John Lock?
Week 1: Theoretical Foundations.
Week 2: Copyight Law – History and Introduction
Weeks 3-4: Copyright – Duration, Rights and Moral Rights
Week 5: Infringement & Defences
Week6: Copyright – The digital realm – DRM
Week 7: P2P
Week 8: Confidence
Week 9: Remedies
Week 10: Reform
Week 11: Revision
11 lectures; 3 workshops
100% exam assessment, over 2 hours 15 mins.
LAW 3028 (Intellectual property course.)
Bainbridge, Intellectual Property, 9th edition, Pearson (2012).
MacQueen, Waelde, and Laurie, Contemporary Intellectual
Property, OUP (2010).
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Reading:
Cornish, Intellectual Property,, 8th Edition
Bently
Holyoak & Torremans Intellectual Property Law, 6th edition
Davis, Core Text
Jacob & Alexander, A guidebook to IP (Good one.)
Copinger and Skone James on Copyright (Something like Gray
and Grays.)
Types of IP
Copyrights
(Artistic works, literary, drama, music. Life of the author plus 70
years.)
Copyright allows you to have independent creation.
Covers primarily literary works, but very flexible.
Trade
Marks
Logos. Graphical ones. Words, shapes of bottles etc.
Covered under Trademarks Act 1994.
Lasts for 20 years. You have to pay renewal fees.
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Patents
Inventions, things that are more mechanical in operation. Patents
act 1997.
Patents cover a certain period of duration. Lasts a period of 20
years.
Can be quite expensive to get. Quite a lot of money. 200-300
pounds. But, you need someone to draft them.
There are also other kinds of IP.
E.g.
Unregistered Design Rights.
Contract.
Unfair Competition.
Moral Rights.
Registered Design Rights.
Passing Off.
Misappropriation.
Trespass to Chattels.
Performing Rights.
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Trade Secrets.
Contract can sometimes overrule IP Law.
- A fundamental difference between contract and IP rights
such as copyright.
- Property rights: In Rem. Against the world.
- Copyright: In personam. Against an individual.
- Section 28, Copyright Designs and Patents Act 1988
Unfair competition (Competition Law governed by statute
etc. This however, is governed by continental Europe.)
- About the misuse of certain IP that might affect
competition.
Passing Off (The common law form of trademark law.)
Passing Off your products as someone else’s.
Statute Law, Common Law.
Donaldson and Beckett. 1774, HOL.
The old common law rules are removed. We now only have the
statutory
version
of
copyright.
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Misappropriation
Normally functions as a part of Passing Off.
Trespass to Chattels
Comes into play in relation to the internet.
Used in the context of the internet in the USA. In sites such as
Ebay etc. Shopping comparison sites.
Trade secrets
Part of confidence law dealing with commercial, trade secrets.
Performing Rights
Within Copyright. Won’t be covered here.
Logo might be protected via Trademarks.
Recipe might be protected through Trade secrets.
However, a list of ingredients might be protected through
Copyrights.
The shape of the Can can be protected as a shape mark under the
trademarks act. You have to demonstrate that the public is
educated enough to recognise that the shape has a distinct
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origin.
The foaming regulation through the widget ball. Regulates the
amount of froth.
Can be regulated through a Patent.
The ring pull mechanism. If it is sufficiently different.
The entire product. You could protect it potentially under
passing off, if someone chooses to pass off their product as
yours.
Shape of the glass. Trademark.
Process of fermentation: Process Patent.
Yeast. Trade Secrets.
The Worsley-Twist warp drive. U.S. Pub. No. 2003 – 0114313
In the USA, you don’t have to demonstrate that something can
be made, just that it is workable.
US Patent No. 6860975. UFO.
US Method Patent 6368227, A swing??
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Copyright Duration
1710 – 14 years (Time apprentices spent learning the trafde.)
Lobbying.
1814 – 28 years or life of author.
1842 – 42 years or life of the author plus 7.
1908 – Life of the author plus 50.
1988 CDPA (when implementing the Duration Directive) – life
of the author plus 70.
Perpetual Rights?
Motion Picture Association of America
Jack Valenti (1921 – 2007)
Argued for IP rights to have the same weighting as real property
rights.
Steamboat Willie. Steamboat Bill Jr.
Those who have copyright protection and those who do not.
The “Haves.”
The “Have Nots”
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Grokster File Sharing.
