Comparison of the UK Copyright Law and Patent Law - Research Paper Example

UK: Copyright Law v. Patent Law Question Compare and contrast the differing protection offered by the law of patents and the law of copyright. Inyour opinion, are these differences accidental or do they have a sound commercial or legal basis? Introduction A patent is a grant of property right to the patent applicant over his invention. A copyright, on the other hand, is a grant of protection to the authors of literary, artistic, musical works, dramatic and other intellectual property works. However this grant of protection comes automatically without prior registration unlike in the patents law. The effect of a grant of patent is to exclude others from reproducing, selling and making the patented object whilst the effect of copyright protection is to give its owner the exclusive right to do anything to his copyrighted work.1. In the United Kingdom jurisdiction, the applicable law for patenting is the Patent Law of 1977 (as amended) and for copyrighting the Copyright, Designs and Patents Acts of 1988 (as amended by the Copyright and Related Rights and Regulations).2 Albeit that the laws have different methods of extending legal protection to their subjects, these differences boil down to the same purpose – to minimise monopolies. Brief Histories of the UK Copyright Law and Patent Law The copyright law began with the practice of giving exclusive rights to printers to print and distribute books. However in 1709, the Statute of Anne began giving these rights instead to the authors although limited to fourteen years and renewable once.3 In 1886, the Berne Convention for the Protection of Literary and Artistic Works established the fundamental structure that countries should follow in drafting their respective copyright laws.4 Eventually, the European Union was organised and one of its objectives was to harmonise the laws of member countries. Thus, the laws of UK periodically undergo amendments to make them in accord with the EU laws. The Copyright, Designs and Patents Act of 1988 for example, has been constantly amended and in 2003 The Copyright and Related Rights Regulations 2003 was issued. 5 The patents law, on the other hand, was believed to have originated in Italy through the Statute of Monopolies in 1474. In England, the patents system was began by the issuance of letters patent granted to inventors to grant them the monopoly of the production of certain goods. Eventually however, the monopolies proved to be a source of corruption and thus James I lifted all patents and granted them only to new inventions.6 In 1973, the European countries organised the European Patent Convention (EPC) for the purpose of creating a singular procedure for patents application and protection in the region. A European Patents Office was established as a consequence, although validity issues and infringement proceedings remain in the national jurisdiction. The process was however slow necessitating an amendment in 2000. UK is also a signatory to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which sets a minimum standard for patents laws. 7 The Copyright, Designs and Patents Act of 1988 (as amended) vis-à-vis The Patents Act 1977(as amended) Subject Matter. Two basic requirements must exist before a copyright protection can be extended: the work must be specifically declared to be a subject of the protection, and; it must fulfill one of the formal requirements. The formal requirements of the law are: the author is British, or; he is in UK, or; the work has been published or broadcast.8 In the case of Exxon Corp. v Exxon Insurance Consultants International Limited, it was held that a name is not copyrightable. The contention of Exxon Corp. was that its name was a product of long research and therefore can be classified as an “original literary work” notwithstanding its length. The court disagreed on two grounds: one, a word is not a literary work because it has no meaning other than its dictionary sense and second, to allow it to be copyrighted will create confusion with another regulation - the trademark law.9 The point in copyright protection is that only the expression of the ideas and not the ideas themselves can be copyrighted. In the case for example, of Baigent & Leigh v The Random House Group,10 which involved Dan Brown’s bestselling novel The Da Vinci Code, the claimants contended that Brown violated the copyright law by copying the theme of their earlier published book The Holy Blood and the Holy Grail. The Court held otherwise. Although the Brown book had been found to have based pertinent themes from the other book, the Court contended that what had been copied was “generalised propositions, at too high a level of abstraction to qualify for copyright protection, because it was not the product of the application and skill of and labour by the authors of HBHG in the creation of their literary work. It lay on the wrong side of the line between ideas and their expression.”11 Literary, dramatic and musical works may be subject of the copyright law so long as they are written and recorded. Databases, a collection of works that are arranged in an orderly manner and can be accessed electronically or by any other means, are likewise copyrightable. And so are films, broadcasts, and sound recordings also included.12 On the other hand, unlike the very broad coverage of the copyrights