Intellectual Property Law in the UK - Essay Example

The principle of Law used by UK courts to determine whether a substantial part of a copyright work has been copied. In United Kingdom the notion of copyright law comes from the general law system, which has basically been inspired by the natural legal principles and standing over the foundation of such legal principle the British legal system aims at ensuring equality in every aspect life as well as protection of the rights of every individual. The Copyright Act has also been adopted to serve the same purpose as it aims at protecting rights of the creative individuals so that their ingeniousness cannot be exploited by others from the perspective of commercial gain. At the same time this legal statute also ensures that a creative mind receives proper recognition or acclamation for his/her works. Since its implementation from the year 1911, application of the Copyright Act has become mandatory for various sectors to use and follow this system. In order to keep parity with the forms of offensive acts in this field several changes have been done in the existing form of the Act and finally it was implemented in the year 1988.1 Copyright is associated with creative works associated with literature, drama, music, films, broadcasting network to the typographic arrangement of various editions. Copyright does not include a work where a mismatch can be noticed between the requirement and the qualification.2 Due to technological progress scope of the intellectual property rights has become broader and an individual, who wishes to protect his creative works, coming within scope of the Act, is required to register the work. However, in the UK legal context, if a person wishes to exercise his/her intellectual property rights, no registration is required for copyright purpose. It is a completely costless procedure, both simple and flexible. When it comes to protection of information through the Intellectual property rights, introduction of the Internet is the most effective instrument.3 However, if a person wants to bring his work within the scope of copyright protection, it is required that his idea should be a novel and genuine at the same time. Business names and product names does not belong to group for copyright, rather they are protected as trademarks.4 The 1988 Copyright act contains certain factors which makes it an inferior commercially to exploit various copies that is known by the defendant. The right does not deal with those people who carry out direct infringement of copyright but applied to those people who deal commercially with infringing copies. Secondary infringement of copyright material covers the area of importation, selling, letting for hire etc. It also covers the area of making infringing copies, transmission without any kind of license, and the provision of apparatus for showing various works in front of public.5 A difference in opinion can be noticed among the British people regarding the notion of photocopying. According to few people photocopy cannot be done without taking the permission of the copyright if the copyright is less than 100 years old, while the other group thinks that the permission regarding the copy of a document by hand and selling the photocopy to that person is not a matter of crime.6 Types of works that are protected under copyright system are in the literature section mainly includes lyrics of a song, important documents, leaflets, manuscripts etc. In drama section it includes various plays, dance program etc or any other forms of performing arts associated with dramatic performance. In the music segment technicalities are considered, both in case of music recording and music score. Artistic segment mainly includes paintings by famous artists, photography, various kind of sculptures, ancient as well as modern architecture, charts and diagrams related with technicality etc. It also includes the arrangement of typed word in case of various magazines. In the film segment it includes the broadcasting system and various programmes telecasted in cable network. From 1992 the copyright act extended and various computer programs were also included in the literature segment. Apart from identification the author of a book retains a number of rights, those are: Right to various processes, products and procedures mentioned in his article also patent right and trademark right, the right to share the article with friends and family before printing of an article, can be in the exact form that will be submitted for the purpose of publication, right to preprint the article on the personal website of the author but this is subject to various acknowledgements. The author can hold a preprint version of an article but this criterion is also subject to various terms and condition. Author can also post the revised version of the text in form of an electronic file on its personal website for private as well as personal use. It can use its non saleable articles for the purpose of its own lecture subject to certain acknowledgement from the publication house. Author has authentic right to distribute the article if the article can be produced with the range of an author’s employment. It posses the right to enhance its thesis or dissertation with the help of including its own article subject to the acknowledgement of the publication house. It also has the right to submit, present and distribute its article at a conference but obviously not for commercial purpose. Again it can also expand the article in a book length form. These two are also subject to prior acknowledgement of the publication house.7 Legal Principle followed in UK regarding Copyright Protection: Paul Torremans, while exploring the legal principles, associated with the copyright protection of a work, has rightly observed that there are actually “three components of the full modern copyright namely: the right to control economic exploitation of the work; the right to prevent its publication: and the ‘moral right’ not to see one’s name used without consent, though not the dual nature of the latter right’s justification (author and public).”8 As it has already been mentioned that the English law, in the context of preserving basic rights of a person, mainly focuses over the dimensions of natural law, that it why the aspect of morality has been introduced within the scope of such jurisprudential rational. However, all these three aspects, for the first time, received proper judicial attention in the landmark judgment of Donaldson v. Becket (1774) 2 Bro. PC 129; 4 Burr. 2408. The issues of legal jurisprudence, as it been emphasized in the case, have explicitly been referred in the words, “The legal principle at stake in the Donaldson case has significant