Case in the USA on grokster inducing copyright infringement.
Napster.
In 2007, in the district of California, Grokster used
watermarking. Licensing fees back to rights holders.
Lower courts.
Copyright statutes talk about Author’s rights.
Prager, F.D., ‘The Early Growth and....
“property”
The Copyright, Designs and Patents Act 1988.
“s.1 (1) Copyright is a property right which subsists...”
Trade Marks Act 1994
“s. 2(1) A registered trademark is a property right...”
Patents Act 1977
When we talk about property rights, we are talking about legal
rights.
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“right”
First 20 pages:
Hohfeld, W.,
RIGHTS ------ DUTIES
PRIVILEGES ----- NO RIGHTS
You don’t have a right to a defence in copyright.
You don’t have a right to educational use in copyright.
Right over educational use etc. That’s not technically a right
way of saying it.
If a right holder does not exert rights against you, you have a
privilege to do something.
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I - Understanding the term “intellectual property”
“Property”?
The term “intellectual property”
Prager, F.D., 'The Early Growth and Influence of Intellectual Property' 34(2) Journal of the
Patent Office Society 106 (1952).
Use of the term “property” in statutes
Use of the term by right holders
The difference between intangible and tangible goods
“Right”?
Hohfeld, W., Fundamental Legal Conceptions as Applied in Judicial Reasoning, Yale University Press,
1923.
A negative right?
II. Theories of Intellectual Property
- Locke
- Hegel
- Kant
- Bentham
- Economic Arguments
IIA. Locke
The Second Treatise of Government and A Letter Concerning Toleration 1689
The labour theory
Does it apply to “intellectual property”?
Fiest Publications Inc., v Rural Telephone Service Co.
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IIA(ii) The operation of the labour theory
i. The ‘avoidance’ view of labour
ii. The ‘value added’ theory of labour.
IIA(iv) Maintaining a balance
1. The “enough and as good for others” criterion
“He that is nourished by the acorns he picked up under an oak, or the apples he
gathered from the trees in the wood, has certainly appropriated them to himself.
Nobody can deny but the nourishment is his. I ask, then, When did they begin to be
his? when he digested? or when he ate? or when he boiled? or when he brought them
home? or when he picked them up? And ‘tis plain, if the first gathering them not his,
nothing else could. That labour put a distinction between them and the common…”
Locke, J., The Second Treatise of Government and A Letter Concerning Toleration at
§28
“It will perhaps be objected that this, that if gathering the acorns, or other fruits of the
earth, etc., makes a right to them, then any one may engross as much as he will. To
which I answer, Not so. The same law of nature, that does by this means give us
property, does also bound that property too. ‘God hath given us all things richly’ (1
Tim. Vi. 12), is the voice of reason confirmed by inspiration. But how far has he given
it us? To enjoy. As much as any one can make use of to any advantage of life before it
spoils, so much that he may by his labour fix a property in; whatever is beyond this is
more than his share, and belongs to others. Nothing was made by God for man to spoil
or destroy”. Locke, J., The Second Treatise of Government and A Letter Concerning
Toleration at §31.
2. The “non waste” criterion:
“if either the grass of enclosure rotted on the ground, or the fruit of his planting
perished without gathering and laying up, this part of the earth, not withstanding his
enclosure, was still looked on as a waste” Ibid., at §38. Locke writes that “[h]e that
gathered a hundred bushels of acorns or apples had thereby a property in them; …
indeed, it was a foolish thing, as well as dishonest, to hoard up more than he could
make use of” at §46.
II.A.(v) The wider role of society
“all ideas come from sensation or reflection” Locke, J., An Essay concerning human
understanding, Book II, Chapter 1 at §2.
“Let us suppose that the Mind to be, as we say, white Paper, void of all Characters,
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without any Ideas; How comes it to be furnished? Whence comes it by that vast store,
which the busy and boundless Fancy of Man has painted on it, with an almost endless
variety? Whence has it all the materials Reason and Knowledge? To this I answer, in one
word, From Experience: In that, all our Knowledge is founded; and from that it ultimately
derives it self. Our Observation employ’d either about external, sensible objects; or about
the internal Operations of our Minds, perceived and reflected on by ourselves, is that,
which supplies our Understandings with all the materials of thinking. These two are the
Fountains of Knowledge, from whence all the Ideas we have, or can naturally have, do
spring”
Locke, J., An Essay concerning human understanding, Book II, Chapter 1 at §2.
