Intellectual property
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Intellectual property law
Primary rights
Copyright
Patents
Trademarks
Industrial design rights
Utility models
Geographical indication
Trade secrets
Related rights
Tradenames
Domain names
Sui generis rights
Database rights
Mask work
Plant breeders' rights
Supplementary protection certificate
Traditional knowledge
edit box
For the 2006 film, see Intellectual Property (film).
In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain names, written and recorded media, and inventions. The holders of these legal entitlements may exercise various exclusive rights in relation to the subject matter of the IP. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect. The term implies that intellectual works are analogous to physical property and is consequently a matter of some controversy.
Intellectual property laws and enforcement vary widely from jurisdiction to jurisdiction. There are inter-governmental efforts to harmonise them through international treaties such as the 1994 World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), while other treaties may facilitate registration in more than one jurisdiction at a time. Disagreements over medical and software patents and the severity of copyright enforcement have so far prevented consensus on a cohesive international system.
Contents
[hide]
1 Overview
1.1 Controversy
2 History
3 Critique
3.1 Overview
3.2 Arguments against the term
3.2.1 Alternative terms
3.3 Expansion in nature and scope of IP laws
3.4 Economic view
3.5 Alternative systems of protection
4 Valuation of intellectual property
5 Intellectual property rights in the digital era
6 Academic courses
7 See also
8 Further reading
9 References
10 Bibliography
[edit]Overview
Intellectual property laws confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested, and not in relation to the ideas or concepts themselves (see idea-expression divide). The term "intellectual property" denotes the specific legal rights which authors, inventors and other IP holders may hold and exercise, and not the intellectual work itself.
Intellectual property laws are designed to protect different forms of subject matter, although in some cases there is a degree of overlap.
Copyright may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time (historically a period of between 10 and 30 years depending on jurisdiction, more recently the life of the author plus several decades).
A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder a right to prevent others from practicing the invention without a license from the inventor for a certain period of time (typically 20 years from the filing date of a patent application).
A trademark is a distinctive sign which is used to distinguish the products or services of different businesses.
An industrial design right protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles).
A trade secret (which is sometimes either equated with, or a subset of, "confidential information") is secret, non-public information concerning the commercial practices or proprietary knowledge of a business, public disclosure of which may sometimes be illegal.
Patents, trademarks, and designs rights are sometimes collectively known as industrial property, as they are typically created and used for industrial or commercial purposes.
[edit]Controversy
The basic public policy rationale for intellectual property laws is that they facilitate and encourage the pursuit of innovation and the disclosure of knowledge into the public domain for the common good, by granting authors and inventors exclusive rights to exploit their works and invention for a limited period. Many people believe that intellectual property provides a temporary monopoly that protects the use or exploitation of that good, supported by legal enforcement mechanisms.[1] The United States Supreme Court frequently refers to a patent as providing a "limited monopoly." This is not, however, appropriate usage of the term monopoly in the economic sense. In fact, intellectual property protection cannot properly be thought of as providing an economic monopoly, at least in part, because a monopoly can only exist in the presence of a market and the ability of an actor to manipulate the market to a point where higher than competitive prices are able to be maintained, which is something that is rarely achievable by an owner of intellectual property. [1]
However, various schools of thought are critical of the concept and treatment of "intellectual property"; indeed, some argue that use of the term "property" in this context is itself misleading. Some characterise IP laws as intellectual protectionism. There is ongoing debate as to whether IP laws truly operate to confer the stated public benefits, and whether the protection they are said to provide is appropriate in the context of innovation derived from such things as traditional knowledge and folklore, and patents for software and business methods. Manifestations of this controversy can be seen in the way different jurisdictions decide whether to grant intellectual property protection in relation to subject matter of this kind, and the North-South divide on issues of the role and scope of intellectual property laws.
Furthermore, due to the non-rivalrous nature of intellectual property, comparing the unauthorized use of intellectual property to the crime of theft presents its own unique problems. In common law, theft requires deprivation of the rightful owner of his or her rights to possess, use, or destroy property. Example: When Joe steals Jane's bicycle, Jane cannot use or have access to it. But since intellectual property (for example, ideas and various transcriptions into written words, audible sounds, or electronic media) are so easily reproduced, no such deprivation to the owner occurs. Example: When Joe makes a copy of the music Jane recorded, Jane is not denied access to her original copy. In this sense, many forms of intellectual property meet the non-rival test for public goods: the use of the good by one individual does not reduce the use of that good by others.
The global harmonisation of intellectual property legislation under the WTO has also been criticized, for example by the alter-globalization movement.
The exclusive rights granted by intellectual property laws are generally negative in nature, and therefore only grant the holder of IP the ability to exclude third parties from infringing on their monopoly. For example, the owner of a registered trademark has an exclusive right to use their mark in relation to certain products or services, and can exclude others from using that mark in relation to those products or services (sometimes marks which are recognised as "famous" or "well known" are deemed to have developed sufficient goodwill and reputation to be protected across unrelated classes of products and services).
The exclusive rights conferred by intellectual property laws can generally be transferred (with or without consideration), licensed (or rented), or mortgaged to third parties. Like other forms of property, intellectual property (or rather the exclusive rights which subsist in the IP) can be transferred (with or without consideration) or licensed to third parties. In some jurisdictions it may also be possible to use intellectual property as security for a loan.
Exclusive rights are generally divided into two categories: those that grant exclusive rights only on copying/reproduction of the item or act protected (e.g. copyright) and those that grant a right to prevent others from doing something. The difference between these is that a copyright would prevent someone from copying the material form of expression of an idea, but could not stop them from expressing the same idea in a different form, nor from using the same form of expression if they had no knowledge of the original held by the copyright holder. Patents and trade marks on the other hand, can be used to prevent that second person from making the same design even if they had never heard of or seen the claimed "property". Those rights must be applied for or registered and are more expensive to enforce.
There are also more specialized varieties of "sui generis" exclusive rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act in Canadian law, and in European Union law by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeders' rights, plant variety rights, industrial design rights, supplementary protection certificates for pharmaceutical products and database rights (in European law).
Exclusive rights differ by subject matter, the actions they regulate with respect to the subject matter, the duration of particular exclusions, and the limitations on those rights. Policies are conventionally categorized according to subject matter, including inventions, artistic expression, secrets, and industrial designs.
Generally, the activity regulated by exclusive rights is unauthorized reproduction or commercial exploitation. However, as indicated above, some rights go beyond this to grant a full suite of exclusive rights on a particular idea or product. Generally, it is true to say that exclusive rights grant the holder the ability to stop others doing something (i.e. a negative right), but not necessarily a right to do it themselves (i.e. a positive right). For example, the holder of a patent on a pharmaceutical product may be able to prevent others selling it, but (in most countries) cannot sell it themselves without a separate license from a regulatory authority.
Most exclusive rights are nothing more than the right to sue an infringer, which has the effect that people will approach the rightsholder for permission to perform the acts to which the rightsholder has exclusive right. The granting of this permission is termed licensing, and exclusive rights licenses stipulate the extent of the licensee's ability to perform the acts the rightsholder may control. Other kinds of licenses attempt to establish additional conditions beyond the acts the rightsholder may control, and these licenses are governed by general contract principles. In many jurisdictions the law places limits on what restrictions the licensor (the person granting the license) can impose. In the European Union, for example, competition law has a strong influence on how licenses are granted by large companies.
