IP 笔记
Lecture 1
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Theory, Copyright and Design
Intangible rights
3 main IP: Copyrights, trademark, patents.
The confidential information can be protected by trade secret law.
IP in general
IP rights vs property rights
 IP is about the content, whereas property is about the vehicle, and the conten
and the vehicle can be treated separately
 IPR are artificial exclusive rights closely linked to public policy.
 Strong regional disparities
 Utilitarianism theory: What may happen if no IP protections?
- Free-riding would be easy
- Innovators/creators cannot recoup their costs incurred.
Does IP system truly spur innovation/creation?
- Communicative issues
- Monopoly, create barriers on others who want to enter the industry
- Cost-benefit analysis is too complicated to do.
 Labour theory:
"For this labour being the unquestionable Property of the Labourer, no man
but he can have a right to what that is once joined to, at least where is enough
and as good left in common for others."
Sources of law are
Basic law
Copyright Ordinances and court cases on copyright
However, common law cases since copyright ordinance is very similar to UK
Copyright Act  UK Cases quite persuasive.
EU Cases also quite persuasive
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International Copyright Law
 Globalization,
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Lecture 2
 Copyright is a property right of exclusivity and transmissible
 A copy right is a work in which copyright subsists
General requirement
Only subsists in a work if the work
 Is original
 Is recorded
 Falls within the categories of
1) Literary, dramatic, musical or artistic work
2) Sound recording, films broadcast or cable programs
3) The typographical arrangement of published editions
Pre-requisites for copyright subsistence
1. Originality
 You take something from the nature/ takes to the Orrin to the person who created
it
 The case law
 Originality is not concerned with whether the work is inventive, novel or
unique, it only cares about if it has originated from the author and has not been
copied from another work [the University of London press]
 The rule of “sufficient skill, judgment and labor
Labour theory
by saying a ‘work’ means that the author must have exercised the requisite
intellectual qualities, or in other words, ‘labour, skill, or effort’ in producing
the work. [Ladbroke 1964]
 Ladbroke v William Hill
2.
Lecture 3
 Artistic craftsmanship
- To protect work of the type produced by the arts and crafts movements
- There is no precise definite of it.
- Golden Bright Manufacturer Ltd v Sunlight electronic toys
anyfactyring Co Ltd
 Must have artistic quality.
 Must be a work of craftsmanship.
 New types of work
- Authorial works REQUIRES originality
- Entrepreneurial works REQUIRES NO originality
1) Sound recordings
- A recording of sounds, from which the sounds may be reproduced
- a recording of the whole or any part of a literary, dramatic or musical work,
from which sounds reproducing the work or part may be produced,
regardless of the medium on which the recording is made or the method
by which the sounds are reproduced or produced.
- Copyright does not subsist in a sound recording which is, or to the extent
that it is, a copy taken from a previous sound recording.
2) Broadcast
Broadcast does not extend to making material available on demand on a
internet or similar services.
**The key is whether the public has choice to choose when and where that
can receive the transmission
3) Cable Programme
4) Published editions
Means a published edition of the whole or any part of one or more literary,
dramatic or musical works
Copyright does not subsist in the typographical arrangements of a
published edition if, or to the extent that, or it reproduces the typographical
arranganment of a previous edition
For news paper, it has been held that the typographical arrangement refers
to that of the whole newspaper, not of each article published therein.
Why we protect entrepreneurial works?
A) Entrepreneurial works rewards the person in charge of the creation
- Encourage creativity and A third possible reason is to adapt to the
changing technological and social environment.
- And may concern how lucrative industries related to those works are
5) Films
Is protected in a more hybrid way
 In some cases, a film would be a dramatic work in itself; In others, a
film can simply be a recording of a dramatic work
 What may be included in a film
 Dramatic
 Performers rights
 Artistic
 Sound recording
 —Copyright in a completed film: protects the visual images and
accompanying sounds (the film sound- track)
Vests in the producer and the principal director
Copyright in other underlying works
Vests in corresponding authors of the works
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Idea/expression dichotomy: Baker v Seldon
Bookkeeping method is not preotected as copyright
Idea is not only the abstraction idea but also includes a system, a method, a
procedure et al.
