Intellectual Property Flashcards

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1
Q

What are the four main forms of intellectual property?

A
  • copyright
  • design rights
  • trade marks
  • patents
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2
Q

What is the main legislation for intellectual property?

A

Copyright, Designs and Patents Act 1988

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3
Q

Define copyright and copyright works.

A

Section 1, Copyright, Designs and Patents Act 1988 -

Copyright is a property right which subsists in accordance with this Part in the following descriptions of work:

  • Original literary, dramatic, musical or artistic works,
  • Sound recordings, films or broadcasts, and
  • The typographical arrangement of published editions
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4
Q

When does copyright protection arise?

A

Section 11, Copyright, Designs and Patents Act 1988 - Copyright protection arises immediately on creation of the work

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5
Q

When is a work original?

A

University of London Press v University Tutorial Press (Exam papers case) - Held: Literary work is not ‘literature’ but rather written expression and the act doesn’t require that the work is novel, just that it has not been copied from enough. It was enough that the exam was not copied to be original.

Baigent v Random House Group Ltd (davincci code case) - Held: Action failed because the expression of the idea is what is protected by copyright not the idea itself.

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6
Q

Provide the distinction between ownership and authorship.

A
  • The owner of the copyright has certain exclusive rights in relation to the work (UoS)
  • The author, who may or may not be the owner, has rights known as moral rights (Professors)
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7
Q

What are the exclusive rights of the copyright owner under the Copyright, Designs and Patents Act 1988?

A
  • s17: To copy the work
  • s18: To issue copies of the work
  • s18A: To rent or lend the work
  • s19: To perform, show or play the work
  • s20: To communicate the work to the public
  • s21: To make an adaptation of the work
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8
Q

What does the Copyright, Designs and Patents Act 1988 say about copyright infringements?

A
  • s16: For anyone else to do one of these “without the licence of the copyright owner” is a primary infringement of the owner’s rights.
  • s22-27: “secondary infringement”, which is essentially facilitating copyright infringements (by importing or dealing with infringing copies)
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9
Q

What are the defences for copyright infringement?

A
  • s30: Criticism and news reporting
  • s30A: Parody works
  • s32-36A: Copying for educational purposes

of the Copyright, Designs and Patents Act 1988.

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10
Q

What are the moral rights of the author under the Copyright, Designs and Patents Act 1988?

A
  • s77-79: Right to be identified as author
  • s80-83: Right to object to derogatory treatment of work
  • s84: Right to object to false attribution of work
  • s85: Right to privacy of photographs and films made “for private and domestic purposes”
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11
Q

What is the period of copyright protection for literary, dramatic, musical or artistic works?

A

s12: Literary, dramatic, musical or artistic works: author’s lifetime plus 70 years

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12
Q

What is the period of copyright protection for sound recordings?

A

s13A: Sound recordings: 50 years from making of recording or 70 years from recording being made available to the public

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13
Q

What is the period of copyright protection for films?

A

s13B: Films: 70 years from death of last surviving of principal director, author of screenplay, author of dialogue or composer of music created for film

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14
Q

What is the period of copyright protection for broadcasts?

A

s14: Broadcasts: 50 years

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15
Q

What is the period of copyright protection for typographical arrangements?

A

s15: Typographical arrangements: 25 years

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16
Q

What is the period of copyright protection for moral rights?

A

s86: The moral rights last as long as copyright lasts, except for the right to object to false attribution, which lasts until 20 years after a person’s death

17
Q

State what the Copyright, Designs and Patents Act 1988 says about design rights.

A

s213:
(1) A design right is a property right…in an original design of

(2) The shape or configuration (whether internal or external) of the whole or part of an article

18
Q

The owner of the design right has the exclusive right to reproduce the design for commercial purposes for 15 years from end of year in which design first recorded or article first made to design.

True or False?

A

True, s216, Copyright, Designs and Patents Act 1988.

19
Q

By registering a design with the UKIPO under s1 of the Registered Designs Act 1949, what does that allow the right holder to do?

A

s7-8: This gives an exclusive right to use the design for five years, renewable for four further periods of five years.

20
Q

What does the common law state about owning a property name?

A

Kinnell & Co Ltd v Ballantine & Sons - “there can be no right of property in a name”

Held: Interdict could be issued to prevent other company using the name, not because they owned it, but because it gave a false impression to the public that it was the same producer, causing confusion to them.

21
Q

What does the common law state about passing off?

A

Haig & Co v Forth Blending Co (Distinctively shaped whiskey bottle) - Held: Could prevent other companies using the bottle shape because it gave a false impression to the public that it was the same producer, causing confusion to them.

The pursuer must show a likelihood that the public will be confused; Dunlop Pneumatic Tyre Co Ltd v Dunlop Motor Co Ltd.

22
Q

Define trade marks under the Trade Marks Act 1994.

A

s1: A trade mark is “any sign which is capable of being represented in the register…and of distinguishing goods or services of one undertaking from those of other undertakings”, and may consist “of words (including personal names), designs, letters, numerals, colours, sounds or the shape of goods or their packaging”.

23
Q

Discuss the registration of trade marks under the Trade Marks Act 1994.

A
  • s2: A trade mark may be registered
  • s42-43: Registration is with the UK Intellectual Property Office for renewable periods of ten years
  • s34: for specified services or goods, or classes of goods
24
Q

What are the absolute grounds of refusal for registering trade marks under s3, Trade Marks Act 1994?

A
  • Signs not meeting the requirements
  • Trade marks devoid of distinctive character
  • Shapes or other characteristics arising from the nature of the goods themselves or which are necessary to obtain a technical result
25
Q

What are the relative grounds of refusal for registering trade marks under s5, Trade Marks Act 1994?

A
  • Identical earlier mark for identical goods and services
  • Identical earlier mark for similar goods and services, or similar earlier mark for similar goods and services, and there is a likelihood of confusion on the part of the public
26
Q

Define patents as described under the Patents Act 1977.

A
  • s1(1): To be patentable, an invention must be new, involve an inventive step, be capable of industrial application, and not be excluded by the Act
  • s1(2): Exclusions from the category of inventions include scientific theories, artistic works
  • s4A: and methods of treatment or diagnosis
27
Q

What are the requirements for a patent under the Patents Act 1977?

A
  • s2: An invention is new if it “does not form part of the state of the art”. The “state of the art” being the current body of knowledge.
  • s3: An invention involves an inventive step if it “is not obvious to a person skilled in the art”
  • s4: An invention is capable of industrial application if it “can be made or used in any kind of industry, including agriculture
28
Q

What are the requirements for a patent under the common law?

A

Smith Kline Beecham - Disclosure has to be enough that anyone acting on the disclosure would breach the patent.

Arrow Generics Ltd v Akzo NV - Patent for medicine. Theoretical underpinnings had been published but no one looking at the paper would necessarily have applied it in the way they did.

Windsurfing International Inc v Tabur Marine (Windsurfing board) - Invention too obvious and design was an obvious step to take.

29
Q

What does the Patents Act 1977 state about the creation and duration of patents?

A
  • s7-21: Application to UK Intellectual Property Office
  • s25: Patent protection lasts for twenty years from date of application