Protection of Companies or Individuals Cultural and Literary Works - Essay Example

Heading: Copyright Protection Your name: Course name: Professors’ name: Date Introduction In this fast growing corporate world, firms compete at all costs to acquire as many clients as possible. In the process, some end up imitating other companies or individuals’ cultural and literary works, ideas, or patents. When individuals or companies copy others’ works or ideas, copyright laws are there to protect them. There are certain properties that are copyrightable, and those that are not copyrightable. In order for a property to qualify for copyright protection, it is essential that it meet some conditions that include originality and author’s private stamp. Social and public considerations founded copyright protection. Copyright is a socially and public oriented lawful measure. It is an objective to benefit the public through the provision of an economic drive for distribution and production of non-excludable, untouchable works. These works result from their public superior nature, would have no incentive without copyright’s recognition. Copyright protection facilitates the internalization positive externalities, which cultural works seem to produce. The provision of special property rights helps market players like producers, creators, and corporate media, to capture and internalize social value, which intangible works generated, without going through the risk that their venture would be torn by third parties. Therefore, this paper attempts to determine whether copyright laws extend to intangible properties like perfumes, as well as intellectual property, such as, trademark laws. It does this by explaining what copyright laws are and what intangible and intellectual properties are. The paper also seeks to analyze copyright laws on the perfumes through an examination of a case study. Intangible property This refers to property, which has value, but is untouchable or visually unperceivable.1 Nevertheless, in spite of the inability of really seeing or holding the property, intangible property still has certain kind of real value that is recognized and protected by the law.2 Some of the examples of intangible property are copyright ideas, perfumes, and brand names. For instance, a brand name like Apple or Coca Cola has a value, although one cannot really perceive the value related to the word.3 This is because the value is in the recognition of the brand that is untouchable concept. Similarly, the ideas that are copyrightable, and perfumes also bear the untouchable value.4 Other properties have both intangible and tangible value. Here, the intangible value can go beyond the real touchable value. For instance, there is documented Coca Cola company recipe or formula for coke, and that documented recipe is tangible since it can be touched.5 Nonetheless, the ideas that are used in the creation of the recipe give the property its value; hence making it intangible.6 The government and society recognize intangible property value, and protect it with a string of laws.7 For instance, trademark law holds that no person may use the copyrighted trademark belonging to another brand.8 Here, the law recognizes that touchable or visible value of the idea, and reputation related to the trademark, and thus, it protects the invisible or untouchable value of the Apple or Nike companies.9 Besides, Copyright law recognizes the untouchable value related to written music, material, and safeguards any transfer of this property.10 This property has certain tangible value of copyrighted books, course, and music may be actually transferrable.11 This law also ensures that the intangible properties, ideas, and works used in their production are protectable.12 They also go as far as protecting the actual paper on which the book is printed, or the physical compact disk containing music.13 Furthermore, patent law safeguards ideas, but despite the fact that product has not be developed, a patent bars other persons form stealing the untouchable products in existence.14 This is imperative because lack of patent law would make business gain little motivation to conduct research on new ideas. This is because when their study and development succeeded, other people could take their property, out of which the made money.15 What is Intellectual property? Intellectual property entails the creations of the one’s mind that include artistic and literary works, inventions, names symbol, and images utilized in commerce.16 Intellectual property has two categories that include industrial property and copyright.17 Firstly, there is industrial property that involves industrial designs, trademarks, inventions, and geographical indications.18 Secondly, there is copyright category that deals in films, literary works, artistic works, music, and architectural design.19 Rights associated to copyright are the performing artists in their recordings, their performances, phonograms producers, and broadcasters in television and radio programs. Notably, intellectual properties, just like other properties, have their own rights. They permit owners, or creators of copyrighted works, trademarks, or patents to reap benefits of their own investment or work in a creation.20 These rights are in the list of Universal Declaration of Human Rights’ Article 27 that protects he right to gain from the safeguarding of materials and moral interests that result from authorship of artistic, scientific, literary productions.21 Berne Convention for the Protection of Literary and Artistic of 1886 and Paris Convention of Industrial Property of 1883 first recognized the significance of intellectual property.22 In fact, the World Intellectual Property Organization (WIPO) administers both treaties. Copyright extends to intellectual property because of certain reasons.23 