Intellectual Property Literature

Question: Critically discuss in light of the relevant literature, UK, CJEU and optionally also under US case law. Answer: Intellectual property is a legal word given to a work, which is created by use of intellect of a person and the right of monopoly given to the creator of such works as the exclusive right to use and disturb it (Cornish Llewelyn and Aplin 2013). There Intellectual property is the knowledge of the creator along with the product of its creation. For example, all the famous and popular paintings like Mona Lisa are the exclusive right of its creator. However, the right, which the law of the State gives the creator for his intellect work is termed as Intellectual Property Rights (IPR). There are different types of Intellectual Property Rights recognised by the United Kingdom (Bently and Sherman 2014). Some commonly known intellectual property rights are patents, copyright, trademarks and industrial trade secrets. The Intellectual property right is a new legal concept, developed a lot later than some very popular and traditional laws such as contract law and land laws. It was developed in t he late 19th century particularly in Europe for the first time. The main objective of this legal to be enforced was to encourage and protect innovation from the citizens of the State in every form. In United Kingdom, the Copyright Design and Patent Act, 1988 governs the laws related to intellectual property rights (Colston et al. 2010). One form of Intellectual Property Right is the copyright. Copyright is the right of a person to exercise complete monopoly on the work he has created out of his intellect. The work of the copyrighter is warranted automatically as soon as it leaves the mind of the creator and takes the form of expression in any form (Fawcett and Torremans 2011). Thus, copyright is created immediately on creation of some original work. There is no requirement to get the original work registered in the United Kingdom. In the United Kingdom, copyright regulations are governed under the Copyright, Design and Patent Act of 1998 (Horspool and Humphreys 2012). Thus, copyright covers literary works like books, novel, musical work, films, radio, internet and videos (Torremans 2013). It is a copyrighters exclusive right to prevent any third person from causing harm to his original work by doing the following events without the creators permission: copying his work Publishing the copies of this work for selling or distribution to public in large Performance of any sort of drama or creating any music, which required the recordings of the original work Make a movie or adaption of his original work in any form Copyright exists even after the death of its creator. In United Kingdom, copyright of any original work by a person lasts for 70 years after his death. In case of computer-based innovation and audio or video recording the said time limit for existence of copyright is 50 years after the death of the creator (Beebe 2010). Copyright law is violated when any person, without the permission of the creator uses his original work, which is protected under the copyright law of the State (Cornish, Llewelyn and Aplin 2013). With the growth of technology, and entry into the digital era, many software developers require copyright protection. Copying of any commercial developed software is entirely unauthorised under the Copyright laws (Feigl and Anger 2012). This applies irrespective of the fact that copy of original work is purchased in the form of CD, DVD or downloaded from the internet. However, if any software is used for any commercial or educationally purposes, appropriate permission in the form of license needs to be taken from the creator. The State has introduced a website called FAST in which one can report any infringement or threat of potential infringement of copyright (Troelstra and Van Dalen 2014). The new digital era has made technology so advanced that its almost impossible to work in any field today without the use of a computer and the various softwares in it. The use of computers has not only made working faster but also more efficient in every form of work. From storing data to making a worksheet, everything requires the need of the computer. Thus, the Copyright, Design and Patent Act, which was formed in 1988, becomes a little outdated to govern the new and advanced means for data or software protection. It is therefore important to note some reasons why United Kingdom needs a new copyright act or amendments in the previous one (Nielson Nielson and Hankin 2015). The first reason for the need of an updated copyright Act in the United Kingdom is that a long has passed since a Copyright Act was enacted, which is almost more than 25 years from now. After entering the digital age, the advancement in technologies and computerized mode of performing routine activities has changed drastically from the time the Act was passed in 1988. Today there is online shopping, smart phones, tablets and social media which are not regulated as they were non-existent at the time of the Act. (Kawashima 2010). The second reason is to encourage innovation, which can lead to economic growth. The young firms in the country that can introduce innovation, which will in return be a reason for economic growth; but as these young firms are under rapid increased use of Intellectual Property rights, it increases their Intellectual Property transactions liabilities which in return blocks these firms from growth and innovation ( Cason and Mllensiefen 2012). The Intellectual Property law in United Kingdom is so strict that its limits people from copying music even in routine life. For example, music from CDs is restricted from copying to ITunes. This has made the copyright laws in the United Kingdom become a barrier in creating innovations in any fields like arts, business and literary In order to formulate complete growth in all sectors in the United Kingdom, there is a need for a forum where digital information is readily available and can be sold and brought easily sitting at home with mere exchange of licenses. A system needs to be created which can make transaction better the copyright