Intellectual-Property-Law知识产权法

Intellectual Property Law知识产权法Introduction to Intellectual LawIntellectual property is an example of intangible personal property . It is a collection of ideas and information in a broadly commercial context that the law recognizes as having a value by providing protection.Part One : The Subject Matter Patents :A patent is a monopoly right granted by the Government through the Patents Office to an individual who has invented a product or process . The basic objectives for granting this right are :to inform the public through publication of details from the application of the latest technol0gical advances ; to provide an incentive for innovation and thereby stimulate economic activity ;and to provides a reward for creative and innovative effort.Copyright This is an exclusive right to deal with original literary, dramatic, artistic and musical works. As well as protecting the fruits of creative effort, the legislation also protects those who have invested in those efforts by providing protection for sound recording , films and published editions of literary workDatabase right Information arranged in a methodical and systematic way, usually accessible by electronic means such databases ,was originally protected under copyright law. However, since the implementation of the EU Directive on the legal protection of databases by the Copyright and Rights in Databases Regulations 1997, a new database rights has been created.Performers rights These are linked with copyright but are aimed at providing protection for the actual performance of copyright works as distinct from the copyright works themselves.Trade marksTrade marks are words or symbols used in relation to goods and services that distinguish to owners goods and services from those of another . Current legislation allows for the possibility of distinctive smells and sounds also attracting protection . The law in this area restrains others from applying the owners brand to their goods and services . The trade mark owners rights are protected by statue, if registered, or by common law , where the rights in the trade mark are based on use and goodwillDesignsDesigns that give visual appeal to mass produced goods may be protected as registered designs , whereas designs that are merely functional are protected as unregistered designs. A childs toothbrush in the shape of a dinosaur is an example of the former , whereas an item of garden equipment is an example of the latter. Confidential information Equitable remedies are available to restrain the use of trade secrets and other confidential information without the owners authority. Part Two: Protection and Justification The Protection Provided Legal recognition of intellectual property is provided by a negative form of protection . The legislation will usually describe the owners right as “exclusive “ , thus , by implication , giving the owner the right to restrain others from using his intellectual property without authority. It can be argued that the protection given is purely economic as the intellectual property owner is being provided with the exclusive right to exploit that property . However, since 1988 , there is also a recognition of moral rights under the Copyright , Designs and Patents Act 1988. The author of a work can, among other things , protect the integrity of the work using his right to object to derogatory treatment of the work under s. 80.Justification It would appear that the protection of intellectual property rights conflicts with policies in the European Economic Area to maintain free competition. However, it can be argued that the market economy is stimulated by the fact that consumers are assisted in making choices from a selection of goods by the use of trade marks , for example , that distinguish one traders goods from those of another. Further , because the trade mark informs the consume about the quality of the owners goods, there is an element of consumer protection . Granting patents encouragers innovation so more goods are available on the market.Competition within the European Economic Area is protected by Articles 28 -30 of the Treaty of Rome, which provide for the free movement of goods and Articles 81-86 , which legislate for free competition within the European Economic Area.Nationally , the abuse of intellectual property is check using a variety of means ,for example licences of right for patents are provided during the last four years fo the 20 -year term, and compulsory licences are also available for unreasonable underuse of the patent by the patentee. Section 144 of the Copyright, Design and Patents Act restrains anti-competitive licensing in relation to copyright and s . 238 does the same in relation to unregistered design rights. Part Three Sources of Law Intellectual property law is mainly codified . Each of the main subjects of intellection property is governed by statute and supported by delegated legislation. The following are the main statutory sources of law.The Registered Designs Act 1949 (as amended ) The Patents Act 1977The Copyright , Designs and Patents Act 1988.The Trade Marks Act 1994 ; and Copyright and Rights in Databases Regulations 1997.Confidential information and passing off are creatures of common law. Intellectual property cannot be protected on a mere national level and international influences can be within the above legislation , most of which was passed to enforce the international obligations of the United Kingdom as well as to update the law. For example , one of the objectives of the Trade Marks Act as 1994 was to implement Council Directive 89/ 104 /EEc of 21 December 1988 to approximate the laws of the Members States relating to trade marks, and the Patents Act 1977 was passed , among other things , to give effect to provisions in the European Patent Convention.A body of case law has developed on the interpretation of