Assignment – Intellectual Property Law
LONDON SCHOOL OF BUSINESS AND FINANCE
PART TIME - DIPLOMA IN LAW
ASSIGNMENT – INTELLECTUAL PROPERTY LAW
STUDENT Name: LEONARD QUEK HSIEN LOONG
STUDENT ID: S1027232
Leonard Quek Hsien Loong / S1027232
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Assignment – Intellectual Property Law
a.
Societies have argued various reasons for the protection of intellectual property
rights. Elaborate on these arguments. Which argument(s) do you think Singapore
has adopted in their protection of intellectual property rights? Provide reasons
and examples in support of your views. (20 marks)
b.
Alyssa was employed by Big Money Pte. Ltd. (“Big Money”) as a human resource
manager, to take care of the onboarding and training of new employees at Big
Money. Alyssa takes particular interest in writing. During her free time, she would
write novels. One day, she was challenged by her friends to publish an all-new
novel within two months. Unexpectedly, Big Money started expanding, and was
hiring furiously. Alyssa was swamped at work and did not have much free time
to write. To maintain her reputation and win the challenge, Alyssa recalled that
she had, years ago in school, read this novel, which was written by Charisse, her
junior in school. At that time, Charisse had sent the novel to Alyssa for her
reading, as Charisse was seeking to obtain feedback for the novel prior to
publishing it. The novel was later published over the Internet by Charisse.
However, the reception was not good. Since not many people have read it,
Alyssa decided to take the novel, make minor and inconsequential amendments,
and post it online as hers. Charisse was made aware of this and came to you for
advice. Advise her on whether she has a good copyright infringement case
against Alyssa, or Big Money, or both, and explain why. (20 marks)
Leonard Quek Hsien Loong / S1027232
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Assignment – Intellectual Property Law
a.
Societies have argued various reasons for the protection of intellectual
property rights. Elaborate on these arguments. Which argument(s) do you think
Singapore has adopted in their protection of intellectual property rights?
Provide reasons and examples in support of your views.
1.
As per Article 2 (viii) of the Convention Establishing the World Intellectual
Property Organization (herein known as “WIPO”), intellectual property (herein
known as “IP”) is the product or result of intellectual activity in the industrial,
scientific, literary, or artistic fields1 (WIPO, 1967). In short, it is the physical,
tangible creation of an intangible, creative and innovative idea that comes from
the human minds. This tangible product of the human mind begins its “life
journey” as an intangible idea, that only resides in a person’s mind. Once this
idea becomes an actual tangible product that can be seen, heard, felt and
touched as an actual product or creation, as a representation of the creator’s
mind, it becomes a personal property of the creator’s intellect, which can be
registered with and protected with the government.
2.
IP is also seen as a bundle of property rights that protect “creations of the mind”.
Such rights can be crucial for one’s business as not only they would be used to
protect one’s creations, one can use their registered IP to exploit on a commercial
basis primarily by gaining market share with recognition and perceived quality of
products and services. These creations are then owned and legally protected by
individuals or companies from external use, manipulation, or implementation
without prior, authorised consent. Some examples of IPs are:
3.
a.
Copyrights
b.
Trademarks
c.
Patents
d.
Confidential Information (Trade Secrets)
Societies protect IP rights because its main function is to protect a contentcreator’s interest in their ideas by assigning and enforcing legal rights to produce
and control physical instantiations of those ideas. It is allowing individuals to
protect ideas as personal property and preventing anybody else from benefiting
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Assignment – Intellectual Property Law
from the individuals’ hard work and creativity. It is considered a personal
property.
4.
Article 6 of the Berne Convention articulates the notion of “moral rights” that are
included in continental European intellectual property law. The doctrine protects
the personal rights of creators, as distinguished from their economic rights, and
is generally known in France as “droits morals” or “moral rights.” These moral
rights consist of the right to create and to publish a work in any form desired, the
creator’s right to claim the authorship of his work, the right to prevent any
deformation, mutilation, or other modification thereof, the right to withdraw and
destroy the work, the prohibition against excessive criticism, and the prohibition
against all other injuries to the creator’s personality.
5.
Hence protecting intellectual property rights is more than just the economic value
placed on the idea from its content creator. It is also about the moral involved,
upholding the and respecting the idea of the content creator, thus giving the
creator their due. In Singapore, where there are close to no natural resources to
sustain the country’s economy, it’s citizens and the intelligence that come with
them, are the main driving force of the country’s economy and attractiveness to
the foreign direct investments (FDI) from overseas. A highly educated workforce,
results in the government’s direction to make Singapore the world leader in
intangible assets (IA) and IP expertise and services
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(IPOS, 10 Dec 2021).