To start with, the well-being and progress of humanity lies on its ability to develop and devise new works in the cultural and technological fields.24 Secondly, the intellectual property’s legal protection will encourage the dedication of extra resources for more innovation. Thirdly, the legal protection and promotion of the property stimulates economic growth, job creation, industrialization, and improves enjoyment and quality of life.25 Additionally, an equitable and effective intellectual property can enable countries discover the property’s capacity as a channel for socio-cultural well-being and economic growth.26 The property’s system facilitates a balance between public interest and innovators interests; thus, offering a setting in which invention and creativity flourishes, for the advantage of all.27 An average individual benefits from protection rights of intellectual property in a number of ways, such as, rewarding human endeavor and creativity that fuels humankind progress.28 For instance, if without copyright protection, inventors and researchers will lack motivation to continue in their production of enhanced and more effective products for customers.29 Besides, the reliable global trademark protection gives consumers confidence to purchase services or products, since the enforcement techniques help discourage piracy and counterfeiting. Further, the protection enables multi-billion dollar publishing, film, recording and software organizations give pleasure to several people in the world.30 Trademark laws protection A trademark refers to a unique symbol that helps in the identification of particular services or products provided or produced by a company or an individual. The origin of a trademark is traceable to past times of artisans’ reproduction of their marks and signatures on their artistic products or works of a practical or functional nature. Over time, modern systems of brand registration and protection have developed these marks.31 This system is invaluable, as it assists customers identify and buy services or products founded on whether its particular features and quality, as demonstrated in its distinctive trade, satisfy their needs.32 Trademark protection is influential in ensuring that marks owners have special rights to employ them in identifying services or goods, or in authorizing others to utilize them in exchange for payment. The protection period differs, but trademark becomes renewable indefinitely after corresponding fees payment.33 Besides, courts constitutionally implement trademark protection, and these courts have the authority to stop infringement of trademark.34 Trademark enhances enterprise and initiative globally by recompensing their owners with financial profit and recognition.35 It also prevents the attempts of unfair rivals like counterfeiters, to employ the same unique symbols in marketing different or inferior services or products. This system helps individuals with enterprise and skills to produce and promote services and goods in the most reasonable probable situations; hence enabling global trade.36 Trademarks can be a single, or combination of letters, words, and numerals. They can also entail symbols, drawings, or 3-dimenisonal signs like packaging and shape of products.37 Some countries can register non-traditional marks for differentiating characteristics like motion, holograms, smell, sound, color, or taste.38 Additionally, there are many other classes of trademarks. An association can have its members utilize collective trademarks with some degree to particular requirements sets.39 These associations may represent engineers, accountants, or architects. Here, the association provides certification marks to members that comply with distinct standards, but are unlimited to membership.40 Anyone can get if they may certify that their services or products satisfy given standards. For instance, the globally approved certification is ISO 9000 quality principles and Ecolabels for goods with minimized environmental effect.41 In the registration of a trademark, it is imperative to file an application with suitable regional or national trademark office.42 The application should have a precise reproduction of symbol filed inclusive of colors, three-dimension features, and forms. It also ought to outline services or goods to which the symbol will apply.43 The sign should also meet certain requirements to get trademark or other mark protection. It should also be unique in order to clients to easily differentiate it from others, and recognize products with it.44 Trademarks should not also be misguiding, or deceiving clients nor violating public morality or order.45 Lastly, trademark protection rights must not be identical or similar to others already given to another owner. National offices or third parties’ opponents can determine this though examination.46 Should intangible property be Copyright Protected? Case study of perfume protection In order to determine whether this kind of property should have copyright protection, it is vital to examine whether perfumes should get the protection. This is possible because of the case of Lancôme and Kecofa companies. Lancôme has produced and sold perfume that contains Tresor scent with trademark Tresor in various countries including those in Benelux.47 On the other hand, Kecofa sells bottles of perfume in Benelux with trademark Female Treasure as from 1993.48 In 1994, Lancôme took a legal action against Kecofa at Amsterdam district Court, with allegations that the later violated Lancôme’s trademark when it used the trademark Female Treasure.49 Nevertheless, the court dismissed the allegations; Amsterdam Court of Appeal in 1997 upheld the judgment. In 2000, Lancôme filed a case against Kecofa at Maastricht District Court. This time, Lancôme’s claim against Kecofa was that the later