Intellectual Property Analysis - Essay Example

Intellectual Property work Assignment Part Copyright law provides a monopoly for and creators, in order to protect their creative works and reward them for their efforts." Introduction: The origin of copyright legislation in the UK can be traced back to the sixteenth century. The principal aims for which the copyright legislation had been enacted include encouraging education and learning. Besides this purpose the copyright legislation also aimed to reward the authors for their efforts by providing them a monopoly right on their works for printing them for a definite period of time. The legislation also encourages collective knowledge by allowing the work to revert back to the public to be available freely as a public source after the defined period of time. It is quite possible that new knowledge could be developed over the existing knowledge which was made public. Thus the objective of the copyright law was essentially to provide a monopoly for authors and creators in order to protect their creative works and reward them for their efforts. However to examine, whether the existing copyright legislation in the UK provides for a full enjoyment of this monopoly right by the authors and creators in the present day circumstances is the object of this paper. What is Copyright Copyright law is concerned with the protection of the expression of ideas of individuals which take the form of creative works. However the copyright law does not offer any protection to the original ideas themselves. The following scope of 'copyright' as outlined by the UK Patent Office (2001) will eliminate the confusion on the coverage of the copyright law: "Copyright gives the creators of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts, economic rights enabling them to control use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line. Copyright also gives moral rights to be identified as the creator of certain kinds of material, and to object to distortion or mutilation of it. The purpose of copyright is to allow creators to gain economic rewards for their efforts and so encourage future creativity and the development of new material, which benefits us all" (UK Patent Office 2001) Copyright Law in the UK: As already observed the copyright does not subsist in an idea but subsists in the particular form of representation of the idea. The peculiarity of the copyright law is that the copyright arises without cost or registration at the moment the representation of the idea is completed by its author. With a view to obviate the difficulties in protecting the monopoly rights of authors and creators in the form of a unique protection right, the Copyright Designs and Patents Act 1988 were enacted. "Under UK law the representations of creativity in which Copyright subsists are: original literary, dramatic, musical and artistic works; sound recordings, films, broadcasts, and cable programmes" Difficulties in Claiming Protection under Copyright Law in the UK: The word 'copy' in the term 'copyright' does not imply the copying of the whole work but to constitute an infringement it is enough a substantial portion of the of the material in which the copyright subsists is taken for the use of others. Therefore the first difficulty arises in deciding whether infringement is to be counted on the basis of quantity or quality. Though being debatable the courts may take the older view that the matter needs to be judged on the basis of quality rather than quantity. But still the onus of proving the infringement lies on the author or creator to claim the legal protection. In some cases it may be difficult to determine whether a particular creation can be regarded as a 'work of artistic craftsmanship'. The classic example in this case lies in the case of Henshaw -v- Restawhile where a new sofa with a frame covered by appropriate materials was designed by a team of craftsmen. In order to decide whether such team work is a 'work of artistic craftsmanship' the case has to undergo the legal process in the High court, Court of Appeal and the House of Lords, before it was finally decided. "Another difficulty with Copyright law is that it is necessary to prove that copying must have taken place at each stage from initial creation of the original work up to production of the competing product." (E.Eder & Co) The relevant case law here is Gleeson v Denne where the original design of a particular garment was copied by a competitor and given to his pattern cutter to make fresh patterns to make a competing product of the original garment. It was held that "under copyright law each stage of this procedure must be deemed to involve a copying step, if Copyright in the original drawing is to be deemed infringed" (E.Eder & Co) In order to deal with the circumstances like these and provide a meaningful protection to the authors and creators the Copyright Designs and Patents Act 1988 was enacted and subsequent amendments and additions were made to the legislation. Rationale behind the Copyright Law in the UK: The rationale behind the copyright legislation may be found in the provision of exclusive 'economic rights' and 'moral rights' to the copyright owners. It is important to note that both these rights coexist. Under economic rights the "Copyright owners have the right to charge for (through licensing or contractual permission) or to prohibit the conduct of certain activities". However the right to charge is subject to certain exemptions. These activities include: Copying the work