Intellectual property essay notes PDF

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These comprehensive notes cover all the content to write an essay in the final exam.

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• History, function and justification of intellectual property rights
• Foundations of the international and European intellectual property rights s...

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Intellectual property notes – essays World IP Organisation (WIPO) IP = creations of the mind, such as inventions: literary/artistic works/designs/symbols/names/images used in commerce. IP rights = property rights conferring legal protection over intangible products (creations of mind, can’t touch), inventions, works. Territorial. Turns intangible assets (music, paintings, computer programmes, ideas) into exclusive property rights for a limited period of time- into valuable assets traded in market. E.g Coca-Cola brand worth EUR 27000mil. • W. R Cornish (2004)- property protection over intangible entitiesideas, inventions, signs, info. • Each area developed own techniques to define the parameters of the intangible property, reference boundary posts, physical markers of objects. Justifications for IP rights- promote creativity/innovation/investment/economic growth • A. Moore (1997), A. Lever (2012)- philosophers often debate legitimacy of IP. • Important- have a choice to grant, decision to grant property rights in intangibles impinges on traders, press, media, public. • P. Drahos (1994)- emphasis on free speech. • Coombe (1998)- emphasises relation between IP’s, identity & alterity. • Important to grant exclusive rights over resources (ideas, info) not scarce, can be replicated without detriment to original possessor who continues to use idea since conventional argument that justify grant of private property rights in land/tangible resources are premised on scarcity, limited availability of resources & impossibility of sharing. • A. Plant (1934), S. Breyer (1970), R. Brown (1948), N. Kinsella (2002)- philosophers not always found IP rights to be justified. • J. Silbey (2015)- commentators doubt that IPR are justified in form they take, empirical exploration begins to dismantle persistent, monolithic explanation of IP protection- IP facilitates robust production & dissemination of art, science. • M. Boldrin & D. Levine (2005)- groups oppose stronger IP protection, developing world representatives/consumers/IP users/free speech defenders.

• Shades of opinion between extremes deploy diversity of nuanced argument. Natural Rights- moral- Locke (1690)- every man has a property in his own person. Machlup, Fritz- every novel idea invention useful to society regarded as property of its creator. Article 27(2) Universal Declaration of Human Rights- authors’ inherent natural, human rights over products of their labour. Trademark protection prevents 3rd parties becoming unjustly enriched by ‘reaping where they have no sown’. • Breakey (2012)- highlights natural rights constraints on IP rights. • Moore (2001)- rejects utilitarian & favours version of Locke theory. Reward- moral- J.S. Mill (1950) would be gross immorality set everybody free to use a person’s work without his consent. o BUT J. Bentham- to talk of natural rights of an inventor is to nonsense. o Once an idea is communicated, how can its use be exclusively controlled. Machlup & Penrose- IP is not control of a thing/idea but control of a market for things embodying an idea. o In modern economy, inventors seldom own inventions, rarely the owners, publishers/employers have power to control commercial exploitation of works. o Copyright/patent holders derive benefit/profit disproportionate to value of invention, not fair share/just reward. Incentives- instrumental/utilitarian- benefit society, fosters innovation, forward looking, May, Randolph J, Seth L. Cooper (2016)- creative artists/inventors maximise their economic returns by assigning their rights to others better positioned to exploit. • Hettinger (1989), Machlup, Penrose (1950)- IP induces, encourages desirable activities, incentive to create, disclose valuable technical info to public otherwise remain a secret. • Landes & Posner (1989)- patent system provides inventors with incentive to invest in research, development of new products. • BUT Johnson (2011)- incentive theories no longer supportable. • Landes & Posner (1988)- trademark system encourages traders to manufacture, sell high-quality products, encourages them to provide info to public about product attributes. • Without IP protection would be under-production of intellectual products, while such products might be costly to create, once made available to public, they are often readily copied- in absence