Procedures, methods of operation or mathematical concepts are logical
extensions of the idea/expression dichotomy
Channeling between copyright and patent
Channel ideas to patent law to avoid erosion of patent’s high level of scrutiny
This case can be a milestone to distinguish patent and copyrights
Lotus Developing Corporation v. Borland International
Issue: whether a computer menu command hierarchy constitutes copyright above
subject matter
Holding: the command hierarchy is method of operation
Facts:
Must be the first one to discover the fact.
Immorality:
Whether AV can be protected? The answer is NO, since it is immoral
“‘copyright cannot exist in a work of a tendency so grossly immoral as this, a work
which apart from its other objectionable features, advocates free love and justifies
adultery where the marriage tie has become merely irksome”  the uncertainty
feature of immortality.
你们还记不记得 有一组 pre 那个 authorship，你们俩问了个问题如果 joint
authorship 里其中一个人死了 是另一位 joint author 拥有全部 copyright 还是
死者的继承人继承那一部分 copyright？
如果联合创作作品中的一位作者去世，他/她的版权份额并不会转给剩余的
作者。相反，这部分版权会转给去世作者的法定继承人 2。这意味着，如果
一位联合作者去世，他/她的版权份额将由他/她的遗产继承人继承，但是是
moral right
Moral right 不能 assign 所以只能继承的人有
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Joint authorship
What creative requirement the law requires
 Joint-authorship means a work made by the collaboration of 2 or more authors
in which the contributiuo. Of each author is not distinct from that of the other
author or authors
 Requirements of being a joint-authorship
1. who collaborates with another author in the production of a work
2. who (as an author) provides a significant creative input; and
Should contribute to expression of ideas – do more than contribute ideas
to an author
3. whose contribution is not distinct from that of the other author.
 Case: Ray v Classic FM Plc
P wrote and created music database and categorized D’s music into
categories based on P’s selection of track and his estimate of the
popularity of the tracks.
Is D a joint-author of the database?
The answer is no.
Since he was solely responsible as author for writing the expression of
ideas in the five docs.
 Case: Kogan v Martin
P is an opera singer and D is a script writer. Whether P can be the
joint author of a screenplay primarily written by D.
The major points regarding the requirements
1. The authors need not have intended to create a work of joint
autghorship, but they muast ahave intended to create a work and
they must have some common design, cooperation, or plan that
united the authos
2. The authos contributed to the making of the work
They should contribute to the expressions instead of the ideas
They do not need to be eaqual in turns
Collaboration should be a common design
To qualify as an author in the collaboration, the statutory test does not got any
further than asking who contributed to the creation of work.
Editing, critic and suggestions would not be considered as joint authors

The contribution should be incorporated asan individual art of the work
When the contribution is significantly different, then this contribution should be
separated into 2 different parts  No intention requirements here
The shares of joint contribution do not need to be equal, it’s kinda proportional
Duration and rights of a joint author
The first author died, the second author remained alive while died last year. He
joint authorship will be 2023+50.
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Employee works and commissional works
Employee works
Statute: S.14 CO
1) where a literary, dramatic, musical or artistic work or a film, is made by an
employee in the course of hius employment.
2) In a way that
In the course of his employment:
 Ng Mung Khian v Wing Kwong Painting Co Ltd
Lunch break 也算在 in the course of employment

Stephenson Jordan & Harrison Ltd v MacDonald and Evans
If the employees conduct bservices outside the contract of services
Holding:
- The employee retained the copyright for the text of lectures he given;
- The employer was allowed copyright in the section written as part of an
assignment for a particular client of the employer.
 Noah v Shuba
Not in the course of empyment
 the key is what works the employee is doing
 The rule for determining the work “in the course of employment” is
to see whether the making of the work falls within the types of
activity that an employor could reasonably expect or demand from
an employee. (reasonably or naturally incidental to or connected with
the class of work; integral part of the duty or merely accessory to it)
 Can ask the question whether the employee can be ordered to do the
work or not.