Copyright licenses grant permission to do something. A patent license is a declaration not to do some things, under certain conditions. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use. Many countries' legal systems afford compulsory licenses for particular activities, especially in the area of patent law.
Most exclusive rights are awarded by a government for a limited period of time. Economic theory typically suggests that a free market with no exclusive rights will lead to too little production of intellectual works relative to an pareto efficient outcome [citation needed]. Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved. On the other hand, granting exclusive rights is by no means the only viable method to finance "intellectual property" production in a market system [2]. "Intellectual property" law creates transaction costs that could in some circumstances outweigh these gains. Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented. Equally important, granting monopoly rights on production introduces a deadweight loss into the economy, and incentivizes rent seeking behavior.
Other criticisms include[citation needed]: a copyright holder may refuse permission to publish or copy a work at all, or only allow distribution of a modified version reflecting the views of the copyright owner (rather than the original author), thus effecting a form of private censorship; intellectual property rights held by different people often overlap on the same work, which can create a rights thicket with extremely high transaction costs; an intellectual property right for which the ownership cannot be traced may prevent the use of a covered work (an orphan work) at all, due to fear of future lawsuits.
[edit]History
The earliest use of the term "intellectual property" appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown. in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man's own...as the wheat he cultivates, or the flocks he rears." (1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414). But the statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years". [2]
In Europe, French author A. Nion mentioned "propriété intellectuelle" in his Droits civils des auteurs, artistes et inventeurs, published in 1846.
The term's widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organization, which actively tried to promote the term. Still, it was rarely used without scare quotes until about the time of the passage of the Bayh-Dole Act in 1980.[3]
The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as "property" does not seem to exist.[4] The Talmud contains the first known example of codifying a prohibition against the stealing of ideas, which is further discussed in the Shulchan Aruch.[5]
However, the legal system of most of the Western world does not have provisions for intellectual property and the laws the term encompasses are justified on more constrained grounds. The term does not occur in the United States Copyright Statutes, except in certain footnotes citing the titles of certain Bills. The term used in the statutes and in the Constitution is "exclusive rights".
See also: History of patent law; History of copyright law
[edit]Critique
The shift in terminology towards "intellectual property"[citation needed] has coincided with a more general shift away from thinking[citation needed] about things like copyright and patent law as specific legal instruments designed to promote the common good and towards a conception[citation needed] of ideas as inviolable property granted by natural law. The terminological shift coincides with the usage of pejorative terms for copyright infringement such as "piracy" and "theft".
Some critics of intellectual property, such as those in the free culture movement, characterize it as intellectual protectionism or intellectual monopoly, and argue the public interest is harmed by protectionist legislation such as copyright extension, software patents and business method patents.
Some critics reject intellectual property altogether. Stallman argues that "the term systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He suggests the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues." [3] These critics advocate referring to copyrights, patents and trademarks in the singular, and warn against abstracting disparate laws into a collective term.
In 2004 the World Intellectual Property Organization was criticized in The Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development - not as an end in itself".
[edit]Overview
[This section may be biased to one side of a controversy]
The purposes of laws dealing with exclusive rights over intangible subject matter or the product of intellectual or creative endeavor have varied, but they all share in common the appearance of granting the "owner" of the exclusive rights to a monopoly on the copying or distribution of a protected form of "property".
In common law jurisdictions, this was historically done to grant a boon to a king's favorite in the form of letters patent (with some positive advantages to the public, since often these grants were prerequisites before a merchant would undertake production). Jurisdictions with written constitutions generally vest the executive government with power to grant such monopolies or otherwise provide for the protection of intangible property. For example, the United States Constitution accords Congress the power to promote the progress of science and the useful arts by granting exclusive rights to authors and inventors for limited times.
The use of the term "intellectual property" is often predicated on considerations such as the "free rider problem" or rationalized by problematizing the fact that owners of computers have the ability to produce and distribute perfect copies of digital works. Proponents of the term tend to address exclusive intellectual property rights policy by valorizing the incentives afforded to authors and inventors in granting them a right to exact a fee from those who wish to manufacture their inventions or publish their expressive works. The analyses associated with the term tend to overlook or even to attempt to defeat the fact, noted by Thomas Jefferson when he took part in wording the exclusive rights clause under the USA Constitution, that published information is intrinsically free and that in fact this is the whole point of such exclusive rights -- to publish, to provide information to the public.
By an economic analysis, the incentives granted for patent rights have sometimes served the public benefit purpose (and promoted innovation) by ensuring that someone who devoted, say, ten years of penury while struggling to develop vulcanized rubber or a workable steamship, could recoup her investment of time and energy. Using monopoly power, the inventor could exact a fee from those who wanted to make copies of his or her invention. Set it too high, and others would simply try to make a competing invention, but set it low enough and one could make a good living from the fees.
In latter years, the public benefit idea has been downplayed in favor of the idea that the primary purpose of exclusive rights is to benefit the rights holder, even to the detriment of society at large; and this development has attracted some opponents. The formulation in the US Constitution (noted above) is specifically about public benefit.
In some fields, patent law has had an unintended consequence: treating abstract rules and mental products like concrete ones has stifled innovation in those fields, rather than aiding it.[needs citation]
Intellectual property rights have limitations, including term limits and other considerations (such as intersections with fundamental rights and the codified or statutory provisions for fair use for copyright works). Some analogize these considerations to public easements, since they grant the public certain rights which are considered essential. Different countries may have subtle or dramatic differences in the scope or protection and permitted uses of different types of intellectual property. A fair use in one jurisdiction can easily be an infringing use elsewhere.
Authors and inventors exercise specific rights, and the "property" referred to in "intellectual property" is the rights, not the intellectual work. A patent can be bought and sold, but the invention that it covers is not owned at all. This is one of many reasons that some believe the term intellectual property to be misleading. Some use the term "intellectual monopoly" instead, because such so-called "intellectual property" is actually a government-granted monopoly on certain types of action. Others object to this usage, because this still encourages a natural rights notion rather than a recognition that the rights are purely statutory, and it only characterizes the "property" rather than eliminates the property presupposition. Others object to the negative connotation of the term "monopoly" and cite the wide availability of substitute goods. Still others prefer not to use a generic term, because of differences in the nature of copyright, patent and trademark law, and try to be specific about which they are talking about, or the term "exclusive rights", which reflects the U.S. Constitutional language.
[edit]Arguments against the term
The term intellectual property has been criticized on the grounds that the rights conferred by exclusive rights laws are in some ways more limited than the legal rights associated with property interests in physical goods - chattels or land - real property. The inclusion of the word property in the term can be seen as favoring the position of proponents of the expansion of exclusive rights in intellectual products, by helping them draw on concepts associated with those older forms of property in support of their argument for removing limitations on rights when those limitations would be generally seen as inappropriate if applied to physical goods. For example, most nations grant copyrights for only limited terms; all limit the terms of patents. Additionally, the term is sometimes misunderstood to imply ownership of the copies themselves, or even the information contained in those copies. By contrast, physical property laws rarely restrict the sale or modification of physical copies of a work (something that many copyright laws do restrict).
