1.

(a) Explain the meaning of intellectual property (IP) and discuss some of the major justifications for granting intellectual
property rights.

Intellectual property (IP):

The results of intellectual activity in the industrial, scientific literary or artistic fields. Creations of the mind – e.g. inventions, artistic
works, literary works, designs, images etc.

An IP right is a right :
(i) That can be treated as property
(ii) To control particular uses and
(iii) of a specified type of intangible asset.

IP rights granted to creator(s) of work and enforced by both civil and criminal law.

Justifications for granting intellectual property rights:

Creator centered :

Argument from Creation – we are entitled to control that

which we create. We own what we create.

Argument from Desert – the creator of an intangible ‘deserves’ control over it’s use. Either: (i) as a reward for
his/her effort; (ii) because of his/her investment; (iii) as a reward for contribution to his/her culture; (iv) need for
identification with the intangible.

Argument from personhood - the act of creation entails the embodiment of the personality or personhood of the creator in the intangible
he/she produces. Control should be given to a creator to protect him/her as a person.

Argument from Autonomy – valuing personal autonomy must involve granting an individual some control over the things with which he is
most closely associated with.

User centered :

Argument from harm – the unauthorised user causes harm to the creator of IP by his/her use of it. The law therefore prevents harm to the
creator by preventing unauthorised use.

Argument from misrepresentation – if unauthorised use of an intangible constitutes a misrepresentation of some kind that is likely to
cause harm, then that is good ground for preventing the unauthorised use. E.g. unauthorised use of a trade mark.

Argument from unjust enrichment - the unauthorised user of an intangible receives a benefit from its use and therefore ’reaps’ where
he/she has not sown.

Community centered :

Goods produced by intellectual property regimes are usually ‘public goods’ - non-rivalous and non-exclusive.
It is difficult to exclude non-purchasers from their enjoyment.This means that there will be no incentive to create and disseminate such
goods (which benefit the community) unless the law intervenes.

An author will be less inclined to write a novel if someone can reproduce

it cheaply without the costs associated with creation of the work.

A pharmaceutical company may be unwilling to invest vast sums necessary to develop, test and gain approval for a drug if it knows it’s
competitors can reproduce the drug cheaply.

‘Private goods’ are – rivalous and exclusive. Non-purchasers can be excluded from enjoying such
goods. There is an incentive to produce them based on their selling price and hence reward to a producer.

(b)Explain the conflicting interests in favour and against granting IP rights, and how this is balanced.

Conflicting interests in favour of granting IP rights:

 To reward authors for their work

 To prevent someone taking credit for the work of another
 To encourage & facilitate innovation, creativity & individuality.

Conflicting interests against granting IP rights:

Creating monopoly situations in the market place such as inadequate supply to meet demand in the market.

Balancing Conflicting Interests:

• Restricted definition of exclusive rights

• Requiring public disclosure of new technology (e.g. Patents)
• Limited duration of exclusive rights (e.g. 20 years for patent)
• Compulsory licences - e.g. for pharmaceutical patents to prevent abuse of monopoly rights.
• Implied licences (no actual agreement exists between copyright holder & user. E.g. viewing a photo on the web involves copying by web
browser of user - implied)
• Non-derogation from grant: Sale of a car was a grant that could not be frustrated through restricting the manufacture of parts for repair.
British Leyland v Armstrong [1986]
• Exhaustion of rights (1st sale doctrine - patent owner can’t stop a customer from reselling a patented product)

2. (a) Discuss the nature of copyright protection. In your answer give the relevant law, reasons for copyright protection, examples of what
can be protected by copyright as well as other characteristics of copyright protection such as the ‘fair dealing’ exemptions.

Copyright gives the author of certain types of material rights to control the use or commercial exploitation of the work that he or she has
created. This includes rights to authorise or prohibit the copying, issuing of copies, renting or lending, performing, showing, playing,
broadcasting or adaptation of the copyright material.

Like,
Original literary, dramatic, musical or artistic works, including computer programs and some databases;

Sound recordings, films or broadcasts; and

Typographical arrangements of published editions.