Employees’ rights
Very limited
S14(2)
Subject to any agreement to the contrary, where such work is exploited by his employer
or by someone else with the employer’s permission in a way that could not reasonably
have been contemplated by the employer and the employee at the time of making the
work, the employer shall pay an award to the employee in respect of such exploitation
at such amount as agreed between the employer and the employee or failing an
agreement, as determined by the Copyright Tribunal.
• What are the rationales for vesting the rights on employers?
Ø Put rights in the hands of a single owner
Ø In the hands of employers bc want to reward their investment (incentives) Ø
Eliminate the need for contracting in order to achieve the goal
Ø But does it truly achieves the goals?
Ø Any counter-arguments?
Lecture 4
1. Statute
- S. 14 (1)Where a literary, dramatic, musical or artistic work, or a film, is
made by an employee in the course
- of his employment, his employer is the first owner of any copyright in the
work subject to—
- • (a)anyagreementtothecontrary;and
- • (b)subsection(2).
2. Who is the employee
 Ultraframe v Fielding, the servant agrees that, in consideration of a wage or
other remuneration, he will provide his own work and skill in the performance
of some service for his master
- The other provisions of the contract are consistent with its being a contract
of service
For Noah v Shuba, the section is clearly in the course of employment; for the first
section, giving lectures was not considered to be in the course of employment.
Major Rule: Employees may sometimes perform services outside the contract of service
but the key is whether the person performing it was doing as an integral part of the
business o is only accessory to it.
Routine
3. Employee’s right
- Remain as authors: some moral rights
 Though limited
 And in practice, quite common that employees will request employees
to waive their moral rights

4. The substantive derivation from the original work
5. Substantial similarities and prior access can prove copying. Inverse ratio rule: where
evidence of access is absent to proving copying . The similarities must be so striking
as to preclude the possibility of independent creation
6. In most jurisdictions, subconscious copying is not a good excuse.
7. Focusing the work, compare the particular parts taken form the work. These two
songs are not substantially similar
When deciding the consider th prays should be protected
8. Designer Guild v Russell Williams: the experts thinks that the pattern and the color
and the objects are basically the same  The next step should be depend on
Lecture 5
Primary Infringements
Infringement by issue if copies to the pubic
Merely passing small snacks,
Infringement by issue of copies tonthe public
1) The issue of copies of the work to the public is anact restricted by the copyright in
every description of copyright work
2) References in this part to the issue of copies of a work to the pubic do not include
 Any subsequent distribution , sale, hiring or loan of copies previously out
into circulation
 Any subsequent importation of those copies into hk
Distribution to the public
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Peek v Cloppenburg: distribution is primarily defined as an act involving
transfer of ownership
Donner and Dimensiopne Direct: distribution can emcompass a series of acts:
advertising, agreement to sell, sale, and subseqwuent delivery
To the public: not include distribution of infringing copies within a small
personal network
Using HK as a port of reexport of copues made and sold for the purpose of
distribution to a foreign market is not to put copies into circulation
 S. 25 Rental of copies

 Why restrict to these? The copyrights
Ss.1 gives that the law applies to. In generl, it applies to the computer

programs and sound recordings and films, or liuterary, dramatic or mucsical
work included in sound recordings
 Rental means making a copy of the work available for use, on termns that
it will ro mayb be returns, for direct or indirect economic or commercial
advantage. However, Lending is not for direct or indirect economic or
commercial advantage, only RENTAL is.
E-lending? VOB v Stichting Leenrecht: Lending included the temporary
making available of a digital copy, but that rental did not.
Rental has some exclusivity attaching to it.
The online copy cannot be used as a rental
Intangible objects and nonfixed copies such as digital copies are excluded
from the right of rental
If the objects are nontangible, tjhen it is hard to be controlled
 S.27 Infringement by performance, playing or showing of work in public
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Infringement by performance, playing or show of work in public (S.27)
The performance of the work in public is an act restricted by the copyright in
a literary, dramatic or musical work
Why not providing such rights from artistic work?
Ss. 1 Who is public?
Things need to be considered:
1) Were the persons concerned bound together by a domestic or private tie or
by an aspect of their public life?