of rights giving exclusivity, a creator is likely to be undercut by competitors who haven’t incurred costs of creation. • Market failure- market’s inability to guarantee that an investor in research could recoup its investment. Economics- instrumental/utilitarian- most effective means of promoting economic growth & technological innovation, value maximised through free market exchanges. Incentives development, encourages creation. • Elkin-Koren & Salzberger (2013)- transforming potentially valuable intangible artefacts into property rights, exploited to optimal extent. • International IP Alliance report: core copyright industries in US generated $1.1tril economic output 2013-6.72% of entire economy. • May & Cooper (2016)- report of USPTO found IP intensive industries accounted for $5.06 trillion in added value 2012. • D. Breznitz & M. Murphree (2016)- 80% of the value of US corporations lies in their IP portfolios. Difficulties • Tension between protection of IPRs & competition in free market economies- heart of idea that IP fosters economic development is idea this happens in context of free market economies. • IPRs create monopolies which can be abused, right to exclude others, e.g Microsoft litigation. • IPRs create tollbooths on downstream innovation- Myriad Genetics- delays innovation not incentivise, costs. • Fair balance between rights of IPR owners & public accessing, fair use, in way of diffusion of knowledge as a public good, cost of licensing fees denounced by Harvard Library & others. • Tension: protecting IPRs vs human rights/health/knowledge/ science/medicine- copyright over book barrier to education. • SA at height of AIDS crisis & UN Secretary General High-Level Panel on Access to Medicines 2016. Paris Convention 1884- overtaken by TRIPS. Robles (1999)- Facilitates 2 processes, independence of patents. Applies to industrial property in broadest sense, including patents, trademarks, industrial designs, utility model (art 1), establishes principle of national treatment (art 2- nationals of any country of union shall have same protection as latter), provides a right of priority (art 4), requires MS to provide IP protection for exhibits at international fairs (art 11), later version 1979 allow countries to grant compulsory licences to prevent abuses for failure to work the patent.

Berne Convention (1886)- covers literary & artistic works (art 2), establishes principle of national treatment ( art 5), protects moral rights of authors (art 6bis), compulsory licenses for musical works (art 11). • Exclusive Rights of authorising translation (art 8), reproduction (art 9), public performance & communication to public (art 11 & 11bis), adaptation (art 12). • Subject to national exceptions for use in teaching (art 10), press & broadcast (art 10bis). • Narrowed considerably since but original definitions still thereincorporated into TRIPS, longer lasting than Paris. • Art 7- min term of protection most cases = life of author + 50yrs. WIPO 1967 administers 25 IP treaties- positive law, eclipsed by WTO, global forum for IP services, policy info, cooperation, self-funding agency of UN, 191 MS, mission is to lead development of balanced, effective international IP system enabled innovation & creativity for benefit of all. WIPO to WTO/TRIP- far reach, long last, advocate higher IP level global scale, US driver suffered highest trade deficit in 80s, Japan’s support. TRIPS- multilateral international treaty, incorporates Paris & Berne Convention (except 6bis/moral rights of authors), extends scope of IP protection under P/B, set min obligatory standards of IP protection for all WTO members, 164 members of WTO represents 98% of world’s trade, buttressed by WTO enforcement system. • Basic principles- non-discrimination, application from foreign nations treated same as national applicants, most favoured nation treatment, contribute to technological innovation, technology transfer, narrative behind adoption of TRIPS is protection of IP critical to economic development/ fosters growth. • On TRADEMARK- defines type of marks eligible for protection as trademarks & minimum rights conferred to owners of trademarks. Term of protection: no less than 7yrs (art 18), requirements of usetrademark lapse for non-use after 3yrs (art 19). Art 19 imply a TM confers on owner positive rights of use? • Right of exclusivity- TRIPS impliedly confers positive right of use as trademark will lapse, tobacco dispute, trademark critical to commercial exploitation of products, report found Australia not in breach of its TRIPS obligations, didn’t need to revise laws, no damage to tobacco companies themselves, dispute settlement system reaches beyond companies to MS.