 Minor infringements – copyright is only infringed if the unauthorised use involves the whole or a 'substantial part' of the
copyright work. However even small parts of a copyright work may count as a substantial part. What is or is not a substantial part
is assessed on the basis of quality rather than quantity. The question is therefore whether the level of skill and effort invested in
producing the relevant part of the work is substantial rather than whether the relevant part constitutes a substantial portion of the
whole work.

 Temporary copies – there is no copyright infringement where a person makes a temporary copy of a copyright work as an
integral and essential part of a technological process, the sole purpose of which is to enable transmission of the work in a network
or a lawful use of the work and which has no independent economic significance (e.g. where work is cached in a computer). This
exception does not apply to computer programs or databases.

 Fair dealing – there is no copyright infringement when the use is fair and is for one of a list of specified purposes (for example
where it is for the purposes of review and criticism, non-commercial research or private study). A new fair dealing exception of
caricature, parody or pastiche was also introduced on 1 October 2014.

 Incidental inclusion – there is no copyright infringement if copyright work is incidentally included in an artistic work, sound
recording, film or broadcast (so-called 'passing shot' use). However if music is deliberately included in a work (e.g. playing on a
radio included in a scene in a film) its inclusion cannot be said to be incidental.

 Educational use – there is no copyright infringement if a protected work is used for the purposes of instruction and examination.
This principle applies even in the case where the whole work is played, performed, recorded or photocopied. However such
instruction/examination must (among other conditions) not be for commercial purposes, reprography must not be used, and the
rights of the author must be given sufficient acknowledgement.

 Libraries, archives and public administration – various exceptions apply to libraries and archives provided they are
recognised by statutory instrument. There is also no copyright infringement where copyright work is used for administrative
purposes, for example as part of judicial proceedings.

 Works permanently situated in public places – for example, there will be no copyright infringement where sculptures, works
of artistic craftsmanship, buildings etc. are photographed.

 Public interest – in certain circumstances it is a defence in a copyright claim to show that the publication or use of the copyright
material is in the public interest, for example where the material is injurious to public life, public health and safety or the
administration of justice.

 Copying for the visually impaired – copying for the purpose of making copies accessible by the visually impaired is not
copyright infringement, subject to conditions.
(b) Discuss the legality of Dan’s behaviour in each of the scenarios given below. Give reasons for your answers and cite relevant laws.

(i) Dan runs a bookshop in London. He loves to watch the popular TV show called SCANDAL, which is on at 8pm every Tuesday night.
Last Tuesday, Dan was asked to attend a meeting at 7:30pm. Not wanting to miss his favourite show, Dan recorded the TV episode of
SCANDAL on a DVD player while he was at the meeting so that he could watch it when he returned home.

Under fair dealing exceptions, CDPA 1988

Recording for private purposes of time-shifting – domestic (S.70)
Personal copies (not computer programs) for private use (S.28B)

(ii) Last year Dan was searching for places to order some books to sell in his bookshop. He found out through a friend that there was a
company in China who could reproduce copies of books to look just like the ones sold by the original publishers. Since the Chinese
company offered the books for a quarter of the price of the original publishers Dan imported 250 copies of various books into the UK which
he has been selling in his bookshop.

Unauthorised commercial dealings with infringing

Copies As per S.22-26 CDPA
making an adaptation of the work.

-Importing Infringing copies

- Possessing or dealing with infringing copies

(iii) Last month Dan enrolled for a part-time Business Management diploma at his local college. He was asked to write an assignment, so
went to his college library and photocopied a few chapters from various books to help him write his essay.

Under fair dealing exceptions, CDPA 1988

Research & Private study (non–commercial) (S.29)

(iv) Three weeks ago Dan attended a secret meeting in support of civil rights. No recording devices were allowed at the meeting. At the
meeting some people were asked whether they would like to make contributions. One speaker who did not prepare beforehand decided to
speak her mind, making some very interesting arguments therefore Dan took notes in his notebook. When he got home he wrote a small
booklet based on the notes of the speech that he took at the meeting. He then published the booklet under his name and put it for sale in his
bookshop.

(v) Dan owns a recording company and produces music CDs for featuring music by different artists. Each artist must sign a contract to
transfer all IP rights to their songs to Dan’s company. Recently, Dan asked a new artist to record a song previously recorded by his
company. The old artist who previously wrote and recorded the song wrote to Dan asking that his name be included on the CD as the
original author of the song. Dan refused, saying that he owns all IP rights to the song.