2) If a gathering comprises members from a domestic or private tie, then
the performance will not be considered public. (like, family gathering)
NEED TO CONSIDER THE FEATURE OF PEOPLE
Attending a class will also be considered as “public life”
Ss.2:
Para (a): refers to the normal ways in which a literary work may be performed
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Para (b): provides that performances includes any mode of visual or acousitic
presentations.
** The public must present at the place where the performance occurs, the
recording is played, or the film or broadcast shown
Ss.3
Also right senjoyed in sound recordings, fileenjoyed in sound recordings, film,
broadcasts, cable programmes
 E.g. the playing of a computer disc or a cassette tatpe in public will
infringe three distinct tyoe of copyright: literary, musical and sound
recording
Ss.4
Means that the person in charge of the equipment used in playing music to
members pf he public, e.eg. background music in a café, is one infringing, not
the performer nor the sender of visual images or sounds
 S.28A: infringing by communicating to public
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Including live streaming, non-downlowdable video on demand
Hyperlink access to works
Peer-to peer file transfers
1) An act of communication of a work
Any transmission of the protected or any transmission or retransmission
which uses a specific technical means (Reha Training v Gema)
 A hotel which receives a broadcast through a central aerial and than
communicates it to bedrooms is transmitting to the public and must
obtain copyright licenses to do so
Providing access to the work is enough
 Substantially/materially intervened in the chain ofn providing access
2) Public:
SCF Consorzio Fonografici (Copyright and Related rights in the
information society) [2012] EUECJ C-135/10
 Issue: whether broadcasting copyright works within private dental
practices for the benefit of patients of those practices to enjoy
amounts to communicate to the public
 Rule:
 Public refers to an indeterminate number of potential listeners,
and in addition, implied a fairly large number of persons
1) “Indeterminate”: persons in general, that is not restricted to
specific individuals belonging to private group
2) “fairly large numbers of persons”: encompassed a certain de
minimus threshold, which excluded from the concept groups
of persons who were too small or insignificant
 In order to determine the number, account must be taken iof the
cumulative effects of making the works available to the potential
?? How many persons had access to the same work at the same
time
?? How many of them had access to it in succession.
 Reasoning and holding:
 Patients of a dentist generally from a very consistent group of
persons and thus constitute a determinate circle of potential
recipient
 Thus they are not persons in general
 The number of persons in his practice was not large, indeed it is
insignificant, given that the number of persons present in his
practice at the same time is in general very limited
 Though there are a number of patients I. succession, as those
patients atten one at a tim, they do not generally hear the same
works in particular
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Exceptions: aim to qualify the broad right to communicate to a reasonable
scope
Exception 1: communicated a work to the public if the person has determined
the content of the communication
 A person does not determine the content if they only
(a) gaining access to what is made available by someone else in the
communication; or
(b) receiving the electronic transmission of which the communication consists
(S28A(5))
Exception 2
the mere provision of physical facilities does not belong.
 The overlap between “pubic performance” and “communication to the public
a) When technical means are used to transmit works to the public, it can fall
within communication to the public
b) Yet, techinically speaking, if the public is considered as present in the place
where the works are being transmitted, it may also be interpreted as “public
performance, show or play’
The difference:
a) Interactive, on-demand services to make available works: communication to
the public
b) Live presentation, live performance in real-world places: public performance’
 S.29 Infringement by making adaptation or act done in relation to adaptation
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The restricted acts only applies to literary, dramatic and musical works, and
computer programs
In general, adaptation would include a substantial amount of a book that has
been made into a play or translated, like from French to English
It covers an adaptation of an adaptation. If enough skill and judgement has
been involved in the adaptation, it may attract its own copyright, but would
infringe the first work if done without the consent of its owner.