A common argument against the term intellectual property is that information is fundamentally different from physical property in that there is no natural scarcity of a particular idea or information: once it exists at all, it can be re-used and duplicated indefinitely without such re-use diminishing the original. Thus there is no direct analogue to "theft"; the closest analogue is to copy or use the information without permission, which does not affect the original possession (see the tragedy of the commons).
Another, more specific objection to the term, held by Richard Stallman, is that the term is confusing [4]. Stallman argues that the term implies a non-existent similarity between copyrights, patents, trademarks, and other forms of exclusive rights, which makes clear thinking and discussion about various forms difficult. [5] For example, those that pertain to intellectual content (copyrights and patents) have limited terms, hence differ from conventional property, whereas trademarks, which have unlimited terms, are merely signs and lack intellectual content. Furthermore, most legal systems, including that of the United States, hold that exclusive rights are a government grant, rather than a fundamental right held by citizens.
Though it is convenient for direct incentive beneficiaries to regard exclusive rights as akin to "property", items covered by exclusive rights are, by definition, not physical objects "ownable" in the traditional sense.
Stephan Kinsella, in his Journal of Libertarian Studies article "Against Intellectual Property" ([6]), details his objection to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas.
Others point out that the law itself treats these rights differently than those involving physical property. To give three examples from US law, copyright infringement is not punishable by laws against theft or trespass, but rather by an entirely different set of laws with different penalties. Patent infringement is not a criminal offense although it may subject the infringer to civil liability. Willfully possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not. Furthermore, in the United States physical property laws are generally part of state law, while copyright law is in the main measure federal.
Some proponents of the term argue that in other areas the term "property" is applied to legal rights and remedies of analogous kinds. For example, in some jurisdictions a lease of land (e.g. a flat or apartment) is regarded as intangible property in the same way that copyright is. In these cases too the law accepts that the property cannot be stolen - if someone moves into a flat and prevents the original residents from living there they are not regarded as 'thieves of the lease' but as 'squatters' and the law provides different remedies. Identity theft is another example of the adaptation of physical property laws to intangible items, though that term itself is seen as problematic by some. These examples, however, address the use of the term "property" in a technical legal context, not the meaning of the term as understood in public discourse.
[edit]Alternative terms
In civil law jurisdictions, intellectual property has often been referred to as intellectual rights, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980s, as use of the term intellectual property has increased.
An alternate terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman - see below. The backronyms intellectual protectionism and intellectual poverty, whose initials are also IP, have found supporters as well, especially among those who have used the backronym digital restrictions management.
Another issue is that if intellectual property exists there must be a parallel concept of intellectual capital - capital being the property that permits more property to be created. This, and the related term instructional capital that applies to the proper subset of patents and non-fiction copyright, are controversial notions that economists have no clear agreement on, so one refers to the "intellectual capital debate" rather than thinking of it as an actual capital asset. See more in the "Economic view" section below.
The fact that the three most common forms of intellectual property law concern different subject matter with different histories and purposes — copyright concerns original creative or artistic works, patent concerns new and useful inventions, and trademarks concerns signs which uniquely identify the commercial origin of products or services — is seen by some as countering what they consider to be the dogma of the United Nations' World Intellectual Property Organisation on intellectual property as the "creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce" [7]. These critics see this assertion as propaganda for a "property view", and suggest alternative terms such as individual capital, instructional capital and social capital over the term "intellectual capital", which has an ambiguous status, even among believers in neoclassical economics. Indeed, recent historical and econometric research has begun to "challenge the positive description of previous models and the normative conclusion that monopoly through copyright and patent is socially beneficial" [8]).
[edit]Expansion in nature and scope of IP laws
In recent times there has been a general expansion in intellectual property laws. This can be seen in the extension of laws to new types of subject matter such as databases, in the regulation of new categories of activity in respect of subject matter already protected, in the increase of terms of protection, in the removal of restrictions and limitations on exclusive rights, and in an expansion of the definition of "author" to include corporations as the legitimate creators and owners of works. The concept of work for hire has also had the effect of treating a corporation or business owner as the legal author of works created by employees.
The American film industry helped to change the social construct of intellectual property by giving rise to a shrewd and well-funded trade organization, the Motion Picture Association of America. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA consistently advocated strong protection of intellectual-property rights. In framing its presentations, the association has capitalized on lawmakers' receptivity to labor-desert theory - that is that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property. This strategy has been highly effective; with remarkable frequency, the positions the association has supported have prevailed.[6] These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority.[7]
The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe, such that it is unclear when subsisting copyright protection will eventually expire.
The nature and scope of what constitutes "intellectual property" has also expanded. In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights. Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark. Under this definition, trademarks such as Microsoft's slogan "Where do you want to go today?" are generally considered registrable. Furthermore, as the essential function of a trademark is to exclusively identify the commercial origin of products or services, any sign which fulfills this purpose may be registrable as a trademark. However, as this concept converges with the increasing use of non-conventional trademarks in the marketplace, harmonisation may not amount to a fundamental expansion of the trademark concept.
In the context of patents, the grant of patents in some jurisdictions over certain life forms, software algorithms, and business models has led to ongoing controversy over the appropriate scope of patentable subject matter.
Some consider that the expansion of intellectual property laws upsets the balance between encouraging and facilitating creativity and innovation, and the dissemination of new ideas and creations into the public domain for the common good. They consider that as most new ideas are simply derived from other ideas, intellectual property laws tend to reduce the overall level of creative and scientific advancement in society. They argue that innovation and competition is in effect stifled by expanding IP laws, as litigious IP rights holders aggressively or frivolously seek to protect their portfolios. Opposition to expansion of intellectual property laws is strongly supported by the general economic arguments against monopolies.
The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works. This can have the effect of limiting fair use provisions of copyright law and even make the first-sale doctrine (known in European Union law as "exhaustion of rights") moot. This would allow, in essence, the creation of a book which would disintegrate after one reading. As individuals have proven adept at circumventing such measures in the past, many copyright holders have also successfully lobbied for laws such as the Digital Millennium Copyright Act, which uses criminal law to prevent any circumvention of software used to enforce digital "rights management" systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC). These provisions raise serious free speech issues even beyond those raised by intellectual property law in general.
At the same time, the growth of the Internet, and particularly distributed search engines like Kazaa and Gnutella, represents a challenge for exclusive rights policy. The Recording Industry Association of America, in particular, has been on the front lines of the fight against what it terms "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster, and some people have been prosecuted for sharing files in violation of copyright. However, the increasingly decentralized nature of such networks makes legal action against distributed search engines more problematic.
[edit]Economic view
Exclusive rights such as copyrights and patents secure their holder an exclusive right to sell, or license rights. As such, the holder is the only seller in the market for that particular item, and the holder is often described as having a monopoly for this reason.
However, it may be the case that there are other items of "intellectual property" that are close substitutes. For example, the holder of publishing rights for a book may be competing with various other authors to get a book published. In such cases, economists may find that another market form, such as oligopoly or monopolistic competition better describes the workings of the markets for expressive works and inventions. This is one reason to prefer the term exclusive rights over monopoly rights. Of course, there may not be close substitutes in particular cases (for instance, a patent on the only known drug to treat a particular illness), making the term monopoly rights more appropriate.
