Area of Intellectual Property Law - Essay Example

Area of Intellectual Property Law This essay discusses the "challenge of balancing competing interests" in the context of Intellectual property Law. It is worth noting at the outset that things get complicated when the problem of IP infringement crosses borders and it is at this point that the international legal framework comes into play.So when there is a mention of IP law there is a discussion of the international and EU based legal frame work as well as the local laws of England. Whereas the aim of this essay is to draw upon examples from all times of IP rights and infringements there will a heightened emphasis upon the recent developments in the area of Copy rights and Patents law mainly because of the interesting legal and economic issues that have emerged in this area in the yesteryears. The theoretical premise of Property rights An understanding of the philosophical premises behind Property rights are necessary in the understanding of the tug of war between the owners and the users of intangible information.1 Legal Commentators have often expressed their doubts as to whether these rights are actually rights or privileges as Machlup and Penrose have noted:2 " ... those who started to use the word property in connection with inventions had a very definite purpose in mind they wanted to substitute a word with a respectable connotation, 'property', for a word that had an unpleasant ring, 'privilege'." Intellectual property as a "property" thus is an intangible category of property with boundaries that are not always clear cut and which must be actively defended by the holder against infringements. 3 Tangible property is however visible and documented, and the boundaries are more easily given than for intellectual property.4 The law has developed to protect a person who holds certain intellectual property will be able to defend this property only if he/she is granted a particular right over this property. For example in relation to patents the rights are defined by the patent authorities based on what is defined in the patent claims.Like other property (tangible) one has to pay certain fees in order to have their "intellectual" property claim examined and determined and also of continuance fees paid.5 The concept of property rights thus stems from the ideas of John Locke.6Furthermore the notions of property rights developed in the 18th century as one of the core civil rights parallel to-and mutually reinforcing-the right to liberty.7However, most philosophers have put forward the notion that property is not a natural right but rather a deliberate construction by society in order to secure protection against pressure from the collective.8 Subscribing to the view that property is justified as a foundation for liberty and personal security which provides incentives for long-term investments.Also that if these rights are not balanced or protected they will affect economic growth and poverty reduction.as unpredictable property relationships always impeded impede economic growth.9Revisiting the tangible and intangible discussion between property it can be seen that it has been argues that while tangible property rights easily cause conflict this is not the case with as the popular notion with in the case law is that "no patent can stop a person from continuing something he has done before"10.However the problem arises before the courts when the patent claims do not just include what is actually new and invented and this causes problems in identifying what is known and whether existing processes and products would infact infringe the patent.There is a marked certainity thus despite the legal framework with regard to which activities are acceptable and which activities might infringe the patent. A granted patent right is considered to fall within the scope of "possessions" inArticle 1 of Protocol No. 1 to the European Convention on Human Rights andFundamental Freedoms. However, the European Court of Human Rights has declined to give an opinion on whether a patent application constitutes "possession" within the meaning of Article 1 of Protocol No. 1. 11The European Commission of Human Rights had already made a distinction between a patent application, on the one hand, and a valid patent, on the other hand, and the Court summarized the findings of the Commission by stating that "the company was denied a protected intellectual property right but was not deprived of its existing property".12 The international legal framework for IP rights The WTO Tips Agreement 13was enunciated primarily to protect the rights of its signatories and members in the following areas: 1. Copyrights and related rights 2. Trademarks 3. General indications 4. Industrial designs and patents 5. Layout and drawings of circuit boards The main areas where this would be used would be in terms of maintaining minimum standards for the protection of the trademarks from infringement and duplication, enforceability, in terms of the methods by which enforcement could be made and the general and specific terms that surround the application and usage of the IPR.The WTO agreement also provided for the examination of the trade disputes in which case the governing body, the WTO would be making the final ruling and all parties would have to abide by it. In a similar vein the WIPO Copyright treaty deals with the protection of rights of authors - literary, social, cultural etc as effectively as possible and to provide solutions to issues that may arise due to social, cultural technological developments. The idea behind WIPO is to seek and try to eliminate the duplication and pilferage of author's original works by others.14 The Berne Convention, deals with the expression "literary and artistic works" to include every production in the literary, scientific and artistic area of expression, whatever may be the mode or form of its manifestation. This could be in the form of books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatic-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words. 