Secondary Infringements
Commercial dealings in infringing copies
1. Those who distributed or deal infringing copies once they have been made
2. Those who facilitate copying by providing the equipment or means that enable the
copying to take place
 Requirement of knowledge: actual knowledge or constructive knowledge
 Meaning of “infringing copy”
 Knowledge
 Actual knowledge or contructive knowledge of dealing with infringing
copies
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Constructive knowledge:
 If you receive a claim that you are infringing, but you do nothing,
constructive knowledge will suffice
 Reasons to belief: The test is objective, whether the reasonable man,
wih knowledge of the facts known to the defendant, would have
formed the belief that the item was an infringing copy, having been
given sufficient time to evaluate the facts
 A mere suspicion is not a belief (LA Gear Inc. v Hi-Tec Sports plc
[1992]; Pensher Security Doors v Sunderland City Council [2000])
 Mere substantial similarity cannot establish the requisite knowledge
Reason to believe
1) Golden Bright Manufacturer Ltd vSunlight Electronic Toys
Manufacturing Co Ltd
Facts: Copyright infringement of pinball game designs. D is
instructed by MGA HK to products based on the mock-up provided,
which is created out of the hansample provided by the P during its
negotiation with MGA HK.
Issues:
a) Whether D is liable for primary infringement by distributing the
infringing products to the public in Hong Kong
b) Whether D is liable for secondary infringement as it has
constructive knowledge P’s copyright when dealing with
infringing copies
Holding:
• Re-exporting without intent to reach the Hong Kong market is not
distribution to the public
• D has no constructive knowledge on the copyright of P when dealing
with the copies (issue of the fact)
Lecture 6
Secondary Infringement
1. Knowledge
Golden bright manufacturer Ltd v Sunlight Electronic Toys Manufacturing
Co. Ltd
 Facts: Copyright infringement of pinball game designs. D is instructed by
MGA HK to produce products based on the mock-up provided, which is
created out of the handsample provided by the P during its negotiation with
MGA HK
 Issues: whether D is liablke for primary infringement by distributing the
infringing products to the public in HK
 Whether D is liable for secondary infringement as it has constructive
knowledge P’s copyright when dealing with infringing copies.
 One thing needs to min ded specifically is the checklist for reason to believe
 The court held that there is. No constructive knowledge
有一个需要注意的点是：Primary infringement 没有 knowledge 方面的要求，
secondary infringement 有 knowledge 的需求。
2. What is an infringing copy?
 S. 35(2) of CO, a copy of work is an infringing copy is its making
constituted an infringement of the copyright in the work in question
 Parallel imported copies:
Lecture 7
Defences to primary infringement: Permitted acts
1. Relevant articles: 38, 39, 39A, 40, 41A, 54A
Why we need fair use?
Public interest
- Utilitarianism
- Recall back to the theories: which theories may justify or require the
limiting bdoctrine as fair use to maintain a balance.
- Allows acts which may be done in relation to copyright without the fair
use of copyright
- A premise is that the acts would be considered as infringing the copyright
without the fair use doctrine
2. SOFA Entertainment v Dodger Production
“The Copyright Act exists ‘to stimulate artistic creativity for the general public
good.’ It does so by granting authors a ‘special reward’ in the form of a limited
monopoly over their works. However, an overzealous monopolist can use his
copyright to stamp out the very creativity that the Act seeks to ignite. To avoid that
perverse result, Congress codified the doctrine of fair use.”
3. 3 step test:
 Step 1: the acts fall into “certain special cases” (art.9, the Berne Convention);
 Step 2: the acts do not conflict with a normal exploitation of the work by
copyright owner (s37(3), CO; the Berne Convention);
 Step 3: the acts does not unreasonably prejudice the legitimate interests of the
copyright owner (s37(3), CO; the Berne Convention).
There are may outlier jurisdictions: HK adopts a much more complicated approach.
HK has a mixture of approaches.
4. HK approach
A. did the circumstances bring the activity within the scope of the defence, and
 s37 (1): The provisions of this Division specify acts which may be done in
relation to copyright works notwithstanding the subsistence of copyright;
they relate only to the question of infringement of copyright and do not
affect any other right or obligation restricting the doing of any of the
specified acts.
B. was the use made of the work ”fair dealing”?
 Factors to consider: in many specified acts, the main factors are essentially
the four factors in the US law.
5. 4 important factors to consider, even though nones of these factors are decisive
(a) the purpose and nature of the dealing, including whether the dealing is for
a non-profit-making purpose and whether the dealing is of a commercial nature;
(b) the nature of the work;
(c) the amount and substantiality of the portion dealt with in relation to the
work as a whole; and
(d) the effect of the dealing on the potential market for, or value of, the work.
