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Intellectual Property Law Module Summary
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This summary details all of the relevant information needed on the IP law module. All notes are grade 2:1 and above.
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Intellectual Property LawLecture 1 – Introduction to Intellectual Property Law
Intellectual Property Law
What is IP Law?
Area if law that regulations the creation, use and exploitation of mental or creative labour.
Intellectual property grants a bundle of property rights to the creator or owner of a
creation. The creator and the owner may be classed as different people. For example,
someone may design a logo for a company, however they may not be the owner of this
logo. Similarly, when buying a property, rights such as exclusive possession and rights
attached to the property are given to the person buying that property. As the author of a
book, someone should be entitled to publication, therefore the publisher will have to pay
the author. Also, as the author, they will have the right to decide how the book is going to
be treated, with whom the book will be published with, and technically at what price the
book should be priced out, however the publisher will decide upon this. These creations are
varying and are diverse. Books are copyrighted. The author also has the right to be
recognised as the author and can therefore prevent anyone else from making copies of the
work.
Barbie v Bratz. Case – Mattel sued MGA for $1billion and the exclusive rights for the entire
Bratz brand.
IP law can be very international in its nature. Years ago, IP was something that each
jurisdiction would have to provide for in their own country. For example, a writer in the UK
would only be interested in protecting the author’s work in their own country. However,
with globalisation and international trade, this meant that work that was created in one
jurisdiction was then enjoyed by the whole world, both digitally and physically. Countries
got together, mainly countries in the West, to make sure that they get the appropriate
income and royalties for the work. We now have international treaties to ensure this works
correctly. The countries have to provide minimum level of protection in every country for
every other country, this is set out in each country’s convention. They also have to protect
the work of their own jurisdictions. In order to get some relief, the countries are forced to
tie into these agreements.
Areas of IP law include:
- Copyright and related rights
- Patents
- Trademarks and passing off
- Confidential information / data protection
Copyright Law
Laws that carry ownership in the expression of an original work by its creator: writings,
software, photos, drawings and music. There is no formal process required to get copyright
protection, once a creator’s work is in a tangible form, it is therefore protected. This is the
danger of copyright, because no-one can know that a work is copyrighted as there is no
registration process. It protects the expression of a work and how something is expressed.
Does an idea come under the protection of copyright law? Ideas are not protected under
,copyright; it is the expression of the idea that is protected by copyright. These ideas can be
expressed in very different ways. There has to be a certain number of differences in order to
be allowed as copyrighted material. To be protected under copyright, your work has to be
original. Originality is a main requirement. We basically look for whether what you wrote
has been copied from somewhere else. Another requirement is that it has to be fixed. The
work has to be in tangible form. Generally last for the life of the author + 70years.
‘I have a dream’ speech – Not Martin Luther Kings, but Spielberg’s.
In 2024, the first Mickey Mouse carton Steamboat Willie will pass into the public domain,
along with The Barn Dance. This means that anyone can then make copies of them.
Blurred lines case – copyright suit against Robin Thicke and Pharrell ends in $5million
judgement. Decision was that RT and P copied Marvin Gaye’s song ‘got to give it up’. The
court affirmed that Gaye’s copyright is entitled to broad protection.
This happens often in the music industry.
Related Rights
Related to but fall outside the remit of copyright law: performers rights; database rights and
technological protection measures etc… These rights are recognised because there is
copyright in place. Performers rights include but are not limited to singers, actors and
musical instrument players. E.g. Ed Sheeran singing someone else’s song. His rights as a
performer are only in place because of the rights of the author. The level of protection for
rights for performers is only secondary.
Patents
A patent is a limited monopoly that is granted in return for the disclosure of technical
information. In return, the state, in guise of the Patent Office, issues the applicant with a
patent that gives them the exclusive right to control the way their patented invention is
exploited for a 20-year period. This 20-year period starts from the date of application, not
the date of the grant. It can sometimes take over 2 years to get a patent. To get a patent,
you have to fulfil the required criteria. Patents are similar to social contracts. Paracetamol is
out of patent, meaning that anyone can sell it with a license. This is now in the public
domain. Different countries have different approaches to this. Innovation of Apple products.
Patents would add value to the phone. E.g. Apple having the patent to the touch-id being on
the home buttons of their phones.
Trademarks
A trademark is a distinctive word, phrase, logo, domain name, graphic symbol, slogan or
other device that is used to identify the source of a product and to distinguish a
manufacturer’s or merchant’s products from others. Fonts come under copyright.
Can last forever, as long as you renew them. One of the requirements for registering a
trademark is that it should not be immoral. Some countries could approve a trademark,
whereas others may not if they see it to be immoral.
