Interlectual property notes PDF

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Summary

notes from the guest lecturer on interlectual property...

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Week 5 - intellectual property Regulates the creation, use and exploitation of the ‘thing’. Why do we have IP rights? Creating a product and making money from it. The creator wants protection in their product from exploitation. Copy Right Automatic protection of original works for a limited time. No registration required. CA 1994- S 14 Copyright in original works (1) … of the following descriptions: (a) literary, dramatic, musical, or artistic works: (b) sound recordings: (c) films: (d) communication works: (e) typographical arrangements of published editions. (2) A work is not original if— (a) it is, or to the extent that it is, a copy of another work; or (b) it infringes the copyright in, or to the extent that it infringes the copyright in, another work. The interpretation of ‘original’ ‘copyright does not exist in a literacy, drama, or musical work unless the work is RECORDED, in writing or otherwise’. You can’t just have the idea in your head. Duration of copyright protection is limited. Death of the original creator may have their work protected for 50 years after death. Copy rights gives you two rights: 1.

Economic rights

These are exclusive rights. Only copyright owners are permitted:

(a) to copy the work: (b) to issue copies of the work to the public, whether by sale or otherwise: (c) to perform the work in public: (d) to play the work in public: (e) to show the work in public:

(f) to communicate the work to the public: (g) to make an adaptation of the work: (i) to authorise another person to do any of the above acts Copy right infringement -

Primary infringement (its ok) because no knowledge of the action.

Secondary, not so ok. This is because there is knowledge of the action. Must have ought to have known (importing copies etc..) Copy right if: -

There is work which the copyright can exist (subsist).

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Copyright does exist in the work.

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The plaintiff owns the copyright in the work.

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Copyright in the work has been infringed.

Elements that are useful: •

Reproduction of either the entire copyright work or a substantial part;

• A sufficient objective similarity between the infringing work and the copyright work or a substantial part; and • A causal connection between the copyright work and the infringing work, in that the copyright work is the source from which the infringing work is derived

2.

Moral rights

These are personal to the author of a work, every time the work is published it has MY name on it. Moral rights are independent of economic rights They are not assignable. Transmission by will or as part of authors estate. Right of attribution You have the right to object derogatory treatment of your creation. Creation on shirts example, they were burned in a picture. Question was whether this was derogatory treatment of the original art that was printed on the shirt. This ended up not being the case as the art on the shirt was a copy and not the original piece. Permitted acts: Part 3 of the Copyright Act 1994: Exceptions for purposes of: -

Incidental copying

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Criticism, review, and news reporting

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Research or private study

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Transient reproduction

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Education

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Libraries or archives

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Public administration

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Producing Braille or other accessible copies for the visually impaired

Trademarks ‘The function of a trademark is to give an indication to the purchaser or possible purchaser as to the manufacture or quality of the goods’ A name and a logo. Function is to give an indication to the public what company they belong to. Distinguishes goods and services of a person. An application has to made for a trademark. Definition: Section 5(1): trademark— (a)

means any sign capable of— (i)

being represented graphically; and

(ii)

distinguishing the goods or services of one person

from those of another person; … -

fully assignable and transmittable (s.82(1))

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Potential perpetual protection

For a mark to be registrable under the Trade Marks Act 2002: it must satisfy the definition of a trade mark under s 5(1) of the Act under s 13(2), there should be no absolute or relative grounds under ss 17-28 of the Act that would prevent the trade mark from registration. TM only exists for the goods/services within the class in which it is registered and not across the board Absolute Grounds for Non-Registration: A TM application will be refused where the TM applied for: (a) if used, would be likely to deceive or cause confusion (s 17(1)(a); or (b) is contrary to NZ law or otherwise disentitled to protection in any Court (s 17(1)(b); or (c) is likely to offend a significant section of the community, incl. Māori (s 17(1)(c); or (d) is an application made in bad faith. (s 17(2))

Trademarks become tricky with things like: -

Scent How do u graphically represent these?

-

Taste

Registering a trademark: Look at registry to see what trademarks are taken. You cannot register just any trademark; it cannot describe the service. Mainland ‘vintage’ cheese example. No one associated ‘vintage’ cheese. People associated ‘vintage’ with mainland.

Patents Intention that fixes or improves a situation, more efficient and less costly solution introduced by inventors/creators. Patent law protects -

Registered stuff

-

Novel inventions (like originality)

‘possesses its own economic utility’ ‘an artificial affect’ ‘artificially created state of affairs’ ‘an invention is novel if it does form part of a prior art base’ An invention is patentable if -

it is claimed a manner of manufacture

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There is an inventive step. Someone in the area would not see the invention as obvious.

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It is USEFUL. Needs to serve a purpose. A specific, credible and substantial utility.

Exclusion from patentability: -

If contrary to public morality

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Methods of treatment

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Derived from maori traditional knowledge.

Patentee’s Exclusive Rights- s 18 PA 2013: (1)

to exploit the invention and to authorise another person to exploit the invention.

Defenses to infringement- ss 143-146 as well as compulsory licensing in Part 4 Experimental use: -

determining how the invention works:

-

determining the scope of the invention:

-

determining the validity of the claims:

seeking an improvement of the invention (for example, determining new properties, or new uses, of the invention)...