Singapore has taken the utilitarian-based argument approach.
6.
As IP also benefits society by supporting multitudes of industries to create jobs,
drive economic growth, improve competitiveness of the industry, economy and
ultimately the country’s attractiveness to foreign investors. It also provides
confidence to consumers that when a country or society at large has strong IP
laws, that they will be confident in their consumption of the use of the end
products with confidence, especially when lives are at stake, whether in terms of
life and death, or in terms of monetary benefits and bankruptcy (think expensive
lawsuits, etc).
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Assignment – Intellectual Property Law
7.
Singapore’s focus will always be on economic benefits of IP protection to
individual and society (the so-called selfless argument). This direction from the
government would allow individuals to exploit their IP for financial gain, and thus
recoup investment, of time, effort, financial resources. Singapore encourages or
provide incentive for creation of IP. This in-turn benefits society via variety of
ways such as costs of medical cures, improvement of quality of life, employment,
and economic growth.
8.
An example of Singapore’s focus or direction for IP can be seen when the
Singapore Exchange (SGX) and the Intellectual Property Office of Singapore
(IPOS) collaborated to launch the Intangible Disclosure Evaluation and Audit
Scheme (IDEAS) programme exclusively for SGX-listed companies and
companies preparing for a listing. The goal of this scheme is to raise awareness
and encourage companies to undergo intangible assets (IA) evaluations and
promote a more robust IA disclosure environment. This will help investors better
appreciate the value of intangible assets, and support companies in capital
raising 3 (SGX, 4 Feb 20).
9.
Another example to showcase Singapore’s aim of becoming the world’s locale
for IP, IPOS passes judgements on many IP cases that will enhance Singapore’s
reputation as a country that is geared towards IP and providing a fair, just and
reasonable platform, in which companies may come to and set up offices and
invest in the country and provide for the economy. In Abercrombie & Fitch Europe
SAGL v MMC International Services Pte Ltd [2016] SGIPOS 6
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(IPOS, 2016),
A&F was successful in opposing the trademark application of MMC. This
provides foreign companies with the confidence in investing and setting up
permanent offices and retail in Singapore, thus contributing to the economy.
10. There are many advantages of IP namely the enhancement of the company
value, services, and products via trademark registration. Registered trademark
provides explicit protection of the brand name, logos, products, and services.
Due to this “protection”, it allows businesses to easily obtain financial assistance
from financial institutions and create more export opportunities. The easy access
to obtain financial assistance from financial institutions, allows businesses to
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Assignment – Intellectual Property Law
grow and expand the market beyond domestic consumption. This creates the
demand of export opportunities given international demands will increase when
the brand is recognised outside its origin country.
11. In conclusion, IP is an area of law that needs a balance approach that will benefit
society, as well as to give due credits, benefits, and compensation to the inventor
for their intangible asset / ideas, that in one way or another will benefit society at
large. Hence the balance of limiting the IP Monopoly to benefit public interest as
well as to protect the inventors’ ideas. This is to prevent copies or multiple
creation of the same or similar ideas that may end up in a lawsuit, and never
make it to production to benefit society at large. The aim is to provide at the
lowest costs possible, something new to benefit society at large to improve their
quality of life, without ‘blindsiding’ the IP inventor and giving them due credit.
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Assignment – Intellectual Property Law
b.
Alyssa was employed by Big Money Pte. Ltd. (“Big Money”) as a human
resource manager, to take care of the onboarding and training of new
employees at Big Money. Alyssa takes particular interest in writing. During
her free time, she would write novels. One day, she was challenged by her
friends to publish an all-new novel within two months. Unexpectedly, Big
Money started expanding, and was hiring furiously. Alyssa was swamped
at work and did not have much free time to write. To maintain her reputation
and win the challenge, Alyssa recalled that she had, years ago in school,
read this novel, which was written by Charisse, her junior in school. At that
time, Charisse had sent the novel to Alyssa for her reading, as Charisse
was seeking to obtain feedback for the novel prior to publishing it. The
novel was later published over the Internet by Charisse. However, the
reception was not good. Since not many people have read it, Alyssa
decided to take the novel, make minor and inconsequential amendments,
and post it online as hers. Charisse was made aware of this and came to
you for advice. Advise her on whether she has a good copyright
infringement case against Alyssa, or Big Money, or both, and explain why.
Arbitration – Arbitration is an Alternative Dispute Resolution besides Court
Litigation, where both parties of the dispute appoint a mutually accepted
arbitrator to adjudicate their dispute. Arbitration is cheaper, faster,
confidential and both parties can appoint their suitable qualified expert on
the case. A licensed and authorised Arbitrator will make the final decision
on the case that is legally binding. Arbitration is more adversarial in
manner since there is a ‘losing party’ and set in a more formal and
professional setting. In Singapore, arbitration is governed by the
International Arbitration Act for international cases and Arbitration Act for
domestic cases.
