their rights and responsibilities are assigned by the Crown, subject to reservation and extinguishment.
If the Crown extinguishes [disbands or pays off] the unit, who has the remaining interest? The IP doesn't dissappear with the unit, thus the full ownership always resides with the Crown and the unit merely uses the IP assigned to it. Take, for example, any copyright or trademark pertaining to HMCS Huron. The ship is now [or soon to be] paid off and is no longer a functional unit. In 6 months or so, anybody wishing to use IP from Huron would need permission of the Crown, probably through DND or PWGSC.
Permission to use crown copyright in military items is obtained all the time. It is as often obtained from PWGSC as it is from DND. Depends on the nature of the IP. Take for example a civvie photograph of a CF 18 with a squadron emblem on it. While the picture may be one of something serialized by PWGSC, the part of the picture which captures the emblem is a substantial reproduction of an artistic work in which Crown/DND copyright exists because the emblem was done at the direction of the government department. The Copyright Act speaks only of the "Crown" or "government department" which authorized the work, not the individual unit. Thus, DND owns the copyright in the emblem. The NDA may say something else, but that is irrelevant in so far as it crosses paths with the Copyright Act or other IP statutes. Those IP statutes always govern when they conflict with other statutes unless 2 conditions precedent exist: the IP staute must create an exemption for the conflicting statute, and the conflicting statute must expressly state that certain provisions of the IP statute are to be excluded from application within the enabling statute. This is very rare, and I see little evidence of this in any IP statutes in Canada, with the exception of MND weapons, munitions and equipment patents.
Many government photographs contain reproductions of individual unit works, such as artistic works [i.e. a cap badge] and trade mark works [i.e. a unit crest]. These are items in which IP exists independently yet is embedded into the photograph.There is absolutely no legal requirement to obtain permission from the unit whose cap badge or emblem appears, even though the photgragh constitutes a reproduction of the works captured in the photogragh or image. Ultimately permission must come from the Crown or its designates. Permission might conceiveably come from the unit on behalf of the Crown, but any unit doing so acts only on the explicit assignment of such a right by the Crown, and even that depends on the specific use of the photograph.
At law, the CO of a unit has no authority to grant to a unit association any IP rights unless that specific right is assigned to the unit which the CO commands- in which case he/she does so on behalf of and under the legal authority of the Crown. To grant such permission to the CO would make the legal management of IP rights subject to the CoC, perhaps even as it devolves tothe subordiante level- if this is going on, it would be improper, and perhaps illegal, IMHO.
Clear as mud?