Issuing the work to the public - ie disseminating copies to other people Making adaptation of a work Renting or lending copies of the work to the public Performing, playing or otherwise displaying the work in public Broadcasting a work or using other electronic means to communicate a work to public Thus it may be observed that these acts cover most of the grounds of infringement of a copyright and the legislation was brought in to vogue to specifically protect the monopoly rights of the authors and creators and also to reward them for their efforts in the creation of such work. The protection of the monopoly rights is further extended by providing the exclusive moral rights to the copyright owners. The moral rights though can not be represented in monetary terms they protect the rights of the copyright owner to their creations. It may be noted that the moral rights cannot be transferred and cannot be regarded as a subject matter of any commerce. However the author or the creator has the right to waive such right and the moral rights last as long as the copyright for the work exists. The moral rights may take the form of 'right of paternity' and 'right of integrity'. For exercising this right also known as 'right of attribution' the author or artiste must assert his or her wish to be identified and the assertion must be signed by the author. Right of integrity provides the opportunity for the author to object to any derogatory treatment of the copyrighted work. The provision of the moral rights under the copyright legislation is also to ensure that the authors and creators get their legal entitlement of ownership for their creations. Infringement of Copyrights: "Copyright infringement occurs when one of the restricted acts takes place in relation to a substantial part of the copyright work without the prior authorisation of the copyright owner." As observed earlier the difficult part is to ascertain what does the term 'substantial' signify. Usually the term depends on what is appropriated in terms of the quality of the work rather than the quantity of it. There are no quantitative rules to decide the infringement. In some cases even appropriating a small portion of the work for use by others may amount to infringement. While in some other cases even a larger portion of the work if lifted may not come under the purview of infringement. It largely depends on the nature of the work involved and is in question. Similarly infringement may occur in different forms. The essence of the copyright law is to provide a complete protection to the original copyright owner an absolute monopoly right. Conclusion: Thus the copyright law in the UK has gained significance as it tries to offer the protection required by the authors and creators the monopoly right they need and also to provide the reward for their efforts. Though there are contrasting opinions about the public interest in the various original works of art and literature as to anti-monopolistic views, still the legislative measures provide a wide spectrum of rights which can be used by the authors and creators to claim the reward and recognition that is legally due to them under the copyright law of the UK. To sum up "Copyright gives the creators of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts, economic rights enabling them to control use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line. Copyright also gives moral rights to be identified as the creator of certain kinds of material, and to object to distortion or mutilation of it. The purpose of copyright is to allow creators to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all. Copyright material is usually the result of creative skill and/or significant labour and/or investment, and without protection, it would often be very easy for others to exploit material without paying the creator." (UK Copyright Laws) Part 2 The Laws that make up patent legislation in the UK are very complex. "The patent legislation consists of Acts, Rules and Directions that set out legal rights, duties and procedures for patents." (Intellectual Property Office) Registration of a Patent: According to the Intellectual Property Office, "A patent protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission." (Intellectual Property Office) In order to claim registration the invention must: "be new have an inventive step that is not obvious to someone with knowledge and experience in the subject be capable of being made or used in some kind of industry not be: a scientific or mathematical discovery, theory or method, a literary, dramatic, musical or artistic work a way of performing a mental act, playing a game or doing business the presentation of information, or some computer programs an animal or plant variety a method of medical treatment or diagnosis against public policy or morality". (Intellectual Property Office) If the invention meets with the above requirements, one may consider applying for a patent. If a patent has been granted on the basis of such application it must be renewed every year after the 5th year for up to 20 years protection. Protection under Intellectual Property Law: Intellectual property Law allows the protection of the rights on any Intellectual property to own and profit from such right. If something is crated new the inventor can use the Intellectual property protection to stop others from copying it. Under the law one can protect how an invention works or what further processes are being carried out with the patent. If the invention represents a