(c) Research the new EU Directive 2016/0280(COD) on Copyright in the Digital Single
Market, and be prepared to discuss the possible implications of Articles 11 and 13.

3. (a) Discuss the nature of trademarks and identify the relevant UK law. In your answer give appropriate examples of trademarks and with
regard to trade mark violation, explain what is meant by the terms ‘infringement’ and ‘dilution’.

 UK Trade Marks Act 1994 (TMA) creates a personal property right “Any sign capable of being represented graphically which is
capable of distinguishing goods or services of one undertaking from another.... A trade mark may, in particular, consist of words
(including personal names), designs, letters, numerals or the shape of goods or their packaging” S.1(1) TMA
 Infringement: someone else uses the trademarking connection with the sale of his goods/services.
UK TMA Sections 10(1), 10(2)(a) & (b), 10(3)
General standard for infringement is the likelihood of consumer confusion.
 Dilution – TMA Sec 10(3)- applies to famous trademarks that are distinctive, of long duration, and usually known to the public
through extensive advertising & publicity- Daimlerchysler AG v. Alavi [2000].
Dilution is the result of either
blurring - association with dissimilar products.
tarnishment- the mark is portrayed in a negative or compromising way or associated with products or services of questionable
value or reputation.

(b) Discuss the differences between a company name and a trademark. See: http://www.albrightpatents.co.uk/articles/company-names-v-
trademark/
A company name identifies a legal entity. By incorporating a company at Companies House, the owner of the company will only be
preventing other businesses from registering an identical or very closely similar company name. Incorporation of a company therefore does
not prevent other people from selling goods or providing services under an identical or a similar name.

 E.g. The Xerox Corporation manufactures and markets XEROX® (brand) copiers & business equipment.

A registered trademark is entirely different from a company name. A trademark is a distinguishable Mark whether it is a word mark,
strapline, logo or a combination, which identifies goods or services of a particular source from those of others.

 E.g. The company Kraft Foods Inc markets:

(c) Discuss the possible kinds of EU trade marks that can be registered and describe the registration process. See:
https://euipo.europa.eu/ohimportal/en/what-can-be-an-eu-trade-mark

Your trade mark should be distinctive

Consumers should be able to recognise your sign for what it is, for example as an indication of origin. It should distinguish you from other
companies in the marketplace so that you can protect and build your brand identity and value.

Your trade mark should not describe what you sell

Your trade mark should not monopolise a sign that merely describes the goods and/or services that you offer. Such signs should remain
available for everybody: for you and your competitors.

There are three kinds of trade marks you can register: individual marks, certification marks and collective marks.

An individual mark distinguishes the goods and services of one particular company from those of another. However, this does not mean
that an individual trade mark has to be owned by a single person: individual trademarks can be owned by one or more legal or natural
persons. This means that there are multiple applicants.

The basic application fee for an individual trade mark starts at EUR 850 (electronic means)

The EU collective mark qualifies the commercial origin of certain goods and services by informing the consumer that the producer of the
goods or the service provider belongs to a certain association and that it has the right to use the mark.

The EU trade mark Regulation defines collective marks as a mark that is “capable of distinguishing the goods or services of the members of
the association which is the proprietor of the mark from those of other undertakings.” (Article 74 EUTMR).

Collective marks can be used to build consumer confidence in the products or services offered under the collective mark. They are often
used to identify products or services of producers that have similar interests.
Example of logo

Certification marks are a new kind of trade mark in the EUTM system. They are signs which seek to certify certain characteristics of
the goods and services (for example, their quality), and it became possible to apply for them as of 1 October 2017.

The EU trade mark Regulation defines certification marks as a mark that is “capable of distinguishing goods or services which are certified
by the proprietor of the mark in respect of material, mode of manufacture of goods or performance of services, quality, accuracy or other
characteristics, with the exception of geographical origin, from goods and services which are not so certified.” (Article 83(1) EUTMR).

Individual and certification marks differ in their function, but also in some more formal aspects. One important difference between an
individual mark and a certification mark is that the owner of a certification mark (a natural or legal person, an institution, or authorities and
bodies governed by public law) cannot run a business involving the supply of the goods and services of the kind certified.

Example of logo