laws, the Patents Act 1977 (as amended) allows inventions as the only patentable items. It is however subject to various qualifications. In the recent consolidated cases of Aerotel Ltd. v Telco Holdings Ltd. and Macrossan’s Application, the Court came out with a set of new standards to determine the patentability of any invention. This new test consists of the following: “first, by properly construing the claim; second, by identifying the actual contribution of the subject of application; third, by asking whether it falls solely within the excluded subject matter; and fourth, by checking whether the actual or alleged contribution is actually technical in nature” 13 Statutory Requirements. For copyright to subsist, the works must be original which means that they are the creations of their authors and not copied. For databases, the items within are not tested for originality one by one but the criteria extends to the arrangement as a whole.14 On the other hand, an invention is patentable only under The Patents Law if it meets the following criteria: “it is new; it involves an inventive step; it is capable of industrial application; “it is not excluded by Sections 2 and 3.15 Term. Copyright protections are limited although the durations are usually long, usually involving the author’s lifetime plus 70 years. With respect to the term of the patent grant, the same shall be effective only for twenty years subject to renewal at the end of the period. 16 Ownership. With respect to copyright, the elementary principle is that the person who authored or created the protected work is its first owner. However, joint ownership may also exist in cases where there is a collaboration in the making the work. Films, for example, are deemed the collaboration of the producer and the director. Works of employees, authored or created in the course of their employment is deemed to be owned by the employer. This is a provision that has been assailed by many especially those in the academe.17 In 1991, the courts had to settle a patent ownership dispute involving a Japanese and a European firm. A patent for the production of a protein called Human Tissue Necrosis Factor (HTNF), a product of genetic engineering, was conferred to the Asahi Kasei Kagyo KK. This was disputed by a European firm which had a later filing date than Asahi. A perusal however of the priority date of the Japanese application showed that at that stage the Japanese revealed only the structure of the protein but did not disclose how it was made. It was not therefore an “enabling disclosure” and cannot support a subsequent filing.18 Infringement. The acts that constitute infringement under the copyright law are those which usurp the rights conferred by law to the copyright owner. According to the law the copyright owner has the exclusive right to do the following: “copy the work; issue copies of the work to the public; perform, show or play the work in public, broadcast the work or include it in a cable programme service; make an adaptation of the work or do any of the above in relation to an adaptation” 19 However, merely doing any of the enumerated acts by a non-owner does not automatically make him guilty of infringement. The operative word is substantiality of the act. The quality rather than the quantity of what has been erroneously appropriated will determine infringement. For example, a non-owner of a song copies that part of the song which is the most recognisable to the public, then most likely he will be adjudged an infringer.20 On the other hand, under the law, a person commits an infringement of the patent under three conditions: the patent is in force at the time the party does the restricted act; he is within the UK at the time of the act, and; no prior consent was extended to him by the patent owner. The acts that would constitute the infringement if done under the above three conditions, all of which lacks the consent of the owner, are: when a person not the owner disposes, offers to dispose, uses or imports a patented product; when a person not the owner uses, offers it for use in the UK, and; when a person not the owner disposes of, uses or imports any product obtained directly by means of a patented process. 21 Conclusion: the Differences between the Laws There are striking differences between the kind of protection extended by the copyright laws and those under the patents laws. Most of these differences were brought about by legal as well as commercial considerations. Under the patents law, the patent owner is required to apply and register his invention before a patent is granted to him. In addition, the requirements for patentability is very stringent and the applications have to go through a long and arduous method to prove patentability. On the other hand, under the copyright law no such parallel requirements are mentioned which imply that the copyright protection is automatically vested in the owner of the work or material. The law elaborately sets out the infringement acts as well as all other protection that the law can vest in the copyright owner without that person obliged to do any act that would consolidate his ownership through registration. The probable rationale behind this particular difference is practicality and commercial viability. The patents and copyright laws and similar laws which establishes a person’s right over his work or invention and prohibits