• ON PATENTS- mandates patents be available in all fields of technology for inventions which are new, involve inventive step & capable of industrial application art 27(1), expansive definition includes pharmaceuticals, important for developing countries, art 28- defines patent owners; right to exclude others from making, using, selling, importing patented product. Art 31- defines conditions for uses without owners’ consent (compulsory licenses), art 33- term of protection 20 years from date of filing. • Enforcement- art 63/64- failure by contracting state to comply with IP related obligations monitored by WTO Council, trigger dispute settlement mechanism system with WTO panels. • IMPACT- TRIPS limits ability of WTO member states to adopt IP policies to reflect national social & economic priorities, some flexibility, not define what constitutes industrial applications, leaves to international states in patents but flexibility is limited, can’t exclude pharmaceutical companies. US initiated dispute against Brazil over local working requirements in Brazilian IP law 2000 but withdrew action after both reached agreement 2001. US filed complaint with WTO on China’s protection of IP 2018. • Unresolved tension WTO/TRIPS trade related rules & UN human rights system/ access to medicine erupted over pharmaceutical companies enforcement of their patents in SA at height of AIDS crisis- alleged import of drugs treating AIDS in violation of TRIPS. • UN secretary General High-Level Panel on Access to Medicines 2016- report notes misalignment between right to health & IP rights, calls for greater transparency in pricing, de-linking costs from prices of medicines, calls for govt/private sector to refrain from explicit/implicit threats/tactics/strategies that undermine right of WTO members to use TRIPS flexibilities & register complaints against undue political, economic pressure. IPR exclude others from using the IP • s.2(1) CDPA 1988- copyright owner has exclusive right to do acts. • TRIPS agreement- impliedly confers a positive right of use, defines types of marks eligible for protection as trademarks & minimum rights conferred to owners of trademarks. Adopted concept IP to define its remit, played critical role in placing concept IP at forefront of policymaking, rights require members of WTO to recognise the existing standards of protection within Berne/Paris Conventions. F-K, Beier & G Schricker (1996)- prior, matters of procedure/remedies/criminal sanctions left to national law.

• TRIPS extend copyright protection to computer programmes as literary works & compilations of data as intellectual creations in art 10. Widens scope of limitations on fair use/3 step test in Berne- art 13 limitations & exceptions to exclusive rights which do not conflict with normal exploitation of work/unreasonably prejudice legitimate interests of right holder- protect economic interest of actor just not just author/creator. • Members must implement Art 1-21 of Berne, Art 14 contains similar provisions to Rome but longer protection. • Article 28- patent owners’ rights to exclude others from making, using, selling importing patented product. Klabbers (2009)- distinct autonomous legal systems, legal obligations determined by terms of each treaty, may be members of any. • EU- autonomous, EU treaties, EU legislation 1957+, Court of Justice of European Union CJEU, European Patent Organisation (EPO)- European Patent Convention 1973, EPO boards, Council of Europe (CoE)- gave birth to European Convention on Human Rights (ECHR 1950), European Court of Human Rights, art 1 of 1st protocol- right to enjoy all possessions/to property. Legal obligations under 1 treaty inconsistent/conflict with another… Legal obligations imposed by EU/EPO/ECHR systems overlap, conflict. Flexibility to develop own IP law under each treaty to suit national needs. Bruno (2018)- legal systems in Europe all distinct, autonomous. • EU law conflicts with convention- supposed to resolve by EU accession to European Convention on Human Rights but on hold, not compatible with EU treaties- EU not a member of EPO yet EPO administers grant of European patent & EU unitary patentcomplex legal questions arise from relative autonomy of each order which in practice interact but in law are separate. EU- EEC 1957 by Treaty of Rome, EU 1992 w adoption of Maastricht Treaty, Treaty of Lisbon 2007 updates previous treaties, incorporates legally binding Charter of Fundamental Rights of EU- alongside potentially competition with European Convention on Human Rights, primary economic purpose- aim to create economic community or common internal market based on freedom of movement of persons, goods, services to facilitate economic/social development. Competence of EU grown with successive treaty but limited by principles subsidiarity & proportionality. Eu law has direct effect, invoked by individuals before national courts, CJEU even in absence of national laws (CJEU is authoritative)- Barnard, Catherine & Peers 2017.

Role/authority of CJEU- ensures EU law observed in interpretation of EU Treaties, EU laws implemented, enforced by all Member States, if CJEU find national laws not compliant with EU law, doctrine of supremacy of EU law requires EU law (Eu Treaties, Court decisions, EU Directives/regulations) prevails over national laws, legally binding on MS, prevail over provisions of national constitutions in interests of uniformity of EU law (Costa v ENEL 1964). Restricted by German courts. Art 118 Lisbon Treaty 2007- legal basis of EU competence on IPEuropean Parl & Council shall establish measures for creation of European IP rights to provide uniform protection of IPR through the union & set up centralised union-wide authorisation, coordination & supervision arrangements. EU harmonisation of IP laws underway for decades before Lisbon Treaty by means of EU regulations directly binding on MS, EU directives requires transposition in national laws, case law of CJEU authoritative interpreter of EU law. Degrees of harmonisation- trade marks comprehensive, essentially EU law on trademarks is UK law, copyright partial & patents limited. Trade Marks- EU Directives: first Trade Marks Directive adopted 1988 codified 2008, 2015 new TM Directive adopted amending 2008 TMD, MS have 3yrs to implement Directive. EU regulations 2017/1001, 2018/625, 2018/626. EU TM Directive 2015- implemented in UK law by means of UK Trade Marks Regulations 2018. EU trade mark regulation 2017/1001 art 1.2- EU trademark definition. EUTMR art 52- EU registered TM confers EU-wide protection for 10yrs & art 53- can be renewed indefinitely every 10yrs. Art 123- enforcement through designated EU Trademark Courts in each of MS & CJEU. Unitary effect. • Administration of EU Trade Mark- OHIM (Office for Harmonisation of the Internal Market) managed registration of EU trade marks & community designs, now called EUIPO (EU IP Office). • CJEU case law on trademarks is extensive e.g Louboutin C163/16- Dutch court found firm selling shoes with red soles at cheaper price infringed TM. • Judgments prompted criticism from scholars, senior UK judges of inconsistency & undue weight to rights of trade mark users against public interest in freedom of expression: L’Oreal SA v Bellure SA (2010)- company B marketing perfume (cheaper version smelled

