Intellectual Property Law - Essay Example

? PART Advise the Editor of The Sunday Topical of the copyright issues in the book and the photographs. Burchill is a journalist, who has ghost written a biography on the life of a famous actor and pop star, Justin Timbersnake, which heavily relied on a comprehensive personal diary of Justin. Burchill has offered her editor, The Sunday Topical editor serialisation rights, including photos of Justin Timbersnake she had taken while at Justin’s house on the understanding that they were for her personal album. On the other hand, Justin Timbersnake has sold the serialisation rights of the book to The Standard Newspaper, The Sunday Topical fiercest rival. A copyrights issue, with regards to ownership and authorship of a book and photographs arises. Who between Burchill, the book author and Justin Timbersnake, the subject of the book, owns the copyright to the book and the photographs? Does Burchill own the rights to the photos of Justin Timberlake she took in the pretence of her personal use and do such rights allow her to publicly distribute the photos in question? As noted, this is purely a question of copyright law; most importantly, The Copyright, Designs and Patents Act, 1988 and the Copyright and Related Rights Regulations 2003, No. 2498. In particular, this case is about copyright laws because it touches on moral rights and obligations. In this case, the right of privacy for Justin’s photographs Burchill had taken for her personal use, of which she has now agreed to give to the editor of The Sunday Topical. Secondly, there is the issue of copyright infringement and moral infringement; has the editor of The Sunday Topical infringed on Justin Timbersnake’s rights to the contents of Burchill’s book and photos? It is a fact that Burchill is the author of the book biography of Justin Timbersnake and the photographs she took of Justin while at his mansion. It is also clear that, the biography or book that Burchill is writing is based on the Timbersnake’s diary a daily life account that Timbersnake is the sole author. The truth is, Justin Timbersnake allowed Burchill to take his photographs on the conditions that, they are for her private album. Based on these facts, it advisable for The Sun Topical not to publish any photographs offered by Burchill that Justin Timbersnake claims he allowed her to take for her own personal album. Justin Timbersnake should not sue The Sun Topical for serialising the book since they have not in any way infringed on his copyright since Burchill owns the authorship rights. However, Timbersnake can go ahead and sue Burchill for giving his private photos to The Sun Topical for public display. Likewise, as the facts of this case those outlined above are concerned; the relevant law to this case is the Copyright, Designs and Patents Act, 1988, specifically in relation to authorship, ownership, infringements, moral rights and privacy. Based on the facts of the case, it is imperative that the issue of ownership of the book and of the photography needs to be established. It is also beneficial to determine whether, by allowing Burchill access to his personal diary, Justin Timbersnake’s granted or transferred his copyrights of the diary to Burchill. If there was an assignment or transfer of copyright ownership, it will be important to find out whether there is a written documentation signed by or on behalf of the assignor. Another issue that needs determining is the nature of relationship between Burchill and Justine Timbersnake with regards to both the photography and the book; was Burchill employed by Justin when she took the photographs? Or did Justin ask or commission her to write the book on his life? These questions help in determining the first owner of the copyright with regards to both the photographs and the book. In addition to solving the issue of copyright ownership and authorship, it is important that the issue of infringement is looked at. Determining whether liability exists is also important as is the issues of remedies in terms of damages and or criminal penalties in relation to the case at hand. Based on the case facts, it is not clear whether Burchill owns the authorship rights to the book and the photographs, or whether Justin transferred or assigned his ownership rights of his daily diary to Burchill; or whether or not he had employed Burchill as a photographer or an author. Assuming that Burchill owns the authorship and ownership rights to both the photograph and the book, then; The Sunday Topical has nothing to worry about with regards to the book serialisation. The Sunday Topical will have not infringed on the rights of Justin Timbersnake with regards to the book and the photographs. However, The Sunday Topical should be concerned with regards to the book and the photographs supplied to them by Burchill. If Justin sues them for copyright infringement, it can be determined that Justin is the first owner of the copyrights with regards to the photographs and the book. The Sunday Topical can be liable for damages