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Assignment – Intellectual Property Law
Copyright Infringement Case
Issue
1.
What was Alyssa’s intention in using Charisse’s case?
2.
Is there de minimis changes or wholesale changes?
3.
Did Alyssa benefit from publishing her doctored work in anyway?
4.
Was Charisse’s publication registered as a copyright with the IPOS to prevent
replication?
Rules
1.
Copyrights Act S13(1)(a) – a literary work includes a compilation in any form.
2.
Copyrights Act S13(2)(ai)(A) – a compilation is a compilation consisting of wholly
or partly an authorial work.
3.
Copyrights Act S13(2)(ai)(B) – a compilation is a compilation consisting of wholly
or partly a published edition of an authorial work.
4.
Copyrights Act S110 - Conditions for copyright to subsist in published authorial
works.
5.
Copyrights Act S53(1) – an authorial work is published only if copies of the work
(or of an edition of the work) have been supplied to the public (whether by sale,
over the Internet, or otherwise).
6.
Copyrights Act S58(4) - Work published without consent of author does not count
as valid publication
Analysis
1.
In this instance, there is sufficient evidence of intention to show that Alyssa did
spend time to peruse through her old documents from years ago, to find that
literary work that was authored by Charisse from years ago in junior school.
There was evidence that Alyssa knew what she was doing when she made minor
and inconsequential changes (de minimis) to the published authorial work. To
recap the authorial wok from years ago, Alyssa must read through the novel and
decide on which areas of the literary work were to be edited to prevent the same
copy from being published over the internet. This would then prove that the work
was not Alyssa’s work.
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Assignment – Intellectual Property Law
2.
There was evidence of intention when Alyssa published the edited work over the
internet. She was aware of and found time and effort to have the edited work
published over the internet. Charisse who is the author of this published work is
a Singaporean and the work was first published in Singapore at the time of
publishing the authorial works. As Charisse had sent a copy to Alyssa for perusal
previously before publishing the work over the internet, this is evidentiary that
both Charisse and Alyssa are the connecting factor as they both know each other
from school previously.
3.
There was insufficient ‘mental labour’ from Alyssa put in to make changes to
Charisse’s work, that would then deem the new work as distinctly different and
as Alyssa’s original work.
Conclusion
1.
Alyssa did not benefit monetarily or in any kind sufficiently from the publication
of the edited version of the literary work, that was authored by Charisse. Although
Alyssa’s intention was to win the challenge set forth by her friends, she did not
anticipate the sudden increase of work that would prevent her from starting her
novel for the challenge.
2.
As a result, Alyssa used and made de minimis changes to Charisse’s work and
published it as her own convince her friends that she could firstly, complete the
challenge of writing the novel in two months, and secondly, she wanted to save
her own face due to her ego, Alyssa resorted to using Charisse’s work.
3.
Although there was an infringement to the copyright of Charisse’s work, there
was no real malice nor criminal harm done in due course. It is greatly suggested
that both parties attend arbitration at the Singapore International Arbitration
Centre.
4.
This would save time and costs as well as keep information confidential.
2456 words
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Assignment – Intellectual Property Law
Bibliography
1.
World Intellectual Property Organisation, “Conventions Establishing The World
Intellectual Property Organisation”, 28 September 1979, Website, URL:
https://wipolex.wipo.int/en/text/283854, Date accessed: 23 Apr 2022.
2.
Intellectual Property Office of Singapore, “Singapore IP Strategy 2030 Report”,
April 2021, PDF, Online: https://www.ipos.gov.sg/docs/default-source/defaultdocument-library/singapore-ip-strategy-report-2030-18May2021.pdf, Accessed:
23 Apr 2022.
3.
SGX, “SGX and IPOS launch pilot programme to help companies identify and
communicate intangible assets information”, 4 Feb 2020, Website, URL:
https://www.sgx.com/media-centre/20200204-sgx-and-ipos-launch-pilotprogramme-help-companies-identify-and-communicate, Date accessed: 23 Apr
2022.
4.
Intellectual Property Office of Singapore, “Abercrombie & Fitch Europe SAGL v
MMC International Services Pte Ltd [2016] SGIPOS 6”, 17 May 2016, Website,
PDF, URL: https://www.ipos.gov.sg/docs/default-source/resourceslibrary/hearings-and-mediation/legal-decisions/2016/2016-sgipos-6.pdf, Date
accessed: 30 April 2022.
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