sold perfume with the name Female Treasure violated Lancôme’s trademark copyright in Tresor scent.50 In an interlocutory ruling made in April 18 2002, the court command Lancôme to show that the blend of scents produced with Tresor trademark satisfied the copyright’s conditions.51 These conditions included original character bearing author’s stamp.52 Lancôme petitioned the judgment at ‘S-Hertogenbosch Court of Appeal. The court maintained that the perfume’s scent can be copyright protected and that Kecofa violated Lancôme’s trademark copyright in Tresor scent. Consequently, the former filed a petition before the Supreme Court.53 According to the Supreme’s Court decision, perfume scent is copyright protected, since it: sensory perception can identify it; bore an original character; and possessed author’s private stamp. Besides, the court judged that scent unrecognizable with materials that form it.54 These substances symbolize the copyrighted works and add to its protection by ascertaining that there is no exclusion of scent in the protection on grounds of instability or predictability. In order to validate its claim that Lancôme perfume bore an original character and author’s private stamp, the company argued that Tresor was a product of a specific innovative development course.55 From many olfactory elements, the maker of perfume chose elements that brought out a particular blend of fragrance of fresh lilies of the valley and white roses, that iris, blossom, apricot, and heliotrope powdery fragrance with a backdrop of musk, sandal, and storax enhances it. Additionally, the company chose elements that came from the fact that the company sought to create a unique and distinctive perfume, and were directly famous because of the unique scent of Tresor. In conclusion, the court of appeal said that Tresor perfume satisfied the needs for copyright protection to an adequate extent. The Supreme Court consequently maintained that the Female Treasure scent violated the other company’s copyright.56 Eventually, the Supreme Court ruled that the court of appeal had a right to conclude that Kecofa’s scent violated Lancôme perfume copyright on the survey report’s basis.57 Upon instructions by Lancôme to proof Kecofa’s violation of its copyright led to the issuance of the study report. Court of appeal never investigated empirically if the scent had an original character, as well as the author’s personal stamp.58 The Supreme Court’s rulings are clear and straightforward. It did not follow the advocate general’s conclusion in the case. This is because the latter disagreed concerning the court of appeal’s inquiries. Further, the advocate general says that the judges ought to have concluded that Kecofa’s perfume violated in Lancôme’ s Tresor by conducting investigations using their own olfactory.59 The manufactures of perfume that fight against copyrights would support the judgment. Nonetheless, its realistic significance is probable to be restricted, as judges would have to evaluate if all cases satisfy all the copyright protection conditions. On contrast, there is a rationale for producers to be optimistic. The top perfume manufacturers probably have extensive knowledge and study information on grounds that they can give a report indicating the selections of scent creator. Moreover, since pleasant scents can now qualify for copyright protection, their usage in distinguishing products may become significant.60 However, several copyright issues like public access and reproduction within a violation context will cause interpretation issues. Hence, it questionable whether scents may get copyright protection.61 By contrast, in the June 13 2006 ruling by French court maintained that scents should not access copyright protection. This court argued considered that a perfume is the product of expertise and not a form of expression, which is protectable as an intellectual property.62 Still on Lancôme case versus Kecofa, the Dutch Copyright Act does not constitute an exhaustive outline of subject matter, which is protectable.63 Primarily, anything may qualify for copyright protection on condition that it is original and perceptible. The High Court maintained that the perfume’s smell could fulfill the requirements, even if it is just perceptible through sense of smell. The court differentiated the perfume from its formula or liquid that contains it comparing the liquid to a book’s paper that is not the copyright’s subject matter, while the book content is. This difference means that a perfume that has different ingredients, but smells similar can be violating, while a perfume with the same recipe, but distinct scent would not be infringing.64 As the High Court granted that, the copyright protection of scents can have various awkward results. In fact, copyright allows the holder of rights to bar unauthorized reproduction of his work. This could imply that anybody using a perfume in public like to work, or in a theatre, would require a license to avoid conducting a violation act.65 Nevertheless, the High Court maintained that, even if this was true, a perfume user has a right to normal usage of perfume. As per the advice of the Advocate General to the High Court, some exemptions must be included in the Dutch Copyright Act to handle such challenges if the Court wanted to declare smell copyrightable. Since scents hardly suit the copyright system, and because the legislature explicitly did not consider smells when it created copyright law, was insufficient for the High Court to deny bestowing protection. The Court merely emphasized on the open-ended protection conditions, just like other perceptible expression, if a scent is original, it could in replicates, such as scent of roses, cannot get protection. Likewise, a smell that resembles some traditional perfume cannot satisfy cannot fulfill the