The case for "intellectual property" in economic theory notes certain substantial differences from the case for tangible property. Consumption of tangible property is rivalrous. For example, once one person eats an apple, no one else can eat it; if one person uses a plot of land on which to build a home, that plot is unavailable for use by others. Without the right to exclude others from tangible resources, a tragedy of the commons can result.
The subjects of intellectual property do not share this feature of rivalness. For example, an indefinite number of copies can be made of a book without interfering with the use of the book by owners of other copies. When combined with a lack of exclusive intellectual property rights, this nonrivalrousness and nonexcludability combine to make them public goods and susceptible to the free rider problem. A rationale for "intellectual property" therefore rests on incentive effects to overcome the free rider problem. This case asserts that without a subsidy that is afforded by exclusive rights, there is no direct financial incentive to create new inventions or works of authorship. However, as Wikipedia and Free software demonstrate, works of authorship can be written without the incentive of such exclusive rights. Moreover, many important works were created before copyright was invented. One might argue that much more invention occurred after patents came into existence; however, one could also argue that patents were brought into law as the power and influence of industrial interests grew.
The status of intellectual property is disputed by various commentators [attribution needed] in the developing nations. At the same time, developed countries are accused of supporting companies using intellectual property and patent laws to gain exclusive control over already known substances (see Biopiracy). [attribution needed]
A more recent notion, proposing to expand the scope of exclusive rights to include databases, has been introduced by the EU in 1996. This is the idea of protecting the information contained in a database against re-utilisation and extraction of substantial parts. This would be an additional right predicated on a substantial investment, that would exist alongside the copyright in the database structure. This notion was opposed by the United States Supreme Court in 1991 in the Feist Publications, Inc., v. Rural Telephone Service Co. finding, which said that exclusive rights cannot cover the factual elements of any copyrighted work, that copyright does not derive from the effort expended in the production of the work, and that in the case of a collection of information, only the originality that may be found in the selection and arrangement of the information is governed by copyright. This case holds that the purpose of exclusive rights policy is to provide information to the public, and this consideration takes priority over concerns such as investment. A study[specify] has found that the introduction of exclusive rights to databases in the EU did not do any good to the economy.
The direct incentive beneficiaries of exclusive rights have an interest in expanding their rights and benefits: this is known in economic terms as rent-seeking, and is generally considered a bad thing by economists. Many beneficiaries pool their resources to form organizations that attempt this such as the Business Software Alliance (BSA), which purports to represent the interests of the commercial software industry while the Recording Industry Association of America (RIAA) represents the interests of the commercial music publishing industry. As policy expands in accordance with the notion of "intellectual property", in the interests of those who benefit directly from its economic incentives, it tends to reduce the rights of its primary beneficiaries, the general public.
Under the notion of "intellectual property" the public is increasingly prevented by law from benefiting from the use of published information without complying with the conditions set by the rightsholder. The cost for this to the public is not easy to quantify. The cost is distributed widely and unequally based on the need for the product. Ironically the direct incentive beneficiary organizations are a good source for these data. The BSA reports a study that claims "while $80 billion in software was installed on computers worldwide last year, only $51 billion was legally purchased" (Source:BSA). The BSA says "software pirates" avoided a cost of $29 billion while the rest that obey the policy and do not purchase or make use of the work bear a real and substantial opportunity cost that is yet uncounted.
But Microsoft is lowering its selling price on competition from Linux[citation needed], for example with government clients. Because of this competition, Microsoft was forced to release an update to Internet Explorer to the public for its current product (Windows XP) which it originally planned to release with its next operating system (Windows Vista)[citation needed].
[edit]Alternative systems of protection
Before intellectual property laws existed in their current form, there were socially-enforced systems for protecting intellectual works, such as the ancient scholarly taboo against plagiarism.
Other informal systems of protection include the customary code of non-infringement used by clowns to recognise each performer's exclusive right to their unique style of makeup, costume and persona. The universality of "The Code" supports the belief amongst clowns that this traditional protection is more effective than that provided by trademark and copyright law. Nevertheless, clowns sometimes do seek the protection of "clown material" using intellectual property laws, perhaps against infringement by third parties outside the clown community.
With the advent of valuable domain names, and the practice of domain name squatting, the right to use and register certain domain names are often contested, particularly where a domain name consists of or comprises another party's well known trademark. Domain name registries, which are generally non-governmental organisations, utilise dispute resolution systems which operate in parallel with national laws. ICANN requires that registries for top level domain names (eg. .com and .net) use the Uniform Domain-Name Dispute-Resolution Policy (UDRP), while other registries use systems such as Nominet UK's "Dispute Resolution Service" (for the .uk registry), which often adopt or mirror the provisions of the UDRP.
[edit]Valuation of intellectual property
Little argument over intellectual property (IP) would occur if it did not have a value for the owner. The principle of valuing IP is to determine the future income associated with its ownership (Smith&Parr: Valuation of Intellectual Property and Intangible Assets, 3rd Edition, Wiley 2000). Note that the value of IP is generally independent of its cost.
Determination of future income requires estimating the income due to the IP in each of all future years over its life; i.e., the amount sold and the net income per unit after routine sales costs are deducted. If the IP is used internally, then the savings due to owning it can be similarly estimated. The risk that intellectual property becomes obsolete is high, and reduces the current value. Without risk, future income is discounted by using a risk-free interest rate. Risks include unexpected competition, unauthorized copying, patent breaches or invalidation, and loss of trade secrets. With such risks, discount rates increase, based on the expected Beta coefficient. With high discount rates, sales that occur far in the future have little effect, simplifying the determination of the net current value of the included IP.
When the items being valued contain multiple IP components, then the proportion and life of each component must be determined. That case exists in the small, as for software that receives updates throughout the future, and in the large, for companies that vend many products. Shareholders of public companies in effect estimate the aggregate IP of a company, providing a market capitalization through the price they are willing to pay for shares, which is in effect the sum of the book value and the IP owned by the company.
U.S. generally accepted accounting principles (GAAP) do not allow the listing on corporate books of IP[citation needed], making it hard for investors to be rational about share prices. IP is generated mainly through research, development, and advertising (IP generating expenses or IGE), making it hard to assess the effectiveness of IGE. Companies participating in the knowledge economy typically have a market capitalization which is a large factor greater than their book value, the sum of their tangible assets and cash. Normally it is only when a company has been purchased will the purchased IP appear as part of the purchased price allocation required by International Financial Reporting Standards Number 3 (IFRS 3) on Business Combinations.
[edit]Intellectual property rights in the digital era
This section does not cite any references or sources.
Please improve this section by adding citations to reliable sources. Unverifiable material may be challenged and removed. (tagged since August 2007)
Intellectual property rights (IPRs) in the digital era have added a new dimension to the traditional regime of IPRs. The complexity and jurisdictional issues relating to the Internet are challenging the IPR regime drastically. Though, TRIPS Agreement has tried to harmonise the IPRs all over the world yet the digital issues are vexing the IPRs enforcement everywhere. There is no harmonised law vis-à-vis IPRs in the digital era and this gives rise to conflict of laws. At the same time certain technological measures have also been adopted to tackle the violations of IPRs in the digital environment but their efficiency and effectiveness is doubted.