15Other initiatives include the EU copyright directive and similar other instruments regulating the IP rights within the member states.Domestic legislation in the United Kingdom pertaining to Intellectual Property rights has closely followed this approach The modern issues surrounding the protection of intellectual property rights Copyright: the good the bad and the ugly The advent of new technology has indeed threatened the concept of ownership with in property rights in terms of intangible property.The digital age seems to have compromised the concept of copyright material and has had negative outcomes for the publishing, music and the computer industries. An important example of this is the peer-to-peer file sharing system of copyrighted music. The Napster and Grokster cases are a good illustration of the legal response of the industries .The copyright industries themselves have responded with new business strategies by providing legal download services.16So we can see that there is an ongoing tussle between the artists trying to earn a living and the right of public access to material and information. At least for copyright infringements it seems that as the internet has been famously defined as a network of networks, the denser these networks become; the more complicated it becomes to prevent the bane of copyright infringement and other intellectual property violations from occurring. 17Even though the courts have been willing to intervene where there has been an infringement of copyright, the practical difficulties of managing copyright violations arise whenever the "sheer scale" and "speed" of the internet causes high speed reproduction of the material to be achieved without actually being detected. The development of copyright law can actually be traced back to a time when there was no technology or mechanism by way of which it would be possible to replicate copies of written material. It was not possible to achieve any large scale infringement of copyrighted material as it is today from the comfort of our homes on the internet. Within British legal history it is said that the King used the Royal Prerogative as far back as 1662 to pass the Licensing Act of 166218. The first real Copyright protection Act however came as the "The Statute of Anne" giving the author copyright privileges for a fixed time period. On an international level the Berne Convention in 1887 defined the scope of copyright protection and is still an important part of international intellectual property law.19 The advent of the photocopier, followed subsequently by, home audio recording, video recording, and finally the Personal Computer (PC) allowed digitised and rapid copying. The modern Copyright Infringer does not need a large factory of copying machines to create illegal copies of, copyrighted material.20 All in all the challenge for copyright holders has never been greater and this is where the courts and the law are faced with challenges of balancing the rights of the public who would like free access to music,information and the like and the artists who cannot afford to have their work stolen or misused without being compensated for it.The law provides legal remedies available to copyright owners to prevent others from copying the product and to protect original works involving some degree of skill, effort and judgement. In England The Copyright Designs and Patents Act 1988 gives protection to books, films, videos, plays, music and drawings, all of which can make it onto the internet in some form or another. Under this Act even computer software as a form of literary work and large data bases form copyrighted material have been given protection under the Copyright and Rights in Databases Regulations 1997.Under the Rules the copyright owner can apply for an injunction to prevent misuse of his copyrighted material and to order the infringer to return the infringed "intellectual property" and maybe a grant for damages. All this however looks very nice in the Statute books but the power of the internet to disrupt Copyright mechanisms has often been compared to a force which is always connected and is everywhere and anywhere all of the time. The challenge before the courts has been the plight of the copyright owners who feel helpless in the face of technologically sophisticated infringements. For example in the famous case of Napster music files were created in MP3 format and Peer to Peer file sharing began. Within months 50 million people were using a service which was a blatant violation of copyright laws.. The company behind Napster argued it was only an intermediary and this posed new challenges for copyright law. Subsequently Europe passed the new Copyright Directive to close Napster-type loopholes. After the closure of Napster, other ventures like Gnutella found success by their "swapping method" of file sharing and operating decentralised networks. A bigger threat to copyright users in the form of networks like Freenet is that the copyright infringers are impossible to trace and identify. The copyright industry has developed a host of legal, educational, public relations and technological strategies to keep its profit base from collapsing. Modern age DVD's are encoded to try and prevent copying even though this mechanism has already been circumvented. Software giants like Real Networks, are promoting the use of copyright music over the internet. Other challenges consist of procedural difficulties. That is, in cross border infringements it becomes very hard to gain control over an infringer who resides in or takes refuge in a jurisdiction where