IP EXAM Notes - Summary Intellectual Property PDF

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JUSTIFICATIONS FOR PROTETCING IP

WHAT IS IP + WHAT DO IP RIGHTS DO?  IP = Creations of the mind (intangible property)  IP rights = a means of protecting & allocating IP resources/property. Gives creators control over the use and/or exploitation of their crea  There is a need to create rights over intangible property because, compared to physical tangible property, the boundaries are more unc making allocation and distribution of IP resources more difficult.

OVERARCHING THEORIES AND JUSTIFICATIONS  There is a tension in balancing the creator’s rights with the rights of the user and wider society.  Analysing the justifications of IP rights interlinks with considering what we believe the primary goal of our IP system should be. Our curr system focuses on further economic and technologies developments, but some commentators believe otherwise:

 Taylor and Derclaye: argue that our IP system should focus on well-being (i.e. happiness, health, life satisfaction, supportive relatio personal development; rewarding employment etc.). This would still encourage invention/creation, whilst also increasing well-being. Ho it could hinder creations/inventions that were likely to decrease well-being. IP rights based on well-being would also benefit the creator/invention e.g. protecting creations that help them to realise central life goals/values or that boost their happiness (e.g. a poem t write).  A utilitarian approach to IP would favour generating well-being for the greatest number rather than economic gain for the individua creator/inventor.

Natural rights Labour theory (John Locke)  it is right and proper to grant property rights to a labourer or creator  they’ve laboured over the property to have the rights over the ou

Personality theory (Kant and Hegel)  The creation = a manifestation of the creator’s self – it embodies his will/personality – therefore he has the inherent right to control and rights over the creation (this approach focuses on the individual creator rather than the utilitarian benefit the property may have to socie Reward/dessert  Creative labour deserves a reward for their • dedicated development and application of talent (links to Locke’s labour theory).  Reward = an incentive to encourage creative labour (link to the incentive justification) Unjust enrichment  IP rights prevent the unfair taking of another’s creative labour or innovative efforts (which would be unfair) Economic incentive to create  IP rights/protection = ensures there will be a reward for the time/energy spent by people who create, innovate and invent IP property.  More creation = more economic growth for a country (e.g. copyright)  Important that creators have some form of protection because IP property is expensive to create, but cheap to copy.

Merges  Identifies 4 principles as having the greatest significance for an IP regime: dignity, efficiency, non-removal from the public domain and, all, proportionality.  Describes ‘individual autonomy and freedom’ as the basic foundations of IP. The result is a view of IP systems as ‘balancing’ individual property interests on the one hand with third party and societal interests on the other. Pila  Great debate over the capacity of IP systems to accommodate ‘new’ technologies, such as film, the internet and biotechnology.  Widely held belief within academic circles: IP exists for essentially historical and pragmatic reasons, and that while our investment in it sufficient to make its abolition infeasible, there is no positive justification for it to still exist.  Suggests a certain disconnect between IP’s roots and its day-to-day operation.  Argues that Merges’ theory of IP sits uncomfortably with the utilitarian underpinnings of both European and domestic patent systems,

Caenegem  Many of the features of intellectual property regimes that are most consistent over time arguably reflect the western belief in, or ideolog material progress. The idea of progress is typified by belief in the limitless accumulation of new knowledge, and the potential for practic application of that knowledge; belief in the essential contribution of the individual mind to generating valuable new insights; and belief th technological development will allow the ever expanding and ever changing desire for material satisfaction to be met. A progressivist w view thus emphasises individual creativity, the practical use of knowledge, and constant innovation and change. These are all factors th an important role in defining various forms of intellectual property rights.  However, in terms of intellectual property as a whole, both personality rights and economic theories are unsatisfactory. The personality theory manifestly over-states the case for a moral or ethical relationship between the author and all the various forms of intellectual property,5 and exaggerates the notions of authorship and individual creativity. The economic thesis is strong on theory but short on emp proof supporting the creation of property (-type) rights in intellectual goods6 ; nor does it establish a satisfactory link between economic g and technological change, and individual welfare. Furthermore, in recent global debates the potential negative social, environmental an cultural impact of adherence to a purely market-based approach to intellectual property has become apparent – e.g. in relation to pate the cost of essential drugs; patenting of genetically modified organisms; patents and loss of control over traditional knowledge; global c and the cost of education; and the relationship between patents and biodiversity.  Neither approach places intellectual property law in a wider cultural and social context, and both risk becoming embroiled in historical revisionism.  But should intellectual property law then be seen as no more than an historical phenomenon, an accident of the cultural, economic and political factors at play at some time in the past, that remains with us although the circumstances that gave rise to it have ceased to exi  The aim of this article is thus to steer a course between the rocks of excessive instrumentalism and historical reductionism. It explores relatively stable structures underlying intellectual property law, while recognising it as essentially a cultural institution with historical root