E.g. Nike logo (black tick).
Different trademarks – company Iceland and the country Iceland. Iceland company got their
trademark in 2014, however lost it again last year as the country Iceland kept challenging
the applications.
Passing Off
,Regardless of whether trade name/trade mark is registered, the trader must have a goodwill
or reputation attached to the goods or services which he or she supplies, the defendant
must have made a misrepresentation, it does not matter if this was intentional or not, and
the trader must have suffered or is likely to suffer damage as a result. This comes under
common law. If your mark is not registered, then you have a better chance of fighting a
passing off action. Moroccan oil v Miracle oil case. The fact that this was sold in Aldi was
one of the reasons why they got away with this.
Confidential Information
Breach of confidence is a developing area of the law, the boundaries of which are not
immutable but may change to reflect changes in society, technology and business practice.
Douglas v Hello! [2001] – Agreement with one magazine to exclusively take photos and
publish them of their wedding. This meant that anyone else was banned from taking photos
at the wedding. One guy released some photos and sold them to Hello! without permission.
Hello! were asked to compensate the other company.
Under common law.
Accordingly, the action for breach of confidence is broad-ranging and has been used in
relation to personal, commercial and technical information, as well as trade secrets, know-
how and the information about the government.
There is no time limit on confidential information, this can last forever.
Trade Secrets / Data Protection
Derivatives of confidential information.
Trade secrets = CI associated with industry, technology and commerce. Where information
contains or compromises personal data, there is an overlap between breach of confidence
and data protection.
GDPR.
Lecture 2 – Justifications for Intellectual Property Law
Intellectual Property Law
The law of copyright protects various “original forms of expression,” including novels,
movies, musical compositions, and computer software programs. Patent law protects
inventions and some kinds of discoveries. Trademark law protects words and symbols that
identify for consumers the goods and services manufactured or supplied by particular
persons or firms. Trade-secret law protects commercially valuable information (soft-drink
formulas, confidential marketing strategies, etc.) that companies attempt to conceal from
their competitors. The “right of publicity” protects celebrities’ interests in their images and
identities.
Why should be justify IP?
- Democratic society
- Legitimacy and status for these rights. If you can’t justify the rights, then why should
you have to follow it?
, - When you are looking at cases, you will need to analyse the reasoning behind some
of the protections granted under the law for certain creations. E.g. why should a
book cover a copyright protection for such period to time.
The Importance of IP
The Hargreaves Report 2011 shoes that £137 Billion has been investment on IP. As so much
has been invested on a particular area of law, you would expect something in return. You
would not spend such money unless you believe that you would get something back.
Information receives this value and protection as a result of IP.
Brinkley Report 2006: 29 (40%) of GDP in the UK is generated by “knowledge intensive
industries, 40% of workers are knowledge workers.”
Levy et al (2011) – value of knowledge-based service exports in 1987 was £13bn but in 2006
it was £90bn. In terms of employment, 52% are in knowledge intensive industries.
OHIM Study 2013 – In this study, IPR is used to refer to the five rights included in the
analysis: patents, trademarks, registered designs, copyright and geographical indication.
Such IPR intensive industries are shown to have generated almost 26% of jobs in the EU
during the period 2008-2010, with almost 21% in trademark-intensive industries, 12% in
design-intensive industries’ and 10% in patent-intensive industries’, and smaller proportions
in copy-right intensive and GI-intensive industries. Over the same period, IPR intensive
industries generated almost 39% of the total economic activity in the EU.
Why should we grant intellectual property rights?
Intangible work, however, property rights are distinct and separate from the property rights
in the tangible good. What about exclusive rights?
IP as Public Goods
IP gives the ability to copy. This is a perceived problem as in order to create the first copy, or
the original, this would require lots of investment.
IP as ‘public goods. If the work is out there, it is out there for everyone to see and use. If
something benefits the public at large, and is freely available, then this becomes a public
good. The two requirements for something to become a public good are:
- Non-rivalrus – if a product is rivalrus, then if its enjoyment by one person this
prevents its enjoyment by others. With IP this is not the case. If you take a book and
read the whole thing, this does not prevent anyone else from reading the book after
you have read it. Because of the nature of the IPs and how this is construed, it is
therefore difficult to exclude someone from accessing your work. For example, if you
write a book but in order to get the maximum out of writing the book, you have to
public the book. However, the minute you publish the book it is available to anyone
and you cannot choose who has this book. Due to the nature of this work, this
further justifies the creation of a specific set of rules.
- Non-excludable
Utilitarianism
Jeremy Bentham 1632 -1704. His principles of morals and legislation are used within
justifications of IP rights.
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