[edit]Academic courses
The study of intellectual property has grown in to a distinct academic discipline, most notably in law schools from higher education institutions in developed countries such as the UK, Germany, USA and Canada. Postgraduate courses (often referred to as an LLM or Master of Laws) are available for those looking to further their academic exposure and gain internationally recognised qualifications for intellectual property.
[edit]See also
Wikiquote has a collection of quotations related to:
Intellectual property
List of intellectual property related topics
[hide]
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Further disciplines Labour law · Human rights · Procedure · Evidence · Immigration law · Family law · Wills · Commercial law · Corporate law · Intellectual property · Unjust enrichment · Restitution · Tax law · Banking law · Competition law · Consumer protection · Environmental law · Admiralty law · Military law · Product liability
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[edit]Further reading
Templeton, Brad (October 2004). 10 Big Myths about copyright explained. Retrieved on 2007-09-08.
Law/copyright/FAQ Index. Internet FAQ Archives, Advameg, Inc. (1994-01-06). Retrieved on 2007-09-08.
See also Carroll, Terry. Copyright FAQ (superseded). Retrieved on 2007-09-08.
[edit]References
^ Eugene R. Quinn, Jr., Debunking the Intellectual Property Monopoly Myth.
^ http://www.ladas.com/Patents/USPatentHistory.html
^ Mark A. Lemley, "Property, Intellectual Property, and Free Riding" (Abstract); see Table 1: 4-5.
^ http://www.jlaw.com/Articles/copyright1.html
^ The New York Sun Fighting for Intellectual Property Rights.
^ Dennis Wharton, "MPAA's Rebel With Cause Fights for Copyright Coin," Variety (August 3, 1992), Vol. 348, No. 2, p. 18.
^ William W. Fisher III, The Growth of Intellectual Property:A History of the Ownership of Ideas in the United States Eigentumskulturen im Vergleich (Vandenhoeck & Ruprecht, 1999)
[edit]Bibliography
Kinsella, Stephan. "Against Intellectual Property." Journal of Libertarian Studies 15.2 (Spring 2001): 1-53. (Available in .PDF format from Ludwig Von Mises Institute.)
Mazzone, Jason. Copyfraud. Brooklyn Law School, Legal Studies Paper No. 40. New York University Law Review 81 (2006): 1026. (Abstract.)
Miller, Arthur Raphael, and Michael H. Davis. Intellectual Property: Patents, Trademarks, and Copyright. 3rd ed. New York: West/Wadsworth, 2000. ISBN 0-314-23519-1. (Textbook focusing particularly on copyright and patent law.)
Moore, Adam D., Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues. New Brunswick NJ: Transaction Publishing/Rutgers University, Fall 2004 paperback, Fall 2001 hardback, 252 pages.
Perelman, Michael. Steal This Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity. New York: Palgrave Macmillan, 2002. ISBN 0-312-29408-5. (A critical discussion of some of the social, scientific and cultural impacts of recent intellectual property developments.)
Schechter, Roger E., and John R. Thomas. Intellectual Property: The Law of Copyrights, Patents and Trademarks. New York: West/Wadsworth, 2003, ISBN 0-314-06599-7. (Textbook.)
Vaidhyanathan, Siva. The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System. New York: Basic Books, 2004.
–––. Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. New York: NYU Press, 2001.
Andrew Gowers. "Gowers Review of Intellectual Property." Her Majesty's Treasury, December 2006. [9] ISBN-13: 9-780118-4083-9.
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http://en.wikipedia.org/wiki/Intellectual_property
Tuesday, September 25, 2007
Intellectual Property Rights
Introduction
This overview paper briefly explains the landscape of copyright law and its application to Further and Higher Education (FE and HE).
1. Intellectual Property Rights – A Primer
Intellectual Property Rights (IPR), very broadly, are rights granted to creators and owners of works that are results of human intellectual creativity. These works can be in the industrial, scientific, literary and artistic domain. It can be in the form of an invention, a manuscript, a suite of software, or a business name.
In general, the objective of IPR is to protect the right of a copyright author in his work and at the same time allow the general public to access his creativity. IPR maintains this balance by putting in place time-limits on the author’s means of controlling a particular work. The law that regulates the creation, use and control of the protected work is popularly known as Intellectual Property Law (IP).
Back to top
2. Types of Intellectual Property Rights
The principal Intellectual Property Rights are as follows:
Copyright
Patents
Trade Marks
Design Rights
Passing off
The law of Confidential information
This paper will focus on copyright, an area of IPR that is of primary concern to those working in the FE and HE. It will give the reader an insight into the legal framework of copyright law as a means of protecting one’s work.
Back to top
3. What is a Copyright?
Copyright is one of the key branches of IP law and it protects the expression of ideas. For a work to gain copyright, it has to be original and should be expressed in a material form. Copyright is thus effective upon the creation of the work. It arises automatically and in the UK one does not have to register the copyright in the work before it is protected.
Back to top
4. Laws on Copyright
Currently, copyright law in the UK is governed by the Copyright, Designs and Patents Act 1988 (the Act). Part I of the Act deals with copyright law. It has been subject to various amendments and the latest amendments of October 2003 were aimed at bringing the Act in line with the EU Directive on Copyright and Related Rights in the Information Society (EU Copyright Directive) 2001 and the challenges posed by the Internet. The UK being a member of various international conventions and treaties on copyright law, the Act was also amended at various occasions to harmonise it with the provisions of international treaties.
Back to top
5. Relevance of Copyright for FE and HE
Copyright is of fundamental importance to FE and HE as they being users, producers and disseminators of information will need to minimise their liability and maximise exploitation. For example, the World Wide Web (www) allows for the public dissemination of this information in an unprecedented manner. Those working in the FE and HE should therefore always be mindful that their work may involve copyright material. Merely because material (e.g. internet content, software, on-line databases or journals) is openly available on the Internet does not necessarily imply that it may be freely used. The vast majority of such material is made available under certain terms and conditions. One should therefore always ensure that the use of online materials complies with the terms of use stipulated by its rights holder.
Back to top
6. Entitlement to Copyright
A work will qualify for copyright protection if:
It is of a type protected by copyright under the Act (See below).
It is recorded in some form – e.g. in writing, by a sound recording, on a computer disk, or in a printed form.
The creator is a British citizen or that the work was first published in the UK.
The work meets the requisite degree of originality. A work is original if adequate skill, labour and judgment is expended on creating it.
Back to top
7. Works protected by Copyright
The types of copyright works are broadly categorised into:
original literary, dramatic, artistic or musical works,
sound recordings, films or broadcasts and
the typographical arrangement of published editions.
Literary work also includes
(a) a table or compilation other than a database,
(b) a computer program,
(c) preparatory design material for a computer program and
(d) a database.
Dramatic work includes a work of dance or mime. Musical work means any work consisting of music but excludes the words and music of songs.
