A Discussion of the Copyright Industrys - Assignment Example

Part Copyright This question requires a discussion of the copyright industry's historical and present reliance upon the law of copyright to acquire commercial value and basically how the advent of new technology has threatened such reliance on copyright law. 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.1 The internet has been famously defined as a network of networks, and the denser these networks become; the more complicated it becomes to prevent the bane of copyright infringement and other intellectual property violations from occurring. 2Even 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. History and development of Copyright law 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 16623. 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.4 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.5 All in all the challenge for copyright holders has never been greater. 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. This law protects computer software as a form of literary work and even 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. Very often copyright owners 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. Countering Copyright Infringements in the new age 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.6 Criticism of copyright and Digital Rights Management technologies 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.7 Anti-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. 8Cuckoos 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. 9 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.10It 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 information11. 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. Conclusion The development of copyright 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 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. Bibliography 1. Regulating online content: a global view, C.T.L.R. 2007, 13(6), 173-178 2. 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 3. Rethinking Copyright: History, Theory, Language ,E.I.P.R. 2007, 29(10), 439-440 4. ISPs not to disclose the identity of their users: a green light for file-sharers Ent. L.R. 2008, 19(1), 19-20 5. Computers and internet (October)Bus. L.R. 2007, 28(10), 267-268 6. Colin, Nasir,Taming The Beast Of File-Sharing - Legal And Technological Solutions To The Problem Of Copyright Infringement Over The Internet . Part B-Problem Question This question requires the discussion of the law relating to the applications for patents to protect inventions and the validity of the patent being claimed by Julian, whose boss also thinks he has ownership rights in that patent. Before I proceed with an analysis of the law governing this question the following facts have to be taken note of. Firstly Julian is a senior employee of a firm that actually "innovates" and creates new tools. Secondly this may be his part time hobby but he is using the resources of his office like the equipment and the infrastructure etc. Also after he has claimed that he has invented the new wheelchair another person claims that it has already been invented but it is not stated in the question whether Speedy Rice might have patented that racing chare. I have been asked to advise Julian then, whether he can get his patent protected at all (matter of originality) and secondly whether he can prevent his boss from obtaining the patent in his own company's name. On the facts it seems that Julian's invention (the wheelchair) is a novel idea and can be used as new apparatus or equipment which can be utilised. This matter will require a review of the Patents Act 1997 and the relevant case law. Patents Act 1977 : Applicable law 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. Forum Before I go further in this matter I would also like to point out that Julian has the option of under the scheme of ss.8, 12 and 37 of the Act when settling his entitlement dispute to apply to the Comptroller for a suitable order. The Comptroller has the discretion of referring the matter to the court and this reference is going to be without prejudice to the court's jurisdiction to determine the matter anyway. The advantage of going to court to resolve this matter is that the court is always the better forum of deciding questions of fact but the Comptroller's forum has the advantage of more formality and is definitely less expensive. Is the invention patentable Under Section 1 of that Act the invention has to be new, inventive and capable of industrial application. Julian will also have to prove that his invention is no way contrary to public interests under section 1 and the novelty of his invention will be judged under section 2(1) and 2(2) 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 Others12 "and a more recent view has been given by Sachs LJ in General Tire v Firestone13 and the recent views of the House of Lords in Synthon v Smithkline"14. The invention should conform to the definition of an "inventive step" within section 3 and should be capable of industrial application under section 4. It seems therefore that Julian should not have a problem in proving that his wheelchair is a patentable items as it conforms to all these statutory requirements. Claim of the Boss If the boss claimed that he had worked on the invention in question with Julian or it was partly his idea then he could have claimed under section 7 of the Act and accordingly be able to claim a joint patent or an interest in his patent. However he is claiming that since Julian invented this wheel chair during office time and with the office resources the patent should belong to his company. This would require a review of the law in this area. Who does the invention belong 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.15 In assessing whether this invention infact "belongs" to Julian 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 (i) if it has been made in the course of the Julian's duties as an employee (which may be either "normal duties" or other duties "specifically assigned to him") and (ii) (ii) the circumstances in which Julian invented the wheel chair were such "that an invention might reasonably be expected to result from the carrying out of his duties". Therefore the invention would be held to belong to the Boss if (i) if it has been made in the course of the Julian's duties and (ii) while making the invention, Julian had a special obligation to further the employer's undertaking . On the Facts there is a strong case for the Boss to the claim in Julian's invention mainly because his resources have been used. However Julian has not invented the wheel chair during office hours and this can be a factor going in Julian's favour. 16In the event that the court or another forum holds the Boss as the owner of the patent Julian can claim the inventors compensation as discussed below. Should Julian claim compensation instead 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.17 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 compensation18. 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. 19In 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. The reason I am discussing this here is that in case Julian's Boss refers to the terms of employment in the contract and does end up being successful in this claim to the Patent due to the contract Julian should be able to receive compensation as an employee of the company. This is because the general rule as laid down in s 39 is that the employer has rights in whatever is invented by his employee. However the invention has not been used by the company yet and no benefit has been derived by his boss per se so this is a distinct possibility being discussed here. In that case the burden of proof would be on Julian's Boss to disprove that the invention did not benefit his business to avoid compensating Julian. The accusation of Dave Dave, a rival of Julian's boss has pointed out that a similar invention has already been invented by a foreigner who is abroad. What Julian or his boss can do in such a case is to firstly get to the truth of the matter and find out if the inventions are similar or not. Since he has invented the wheel chair on his own and not copied anyone's design there can also be an application of a joint patent with that disabled racer,Speedy Rice under section 7. .It should also be seen if Speedy Rice has patented his invention yet. If he has not done so yet then this is an excellent opportunity for Julian to get his own -invention patented first. The factor that is going in Julian's favour is that his invention is for disabled industrial workers and not racers. All in all it seems that Julian or his Boss should not be detracted by the claims of Dave and carry out some independent research before an application for the patent is made. ____________________________________________________________ . 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 ______________________________________________________________ Read More