that is not an offence.21 The question that arises then is whether it is fair to use restrict public access to music and information and whether European and Transatlantic legislation has become too harsh and draconian in this regard The Digital Millennium Copyright Act (DMCA) is a United States copyright law which criminalises production and dissemination of technology, devices, or is used to circumvent copyrighted control technology (digital rights management).The DMCA has been accused of being anti-competitive as it discourages innovation in the technology field and also causing inconvenience to legitimate users while the small time internet pirates slip past them easily.22Anti-circumvention rules are also said to make the detection of security threats illegal and encouraging software like cuckoo's eggs which are edited MP3 files that appear to be a copyright protected song being distributed via the Internet without the permission of the copyright owner. Although the initial portion of the song is original and the rest is just random noises. 23Cuckoos eggs used along with worms slow down the infringer's computer systems almost like a virus. Moreover the arrest of Russian programmer Dmitry Sklyarov in 2001, for the alleged infringement of the DMCA, was a highly publicized example of the US law's use to prevent or penalize development of anti-DRM measures. 24 Despite the obvious legality of copyright enforcing technological measures and the noble aim of the laws to protect the property of people ,what should be avoided is the draconian transformation of the law. Because it seems that copyright is becoming less of a response to technological developments and more of a hindrance to new technology and the student of science. For example students studying cryptography have often complained that because of copyright laws they are unable to study the intricacies of certain softwares.25It has to been seen that most of the copyright infringements are not for profit. This is because of the vast amount of the use of copyrighted publications in Universities by students. The EU has passed the Copyright Directive which deals with the awkward position educational servers like JANET etc are put in because of the copyright laws. The directive grants the copyrighters "reproduction right"(Article 2), the "right of communication to the public" (Article 3), and the "distribution right" (Article 4) all of this would seem to put these Internet Service Providers in an awkward position because the ISP is technically making copies and thus violating copyright laws automatically. This problem is dealt with by the directive with the grant of the reproductive right where the ISP is merely acting as "a pass through provider", transmitting the information26. The purpose of this is to ensure that ISPs are not unfairly exposed to heavy liability for third party provided content .What is important therefore is that educational institutions will be able to take advantage of these limitations also in respect of material passing through and stored on their servers without being unfairly accused of infringing copyright unless they had material or constructive knowledge of this. Patents and trademarks This area is governed by the Patents Act 1997 and a host of case law which essentially represents the struggle between the courts and the inventors and thirdparties to retain their property rights the relevant case law. Patents Act 1977 The main provisions of this act concern the right to apply for a patent(s.7),determination before grant of entitlement issues and the power to revoke patents under ss.72 and 74 of the Act and also concerns the power of the court to revoke patents and the grounds therewith as well as when validity may be put in issue. A two year time limit is imposed from the grant on when entitlement issues may be introduced into validity proceedings.. The Patents are normally issued for a specified period, 15 years and need to be renewed beyond that. The patent Registration confers powers on the product. If the patent is a modification of an earlier product or process, the permission of the original patent holder needs to be sought and recorded. If, because of the reworking done, the identity of the final product is lost, the new registration to be availed of, and with the original patent's consideration, the new patent is secured. Again, if there were a conflict of who the actual patentee owner is, the Courts would have to consider that the new patentee establishes the test of novelty. As was decided in the case of General Tyre and Rubber Co v. Firestone Ltd.27, in which case it became necessary to establish the 'test of novelty' before the patent could be granted.. In this case the judges, Sachs, Buckley and Orr LJJ, overruled the earlier claim of the patentee by stating that. "To anticipate the patentee's claim the prior publication must contain clear and unmistakeable directions to do what the patentee claims to have inventedA signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee." The courts have faced profound problems of interpretation particularly with regard to the protection of the Patent rights where under Section 1 of that Act the invention has to be new, inventive and capable of industrial application. The courts have however struck the balance between ownership and use rights by interpreting the public interests exception to overrule any potentially damaging claims to the public interest under section 1 .In this regard the key phrase in section 2(2) is, of course,' made available to the public'. "Who is the public' has been explained by case law in the cases of PLG Research Ltd and Another -v- Ardon International Ltd and Others28 "and a more recent view has been given by Sachs LJ in General Tire v Firestone29 and the recent views of the House of Lords in