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that light, it focusses on a central cultural belief underlying much of intellectual property law: the idea of, and the belief in progress. This supports the (often unspoken) aspiration of western (European in origin) society and culture, to improve the welfare of mankind by the application of reason. It pervades culture and underscores the basic structure of a market-oriented industrial society; however, this is n that the belief has been universal, stable and uniform over the ages, as will be explored below. The belief in progress has greatly influe the development of intellectual property law; in a “progressivist” society, intellectual property is a crucial institution. Looking at intellectual property law from the perspective of such a belief may help to understand some of the policy disputes and law re questions of today. It may also be that contemporary disillusion with many aspects of intellectual property law parallels a crisis in the be

progress. This crisis encourages policy makers to view markets and market actors as the sole legitimate determinants of the rules of intellectual property law, rather than being guided by a broader view of public welfare and individual well-being. In modern times progress is viewed in a material rather than personal, social and spiritual sense. Social or societal progress and perso moral improvement is no longer viewed as the result of the rational application of knowledge (structural modifications that will have unavoidably positive results), but as a question of individual political or moral choice. But if the essence of the belief in progress is that the accumulation of knowledge and its practical application, mankind can improve at least the material conditions of human existence, clear that the ideology of progress is alive and well, certainly if a degree of material satisfaction is a pre-condition for happiness. The ec structures of regulated but basically free markets reflect the promise of political economy that the market, the mechanism for the genera and satisfaction of greater and different wants, is the motor of a productive, active and working society. At the core lies a belief in the progressive improvement of the degree of satisfaction of material want. One critique of the prevalent belief in material progress is that it results in increased technological dependency and determinism: individ are dominated by the pervasive demands of technology, resulting in a loss of individual freedom and thus of personal fulfilment and hap In the extreme form of this critique, technology, as the main emanation of material progress, represents a threat to our existence: nucle Armageddon beckons; or the explosion of human population will leave us with a foodbase vulnerable to the sudden and uncontrollable proliferation of deadly diseases, etc. Furthermore, whereas Lasch refers to a modern ideology of progress as a simple belief in a continuous infinite development of knowled material transformation, environmental science has posited that there may in fact be limits to this process, imposed by finite resources. an increase in population and finite resources, progress cannot be continuous; a stage may come where the only progress is in equity r than in absolute material wealth. On this view a belief in progress and the pursuit of material wealth is misguided and dangerous. Against that it can be argued that mankind does not have the luxury to choose: only a solid belief in progress (as accumulation of new knowledge) will lead us out of the maze of environmental, technological and practical conundrums already posed by material progress other words, if science and technology have their risks they also have their promise: they are the only possible way to deal with the dan inherent within them. Science will cure science, and we are thus inescapably bound to pursue science in a necessary vicious circle. An individual may either believe in progress or not, but implicit belief in the benefits of progress is undeniably embedded in western cult Growing numbers of Europeans believed, during the nineteenth century and beyond, that society would benefit from bestowing (proper as) incentives on authors and inventors to engage in creative work and disseminate its results. That is still a fundamentally accepted no perfectly rational within the surrounding cultural constructs of a capitalist western democracy.It is reflected in intellectual property law in general, and in patents law in particular Many current controversies in intellectual property law can be analysed in terms of contrasting opinions about progress. But “traditional intellectual property is firmly anchored to a world view in which the pursuit of material progress plays a central role. The economic moto political bedrock of this pursuit is the competitive application of new knowledge within the framework of proprietary rights. However, this framework is now more frequently questioned, globally and nationally, expressly or implicitly. It remains to be seen to what extent, in th context of current global debates about intellectual property, the fundamental preconceptions about progress that underlie IP will come debate. History reveals that progress is a relative concept, that its fruits are rarely universally shared, and that the dogmatic pursuit of m progress can come at a considerable social, environmental and cultural cost. It is equally clear that intellectual property law plays an im institutional role in fulfilling the promises of progress. Maybe it can play an increasing role in countering its threats.

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JUSTIFICATIONS FOR EACH AREA IP

COPYRIGHT JUSTIFICATIONS PRO IP + GOOD JUSTFICIATIONS      

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Natural rights; labour theory and personality rights (the creator has put time/energy into the work and it is a manifestation of their personality – e.g. an artist writing a song). They deserve the rights and control over this. Yen - Copyright = “the legal vindication of a person's moral right to property in the fruits of her labour”. Reward/dessert for their creativity and originality. Unjust enrichment – prevent the unfair taking of the creative labour – especially as it is easier than ever to copy and share works online. Economic incentive for creatives who want to forge a career out of writing/drawing/cinematography/choreography etc. The lengthy protection (lifetime of the creator plus 70 years) extends the protection to help and protect the creator’s family past their death. They can continue to reap the rewards of the creation. This is especially important if the creator’s work isn’t recognised and appreciated on a significant scale until after they have died  e.g. singer Eva Cassidy + artist Vincent van Gogh). Economic incentive for society – high level of creation is beneficial for a country’s economy – more economic growth.

