Concepts of Intellectual Property Law - Literature review Example

Intellectual Property Law Introduction: Legal frameworks throughout the world defend certain commonly acknowledged types of intellectual property like patents, copyright, trademarks etc. The last 50 years have seen a prototype transfer whereby intellectual assets such as intellectual property (IP), human capital and organisational capacities are considered as essential to business operation and economic expansion. A rising share of the market value of firms seems to come from their intellectual assets,1 and firms are running these assets more dynamically to key out extra ways of drawing out value from them.2 Firm managers carry out valuation of their patents when they are deciding whether or not to file a patent application or refurbish a patent, when computing royalties for patent licensing contracts, when calculating the value of a potential merger or acquisition, and when calculating their own corporate value. Lawyers and judges value patents in suits of patent infringement; financial institutions calculate the value of patents when they use the intangible asset as collateral for bank loans; and investors and financial analysts value patents to evaluate the cost of firms as a foundation for their investment decisions and recommendations (Hall, 1992; Martin and Drews, 2005). IP in the form of patentable technology, legally protectable trademarks and designs, copyright and others have progressively become the most crucial assets, not only for many of the worlds largest companies, but also for small and medium enterprises (Schweihs, 2002). Intellectual property (IP) is a term which refers to a number of discrete kinds of legal monopolies over conceptions of the mind, which can be either artistic or commercial. IP also includes the related areas of law (Raysman et all, 2008). A variety of intangible assets are given certain special rights under the IP law. The most common kinds of intellectual property include trademarks, copyrights, industrial design rights, patents, and trade enigmas in some jurisdictions. According to Sherman and Bently (1999), “The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origin of copyright and patent law respectively.” Definition of IP Originality is one of the most important terms which are related to copyright. Presently the term ‘originality’ is used by law as a touchstone in evaluating when and why something can be copyrighted. England’s conventional criterion for originality was a Lockeanderived industriousness criterion, according to which the work must spring up from the author at the same time be the product of more than nominal skill and labour. This standard was developed in Walter v. Lane,3 and many other cases. Thus, originality based on fact is almost certainly injured with issues which cannot be solved or cannot even be replaced for the present legal meaning of what makes up an original work. An option to defining original will be more appreciated with reference to the nature of authorship. This is truly a region in which the law can be changed (Ian Hoare, 2001). According to Swannell (1986) original means “The common conception of the meaning of ‘original’ is something that is new, not done before. In fact, ‘original’ is defined as “existing from the first; primitive; earliest; not imitative or derived; creative.” According to s.(1)(1)(a) of the Copyright, Designs and Patents Act 1988 copyright exists in “original literary, dramatic, musical or artistic works.” on the other hand, the Act does not explain what exactly is the meaning of ‘original’. It is here that case law is examined to understand the meaning of original as attached to this word by law. For instance, in the Canadian Supreme Court case of CCH Canadian Ltd. v.Law Society of Upper Canada,4 the Court detected that originality demanded non-mechanical, little skill and assessment, and that the work must be a creation of an author and not simply copied from a different work. In the case of University of London Press Ltd. v. University Tutorial Press Ltd.5 Peterson J. submitted that: “The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought, and, in the case of ‘literary work’, with the expression of thought in print or writing. The originality which is required relates to the expression of thought.” Thus it is clear that what is needed by law with regard to originality is not a revolutionary new idea but the way in which that idea/thought is conveyed. An obiter statement by Lord Oliver in Interlego v. Tyco6 had queried if the standard which was developed in the case of Walter v. Lane’s should be applied to copies as well. It was also decided in the case of Hyperion Records v. Sawkins7 by the Court of Appeal as to whether the originality of a work thought to be a copy of another should be judged. In Eastern Book Company v. Modak, it was concluded that the principles laid down by the Canadian Court in [CCH] is applicable to decide the originality of a work before granting copyright protection. According to Laddie, H. et al (1995) “The copyright laws do not require that a work should be unprecedented, that is, new in comparison with already existing works…A copyright…is good provided a sufficient amount of work was originated by the author independently, even if some other person had already produced an identical piece by sheer coincidence.” In the same way the case of Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.,8 is related to football betting coupons. In this case, one of the parties arrogated that the other had contravened copyright on the pattern of the presentation of the coupon. It was stated that the other party had allegedly copying the match lists and adopted the same headers for the detached parts of the coupon. It was argued on the part of the appellants that the pattern of the coupon could not meet the criteria of originality. But Lord Reid stated in this case that “the criteria for establishing originality are skill, labour and judgement. This has resulted in a rather low standard for attaining originality, although certain things are still unable to meet the criteria for sufficient originality, such as where there is no room for taste or judgement such as lists of names etc., as was adjudged in the case of Cramp & Sons Ltd. v. Frank Smythson Ltd.”9 Similarly in the case of Feist Publications Inc. v. Rural Telephone Service Co,10 it was decided that there can be no room for judgment with regard to tastes etc. fascinatingly, the standards still bear no similitude to the casual apprehension and purpose of ‘original.’ The amount of work to be finished prior to granting copyright is a measure of originality in law. Some have attacked the legal meaning of ‘originality’ because it sets a very low standard, and consequently, provides protection to undeserving works. An improvement of the current system is that since it sets a low criterion for achieving the required degree of originality, and hence copyright protection. Thus it seems that everybody who creates something can be protected in law. The criterion is also worldwide; the standards of work, accomplishment and judgement are usual to all types of creativity, be it art, literature, musical composing or even software design. Thus finally we do have one standard which fits all and which also means that the relevance of the originality test is quite straightforward. Barzun (1989) indicates that the market has become impregnated since it is believed that that creativity is within the reach of all. He states that: “It has not only diluted the meaning of creative; it has also glutted the market with innumerable objects and performances arbitrarily called art, thereby making it even more arduous for true creation to find a public.” Barzun (1989) employs the word ‘creative’ in the same way in which most people consider an apt meaning for ‘original’. He furthers adds that “Creation means making something new and making it out of little or nothing.” Julia Reytblat (1999) puts forward that: “Some commentators have suggested that one way to approach these works is to realise that nothing in this world is truly ‘original’ because all creativity ultimately draws on already existing elements. According to Jessica Litman (1990) “The very act of authorship in any medium is more akin to translation and recombination than it is to creating Aphrodite from The foam of the sea. Composers recombine sounds they have heard before; playwrights base their characters on bits and pieces drawn from real human beings and other playwrights’ characters; novelists draw their plots from lives and other plots within their experience; software writers use the logic they find in other software; lawyers transform old arguments to fit new facts; cinematographers, actors, choreographers, architects, and sculptors all engage in the process of adapting, transforming, and recombining what is already ‘out there’ in some other form.” Conclusion Thus, it can be inferred that the strength of copyright protection should be lessened. If not done so then it would (i) Mirror the statement that many thoughts and stirrings come from the public sphere and (ii) Allow more liberty for other creators like artists, writers and musicians to build up ideas without panic of breach legal proceeding being established against them. Currently copyright law works against this thought since it is based on premises of originality. Law now protects only those who create works and this if without any doubt incorrect since originality can be the offspring of any creative mind. Reference 1. Barzun, J. “The Paradoxes of Creativity” (1989) 58 American Scholar 337, page 351 2. Brad, Sherman; Lionel Bently (1999). The making of modern intellectual property law: the British experience, 1760-1911. Cambridge University Press. pp. 207. 3. Daryl Martin, David C. Drews, “IP: Collateral for Securitization or Lending” The Secured Lender 8 (July 2005). 4. Ian Hoare “Originality” in Copyright Doctrine, Intellectual Property Law (LW556) (2000-2001). 5. Laddie, H. et al, “The Modern Law of Copyrights” 2nd Ed., (1995) Butterworths, page 48. 6. Litman, J. “The Public Domain” (1990) 39 Emory L.J. 965, pages 966-967 7. Reytblat, J. “Is Originality in Copyright Law ‘A Question of Law’ or a ‘Question of Fact?’: The Fact Solution” (1999) 17 Cardozo Arts and Ent. L.J. 181, pages 192-193 8. Richard Hall, “The Strategic Analysis of Intangible Resources”, 13 (2) Strategic Management Journal, 135 (1992); 9. Richard Raysman, Edward A. Pisacreta and Kenneth A. Adler. “Intellectual Property Licensing: Forms and Analysis”. Law Journal Press, (1999-2008). 10. Robert P Schweihs, “Valuation of Intellectual Property is the focus of the New Accounting Guidelines”, 14 (5) Intellectual Property and Technology Law Journal 6 (2002). 11. Swannell, J. (Ed.) “The Little Oxford Dictionary” 6th Ed. (1986) Clarendon Press, page 376. Cases Referred 1. Abilene Music v Sony Music & Others (2003) see http://www.rapnewsdirect.com/News /2003/10/Ghostfacekillah.Infringementcase/ 2. Acuff-Rose Music v Campbell 114 S.Ct 1164 / 510 US 569 3. Grand Upright Music Ltd v Warner Bros. Records, Inc. 780 F.Supp.182 (SDNY 1991). 4. Newton -v- Diamond and Others (2003) see www.musicjournal.org/lawupdates.htm 5. Compo Company Ltd v. Blue Crest Music Inc. et al (1980) 1 SCR 357, at 372-373. 6. Anton Piller KG v. Manufacturing Processes Ltd and Others. Bibliography 1. Abrams, H. “Originality and Creativity in Copyright Law” (1992) 55-SPG Law & Contemporary Problems 3 2. Baade, P. “Photographer’s Rights: Case for Sufficient Originality Test in Copyright Law” (1996) 30 John Marshall Law Review 149 3. Glaister, D. “Revolutionary Theory Shows Beethoven ‘Pinched’ His Famous Tunes” 11th May 1996 The Guardian Newspaper 4. Jaszi, P. “Toward a Theory of Copyright: The Metamorphoses of Authorship” (1991) Duke Law Journal 455 5. Jung, C. “Man and his Symbols” (1964) Penguin Arkana 6. Karjala, D. “Comment of US Law Professors on the Copyright Office Term of Protection Study” (1994) 12 European Intellectual Property Review 531 7. Tingen, P. “Crossing Borders” Sound on Sound (1998) at http://www.sospubs.co.uk /search/query.asp on 7/04/2010 8. Turk, S. “Copyrights and Jazz Improvisation: Creativity Unprotected” (1992) 1 University of Baltimore Intellectual Property Law Journal. 66 9. VerSteeg, R. “Rethinking Originality” (1993) 34 William & Mary Law Review 801 Read More