 Factor UNO:
The nature of the work
 Whether the work has been published or not: Salinger v Random House
Published work may have more possibility of fair use while unpublished
work have less
 Whether it is an original novel or just a news report article which contains
no more than facts
Factual work has more possibility of fair use, while fictional/creative
work have less
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Factor DOS:
The Amount and substantiality of the portion dealt with
 Quantitatively
Greater quantity used (less fair use) vs. lesser quantity used (more fair
use) relative to P’s work
 Qualitively
Substantial heart of original work (less fair use) vs. lesser
substantial/important part of the work (more fair use)
 Not decisive: just a factor!
- Context is important – in light of the purpose and nature of the dealing
- E.g., parody normally cites/uses the whole work.
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Factor Tres
the effect of the dealing on the potential market for or the value of the work
 Market of the work
- Whther there is a market substitution effect/ market harms
- Market to be considered: original markets and derivative market
- How about market benefits
 Value of the work?
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3537703
- Independent harms and considerations different from markts substitution:
such as values of the business model; moral interest of authors.
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FACTOR 4:
The purpose and nature of the dealing
GOOD FAITH/ BAD FAITH
The court found that the the key to determine whether the dealing supersedes the
object of original work
Or intead, adds something new with a further purpose or different character ,
altering the first with new expression, meaning or message
 Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (598 U.S.
___, 2023)
 downplayed the role of transformative use in the first factor
 “the first fair use factor instead focuses on whether an allegedly infringing
use has a further purpose or different character, which is a matter of
degree, and the degree of difference must be weighed against other
considerations, like commercialism.”
Dinwoodie and Dreyfuss argue that even though UK courts can depart from
Infopaq and the test of ‘author’s intellectual creation’ following Brexit,81 this
might be difficult because the UK courts have already interpreted the test in line
with the traditional originality standard. Departing from Infopaq may therefore
lead to inconsistency in UK case law.
Lecture 8
Case exercised:
一张电影海报里面有葫芦娃和黑猫警长
What rights are potentially
The right to be identified as the author or director
 The author of a copyright literary, dramatic, musical or artistic work, and
the director of a copyright film, has the right to be identified as the author
or director of the work in the circumstances mentioned in this session
 But the right is not infringed unless it has been asserted in accordance
with section 90
Porterfield
v
Denham:
Treatment?
 Evident that there is
 Whether derogatory? The court consider there is no such derogatory, har
to decipher and har to understand at the first stance \, no evidence of
reputation being harmed.
 Takeaway: “the mere fact that a work has been distorted or mutilated
gives rise to no claim, unless the distortion or mutilation prejudices the
author’s honor or reputation.” (Justice Lewison)
False attribution of work:
Ingeneral:
• s96ofCO.
(1)A person has the right in the circumstances mentioned in this section—
A. not to have a literary, dramatic, musical or artistic work falsely attributed
to him as author; and
B. not to have a film falsely attributed to him as director,
an“attribution”(署名),in relation to such a work,means a statement (express
or implied) as to who is the author or director.
Don’t wanna destroy
Exclusive licence this can be directly reltated
Can copyright in an unpublished work pass under will?
 Where under a bequest a person is entitled to
A. an original document or other material thing recording or embodying
a literary, dramatic, musical or artistic work which was not published
before the death of the testator; or
B. an original material containing a sound recording or film which was
not published before the testator’s death.
 then unless a contrary intention is indicated in the testator’s will or a
codicil to it, the bequest includes the copyright in the work in so far as the
testator was the owner of the copyright immediately before his death
 Assignable of moral rights
Broad definition of performer a
nd performance
 Performer’s rights
 Not IP rights in a traditional sense
 Performer’s right is required in many international conventions
The protection of performance is very broad. \
 Performer’s non-economic rights
a. Right to make a first fixation: consent required for fixation
b. Infringement of performer’s rights by use of fixation made without
consent
c. Infringement of performer’s rights by importing, exporting, possessing
or dealing with infringing fixation
d. 例
子
：
泰
勒
重
录
e. Interim injunctions
 This will only be granted if the matter is urgent or this is otherwise
desirable in the interest of justice
 The court is very cautious on this discretion
Design vs patent
 Patent is more like for functions
 Design is much more for appearance
 There is no requirement in artisrtic craftsmanship to be made in hand or
machine
 Copyright overlaps with design
There are different suggestions
25 years can be as the registered
Copyright holder ex
More piror arts to
The overlapping issues
How to
Meaning of article:
需要从实用主义的角度去考虑外观设计吗？只在考虑是用作整体还是个体也可
以的时候会用到实用主义角度
The whole
For incorporation 就是那些必须要和原物件放在一起才能有价值的物品
For general use 就是那些单独领出来也可以的物件
Channeling principle
Why not protect functional features?