Synthon v Smithkline"30.The invention should conform to the definition of an "inventive step" within section 3 and should be capable of industrial application under section 4. The special case if Employee inventions In this area one interesting development has been the disputes between employers who have funded inventions by their employees and the resultant dispute as to who is the rightful owner of the invention.Unfortunately case law has shown that instead of claiming a joint patent under 7 of the Act many employers prefer to have more than a lions share of the invention based on the invention being made with their office resources.The law in this area has developed to balance the interests in terms of who the invention really belongs to .Section 39 lays down statutory criteria for determining whether an invention made by employees belongs to them or their employer. Its central provision is s.39(1), which establishes the circumstances in which the invention belongs to the employer. In all other situations, employees' inventions belong to the employees.31 Thus while protecting the employees interests from an unfair hijacking of his rights the court or the relevant tribunal will look at s.39(1), where two different situations where the invention belongs to the employer are to be distinguished. The first is governed by 39.(a) and here this would be held to belong to him if it has been made in the course of the employee's duties as an employee (which may be either "normal duties" or other duties "specifically assigned to him") and (ii) the circumstances in which the employee invented the wheel chair were such "that an invention might reasonably be expected to result from the carrying out of his duties". 32 An alternative way of compensating an employee whose invention is under dispute has been the development of case law allowing them to claim "inventor's" compensation.Prior to 1977 employees' inventions were regulated solely by contracts of employment, with the common law intervening only in extreme cases of oppression or unfair conduct by an employer.33 The UK Patents Act 1977 introduced a statutory compensation scheme for certain employees' inventions. Under this Act, employees' inventions that, by virtue of s.39 belong to their employers, could seek compensation on the basis that their invention was patented, that the patent was of "outstanding benefit" to their employer, having regard, among other things, to the size and nature of the employer's undertaking, and when it was just for an employee to receive compensation34.There was a substantial amount of case law on this issue for example the claim in GEC Avionics Ltd Patent related to an optical system for providing wide angled head-up display units in an aircraft's cockpit, which potentially offered pilots an advantage in night vision; in British Steel PLC's Patent, related to an invention of a new type of valve to control the flow of molten steel; while the third claim related to the circuitry of an improved lift door detector unit in Memco-Med Ltd's Patent. 35In all three of the cases mentioned here the claims failed and therefore there has been a lot of criticism that despite the 1977 Act the employees have not received enough compensation for their inventions. Passing off ,Trademarks and recent developments : Trademarks are defined as signs or symbols allowing the customers to distinguish a product from a company's competitors and has led to a plethora of interesting case law in interesting situations before the courts.The Law at present provides that to be a recognised trademark the sign has to be distinctive, lawful and not violating moral codes .Thus once an owner or company has registered its trademark this debars others from using registered trade marks,permits the applicant to take legal action against trademark violators and Trading Standards Officers or Police to bring criminal charges against counterfeiters.The process of registration confers legal validity and recognition on the product and criminal action could be bought against any offender who has done trademark infringement. A possible violation of a trade mark thus brings with it an action under Passing Off which has been defined by Lord Diplock as "A passing off action is a remedy for the invasion of a right of property not in the mark, name or get-up improperly used, but in the business or goodwill likely to be injured by the misrepresentation made by passing off one person's goods as the goods of another. 36 More recently there have been a lot of tensions in which the courts have been faced with the balancing of Public interest with trademarks.Consider the case of Proposed tobacco control measures which when associated with tobacco products raise the issue of to what degree WTO Members have regulatory freedom in relation to trademarks under the TRIPs Agreement.37 This is particularly so under the Article 20 of the Trips Agreement which creates a positive right to use a trademark. Many Academics have criticised the WTO system as impinging upon the sovereign ability of its Members to act in the public interest ,particularly with regards to the Trade Related Aspects of Intellectual Property (TRIPs) Agreement, where a tension exists between the protection of IP rights and the public interest, particularly in developing States where there have great controversies pertaining to patent protection which have restricted the provision of anti-retro-viral drugs to sufferers of the AIDS epidemic. 