if it can be determined that they have infringed on Justin’s privacy rights by publishing the photos supplied by Burchill. If it can be determined that Justin owns the copyright to the photographs and that there was a written or a binding agreement with regards to the use of the photos, it can be classed as an agreement that barred Burchill from using the photographs publicly. Copyright is a branch of English Law that is concerned with the rights of intellectual creators, particularly with certain specific forms of creativity that are primarily concerned with mass communication , it is not only concerned with printed publications but matters such as television and sound broadcasting. (Bently et al. 2010). It is important to note that, copyright is concerned with intellectual creators in their creations. This law, Copyright law, protects the form of expression of an idea, such as the arrangement and choice of musical notes, shapes, words, colors and so on, not the idea. It is basically, a protection of the rights owner against those who take and use works in their original forms as expressed by the author in other words, copying (Vousden, 2010). It is worth noting that copying here does not imply copying in whole, but copying even a very small portion, as was in the case of Hawkes & Sons (London) Ltd v Paramount Film Service Ltd. For any form of creative work to enjoy copyright protection, it must be original. The word original, does not mean that a work has to be of an inventive nature, however, the required originality must be related to the expression of thought and is not copied as was ruled in the case of University of London Press v London Tutorial Press (1911) and later emphasised by Lord Pearce in the Ladbroke v William Hill (1964) case. According to copyright law, the owner of a copyright in a protected work is allowed to use the work as he/she feels fit, but has to put into consideration, legally recognised interests and rights of others. A copyright owner is also entitled to exclude others from using the protected works without his/her authorisation. This is in accordance with the provisions under the Copyright, Designs and Patents Act 1988 s 16(1) that gives copyright owners the right to create copies of their work, issue or distribute copies of their work to the public, lend or rend their work to the public, play, show or perform to the public, and communicate their work to the public. In the event that the acts restricted by the copyright are carried by a person without the permission or authorisation direct or implied of the copyright owner, such an act constitutes an infringement of the copyright subsisting such works. When it comes to photographs, the Copyright, Designs and Patents Act 1988 s 4(1), states that the first owner of the copyright for a photograph is the photographer, unless he/she was commissioned to take the photograph or was employed and was taking the photograph on behalf on behalf of his/her employer. Therefore, the photographer deemed as the owner of the copyright to the photograph has been granted exclusive rights by the one being photographed to create copies of their work, issue or distribute copies of their work to the public, lend or rent their work to the public, play, show or perform to the public, and communicate their work to the public as long as he/she puts into consideration, legally recognised interests and rights of others. In the event that the owner is commissioned to take photographs or take photographs on behalf of an employer, the copyright to those photographs are owned by the employer or the person who commissioned the taking of the photographs. In such a case, the photographer has no right to distribute publicly or create copies of such photographs without authorisation by the copyright owner as was illustrated in the case, Mail Newspapers pic v Express Newspapers. Based on what the law says and previous case rulings, in this case, it is legally right to say that, if Burchill was not commissioned by Justin Timbersnake to take the photos or write the book, then he owns the copyright to the book and the photographs. Therefore, by giving The Sunday Topical serialisation rights, in the eyes of the law, s 90 (3), it can be argued that Burchill transferred his ownership of copyright to both works to The Sunday Topical. As a result, The Sunday Topical has not in any way infringed on Justin Timbersnake’s copyright. However, still under s 90 (3) of the Copyright, Designs and Patents Act 1988, this presumed transfer of copyright ownership may be deemed void if there is no written assignment to that effect. The editor of the Sunday Topical can seek a court injunction to bar Justin Timbersnake and the Standard Newspaper from either serializing the book or publishing any photographs of Justin supplied by Burchill. In effect, this could also stop Justin from taking or seeking any damages or criminal charges against the Sunday Topical. In the event that Burchill was commissioned by Justin Timbersnake to take the photographs and write the