ethical implications. If copyright is a form of limited monopoly granted through statute, based on policy considerations, and not an absolute common law right, the ethical burden of proof shifts to copyright holders to show that their property interest are more important that the public good of having access to information.”9 Thus, such shifting of liability or onus over the person who has actually produced something original, is not only discouraging but at the same time it also challenges the judicial as well as legal foundation of the UK legal system. However, in the case it has been asserted that ingenious or creative works must receive sufficient legal protection and it is also liability of the state to provide the author with proper legal protection. In the context of copyright protection another important legal principle is very much applicable and it is known as the “Principle of territoriality.”10 The UK law strictly follows this principle as application of copyright protection is different, compared to other nations. However, this principle also has a major limitation as it does not provide protection to a copyright holder, if the breach of copyright occurs outside the territory of UK, “UK courts decided that an act committed outside the UK that affected a UK copyright owner could not be heard as a copyright infringement action by a UK court. There was no legal obligation on states to recognize the intellectual property system of other states.”11 If such a situation occurs then right of the author or creator, in the context of copyright protection by the state is violated. Procedure and Remedies regarding copyright: Considering law the assignment of copyright should be written and signed by the person who is the owner of the copyright, elsewhere the copyright rule will not be affective. An exclusive copyright license gives the right to someone to do whatever he or she can license to do without the permission of anyone else, just includes the owner of the copyright.12 In UK there is no formal procedure is required for the implementation of copyright. But in various cases it becomes mandatory to maintain some proof regarding the date of production of the particular material of the copyright, in cases where there is some possibility regarding the dispute of originality. Remedies that are available in the UK system, mainly hampers or fails to prevent a duplicate copy of the breach. It seems very much important that various copies of those copyright materials should be found to restrict their misuse. The importance of the statement is very much favorable for the fashion industry, where it becomes very much necessary to find every piece of stolen garments before their usage. A famous example in this case can be given regarding the famous graphic designing company Acme Enterprise. The company ensures regarding the individuality and the distinctive feature of their design and the chance is almost negligible for a competitor to copy the idea. The company holds various prove regarding its individuality. Various documents those are sensitive for the company comes under the copyright system but the security system should be much stronger so that it can restrict others from the use of those ideas. For their betterment it will be beneficial to go through the entire varity and range of copyright system.13 Public Domain: After the expiration of the copyright, the role of public domain comes into the system. Any person can do this type of work, no question regarding the license fee or consulting the owner. It causes a huge rush of various edition of a particular author. This can also be subject to financial turmoil. An example can be cited in this case: For the famous book Peter Pan by J.M Barrie, the Great Ormond Children’s Hospital received a huge amount of money as copyright. But after the expiration of the copyright the money flow which comes into the hospital stopped and results financial turmoil.14 In context of UK, the public domain of copyright includes various cases that may not fulfill the copyright protection criteria. Again there can be examples of such works which should belong to the copyright criteria but they are out of the copyright term. The public domain system also includes various works directly related with idea expression, works that are related with legal framework and work that can be performed with the help of judicial intervention and law system. In Benkler’s view in case of considering the public domain system we should consider the way in which various works are done also the way regarding its limitations of the work.15 Copyright related rights and regulations: The Directive of Copyright or in more general terms Directive 2001/29/EC regarding the harmonization of the copyright and various rights related with the information society. It was mainly implemented on all member states of EU within 22nd December 2002. There are few EU nations who have successfully being able to meet the deadline. In UK the idea regarding the construction of a Patent Office was generated much before the finalization of implementation regulations that comes into the system on 31st October 2003. A progress report was published that explained various causes regarding the delays in implementation. The consultation was contributed by FAST that welcomed various implementations regarding directives and vast clarity that brings lawful use of software. The main aim regarding the directive was to harmonize the position of EU nation with the Intellectual Property Organization of the world. There are various new ways where the copyright related works has been used and distributed in the last phase of the last decade, shows a huge growth in case of the distribution regarding the digital content via internet. Considering the case of UK, three biggest areas of directives is inclusion of various restrictions on the steps that one copyist can take to digital right management technology that mainly used for the purpose of protecting the content as soon as it is accessed. It also includes the introduction of a new right applied to authors and performers to restrict any kind of communication with general public regarding their work. At that time a balancing system was introduced which work as a protector of unknown service provider i.e. ISP from liability for copyright law, which mainly works as transmitting the copyright related works from one user to another user, so it can protect various users regarding the new and exclusive right for authors and performers.16 Golden opportunity and Black hole: The last two decade have shown a picture where a debate regarding the copyright which can be used as a suitable vehicle for various cases of software protection. Notion can be varied from those