On the issue of knowledge (or “authorial and artistic knowledge”, to be exact), Locke notes:
“Reading is for the improvement of the understanding. The improvement of the
understanding is for two ends: first, for our own increase of knowledge; secondly, to
enable us to deliver and make out that knowledge to others. The latter of these, if it be
not the chief end of study in a gentleman, yet it is at least equal to the other, since the
greatest part of his business and usefulness in the world, is by the influence of what he
says, or writes to others”
When you are looking at ideas, you should be able to pass them on to others.
Different from the labour theory, which focused on protecting people’s labour.
If this idea had been used, UK IP law might have followed a more continental vein.
Locke, J., Some Thoughts Concerning on Reading and Study for a Gentleman
IIA2 Kant
Kant, E., Critique of Practical Reason (1788)
Kant, E., Metaphysic of Morals (1785)
For further information see Popper, K., and Eccles P., ‘The Self and its Brain’ RKP, 1977.
Act according to a common rule that isn’t self-contradictory. If I break copyright law all the time, then
the law becomes pointless. If you don’t follow it, the rule will collapse. Society will crumble.
Kant is also useful for the development of personality.
To support the idea that there should be copyright protection for work authors produce to protect their
individuality.
IIB Hegel
IIB(i) An outline of Hegel’s Personality Theory
IIB(ii) Problems with the balancing of the various interests of creators
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Radin, M., “Property and Personhood”, 34 Stanford Law Review 957 (1982) at 990
Stillman, P., Property, Freedom and Individuality in Political Thought, NOMOS XXII,
New York University Press, at 132
“The human will develops the objective world by creating institutions that are the actualisations of
will; concurrently, through creating and maintaining those institutions, the human will develops to
civilised, social modes and comes to comprehend itself”
“Outward and visible existence, as definite, is essentially existence for another thing .. Thus
property, as a visible external thing, is determined by its relations to other external things, these
relations being both necessary and accidental. But property is also a manifestation of will, and the
other, for which it exists, is the will of another person. This reference of will to will is the true and
peculiar ground on which freedom is realized. The means by which I hold property, but by virtue
of another will, and hence share in a common will, is contract” Hegel at §71
II.C Bentham
II.C(i). An outline of utilitarianism to ideas
An introduction to the Principles and Morals of Legislation, 1789.
“In the first place may be reckoned the quality and quantity of the knowledge the person in question
happens to possess: that is, of the ideas which he has actually in store, ready upon occasion to call to
mind”. Chapter VI, 11(5)
“Our ideas are derived, all of them, from the senses; pleasurable and painful ones, therefore, among the
rest: consequently, from the operation of sensible objects upon our senses. A man’s happiness, then,
may be said to depend more or less upon the relation he bears to any sensible object…” Chapter XVI, 9
* Bentham links the development of ideas with physical ability. Bentham writes that the “Strength of
intellectual powers, in general, seems to correspond pretty exactly to general strength of the body”
Chapter VI, 12(6). This theme runs through many other elements of his work, especially clearly when
he discusses the ills of society, particularly crime.
II.C.(ii). The Panopticon Penitentiary
Bentham, J., Panopticon (1787)
Rheingold, H., The Virtual Community: Homesteading on the Electronic Frontier, Harperperennial,
New York, 1994
One of any prison wardens could overlook the whole prison?
II.D. Economic Arguments
Takeyama, L., Gordon, W., and Towse, R., Developments in the Economics of Copyright, EE, 2005.
II.D.(i) Landes and Posner
Landes and Posner, “An economic analysis of copyright law”18 Journal of Legal Studies 325 (1989)
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the cost of creating the original work (the authors time and effort plus the cost to the publisher
of soliciting and editing the manuscript and typesetting), and
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the cost of printing, binding, and distributing individual copies.
II.D.(ii) Demsetz
Demsetz, Economic, Legal, and Political Dimensions of Competition, North Holland Publishing
Company, (1982)
II.D.(iii) The debate of Kitch, and Merges and Nelson
Kitch, E., “The nature and function of the Patent System”, 20 Journal of Law and Economics 265
(1977); Merges, R., and Nelson, R., “On the complex economics of Patent Scope”, 90 Columbia Law
Review 839 (1990)
Note discussion of prospecting patents and the concept of rivalrous invention
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