Since functional features are protected by patents and design should be focused on
appearance.
Industrial process: 可以理解成工业化的生产流程
Dictated by sole function 对于苹果电脑程序坞的设计来说其实也是有审美价值在
的（比如图标的设计甚至整个桌面的 arranging）
Lecture 11
Burberry Asia Ltd v Polo Santa
The issue is whether color difference should be taken into consideration.
The answer is no. there should be no importance be attached to the color difference.
Russeell Clarke
If there are too many different colors but with basically same pattens, this will cause
too much drama.
 Color should not be considered a s a point of novelty.
 Designs contray to the moral standard should not be considered as designs.
Application for registration.
 The applicant for registration is the person claiming to be the owner of the
design.
1. Should be ‘not substantial difference’
 What is substantial differene?


Through
the
eys
of
which
groups
of
people/
Fixation
Authorship
Economic rights of copyright owners
\
Copyright
duration
Policy 30% (5/600 words) and issue spotter 70%
1. Bring the default rule out from the ordinance and dissection of the question (少少
字，直擊重點即可)
2. More favorable to employers?  cases, judgement
3. But, Truly at the expense of the employees?
Cases, judgments
4. Decide whether there is a justification for this rule: if no, then no, if yes, then yes
5. Conclusion
The thesis is that this rule is questionable and is favorable to the employer, but not truly
at the expense of the employees
No need too much bg and just straight to the main point
The rationale behind the concept of first ownership rights of employee works being
granted to employers can be attributed to a few key factors:
Employer Investment: Employers often invest significant resources, including time,
money, and expertise, into creating an environment conducive to innovation and
productivity. They provide employees with the necessary tools, facilities, and support
to carry out their work. As a result, employers argue that they should have the right to
utilize and benefit from the output generated by their employees' work.
Employment Contracts: In many jurisdictions, employment contracts explicitly state
that any work created by an employee within the scope of their employment becomes
the property of the employer. By signing such contracts, employees agree to assign their
intellectual property rights to their employer, ensuring that any work they produce while
working for the company belongs to the company.
Encouraging Innovation: Granting first ownership rights to employers is often seen as
an incentive for organizations to invest in research and development. It provides
employers with the assurance that they can make exclusive use of the intellectual
property generated by their employees, which can be crucial for maintaining a
competitive edge in the marketplace. This rationale argues that without such ownership
rights, employers may be less willing to invest in innovation, knowing that their
competitors could benefit from the fruits of their investment without incurring the same
costs.
Clear Attribution and Management: When employers own the rights to employee works,
it simplifies the process of managing intellectual property within the organization. It
ensures that there is no ambiguity regarding ownership and enables employers to
control licensing, distribution, and protection of the intellectual property generated by
their employees. This can be particularly important for businesses that rely heavily on
intellectual property assets, such as software companies or pharmaceutical companies.
It's worth noting that the allocation of ownership rights to employee works can vary
depending on jurisdiction, employment agreements, and specific circumstances.
Different countries and legal systems have different frameworks and regulations
regarding intellectual property ownership, and there are instances where employee
works may be exempted from employer ownership, particularly in cases where the work
is created outside the scope of employment or when the employee is engaged in creative
endeavors unrelated to their job responsibilities.
1. The first issue is that whether the notes were made during the course of the
employment
2. Is he an employee?
3. Whether the academic note is a joint-authorship
 Will discuss the requirements
4. The final two chapters, whether these lecture notes are considered to be during the
course of employment.
5. Whether there is secondary infringement