38 Towards some conclusions The development of copyright and patent laws has come a long way. It is indeed a noble rationale to protect and artists or writers work from being literally "stolen" by illegal copies or plagiarism. What has to be seen is whether the copyright and patent industry has driven the restrictions to become so rigid that it seems that the rationale is purely to protect the profits of large publishers and software and music corporations. It is a valid criticism that very often the artists are not as possessive of their works as the companies who are their agents or publishers. The use of DVD's (which cannot be copied) ,worms, cuckoo's eggs and the very famous "PDF" documents just hinder the innocent consumer's enjoyment. The copyright infringer who can actually damage the industry is always a specialist and not a lay person. Therefore it makes little sense to try and prosecute a teenager enjoying a copy of a pirated song rather than the vendor who is making such large scale copies and making them available whether physically or online. The response of Copyright laws and technology has therefore been equally strong to prevent copyright infringement but this has no exactly been done consistently. It should be appreciated however that the law has evolved quickly to cater to the problems created by the internet age in the form of the EU copyright directive and the Digital Rights Millennium Act in the US and copyright is not exactly an undermined concept because of the efforts of the copyright industry in the legal field by lobbying for better legislation and pursuing its infringements seriously. The law relating to intellectual property rights has indeed been instrumental in protecting innovative technology in various fields used by public, especially in the areas of healthcare, infrastructure, mass entertainment and fine arts and sciences.Many academics have even attacked too strict an application of IP rights . "The intellectual property rights of software developers, in most cases, do not conflict with public access rights. The protection of intellectual property through ordinary patents or trademarks can even be conceived as a social contract under which society protects the owners' rights while products are marketed to the public at a price." 39. The area of IP rights has also affected the notions of trade secrets with in the corporate structures in terms of highly classified documents which confidential and secretive in nature. These "Secrets" obviously involve matters relating to Research and Development, strategizing new product lines and inventions, funds spend for software development and its progress and a host of other areas in corporate business is a matter of highest confidence and secrecy. Thus there is a need to protect their owners .So on a concluding note the courts and the parliament have been involved in balancing the economic rights of the owners of "intellectual" property as well as the public interest of fair access and us to retain the incentives for the creation of useful industrial and cultural products at the same time not allowing "corporate vampirism" to take over fair use especially in the field of developing a cure of epidemics and employee inventions. Bibliography 1. Nicholas Briggs , Entitlement, 2006 European Intellectual Property Review. 2. Yunjoo Lee,Malcolm Langley 2005,Employees' inventions: statutory compensation schemes in Japan and the UK, European Intellectual Property Review 3. Christian G. Stallberg,2007, ,The legal status of academic employees' inventions in Britain and Germany and its consequences for R&D Agreements, Intellectual Property Quarterly 4. Regulating online content: a global view, C.T.L.R. 2007, 13(6), 173-178 5. From Berne to national law, via the Copyright Directive: the dangerous mutations of the three-step test,E.I.P.R. 2007, 29(12), 486-491 6. Rethinking Copyright: History, Theory, Language ,E.I.P.R. 2007, 29(10), 439-440 7. ISPs not to disclose the identity of their users: a green light for file-sharers Ent. L.R. 2008, 19(1), 19-20 8. Computers and internet (October)Bus. L.R. 2007, 28(10), 267-268 9. Colin, Nasir,Taming The Beast Of File-Sharing - Legal And Technological Solutions To The Problem Of Copyright Infringement Over The Internet . 10. Pires de Carvalho, The TRIPS regime of Patent Rights, 2nd edition, Kluwer Law International, The Hague, 2005. 11. F. Machlup, An Economic Review of the Patent System: Patent Background A. Economic and Historical Perspectives,Subcommittee on Patents, Trademarks and Copyrights ofthe U.S. Senate Judiciary C o m t t e e , 1958, Study No. 15,pp. 1-2, 2C-21, 44-45 and 76-80, at 1; available at: www.ipmaL.info/hosted-resources/unitl.doo (last accessed 15 June 2005). 12. Terrell on the Law of Patents, 15th edltion, Sweet & Maxwell, London, 2000, pp. 2-4 13. F. Machlup and E. Penrose, The Patent Controversy cf the Nineteenth Century, Journal of Economic History, Vol. 10, 1950, p. 2 14. See D. Campbell and P. Thomas (eds.), Fundamental Legal Conceptions QS Applied in judicial Reasoning by Wesley Newcomb Hohfld, Ashgate, Aldershot, U.K., 2001 (original edition: Yale University Press, New Haven, 1919) 15. Waldron, Introduction, in J. Waldron (ed.), Theories ofRights, Oxford University Press, Oxford, U.K., 1984. 16. P. Drahos, A Philosophy of Intellectual Property, Applied Legal Philosophy Series, Ashgate, Dartmouth, 17. Locke, Two Treatises ofcivil Government, Book ZZ, 1690 18. Drahos, The Universality of Intellectual Property Rights: Origins and Development, in World Intellectual Property Organization, Intellectual Property and Human Rights, W I Geneva 1999, Publication No. 762(E). 19. 17 J. Hughes, The Philosophy of intellectual Property, 77 Georgetown L.J. 287, 1988, pp. 297-300. 20. C.A. Reich, The New Property, Yale L.J., Vol. 73, 1964, p. 772. 21. Intellectual Property Rights vs. Public Access Rights: Ethical Aspects of DeCSS Decryption: Ethics and the law. 2005 22. Intellectual Property-Rights or Privileges Hans Morten Haugen,Intellectual Property-Rights or Privileges The Journal of World Intellectual Property 10:1, 53-69 .The Journal of World Intellectual Property, Volume 8, Issue 4, Read More