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DISADVANTAG IP BEING A HINDRANCE IP rights are an artificial barrier hindering further creative developm The creative indus have a high turnov of creators who w the freedom to cre without the block o copyright. Creator’s lifetime years is excessive especially if the creation was reasonably simple

CONFIDENCE/PRIVACY ACTIONS JUSTIFICATIONS POSITIVE JUSTIFICATIONS FOR THE NEW PRIVACY ACTION:  Open scope of the new tort – ensures the “limiting constraints” of the confidently action have been “firmly shaken off” (judgement in Campbell v MGN)  Folkard - Greater flexibility allows the law to focus on “human dignity and autonomy”.  Example: compare Kaye v Robertson with Peck v UK. Both cases concerned vulnerable and unwell individuals in need of privacy protection. Under the old BOC action, there was no protection or remedy for Kaye, whereas under the new privacy action Peck succeed in his claim.

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NEGATIVES OF THE NEW PRIVACY ACTION Folkard - open and undefined scope of the law be an opportunity for public figures to manipula the law  allow them to shape the public imag they portray through the media by controlling w info is / isn’t published (e.g. Campbellv MGN a PRS v Associated Newspapers). Moosavian – risk of public figures “using their wealth and power to conceal misdeeds”. Wolff - undefined scope of the action gives

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Folkard: this shows that the new action is more effective form of protection for human dignity and autonomy in our society, rather than purely focusing on commercial, confidential information as BOC largely did. Public figures and celebrities deserve a private life too – especially when it concerns confidential information or private secrets – e.g.Campbell v MGN and Von Hannover No.1.

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celebrities the power to seduce the privacy la This may be considered immoral - but he also acknowledges that it’s “their ultimate job … to handle and control the media”. Lusher – criticised the actions of the media un the new action, who have been “pretty outrage

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It helps to protect those around the public figures – e.g. children who haven’t chosen to be born into the media spotlight – PJS v News Group Newspapers; Murray v Express Newspapers; Weller v Associated Newspapers; AAA v Associated Newspapers; K v News Group; CTB v Newsgroup Newspapers.

and very clever” in “egging on” other publicatio leak information into the public domain (so it’s t easier for them to publish private information th already public) – may suggest the press are undermining the new action because of how flexible/open it is.

Link to passing off  With the privacy action and passing off  developing to seemingly offer greater protection to celebrities with regards to their personal and commercial image interests – is this unnecessarily widening the scope of IP rights too far? As public figures, they should expect w they get in terms of the public taking an interest in their personal lives and in brands wanting to use their image to sell goods and serv  Clear legal development from BOC to the new privacy action. Should the same happen under passing off to develop publicity rights alongside the new privacy action? Danger of this: we over-protect across their personal and commercial rights. Is it right that they hav such extensive rights?  In Woodward v Hutchins Lord Denning noted that it’s in the public interest for people to see the real/true image of public figures – contrived/perfected version.  My opinion on the similarity between privacy/publicity rights: privacy rights are easier to justify because there is more of a focus humanity and individual well-being (e.g. Campbell) – rather than the rights being purely about someone’s commercial interests (e.g. Fenty). Both are also interlinked with the celebrity’s relationship with the public – e.g. through the media/through brands. Seems to co down to a question of choice/consent – and regarding both rights I therefore think, regardless of their celebrity status, an individual sh have the right to decide (a) what private information about them is published, and (b) what their public image and goodwill is attached commercial gain. Their reputation (that they have worked hard to build) could be damaged in both situations so they should have righ control over this.

PASSING OFF JUSTIFICATIONS PRO IP + GOOD JUSTFICIATIONS 

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Justification for passing off Lord Halsbury: “Nobody has any right to represent his goods as the goods of somebody else.” (Reddaway v Banham) Passing off benefits and protects consumers. Consumers identify specific traders with marks and signs that they attach to their goods/services. These marks/signs are an identifier of the source of the goods/services. Therefore, if the sign/mark that consumers associate with one trader is used by a different consumer The ability to distinguish products in terms of where they originate is important for the protection of consumers. The right to protect the name you trade under  a fundamental right for all traders. In the modern marketplace, traders must be able to develop a brand for their goods/services to attract the attention of consumers. Economic theory requires that, for a market to work efficiently, there must be accurate information for consumers so they can make informed decisions without the burden of high research costs.

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DISADVANTAGES: IP BEING A HINDRANCE If existing businesses can use IP rights to exclude other businesses from entering a large area o market (in terms of products and brand identifiers), this would constitute a barrier for competitors trying to enter the market. As a result, the quality of information for consumers would be restricted, as it would become too difficult to find information about new products.

Introduction/general points  Over the last century, the tort of passing off has developed and evolved extensively, as is eviden the case law.  Two key areas that we have seen develop are: the heads of damage (now includes dilution) and type of misrep that can occur, which has development from being about the source/origin to now include shared goodwill cases based on product misrep, and even celebs bringing character/personality misrep cases.

Extending passing off: more types of misrep  We have seen a development around the concept of goodwill – the tort no longer only protects goodwill and consumers in relation to the origin or source of the product (Jif lemon), but it now a protects areas such as quality, connection and extended passing off in relation to classes of pro such as vodka, advocaat, champagne and Greek yoghurt.  Even further than this, we are seeing the evolution of passing off cases in relation to character a perso...