new product or process, it can be protected by filing for a patent. The protection granted under the law gives an exclusive right to the owner and it also gives the right to legally proceed against any one else who is using the patent without the owner's permission. In order to get the protection the invention must satisfy the following conditions: The invention must be: new, not known anywhere in the world prior to filing have an inventive step, not obvious or a simple adaptation or combination of existing products be capable of industrial application, having a technical effect If the invention meets these requirements, then one may be able to apply for the protection of such a patent. If there is no application for the protection of any invention," it will allow anyone to use it without permission. One may be able to protect the invention by keeping it a secret; but this will only be possible if it would be difficult to copy the process, construction or formulation from your product itself." (Intellectual Property Office) The purpose of the provision of the intellectual property law as stated above is to protect ideas and the resulting physical manifestations of such ideas leading to invention of new products and processes. "The most important intellectual property rights for pharma products are patents that are monopoly rights over inventions relating to products and processes, and trade marks, in essence the protection of a brand." (Nick Burrows) Under the UK patent system it is quite possible to get the patent registered for any product or process. The only requirement for the registration of a patent "is novelty, an inventive step and an industrial application". Especially, in cases like the present one where the locally grown root forms the basis of a new invention of a medicine, it is difficult to precisely determine who thought of the idea first. Hence the registration of patents in the UK follows a system of providing the registration to the person who files the application first for such registration. Since the invention by Eric of a medicine based on the preparations of a locally grown root in Thailand where it is difficult to precisely identify the inventor of the idea of such preparation, the patent is registerable in UK when Euro-pharm is the first company to apply for the registration of such a patent. In the case of the invention of the medicine for avian flu by Eric his invention satisfies all the conditions prescribed by the IP law for applying for registration of the patent. The idea is hew and can be pursued as an industrial application and can also be considered as an invention. The resultant medicine does not involve any medical treatment or diagnosis against public policy or morality. It is neither an animal nor a plant variety. However, "there are a wide variety of disputes which can arise regarding patents. Ownership disputes regarding who is entitled to apply for a patent, who should be entered on the record of inventors, and joint application disputes are common. Disagreements regarding the terms of licences or requests for a compulsory licence are also typical." (Nick Burrows) In the case of Amgen vs Hoechst Marion Roussel the House of Lords held "that a claim could cover products or processes involving technology that did not exist at the time of the original patent registration". The decision in this case requires the determination of what the invention is and once this question is established it is easier to determine how the invention works and whether there is any infringement of a patent. In the instant case Eric invented the medicine with some pharmaceutical combinations and a locally grown root in Thailand. The root was basically used as a delicacy and not for any medical preparations. Hence the invention by Eric is tangible without the reliance thereof on any other existing patents or preparations. The decision by House of Lords goes to prove that Euro-pharm can claim the registration for the patent. The claim of Emie that "the invention is unregistrable because the villagers in Thailand have been eating the local delicacy for years, and it is part of an accepted local custom to help fight off the flu" is not legally tenable in the UK context as the UK law for registration of patents is quite clear in stating that the product and process should be "a novelty, an inventive step and an industrial application". Moreover registration will be granted to any person who applies for it for the first time. Eric's invention satisfies both the requirement for registration. Moreover the delicacy from the root has not been registered as a patent for the preparation of medicine for flu in Thailand. It is only a local custom that the people follow taking the delicacy as a medicine for flu. This custom does not in any way deter the registration claim of Euro pharm. The situation would be different if a patent is already registered in Thailand claiming the cure of flu using the delicacy made from the root. Word Count: 2797 References: E.Eder & Co 'Copyright' http://www.intellectual-property.co.uk/copyrt-02.htm Intellectual Property Office 'Patent' http://www.ipo.gov.uk/protect/protect-should/protect-should-patent.htm Nick Burrows 'Pharma MNCs Wage Patent Wars' Pharma Express http://www.expresspharmaonline.com/20051215/management06.shtml UK Copyright Laws FAQ's. WorldWideOCR.com. Available from: http://www.worldwideocr.com/UK_Copyright_Law_FAQ.asp#How%20is%20a%20UK%20copyright%20different%20from%20a%20UK%20patent%20or%20a%20UK%20trademark Read More