Back to top
8. Rights granted by Copyright
Copyright grants certain rights that are exclusive to its owner. Based on these rights, the copyright owner
(a) can copy the work
(b) issue copies of the work to the public
(c) rent or lend the work to the public
(d) perform, show or play the work in public
(e) communicate the work to the public – this includes broadcasting of a work and also electronic transmission and
(f) make an adaptation of the work or do any of the above in relation to an adaptation
“Public” in the FE and HE refers to its staff and students. So it will be infringement under the right of communication to the public to include on the FE or HE intranet or internet, a students or a copyright owners work without their permission.
Copyright can subsist separately and collectively in the building blocks of any particular work. For example, the elements that constitute a website may include the web page, title, sound effects, images or pictures on the page and the address or domain name. Apart from a copyright on the web site, each of these building blocks grants separate rights to their owners.
Back to top
9. Copyright Ownership - Who owns what in a Copyright work?
Copyright ownership can arise automatically or by means of transfer of ownership through an assignment, assignation or licence.
Copyright owner: The first owner of copyright in a work is the person who created the work. Joint ownership may arise where more than one author is involved in creating a work.
Copyright ownership in computer generated works: In the case of computer generated works, the creator is the person by whom the arrangement necessary for the creation of the work is undertaken.
Copyright ownership within FE and HE: The beneficiaries of copyright ownership in FE and HE can be its staff (lecturing, research, general), outside contractors or students. Copyright maybe owned by the staff on lecture notes or teaching materials either as a sole author or jointly with outside contractors and the students may own copyright in data collected for writing papers.
Copyright ownership in an employer-employee relationship: Copyright of works created during the course of employment will be owned by the employer unless an agreement to the contrary is in place. Additionally, copyright ownership is also dependent on the question of whether the work in question was produced during the course of employment.
Ownership of copyright by staff: Copyright ownership of works created by FE and HE staff is principally dependent on the question whether the creation of the work was within the scope of his/her job specification. The rule applies irrespective of the question whether the staff had used the employer’s resources to produce the work and whether the work in question was produced during the office hours of the staff. This issue has great significance within FE and HE. Many academics in the institutes produce content in the form of articles and other publications during office hours whilst using the equipment of the institution. In some cases, their primary job specification may only relate to their teaching or lecturing function. Here, the reality is that FE and HE institutes have by convention, expressly or impliedly, waived their copyright in materials produced out-with the remit of the academics job specification. The rationale of this may be is by allowing the academic to retain copyright in the work he or she is encouraged to produce more material thus raising the profile of the institution. It can also be observed that one of the common deliverables currently included in the job specification of most academic staff is to raise the research profile of FE or HE institutes through publications in journals. It is also worth point out that academics often give their copyright to academic journals and their institutions pay for subscription to the journals that may contain articles, which in law it is the first owner of.
Copyright ownership in collaborative research: In the case of collaborative research partnership between FE and HE institutes and an outside partner copyright ownership can be held jointly. It is often the case that an agreement regulates this partnership and so ownership rights are distinguishable.
Copyright ownership by students: Relationship between students and FE and HE institutes are based on a special type of contract. These agreements are the various terms and conditions in the documentation (e.g. prospectus) that passes between them. In the absence of special terms and conditions in these documentations, copyright ownership in a work created by the student normally rests with the student. FE or HE institutes would therefore be better protected if it were to state in a prospectus or student handbooks that it may own copyright in certain works created (e.g. databases, software, and thesis publications) by the students. A feasible option so that both FE or HE institutes and its students reap mutual benefits from this collaboration would be to allow the student to retain ownership in his work and be compensated by means of a reward or income and the FE or HE institute to have the rights to use the work (e.g. to publish the work or to use it as a teaching material).
Back to top
10. Additional Rights
Related Rights: The works of performers, phonogram producers and broadcasting organisations are protected by means of related or neighbouring rights.
Moral Right: The exclusive rights of a copyright owner can be sold or passed on. Apart from these rights, a copyright owner is also conferred certain rights which remain with the original creator and affects how subsequent owners deal with the work. Such rights are known as moral rights.
Moral rights comprise
the right of the creator to be identified as the author of a work (also called the ‘right of attribution’ or ‘right to paternity’)
the right to object to derogatory treatment (prevent his work being subjected to any distortion or mutilation) of his/her work or derogatory action which would ultimately be prejudicial to his/her honour or reputation (also known as the ‘right of integrity’).
the right to object to false attribution, i.e., the right not to be named as the author of a work which he or she did not create.
An author is able to exercise his moral right on works distributed over the internet by using the electronic rights management information. The rights management information is any information that identifies the work, its copyright owner or provides information about its terms and conditions of use or any other data that represents such information (for example © JISC Legal 2006). Copyright law treats it as an infringement to knowingly or wilfully remove or alter any such information and to distribute, import or communicate to the public copies of such work.
Back to top
11. Duration of Copyright Protection
The duration of copyright is dependent on the type of work in question. Given below are examples of some works.
Literary, Dramatic, Musical and Artistic works: The life time of the author plus a period of 70 years from the end of the year in which the author dies.
Computer generated works: 50 years from the date of creation of the work. A work is deemed to be computer generated where there is “no human author”.
Sound recordings: 50 years from the end of year in which it was made or published.
Broadcasts– 50 years from the end of the year of broadcast.
Typographical arrangement of published editions: 25 years from the year of first publication.
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12. Infringement of Copyright
When is a work infringed? Copyright is said to be infringed when one of the exclusive rights of an author is performed by a party without the consent or authorisation of the author. This infringement is called primary infringement. Providing accessories for infringing the exclusive rights or assisting in the making or distribution of infringing copies is also treated as an infringement and is referred to as secondary infringement.
Making temporary copies: Browsing of the Internet creates temporary copies of web pages on the cache of a computer. Until 2003, such temporary copies were considered as infringing copies. The new law has however changed the position. It clearly states that the making of temporary copies is not an infringement so long as it is a transient copy, has no economic significance and is done solely for the transmission of a work or for its lawful use. The same rule applies in the case of sending copyright work by means of fax.
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13. Exceptions to Infringement
Copyright law provides a catalogue of basic exceptions and defences. It permits the use of copyright works for situations considered as ‘fair’, if permitted by a licence, or if permitted under a right holders guidance or notice.
Fair dealing with a copyright work constitutes one of the significant of these permitted acts. The scope of fair dealing in some specific situations of importance to FE and HE is detailed below:
Research or private study: Research or private study is not collective but are individual acts. The current UK copyright law permits copying of works for research or private study only if it is aimed at a non-commercial purpose. The law also requires that sufficient acknowledgment be given to the copied source when used in research or private study. For academic staff and research students in FE and HE, this creates an obligation of using proper citations during publications. The only exception is situations where acknowledgement would be impossible for practical reasons.
Educational purposes: Fair dealing with copyright works in the educational environment is permitted if the source is acknowledged, not done through reprographic means (e.g. multiple photocopying, faxing, scanning) and not aimed at a commercial purpose. Thus, a teacher instructing students in a commercial FE or HE institute (e.g. profit oriented ones) or imparting training courses to external company staff should be aware that hand outs and materials for such events observe these guidelines. For teachers involved in setting examination papers, the law requires them to include sufficient acknowledgement of the copied matter where practicable. Students answering these questions in exams are luckily exempt from the requirement. The law also covers the recording of web broadcasts by educational establishments. Primarily, to record a transmitted broadcast FE or HE institutes would need an ERA licence. In the absence of such a licence, the FE or HE can make use of the broadcast only if it acknowledges recording of the data or uses it for non-commercial purposes and transmits it only to persons within the premises of the educational establishment. In practice, this can prevent the commercial FE or HE institutes (without ERA) from recording and re-broadcasting content through e-transmissions for distance learning purposes on internet or an intranet.