holder, small or big in operations to easily sell his work and for potential buyers to easily be able to buy such work (Sobin, Gospodarowicz, and Wittekind 2011). Right from the time the Copyright, Design and Patents Act, 1988 was enforced it is nearly amended 80 types till date (Zandvoord 2013).Some of its amendments are to feature the EU copyright principles and others are made to implement changes in the domestic inconvenience the copyright law was causing. Even after all these amendments, till today the copyright Act does not fit to meet the needs of todays digital age. The amendments have only made the Act more confusing and lengthy in nature (Kreger 2013). Another amendment, which is certainly needed in the United Kingdom for updating its copyright law, is regarding the permission to use the same for private purposes without infringement of the copyright. Certain works from creators of copyright cannot be used or are locked from the public at large as the owner of the same is unknown to claim his copyright. Therefore, such work is restricted for any type of use (Bently and Sherman 2014). The concept of fair use which is popular in United States of America needs implementation in the United Kingdom (Ellig 2014). Fair use means free usage, which makes this rule an exception to the right of the copyright owner monopoly in using his creation. Under fair use rule, a copyright, which is made open to the public, can be used provided the use is allowed under the fair use blanket, the material is justified in use and no more than needed is used in any form. Thesource, which means the author, is mentioned in the text in which the copyright mater ial is used. In Wright v Warner Books, Inc the defendant had published some content from the books of a deceased author his wife sued the defendant stating that the copyright of her deceased husbands work is infringement. The judgement of the case was in favour of defendant as only one 1% of the work from the deceased authors copyrighted work was used in the book and it was purely for informational purpose (Pallante 2012). In Folsom v Marsh 9 F. Case 342 (C.C.D. Mass. 1841) the defendant had copied 353 pages from a book that had exclusive copyright of its publishers. Thus, he was sued for infringing that copyright. The Court concluded in favour of the publishers stating that an extract, which the defendant printed, could decrease the sale of the original work and therefore does not fall under the fair use blanket (Samuelson 2012). Thus every case decided under the fair rule blanket needs to be decided on case-to-case basis with keeping certain underlying principles in mind like purpose and use of concerned copyright and economic loss to the copyright holder due to use of the copyright content. Infopaq Int v Danske Dagblades Forening is a Danish case on copyright; decided by the Court of Justice of European Union where the summaries of newsletter were automatically published. The issue of the case was that copyright material automatically re-produced during business operations was infringement of copyright (DeBriyn, J., 2012). The Court of Justice of European Union Decide that businesses should look at their operations carefully to avoid infringement of copyright. The fair rule under the copyright law states that any copyright can be used without license or permission if it is for private purposes like research and education (Kingston 2001). A normal citizen in the United Kingdom regularly breaches Intellectual Property law by merely transferring music from CDs to iPods or vis verse. Another disadvantage of this is that it creates the citizens to take the law in hand as avery casual and routine thing. The copyright law being very out-dated in the modern era, breaching the same is obvious. This can make a citizen feel very casual about breaking a law and still not being punished. The copyright law in the United Kingdom has a number of defects, as it is outdated to meet the current needs of digital era. As the Government wants to introduce certain reforms in order to upgrade the Copyright, Design and Patent Act, 1998 so that the Act meets the needs of current digital age, some important recommendations need to be listed (Rosenbaum 2011). The first recommendation that the United Kingdom needs to incorporate is in relation to evidence. The new updated system, which requires implementation, in the United Kingdom, should balance innovation, economic object of growth with social benefits of the copyright holder and the customer. This will help in extending the copyrights law or in setting appropriate limits for the same (Nimmer, D., 2013). The second recommendation is licensing of copyright. In the Bridgeport Music, Inc v Dimension Films 410 F. 3d 792 (2005) ;the plaintiff jointly owned the copyright of a song which, was partially used in a rap song in a movie by the defendant. The defendant obtained license to use the same from just one plaintiff thus the plaintiff sued the defendant. The trial court agreed that the song was used without permission. However, on appeal, the order stood reserved and Court stated that defendant had the right to underlying composition of the song but not the sound recording. It is very necessary to boost the United Kingdoms global digital transaction and not just national. Therefore, the United Kingdom should introduce a digital copyright exchange forum, which will encourage copyright owners by giving them certain benefits to allow their work to be used through licensing. It is important to support the European Nations and regulation to develop a cross border digital licensing system where copyrighters from over the globe can contribute their work by licensing it and everyone is open for purchasing such license for legitimate needs (Vanhanen, T., 2013). The third way the United Kingdom can upgrade its copyright law to meet present advanced age is by enabling license to orphan work. Orphan work means when a person creates a work from his intellect and is unknown to the world when his work is open to the public. Such works where the authors are unknown need to be open to the world without the fear of infringement right of copyrighter. All such works