people who argue that not a single form of software will be fit for the copyright protection, where the other group of people prefers that the level of protection for various software’s should be reduced termed as utility patent protection.17 Copyright can be regarded as the core of any favorable knowledge regarding the economy. In to day’s world usage of technology, knowledge, new idea, information can be regarded as the main cause behind economic success and these things are guided by modern copyright laws. Though the system is able to maintain a successful balance between interest of public as well as the interest of various creators and investors, it receives various threats in the modern age. Copyright system can be considered as the golden opportunity or as the black hole in the context of UK. The golden opportunity is a proper environment that utilizes various developments regarding new technology for the purpose of education as well as research. Black hole is a system where the usages of various sectors are restricted and it hampers the research and the knowledge of the economy. A great mockery that comes into the system is, now a days technology is receiving greater volume of importance than books and other creative works for the education as well as the research purpose. So various new kind of restriction can give a threat to several contents and it would not be resulted as printed material. For the purpose of protecting public interest copyright system should sustain in a country that enrich the knowledge of creators, researchers, learners and for the economy as a whole.18 Hypothetical test regarding copyright in UK According to section 27(3) of CDPA 1988, it imposes a test of hypothetical manufacturer to find if various copies can be regarded as infringing or not. While making the copy in UK if it is considered as infringing, then import of all those copies should be restricted. But the act does not specify directly who should be considered as the hypothetical manufacturer, whether he will be the importer or the actual manufacturer of the copy resided abroad. Consider a two country based situation where an owner of copyright sells a book in UK as well as US but at different price. Importer buys the book at US at a lower price and resale it in UK market at a lower price than the owner of the book. If the owner is the maker of the book then there is no question regarding infringement, but if the Importer himself made the book, he would have infringed the copyright of the owner and as a result import infringes.19 Drawbacks of copyright system: Copyright also have some drawbacks and this view was first supported by Phillips MR in his book Ashdown. According to him copyright impose certain restriction on the creativity of an individual. The creativity and independence can be protected if there is an order to publish all kinds of material in anybody else’s work, without copying the words, expressions, and idea of that person. This is completely a rare case, can arise in the system incase where a person independently expressing its view can go against the view of the rights of copyright owner but not affecting the rules and regulation of copyright law. In case of this kind of incident the court can freely consider about the right regarding the application of independent notion.20 Considering commercial copyright system, which includes various factors from negotiation to monitoring and enforcement, seems to be very costly for an individual but very much within the range of an organization. So from individual point of view it is harmful.21 Conclusion: Various cases are there where copyright go against the public interest policy, various courts in UK attempt to maintain a balance between maintenance of public interest to protected area and also the benefits of the owner of the copyright system. This work shows the general feature of fundamental rights associated with others competing interest. In this context court depends on various measures related with statutory and common laws. In general users can access to the unoriginal part of the work. In the context of UK the copyright is not concerned with the creativity, it mainly gives emphasis to the notion that a work should not be copied from anyone else’s work. For this reason humdrum works like past examination papers and football match coupons falls under the notion of this kind of system. This kind of over inclusiveness limits the scope for a copyright work. It also tests the UK’s test regarding originality.22 References: 1. Brivati, B. Buxton, J. Seldon, A. (1996). The contemporary history handbook. Manchester University Press (Manchester). 2. Colston, C. (1999). Principles of intellectual property law. Routledge. (London). 3. Copyright and Intellectual Property Rights. (n.d.). Available at http://www.jisc.ac.uk/uploaded_documents/bp19.pdf Accessed on 30th July. 4. Copyright, Designs and Patents Act 1988. (n.d.). Available at http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm Accessed on 30th July. 5. Deazley, R. (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. (Cheltenham, Camberley). 6. Fact sheet P-01: UK Copyright Law. (2000). Available at http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law Accessed on 30th July. 7. Golden opportunity or black hole? ( n.d.). Available at http://www.bl.uk/ip/pdf/copyrightresearchreport.pdf Accessed on 31st July, 2009. 8. Lai, S. (2000). The copyright protection of computer software in the United Kingdom. Hard Publishing. ( New York). 9. Macmillan, F. (2005). New directions in copyright law. Edward Elgar Publishing (Cheltenham, Camberley). 10. Ruff, A. (1995). Principles of law for managers. Routledge. (London). 11. Sanders. A. ( 1997). Unfair competition law: the protection of intellectual and industrial creativity. Oxford University Press ( Oxford). 12. SCHEDULE OF AUTHOR RIGHTS. (n.d.). Available at http://www.tandf.co.uk/journals/pdf/copyright-author-rights-society.pdf Accessed on 30th July. 13. The copyright and related rights regulations: Britain’s approach to the copyright directive. (August 2008). Available at http://www.out-law.com/page-333 Accessed on 31st July, 2009. 14. Torremans, P. (2004). Copyright and human rights: freedom of expression, intellectual property, privacy. Kluwer Law International. ( London). 15. Braithwaite, J., Drahos, P., (2002), Information feudalism: who owns the knowledge economy?, Earthscan (London) 16. Torremans, P., (2007), Copyright law: a handbook of contemporary research, Edward Elgar Publishing (Glasgow) 17. Baker. R., (1998), Media Law: A Users Guide for Film and Programme Makers, Routledge (London) 18. Overs, E., Cassels, T., Alberstat, P., Crone, T., (2002), Law and the media, Focal Press (Oxford) Read More