the above provisions by national courts and international bodies such as the European Patent Office . Common law also has a part to play in the areas of passing off and the law of confidence.Intellectual property law is administered in the Chancery Division of the High Court , with appeals to the Court of Appeal and House of Lords . The Patents Court is also part of the Chancery Division and will hear cases regarding patents and registered designs . Since the passing of the Copyright ,Designs and Patents Act 1988 , there is also a Patents Country Court.As we have already indicated , the nature the protection give for intellectual property is negative. The owners will usually go to court to restrain unauthorised use of their property by others . In a majority of cases, the remedy sought is the interlocutory injunction . An interlocutory injunction is an order sought by the intellectual property owner as first step in proceedings before the substantive issues regarding ownership and infringement are considered. As a result , much of the case law that has developed has done so mainly from trial judges making a decision as to whether the plaintiff has satisfied him that he has at least an arguable case, because that is all a plaintiff needs to show at the stage of seeking an interlocutory injunction.Cases on intellectual property law are reported in specialist law reports as well as the standard reports. Students of intellectual property law can , therefore, also consult the Reports of Patent , Design and Trade Mark Cases (RPC ) published by the Patents Office and the Fleet Street Reports (FSR ) published by Sweet & Maxwell. Cases of the European Board of Appeal (EPOR) report on decisions concerning European patents . The European Intellectual Property Review (EPOR) is the main journal where academic work on the subject can be found.Exercises : 1. What is intellectual property ? Intellectual property is a kind of intangible personal property . It is a collection of ideas and information in a commercial context that the law recognizes as having a value by providing protection.2. What is patent?A patent is a monopoly right granted by the Government through the Patents Office to an individual who has invented a product or process.3. What is copyright?It is an exclusive right to deal with original literary, dramatic, artistic and musical works.4. What is database right?It is an exclusive right to deal with information arranged i na methodical and systematic way, usually accessible by electronic means such as database.5. What is performers right?It is a right linked with copyright bu are aimed at providing protection for the actual performance of copyright works as distinct from the copyright works themselves.6. What is trade mark?It is of words or symbols used in relation to goods and services that distinguish the owners goods and services from those of another.7. What designs are protected by law?Designs that given visual appeal to mass produced goods may be protected as registered designs , whereas designs that are merely functional are protected as unregistered designs.8. What are the legal protections for intellectual property?The law recognizes the intellectual property right as “exclusive “and gives the owner the right to restrain others from using his intellectual property without authority.9. What is the justification for protection of intellectual property ?Protection of intellectual property will stimulate the market economy ,for example , the trade mark can help consumers in making choices from a selection of goods and granting patents can encourage innovation , so more better goods will be available on the market.10. What are the major sources of intellectual property law?The major sources of intellectual property law are statutes , such the Registered Design Act 1949 , the Patent Act 1977 , the Copyright , Designs and Patents Act 1988, the Trade Marks Act 1994 , the Copyright and Rights in Databases regulations 1977.P250 intellectual Property RightsAlthough intellectual property may be intangible or abstract, once in existence intellectual property rights bear much in common with the rights associated with real property . For the most part. Intellectual property right can be assigned . Those who “trespass “on anothers intellectual property can be held to account. Ownership generally gives an exclusive right to exploit the property or to give others a license to do so in a variety of ways . It is also the case that while intellectual property is itself intangible , it will be embodied in real objects. A Coca Cola sign , a best -selling novel, a new drug may each constitute the physical embodiment of an intellectual property right : a registered trade mark, a copyright and a patent respectively.Infringements and defenses about copyright 1. Reference information A. Mike and Bob became well known after they were captured by rebels and kept in a remote past of an African country for five years. On their release back to their home country, they were approached by Daily News, a local newspaper , for a series of articles on their experiences . A fee of $ 250,000 each was agreed.B. During the interviews, Allan and Bob recounted their experiences to Mary, a reporter . Everything was recorded on her tape recorder. Afterwards Mary spent considerable time editing the recordings, entering details into her word processor and producing a number of articles based on the interviews. The articles were published by Daily News.C. ETV used a substantial amount of the material from the articles as part of its news program without acknowledging the source.D. Allan was also captured by the rebels. He knew that Mike and Bob had been held for only two years. After that they joined the rebels in their campaigns. He wrote an article for a competing newspaper disputing their story, making substantial use of the material in the articles