book, then, according to the Copyright, Designs and Patents Act 1988 s 11(2), Justin Timbersnake owns the copyright to both the works. In this case, on the basis of s 85, the right to privacy of Justin Timbersnake with regards to the photographs is guaranteed or protected. Therefore, Justin Timbersnake can sue Sunday Topical for infringement of his copyright and for violating his privacy with regards to the photographs as was in the case of William’s v Settle. Additionally, Timbersnake may consider seeking a court injunction so as to prevent the publication of the photographs taken by Burchill as was in the case of Mail Newspapers pic v Express Newspapers. PART 2: Justifications for the legal protection of patents in the U.K. A patent gives the patent holder the right of excluding others from using, making, offering to sell, importing or selling a novel patented invention or idea. According to Section 1(1) of the Patent Act 1977, a patent is only granted for an invention if it is new, involves an inventive step, can be applied in industrial situations, and/or is not excluded by subsection 3, 2 or section 4(A) of the same act. A patent, however, does not provide the holder the right to practice a given technology since it may, under certain circumstances fall under a broader patent that others own. It, instead, provides to exclude others from using, making, offering to sell, importing or selling the patented invention without authorisation of the patent owner. Regarding the question, this discussion aims at explaining the reasons for the legal protection of patents. This question is in some way ambiguous, specifically, the phrase, “…legal protection of patents,” because, patents in itself is a legal protection for novel inventions that involves an inventive step, can be applied in industrial situations, and/or is not excluded by subsection 3, 2 or section 4(A) of the same act. Therefore, the question would have been better phrased as the “justification of patents or legal protection of novel inventions that satisfy Section 1(1) (2) (3) and Section 4(A) of the Patents Act 1977, in the UK Patent Act 1977. In dealing with this ambiguity, this paper will address the reasons for patents, its provisions in law and examine previous case laws with the view of identifying its success with regards its stipulated role of excluding others from using, making, offering to sell, importing or selling a novel patented invention or idea without the authorisation of the patent holder. The impacts of the issue of a patent are that, the patented invention cannot be exploited in the country in which the patent was issued, by any other person other than the patent owner, unless the patent owner issues authorisation or permission for such exploitation. However, the owner of the patent is not given a statutory right to practice or exploit his invention, although is given a statutory right of excluding others from practicing his invention. This implies that the patent owner has a very important right, according to the Patents Act 1977 of taking action against persons exploiting their patented invention in the country in which it was issued without their permission. This gives them the right to derive material benefit for their intellectual work or effort and compensation for expenses incurred in experimentation and or research leading to the invention (Machlup & E.Penrose 1990). It should be noted that, despite the fact that the U.K grants patent rights to inventors, it is not obligated to enforce them and as a result, it is up to the patent owner to enforce the rights and bring actions under civil law of infringement on his/her patent rights. Additionally, patents are issued for only a limited period of time. The question, therefore, is, are patents necessary? Since the inception of patent rights, there are various justifications for and against the patent systems. Those in support of the patent system have emphasised the natural rights of inventors for the intellectual properties resulting from their mental labour. On the other hand, antagonist of the patent system have argued that inventors should be granted rewards as a way of recognising their inventions rather than granting them rights that exclude others from exploiting certain inventions. Most commonly, a theory put forward is in relation with the public benefits that accrue from the grant of patent monopoly. Since the 19th century, these theories have dominated discussion with regards to the necessity of patents (Palmer,1990). Particularly, it is argued that, patents act as motivations to organisations and individuals to disclose information, which are collected and constitute a database of technical information that could have otherwise remained secret, as was reaffirmed in the UK Patent Act 1977 (Machlup & E.Penrose 1990). According to Kitch, the grant of patents could be emphasised in a way that the grantee is motivated to invest in the prospect of exploiting his/her invention (Kitch 2007). Additionally, the patent system encourages new inventions and implementation