others from copying or using it has a monopolising effect. A monopoly tends to inhibit progress. Thus, although the copyright law covers just about everything under the sum, from songs, to films to books, novels, databases and even architectural designs of buildings, there is compulsion on authors, writers, composers, filmmakers, software programmers and designers and all other persons who have one way or another created something to register them. For one, the copyright office will be flooded if such a requirement is imposed. Secondly, the commercial viability of these works will be faster and certain since no prior regulatory requirement exists to hinder their transactions. Since copyright subjects belong to the realm of the arts and have high commercial values it does not take much imagination to comprehend that these works will change hands faster than will inventions. This seeming laxity in the copyright law is diametrically opposed to the stringency in the patents law. Yet, the end objectives seem to be the same – to prevent monopolies. The stringency of patents laws in admitting new inventions and extend them patent grants works the same way – it minimizes monopolies because only a few are granted patents. This is apparently illustrated in the provisions of the new amendment to the patents law which prohibits certain medical inventions to come within the ambit of the law. This is obviously to inhibit monopolies and therefore allow faster growth in medical inventions for public welfare purposes. However, the law, at the same time, protects the owners of genuinely patentable inventions to earn the fruits of their labour by developing and trading exclusively their patented inventions for a limited period of time. Even in infringement proceedings these objectives of the laws underpin the decisions of the courts, especially in copyright infringement cases. In one case for example, the court held that mere similarity and even substantial similarity was declared to be not basis for infringement. Copying of the original work of the author must have been established. This is the idea perpetuated in the case of LB Plastics Ltd. v. Swish Products Ltd where it was held that “The protection given by the law of copyright is against copying, the basis of protection being that one man must not be permitted to appropriate the result of another’s labour. That copying has taken place is for the plaintiff to establish and prove as a matter of fact. The beginning of the necessary proof lies in the establishment of the similarity combined with proof of access to the plaintiff’s productions.”22 But perhaps because entry into the patents protection as evidenced by the stringent and numerous requirement of the laws is already difficult, the courts are likewise rigorous in the application of the infringement laws against violators. Thus, in the leading case of Catnic Components Ltd v Hill & Smith, Catnic was conferred a patent for a structural beam used for windows and doors on a brick walling. The structure had a straight vertical component. A competitor Hill, also invented a similar structure except that the angle of the beam was 6 inches wider than that of Catnic. The Court of Appeal held that there was an infringement of the patent despite the angular differences on the basis of the “pith and marrow” doctrine where the infringement question is resolved by looking at the purpose of the invention rather than the strict literal words of the specifications of the applicant in the patent application. It said “The question in each case is: whether persons with practical knowledge and experience of the kind of work in which the invention was intended to be used, would understand the strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way the invention worked.”23 References Asahi Kasei Kogyo KKs Application [1991] RPC 485. Abhyanker, Raj (2000).The Best Test Preparation and Review Course for the Patent Bar Exam: Research and Education Association Aerotel Ltd. v Telco Holdings Ltd. and Macrossan’s Application [2006] EWCACiv 1371 Baigent & Leigh v. Random House Ltd. [2007] EWCA Civ 247. http://www.bailii.org/ew/cases/EWCA/Civ/2007/247.html Catnic Components Ltd. v. Hill & Smith Ltd. [1982] R.P.C. 183 Copyright, Designs and Patents Act of 1988, The Copyright and Related Rights Regulations 2003, The. BAILII. http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/legis/num_reg/2003/20032498.html&query=title+(+Copyright+)+and+title+(+Related+)+and+title+(+Rights+)+and+title+(+Regulations+)+and+title+(+2003+)&method=boolean Exxon Corp. v. Exxon Insurance Consultants International Ltd. [1982] Ch 119 Guidelines on Copyright and Academic Research. britac.ac.uk. http://www.britac.ac.uk/reports/copyright/guidelines.pdf History of Patent Law. patentshub.com. http://www.patentshub.com/history-patent-law/ In Re Harris’. Patent [1985] RPC 19. LB Plastics Ltd. v. Swish Products Ltd. [1979] RPC 551. Patents Act 1977: Patentable subject matter.UK Intellectual Property Office. http://www.ipo.gov.uk/patent/p-decisionmaking/p-law/p-law-notice/p-law-notice-subjectmatter.htm Patents Act 2004. opsi.gov.co. http://www.opsi.gov.uk/acts/acts2004/ukpga_20040016_en_1 Patents Act 1977. opsi.gov. http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1977/cukpga_19770037_en_1 Sprindler, Gerlad & Borner, Fritjof. (2002). E-commerce Law in Europe and America. Springer, p.285 Read More