Library uses: The making of copies from books in libraries by its users (staff or students) is fair dealing only if it is made for research or private study for non-commercial purposes. This would require the user to sign a copyright declaration form confirming that the use is purely non-commercial prior to making a request.
Criticism and review: Fair dealing for criticism and review is permitted under the new law only if it is accompanied by sufficient acknowledgement and the work is made available to the public.
Visually impaired people: The new law has created special exceptions for visually impaired people. A visually impaired person or FE or HE institute may make copies for a visually impaired person if it is for his/her personal use. But this is subject to the condition that the visually impaired person or the institute already has legitimate master copy (bought or borrowed) and that a copy of the work is not commercially available. An additional exception that caters to visually impaired persons allows the making of multiple copies if the author of the work is acknowledged and if the making of the copy does not interfere with the legitimate exploitation of the work.
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14. Enforcement of Copyright
The copyright owner enjoys considerable ancillary rights and remedies to enforce his copyright in a work. To enforce his right he can move the court for the award of damages, serving of injunctions restricting the infringer from carrying out the infringing activity or interdict, for payment of profits and/or for the granting of an order that the infringing materials be destroyed or delivered. Apart from this, copyright infringement may also attract criminal sanction for the criminal offence of piracy.
Back to top
Mahesh Madhavan
24 March 2006
© JISC Legal - www.jisclegal.ac.uk
http://www.jisclegal.ac.uk/ipr/IntellectualProperty.htm#Primer
This overview paper briefly explains the landscape of copyright law and its application to Further and Higher Education (FE and HE).
1. Intellectual Property Rights – A Primer
Intellectual Property Rights (IPR), very broadly, are rights granted to creators and owners of works that are results of human intellectual creativity. These works can be in the industrial, scientific, literary and artistic domain. It can be in the form of an invention, a manuscript, a suite of software, or a business name.
In general, the objective of IPR is to protect the right of a copyright author in his work and at the same time allow the general public to access his creativity. IPR maintains this balance by putting in place time-limits on the author’s means of controlling a particular work. The law that regulates the creation, use and control of the protected work is popularly known as Intellectual Property Law (IP).
Back to top
2. Types of Intellectual Property Rights
The principal Intellectual Property Rights are as follows:
Copyright
Patents
Trade Marks
Design Rights
Passing off
The law of Confidential information
This paper will focus on copyright, an area of IPR that is of primary concern to those working in the FE and HE. It will give the reader an insight into the legal framework of copyright law as a means of protecting one’s work.
Back to top
3. What is a Copyright?
Copyright is one of the key branches of IP law and it protects the expression of ideas. For a work to gain copyright, it has to be original and should be expressed in a material form. Copyright is thus effective upon the creation of the work. It arises automatically and in the UK one does not have to register the copyright in the work before it is protected.
Back to top
4. Laws on Copyright
Currently, copyright law in the UK is governed by the Copyright, Designs and Patents Act 1988 (the Act). Part I of the Act deals with copyright law. It has been subject to various amendments and the latest amendments of October 2003 were aimed at bringing the Act in line with the EU Directive on Copyright and Related Rights in the Information Society (EU Copyright Directive) 2001 and the challenges posed by the Internet. The UK being a member of various international conventions and treaties on copyright law, the Act was also amended at various occasions to harmonise it with the provisions of international treaties.
Back to top
5. Relevance of Copyright for FE and HE
Copyright is of fundamental importance to FE and HE as they being users, producers and disseminators of information will need to minimise their liability and maximise exploitation. For example, the World Wide Web (www) allows for the public dissemination of this information in an unprecedented manner. Those working in the FE and HE should therefore always be mindful that their work may involve copyright material. Merely because material (e.g. internet content, software, on-line databases or journals) is openly available on the Internet does not necessarily imply that it may be freely used. The vast majority of such material is made available under certain terms and conditions. One should therefore always ensure that the use of online materials complies with the terms of use stipulated by its rights holder.
Back to top
6. Entitlement to Copyright
A work will qualify for copyright protection if:
It is of a type protected by copyright under the Act (See below).
It is recorded in some form – e.g. in writing, by a sound recording, on a computer disk, or in a printed form.
The creator is a British citizen or that the work was first published in the UK.
The work meets the requisite degree of originality. A work is original if adequate skill, labour and judgment is expended on creating it.
Back to top
7. Works protected by Copyright
The types of copyright works are broadly categorised into:
original literary, dramatic, artistic or musical works,
sound recordings, films or broadcasts and
the typographical arrangement of published editions.
Literary work also includes
(a) a table or compilation other than a database,
(b) a computer program,
(c) preparatory design material for a computer program and
(d) a database.
Dramatic work includes a work of dance or mime. Musical work means any work consisting of music but excludes the words and music of songs.
Back to top
8. Rights granted by Copyright
Copyright grants certain rights that are exclusive to its owner. Based on these rights, the copyright owner
(a) can copy the work
(b) issue copies of the work to the public
(c) rent or lend the work to the public
(d) perform, show or play the work in public
(e) communicate the work to the public – this includes broadcasting of a work and also electronic transmission and
(f) make an adaptation of the work or do any of the above in relation to an adaptation
“Public” in the FE and HE refers to its staff and students. So it will be infringement under the right of communication to the public to include on the FE or HE intranet or internet, a students or a copyright owners work without their permission.
Copyright can subsist separately and collectively in the building blocks of any particular work. For example, the elements that constitute a website may include the web page, title, sound effects, images or pictures on the page and the address or domain name. Apart from a copyright on the web site, each of these building blocks grants separate rights to their owners.
Back to top
9. Copyright Ownership - Who owns what in a Copyright work?
Copyright ownership can arise automatically or by means of transfer of ownership through an assignment, assignation or licence.
Copyright owner: The first owner of copyright in a work is the person who created the work. Joint ownership may arise where more than one author is involved in creating a work.
Copyright ownership in computer generated works: In the case of computer generated works, the creator is the person by whom the arrangement necessary for the creation of the work is undertaken.
Copyright ownership within FE and HE: The beneficiaries of copyright ownership in FE and HE can be its staff (lecturing, research, general), outside contractors or students. Copyright maybe owned by the staff on lecture notes or teaching materials either as a sole author or jointly with outside contractors and the students may own copyright in data collected for writing papers.
Copyright ownership in an employer-employee relationship: Copyright of works created during the course of employment will be owned by the employer unless an agreement to the contrary is in place. Additionally, copyright ownership is also dependent on the question of whether the work in question was produced during the course of employment.