published by Daily News.E. John , a research student engaged in a PhD thesis on rebel groups ,used in material from the articles for his thesis.F. David , a political history teacher, photocopied the articles for his students.P 251. Supplementary Reading In the last few years, the Internet has become an established medium for communication and the carrying on of business. Because goods and services are advertised, sold and , in some cases , delivered over the Internet, it is clear that all those intellectual property issues which arise in the course of traditional forms of advertising and trade will arise in the Internet environment.As the Internet is a completely new channel which has given rise to forms of business not previously envisaged, there had been a feeling at the outset that intellectual property would be treated differently in this new environment. Although it is true that some changes will need to be made to existing laws to iron out some of the extreme consequences of a strict application of existing intellectual property laws to the Internet environment, in broad terms the same rules that apply “offline” will apply “online “ in relation to ownership , use and infringement of intellectual property rights. This is probably one of the main reasons why there have , to date , been relatively few cases in the English courts on intellectual property and the Internet.1. Copyright and the Internet The Internet , as its name suggests , is an international network of computers enabling communication worldwide between anyone connected to that network . In order for a computer to access any material which is transmitted over the Internet , it is necessary fro that computer to produce copy of the material in question even though such a copy may only be transitory . If the material in question is a copyright work( or indeed , protected by the new database right )such copying will require the permission of the copyright (or database right ) owner.Because the Internet has grown so suddenly and has been spearheaded by many newly formed Start -up companies and individuals who may not have previously operated established businesses, the need for license of any copyright materials being reproduced by these Internet businesses has sometimes been overlooked. The design of a website , all contents of that website displayed when accessed , and the software used to create and needed to access the website are all copyright works in which the copyright will be owned by somebody.When users visit a website , they are producing a copy of all the relevant website pages on their own computer in order to view that website . Going one step further, if a user then downloads and prints any part of the website it is making a copy which requires the licence of the copyright owner. One further step that is often taken is to create a link from one site to another which will generally involve producing a copy of an element of the other website . Again a licence to reproduce relevant copyright works is needed. However, the general practice on the Internet has been not to seek a licence and to presume an implied licence from the operator of the website ,and to downloading and printing off certain parts of a website (although one can imagine that such a licence could not necessarily be implied in relation to all parts of a website.The question of copying in the course of linking has been considered ( albeit only at interlocutory stage ) in a Scottish case (the only reported copyright and Internet case in the United kingdom to date) called The Shetland Times Ltd v. Dr Jonathan Wills and Zetnews Ltd 1997 GWD 1-5 (Ch) ) . In that case , the Shetland Times Ltd was the owner and publisher of a newspaper , and Zetnews Ltd provided a news reporting service under the name The Shetland News . Both companies operated website on the Internet under the respective titles of The Shetland Times and The Shetland News . The defendant , Zetnews ,included on its website certain of the headlines appearing on the plaintiffs website. Visitors to the defendants website could b by clicking on any of those headlines , link to the plaintiffs website and thus are read the headlined article.The plaintiff brought a claim for copyright infringement on two separate grounds. First , the plaintiff claimed that its headlines were copyright works and that the defendant had infringed by reproducing them on its website. Second , the plaintiff claimed that its headlines as appearing on its websites were cable programmers, and that by including those headlines on its websites , the defendant had included the plaintiff s cable programmes in a cable programme service without authority and ,as a result , had committed an infringement.The defendant argued that the operation of a website did not involve sending “ images or information but was rather a passive service that could be accessed by others and, even if it did involve Sending information . It fell within the statutory exception of being an interactive service . The court felt that there was at least an arguable case that the website was a cable programme service and that it was not an interactive service . As this was an interlocutory applications the court only had to find a good arguable case.2. The copyright Directive The Internet has thrown up a lot of concerns, including those relating to intellectual property , which are being dealt with in draft legislation coming out of Europe and the English legislature. In relating to intellectual property, the main piece of draft legislation is the Europe Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in information society. One of the most controversial aspects of this draft Directive is the definition of the boundaries of copyright in a digital world. In particular, how should the impact of digital copying impact on existing exceptions to copyright ? Not surprisingly the most cont