of such inventions. The patent system is based on a theory that the opportunity that accrue from the acquisition of exclusive rights to an invention, triggers technical progress in four different ways, including; it acts as an incentive for research and invention; induces the disclosure by inventors of their discoveries instead of keeping them as trade secrets; offers inventors a reward for the expenses accrued in developing invention to the point that they are commercially practical, and it acts as an incentive for inventors to invest capital in new production lines that would not appear profitable in the event that many competing manufacturers work on them simultaneously. Those opposed to the exclusive rights provided through patents include free traders, economists, social states, and developing countries. They argue that, patents give absolute monopoly over the manufacture, sale and use of an invention, despite it being limited to 20 years. (cite) As a result, clear conflict exists between the interests of the manufacturer, patent holder and that of the consumers. Monopolistic behavior by certain patent holders results in lack of competition, which in turn resulting in greater rewards for the manufacturer and very high prices for consumer, as was the case of Improver Corp v Remington Consumer Products, 1990 (Colston, 1999). Additionally, there are instances in which patent holders may opt to suppress the developments of their inventions so as to capitalise on them while ignoring the fact that their inventions may, if developed, benefit the public. Sometimes, patenting in itself is considered retrogressive; this is because there are certain special circumstances in which patent owners themselves may fail to use their own invention simply because, they might be infringing on other people’s patent rights. Consider a case in which an inventor Charles obtains patent protection for a device that is made of X and Y component; later, inventor Tom improves on Charles’s invention by adding component Z, and goes ahead to obtain patent protection for his invention including components X, Y, and Z. In so doing, Tom prevents everyone from using a device with components X, Y, and Z. he can also not use that invention as well, since, he will be infringing on the Charles’ patent (Desrochers, 2000). Additionally, those in opposition of patent protection argue that, many inventions are, in recent times, patent purely for reasons of defense, which in the end result in patent office and patent lawyers’ fees. They argue that these overhead fees are unnecessary and as such, in their absence, companies, corporations and individuals, would not spend large amounts of money defending against of obtaining patents (Desrochers, 2000). On the basis of the law, a patent can only be given for inventions that are novel and are applicable in an industrial situation. It is justifiable since it acts as a reward for effort made in research and experimentation (Colston, 1999). According to Raymond, (1996) the patent system plays a very important role as far as the UK economy is concerned. The patent system so far has led to the production of better, good and protection of consumers. The advantages allow for competition which offers consumers a variety of choices, better employment and better living standards. However, the disadvantages are that there are dangers of monopoly that may be associated with patenting, as argued by those opposed to patent protection, including higher price margins, lack of direct competition and temporary ban of a use of information that is available. This can result in concentration if cross licensing is practiced, but with a competition policy and compulsory licensing. In conclusion, the justifications for patenting outweigh those against therefore with the research and evidence above; legal protection of patents in the U.K can be justified. Bibliography Anon, Copyright, Designs and Patents Act 1988, http://www.legislation.gov.uk/ukpga/1988/48/contents. Anon, The Patents Act 1977, http://www.ipo.gov.uk/. Bently, L., Davis, J. & Ginsburg, J.C., 2010. Copyright and Piracy: An Interdisciplinary Critique L. Bently, J. Davis, & J. C. Ginsburg, eds., Cambridge: Cambridge University Press, pp.322-365. Colston, C., 1999. Principles of Intellectual Property Law, London: Cavendish Publishing Limited, pp.20-27 Desrochers, P., 2000. Excludability, Creativity and the Case against the Patent System. Institute of Economic Affairs, (September), pp.14–16. Kitch, E., 2007. An economic review of the patent system. Journal of Law & Economics, 200, p.265. Machlup, F. & E.Penrose, 1990. The Patent Controversy. Journal of Economic History, 10(1), pp.11–17. Palmer, T.G., 1990. Are Patents and Copyrights Morally Justified?? The Philosophy of Property Rights and Ideal Objects. Harvard Journal of Law & Public Policy, 13, pp.817–865. Raymond, C., 1996. The Economic Importance of Patents, London: IPI, pp.22-34 Vousden, S., 2010. Infopaq and the Europeanisation of Copyright Law. THE WIPO JOURNAL, 2(1), pp.197–211. Read More