requirement. Nonetheless, if a perfumer creator provides his own twist to a scent, it may be eligible protection. One disturbing fact about perfume protection is the risk that it could bring unnecessary monopolies. Most human beings lack a well-advanced sense of smell; hence, they can only identify a few palettes of smells.66 Therefore, people consider some perfumes similar, and they quickly find violation. Perfume protection could demoralize competition to unacceptable degree, permitting only a handful of perfumes to exist legally side-by-side.67 Just as establishment of likeness between claimants and a reportedly violating scent, in the same way could likeness between a claimant’s and pre-existing smells.68 This could make smells’ protection worthless in practice, since most smells are unoriginal anyway. In this situation, it is worth noting that the High Court did not maintain that Tresor qualifies for copyright protection. The Dutch High court cannot make a ruling to the case’s fact, instead, it stated that scents could in general and principle, be considered copyrightable subject matter.69 In terms of proving originality, Kecofa sought to challenge Lancôme’s originality of Tresor based on a perfume long tradition, and hence; likewise to various already existing perfumes.70 The High Court’s responded, specifying that the originality condition does not imply that a good must be completely new, instead, that the creator should have used some of his innovation and creativity into it. Because Lancôme provided several reports on the development of Tresor, it was upon Kecofa to proof that Lancôme had really copied an already available product, and that its perfume had not originality. The defendant has an extra procedural drawback. Dutch copyright law safeguards against express imitation.71 Nevertheless, if there is a high level of similarity, there is assumption that the violator imitated the original, and has the burden of demonstrating that he formed his product autonomously. Therefore, the defendant’s product is similar to the plaintiff’s the assumption of copying arrive; while it does not, if there is a resemblance between the complainant’s and already existing products. This factor can tilt the balance to the appearance of wide monopolies. Lastly, it is advisable to document the creation of perfume broadly, in case it smells like an already existing fragrance in the market. The certification can help in proving that the similarity is by coincidence. If one stands on the other end and sues another person else for violation, it makes sure that he bears the load of attempting to demonstrate that one copied an already available scent. Similarly, if one produces wines or operates a restaurant, the same applies. It is imperative to prepare for a rival that claims that one has violated the rival’s copyrights. Global issue in copyright laws Nearly all nations in the globe take part in the registration and protection of trademarks. Every regional and national keeps a register of trademarks that is full application information on all renewals and registrations that enable analysis, search, and possible conflict by third parties. The impacts of registration are, nevertheless, restricted to the nation concerned.72 WIPO has a global trademark registration system that prevents registration of different applications with every regional or national office. Two treaties including Madrid Protocol and Madrid Agreement Concerning the International Registration for Marks govern the system. People with a connection either through domicile, nationality, or establishment to a nation party to the treaties can get a global registration based on application or registration with trademark office, and has effect in all or some nations of the Madrid Union.73 Copyright laws control the copying of the physical component of intellectual products by providing copyright holder with special right to copy for the specified period. If this regulation is implemented and enforceable, all commercial of intellectual property entails trading of tangible objects that the rights agent or holder produces.74 The physical objects are the visible demonstration of intellectual property. In terms of printed books, the visible trading requirements are appropriate since society is effective at the application of the copying guidelines to books. Books are costly and hard to produce; needing exclusive materials and equipment, and few individuals will manage conduct illegitimate reproduction.75 Besides, alongside the United Nation’s specialized agencies system, WIPO acts as a meeting for its member states to create and harmonize practices and rules for the protection of intellectual property. WIPO also services international registration systems for industrial design, trademarks, and appellations or origin, and patents’ international filing system. There is a regular review of the systems by member states of WIPO and other stakeholders to establish their appropriate enhancement to serve the user’s needs and prospective users.76 Conclusion Copyright laws are vital in the protection of companies’ or individuals’ cultural and literary works, and ideas from imitation. Explicitly, the copyright laws only protect certain property that meets specific conditions like originality and author’s private stamp. Besides, copyright laws extend to some intangible property like perfume, as demonstrated in the case study above. According to the Supreme Court’s judgment, perfumes are copyrightable as long as they satisfy the aforementioned conditions. Likewise, the protection laws also extend to intellectual property to bar other people or competitors from stealing or imitating others’ works for exchange of money. Additionally, copyrights protect right holders’ properties worldwide. 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