Ownership of copyright by staff: Copyright ownership of works created by FE and HE staff is principally dependent on the question whether the creation of the work was within the scope of his/her job specification. The rule applies irrespective of the question whether the staff had used the employer’s resources to produce the work and whether the work in question was produced during the office hours of the staff. This issue has great significance within FE and HE. Many academics in the institutes produce content in the form of articles and other publications during office hours whilst using the equipment of the institution. In some cases, their primary job specification may only relate to their teaching or lecturing function. Here, the reality is that FE and HE institutes have by convention, expressly or impliedly, waived their copyright in materials produced out-with the remit of the academics job specification. The rationale of this may be is by allowing the academic to retain copyright in the work he or she is encouraged to produce more material thus raising the profile of the institution. It can also be observed that one of the common deliverables currently included in the job specification of most academic staff is to raise the research profile of FE or HE institutes through publications in journals. It is also worth point out that academics often give their copyright to academic journals and their institutions pay for subscription to the journals that may contain articles, which in law it is the first owner of.
Copyright ownership in collaborative research: In the case of collaborative research partnership between FE and HE institutes and an outside partner copyright ownership can be held jointly. It is often the case that an agreement regulates this partnership and so ownership rights are distinguishable.
Copyright ownership by students: Relationship between students and FE and HE institutes are based on a special type of contract. These agreements are the various terms and conditions in the documentation (e.g. prospectus) that passes between them. In the absence of special terms and conditions in these documentations, copyright ownership in a work created by the student normally rests with the student. FE or HE institutes would therefore be better protected if it were to state in a prospectus or student handbooks that it may own copyright in certain works created (e.g. databases, software, and thesis publications) by the students. A feasible option so that both FE or HE institutes and its students reap mutual benefits from this collaboration would be to allow the student to retain ownership in his work and be compensated by means of a reward or income and the FE or HE institute to have the rights to use the work (e.g. to publish the work or to use it as a teaching material).
Back to top
10. Additional Rights
Related Rights: The works of performers, phonogram producers and broadcasting organisations are protected by means of related or neighbouring rights.
Moral Right: The exclusive rights of a copyright owner can be sold or passed on. Apart from these rights, a copyright owner is also conferred certain rights which remain with the original creator and affects how subsequent owners deal with the work. Such rights are known as moral rights.
Moral rights comprise
the right of the creator to be identified as the author of a work (also called the ‘right of attribution’ or ‘right to paternity’)
the right to object to derogatory treatment (prevent his work being subjected to any distortion or mutilation) of his/her work or derogatory action which would ultimately be prejudicial to his/her honour or reputation (also known as the ‘right of integrity’).
the right to object to false attribution, i.e., the right not to be named as the author of a work which he or she did not create.
An author is able to exercise his moral right on works distributed over the internet by using the electronic rights management information. The rights management information is any information that identifies the work, its copyright owner or provides information about its terms and conditions of use or any other data that represents such information (for example © JISC Legal 2006). Copyright law treats it as an infringement to knowingly or wilfully remove or alter any such information and to distribute, import or communicate to the public copies of such work.
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11. Duration of Copyright Protection
The duration of copyright is dependent on the type of work in question. Given below are examples of some works.
Literary, Dramatic, Musical and Artistic works: The life time of the author plus a period of 70 years from the end of the year in which the author dies.
Computer generated works: 50 years from the date of creation of the work. A work is deemed to be computer generated where there is “no human author”.
Sound recordings: 50 years from the end of year in which it was made or published.
Broadcasts– 50 years from the end of the year of broadcast.
Typographical arrangement of published editions: 25 years from the year of first publication.
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12. Infringement of Copyright
When is a work infringed? Copyright is said to be infringed when one of the exclusive rights of an author is performed by a party without the consent or authorisation of the author. This infringement is called primary infringement. Providing accessories for infringing the exclusive rights or assisting in the making or distribution of infringing copies is also treated as an infringement and is referred to as secondary infringement.
Making temporary copies: Browsing of the Internet creates temporary copies of web pages on the cache of a computer. Until 2003, such temporary copies were considered as infringing copies. The new law has however changed the position. It clearly states that the making of temporary copies is not an infringement so long as it is a transient copy, has no economic significance and is done solely for the transmission of a work or for its lawful use. The same rule applies in the case of sending copyright work by means of fax.
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13. Exceptions to Infringement
Copyright law provides a catalogue of basic exceptions and defences. It permits the use of copyright works for situations considered as ‘fair’, if permitted by a licence, or if permitted under a right holders guidance or notice.
Fair dealing with a copyright work constitutes one of the significant of these permitted acts. The scope of fair dealing in some specific situations of importance to FE and HE is detailed below:
Research or private study: Research or private study is not collective but are individual acts. The current UK copyright law permits copying of works for research or private study only if it is aimed at a non-commercial purpose. The law also requires that sufficient acknowledgment be given to the copied source when used in research or private study. For academic staff and research students in FE and HE, this creates an obligation of using proper citations during publications. The only exception is situations where acknowledgement would be impossible for practical reasons.
Educational purposes: Fair dealing with copyright works in the educational environment is permitted if the source is acknowledged, not done through reprographic means (e.g. multiple photocopying, faxing, scanning) and not aimed at a commercial purpose. Thus, a teacher instructing students in a commercial FE or HE institute (e.g. profit oriented ones) or imparting training courses to external company staff should be aware that hand outs and materials for such events observe these guidelines. For teachers involved in setting examination papers, the law requires them to include sufficient acknowledgement of the copied matter where practicable. Students answering these questions in exams are luckily exempt from the requirement. The law also covers the recording of web broadcasts by educational establishments. Primarily, to record a transmitted broadcast FE or HE institutes would need an ERA licence. In the absence of such a licence, the FE or HE can make use of the broadcast only if it acknowledges recording of the data or uses it for non-commercial purposes and transmits it only to persons within the premises of the educational establishment. In practice, this can prevent the commercial FE or HE institutes (without ERA) from recording and re-broadcasting content through e-transmissions for distance learning purposes on internet or an intranet.
Library uses: The making of copies from books in libraries by its users (staff or students) is fair dealing only if it is made for research or private study for non-commercial purposes. This would require the user to sign a copyright declaration form confirming that the use is purely non-commercial prior to making a request.
Criticism and review: Fair dealing for criticism and review is permitted under the new law only if it is accompanied by sufficient acknowledgement and the work is made available to the public.
Visually impaired people: The new law has created special exceptions for visually impaired people. A visually impaired person or FE or HE institute may make copies for a visually impaired person if it is for his/her personal use. But this is subject to the condition that the visually impaired person or the institute already has legitimate master copy (bought or borrowed) and that a copy of the work is not commercially available. An additional exception that caters to visually impaired persons allows the making of multiple copies if the author of the work is acknowledged and if the making of the copy does not interfere with the legitimate exploitation of the work.
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14. Enforcement of Copyright
The copyright owner enjoys considerable ancillary rights and remedies to enforce his copyright in a work. To enforce his right he can move the court for the award of damages, serving of injunctions restricting the infringer from carrying out the infringing activity or interdict, for payment of profits and/or for the granting of an order that the infringing materials be destroyed or delivered. Apart from this, copyright infringement may also attract criminal sanction for the criminal offence of piracy.
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Mahesh Madhavan
24 March 2006
© JISC Legal - www.jisclegal.ac.uk
http://www.jisclegal.ac.uk/ipr/IntellectualProperty.htm#Primer
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