like L’Oreal) infringed TM by stating on packet it smelled like L, no deception, thriving on L’s rep, Google v Louis Vuitton (2010). EU legislation on copyright- set out in 10 directives, set harmonised standards, implemented in UK CDPA. Some specific aspects partially harmonised no comprehensive EU copyright code. Maria Martin Prat address to Columbia Law School on EU’s review of copyright rules 2014. No uniformed copyright law but Infosoc Directive: details series of rights & exceptions applicable to virtually all copyright works (B & S). • CJEU case law on copyright- over 700 cases in EUR-Lex database, several judgments since 2009 attract controversy amongst scholars/judges as Court filled gaps in EU legislation & reduced national flexibility to promote conceptual coherence & consistency in EU law. • E.G meaning of ‘authors own intellectual creation’, definition of ‘work’, ‘communication to the public’ in EU Directives. • Griffiths (2014)- EU case law binding on UK courts. • Renckhoff C-161/17- German, student used photo from website in presentation, ruled the unauthorised re-posting of protected content may be infringement, decision back to German to decide. • New EU Copyright Directive- going through legislative process in EU, art 11 & 13 proved controversial, rejected by European Parl 2018 but revised versions recently approved, study by Bently- use of newspaper links may constitute an infringement/require license, heavy obligations on internet producers to police websites. Eu legislation on Patents- prior to Lisbon Treaty, EU adopted a few harmonising Directives in selected areas- most significant were: Directive on legal protection of biotechnological inventions, regulation concerning creation of SPC for medicinal products, regulation concerning creation of SPC for plant protection products. • CJEU case law- landmark/controversial judgment on interpretation of Biotech & SPC Directives E.G Brüstle judgment Grand Chamber CJEU- looks at moral exclusions of patents. • Art 118 Lisbon Treaty relied on to create EU Unitary Patent by means of 2 regulations. Competence to ensure EU law is applied across EU but only in effect when unified patent court into effect. • Associated Unified Patent Court- created by international agreement UPCA. • UP will be granted & administered by UPC- central, international court with exclusive jurisdiction over EU unitary patent post-grant

but mandated to apply EU law in entirety, give priority to EU law but not a EU court. • Project politically & legally contentious- not all EU states are participants & UPC’s future in q as Brexit, recent challenge in German Constitutional Court. • UK participation in UPC- UK completed process of ratification of UPC 2018, govt announced its intention to stay in UOC postBrexit, stay in UPC even though members of EU. Ongoing implementations to be worked out. Notices. • UK dualist- once leave EU all EU directives incorporated into UK law to provide continuity but then govt/courts able to develop own IP law centred on UK market- strain between goal to stay in UPC. COPYRIGHT Function/purpose of the originality requirement • Sets a threshold that determines when material falling within definition of literary, dramatic, musical, artistic works is protected by copyright law. • Dreier & Karnell (1991)- policy basis for threshold requirement never clear. • Natural rights- originality requirement reflects premise that copyright ought to protect personality of authors expressed in their works. No protection afforded to features of work necessary for others to exercise their natural rights (creative freedom). • Reward perspective- effort made in creating work, creator deserves protection, invests labour/capital in producing a work, protects expression (how idea framed, doesn’t protect idea). • J Wiley (1991)- utilitarian perspective: threshold sits at dif level to ensure copyright protects only works not produced but for incentive of copyright, trivial...