should be collected together and then licensed to be used by anyone ready to buy a license for the same. The forth way to update copyright law in the United Kingdom is to limit the process that sets too much regulation on the copyright law. The basic aim of introducing the copyright law was to protect the original work of the creator. Therefore, regulations under the Copyright, Design and Patent Act, 1988 do not restrict or disturb the objective of the copyright law to be relaxed. The government should implement the concept of fair use, which is a very popular legal concept under the copyright laws in United States of America. Fair rule means free usage, which is an exception to the exclusive copyright by the copyright holder of his work. The fair use allows using copyright material without the permission of the copyright holder for various reasons like non-commercial research and educational research. The fair use needs to be used without violating the right of monopoly in ones work of the copyright holder ( Zandvoord, 2013) In Suntrust Bank v Houghton Mifflin Co, the plaintiff was the writer and copyright holder of a very famous book called Gone with the Wind. The defendant was about to publish a book called The Wind Done Gone in which she had used the pattern and character from the book Gone with the Winds Thus, the plaintiff from stopping the distribution of defendants book pleaded an injunction. However, the Court rejecting the same stated that publication and creation of parody, which is carefully written, falls under the blanket of fair use in the copyright law in the United States of America. Thus, the Court allowed the publication and distribution of authors book (Brabec et al. 2013). It is important for the United Kingdom to make its copyright law liberal just like it is in United States of America to encourage innovation and better economic growth. With liberal policies, individuals will be in a better position to research and develop new and updated versions of the old copyrighted material. Moreover, the copyright law of the European Nations which was enacted for the reason that they be implemented in each State in Europe along with the case laws on copyright passed by the Court of Justice of the European Union; needs to be kept in mind while updating the Copyright, Design and the Patent Act, 1988 (Kawashima, N., 2010). Therefore to conclude the whole issue of outdated copyright laws in the United Kingdom is the duty and responsibility of the United Kingdoms Government to conduct intensive research in finding the loopholes of the Act that are preventing the same from meeting the needs of present modern technologically advanced digital era. The implementation of the reforms can possibly enforce it to encourage the basic aim of creating copyright laws in the nation. For growth of the nation, in general the copyright laws should be friendly when used for legitimate purposes like in educational and scientific researches. With help of this, the chances of innovation and development will be possible in the country, which will increase its economic prosperity and also encourage individuals in innovating newer and faster ways to life and work more efficiently and comfortably (Torremans 2013). With the copyrights laws being liberal in nature, the basic aim of creating copyright law, which was encouraging inn ovation, and then protecting it, will be achieved in the United Kingdom. Reference List Beebe, B., 2010. Intellectual property law and the sumptuary code.Harvard Law Review, pp.810-889. Bently, L. and Sherman, B., 2014.Intellectual property law. Oxford University Press. Bently, L. and Sherman, B., 2014.Intellectual property law. Oxford University Press. Brabec, C.J., Dyakonov, V., Parisi, J. and Sariciftci, N.S. eds., 2013.Organic photovoltaics: concepts and realization(Vol. 60). Springer Science Business Media..Organic photovoltaics: concepts and realization(Vol. 60). Springer Science Business Media. Cason, R.J. and Mllensiefen, D., 2012. Singing from the same sheet: computational melodic similarity measurement and copyright law.International Review of Law, Computers Technology,26(1), pp.25-36. Colston, C., Galloway, J., Mac Sithigh, D., Andrew Griffiths, O. and McMahon, A., 2010.Modern Intellectual Property Law 3/e. Routledge. Cornish, W., Llewelyn, G.I.D. and Aplin, T., 2013. Intellectual property: patents, copyright, trade marks allied rights. Cornish, W., Llewelyn, G.I.D. and Aplin, T., 2013. Intellectual property: patents, copyright, trade marks allied rights. DeBriyn, J., 2012. Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages.UCLA Entertainment Law Review,19(1). Ellig, B., 2014.The Complete Guide to Executive Compensation 3/E. McGraw Hill Professional. Fawcett, J.J. and Torremans, P., 2011.Intellectual property and private international law. Oxford University Press. Feigl, F. and Anger, V., 2012.Spot tests in inorganic analysis. Elsevier. Horspool, M. and Humphreys, M., 2012.European Union Law. Oxford University Press. Kawashima, N., 2010. The rise of user creativityWeb 2.0 and a new challenge for copyright law and cultural policy.International journal of cultural policy,16(3), pp.337-353. Kingston, W., 2001. Innovation needs patents reform.Research Policy,30(3), pp.403-423. Kreger-van Rij, N.J.W. ed., 2013.The yeasts: a taxonomic study. Elsevier. Nielson, F., Nielson, H.R. and Hankin, C., 2015.Principles of program analysis. Springer. Nimmer, D., 2013.Nimmer on copyright. LexisNexis. Pallante, M.A., 2012. Next Great Copyright Act, The.Colum. JL Arts,36, p.315. Rosenbaum, S., 2011. The Patient Protection and Affordable Care Act: implications for public health policy and practice.Public Health Reports,126(1), p.130. Samuelson, P., 2012. Is Copyright Reform Possible. Sobin, L.H., Gospodarowicz, M.K. and Wittekind, C. eds., 2011.TNM classification of malignant tumours. John Wiley Sons. Torremans, P., 2013.Holyoak and Torremans intellectual property law. Oxford University Press. Troelstra, A.S. and Van Dalen, D., 2014.Constructivism in mathematics(Vol. 2). Elsevier. Vanhanen, T., 2013.Strategies of democratization. Taylor Francis. Zandvoord, R.W., 2013. A handbook of English grammar.