Effect of Intellectual Property Law on Business-Free-Samples

Question: Write a Literature review on Intellectual Property Law and its Impact on Business. Answer: Introduction Intellectual Property Law provides IP rights to the owners and creators of intellectual property. The main purpose of the IPLs is to ensure that people are given rights and protection over the intellectual property created and owned by them. Rights are provided to the individuals or groups in relation to literary works, photography, painting, music and scientific innovations. This is to ensure that people are motivated to make new discoveries and innovations as their rights in relation to such work would be protected. On the other hand there are some disadvantages of the application of IPL as well. The purpose of this paper is to conduct a review of literature in relation to the impact of Intellectual property law on modern day businesses Intellectual property rights According to Bently Sherman (2014) the main purpose of IPL is to provide and protect IP rights to the creators of intellectual property. These rights allow the owner to sell the property rights or earn royalty of them. The primary legislation which deals with intellectual property law in UK is the Intellectual Property Act 2014. Through the application of IPRs the businesses are able to protect their brand name or sign in form of trademark. They can also protect any exclusive innovation done by the business through obtaining patents and were any original work is created by the business they are automatically provided with a copyright. Therefore the main areas in which the intellectual property law operates are patents, copyrights and trademarks. Copyrights Hart, Clark Fazzani (2013) defines copyright as a intangible property right which subsists in a certain qualified subject-matter. In the UK the laws in relation to copyrights are governed through the provisions Copyright, Designs and Patents Act 1988 which is amended from time to time. As stated by Hovenkamp (2016) a comprehensive picture of the law can be acquired only through recourse towards the European Union Jurisprudence as harmonization and legal integration throughout the EU is increasing. According to Torremans (2016) copyright requires the considerations of issues like subsistence (Whether the subject matter is qualified for the copyright to subsist), ownership (whether the person is a owner ), incidents of ownership (rights flowing from ownership and term of monopoly) infringement (primary and secondary), defenses and remedies. Subsistence of copyright As stated by Tan Loy (2013) copyright subsists in the expression of an idea and not the Idea itself. This means that unless an idea is not expressed it is not eligible to be protected under the copyright laws. There are certain kinds of work as provided by Torremans (2016) which are eligible for protection these include original dramatic works, original literary works, original artistic works and original music works. However the work must itself be original in order for a copyright to subsist. This means the work has been produced by the labor, judgment and skill of the owner. Out of these there are also fixation requirements imposed on a few works such as a dramatic, musical or literary work has to be recorded irrespective of the fact that it has been done with the permission of the author or not. Multiple copyrights and the Music industry Kelbrick Visser (2013) states that one single item can contain more than one copyright. For instance, where an album is to be released by a group of musicians their copyrights would be divided. The divisions is into copyright on sound recording, copyright on lyrics, copyright in cover artwork and copyright in sheet music. Amidst such division there is a profound possibility of conflicts. As argued by Williams (2015) division of such rights is although fair but the process of unequal divisions dose not satisfies those parties who have been provided a lesser part. The division of such copyrights differs in the music industry from jurisdiction to jurisdiction. Those who crate the lyrics are provided less part in copyrights as compared to those who compose the music. The music industry as a result generates substantial amount of litigation in relation to copyrights on music albums. The litigations originate in relation to rights such as reproduction of the work, distribution of copies o f the work, publically performing the work, making derivative works or displaying the work. Nimmer (2013) states that it is important to register a copyright even if it is provided upon the recording of the work in order to stay away from disputes and gain additional protection and benefits. Copyrights and employees According to Joyce et al. (2016) the general principle of law provides that the owner of the work produced by an employee during the course of employment using the tools provided by the employer belong to the employer. There have been several disputes regarding the ownership of a copyright between an employer and an employee in the history. The question which the court has to determine is that who is the actual owner of the work which has been produced. The general rule subjected to any separate arrangements made between the employer and the employee. This means that when there is any agreement to the contrary than the employer would not be regarded as the first owner of the copyrights. The legislation does not define what the phrase in the course of employment which means that the term is left ambiguous and courts have been provided a broad range of power towards interpreting the phrase. Hart, Clark Fazzani (2013) provides that generally the court apply a simple provisions to analy ze employment which means whether the work has been produced under a contract of service or a contract for services . Through the application the courts are able to determine the control of the employer on the employee. Copyright and joint authors To the contrary in the music industry where a single work has been created by more than one author the copyright of authors are not distinct from each other. This feature of copyrights again provides the scope for conflict between the authors. These people are considered as joint owners. The rule is exempted where there is a distinct and separate contribution of the authors towards the work. In such cases the authors are provided different ownership such as in the music industry. The joint authors have the right to transfer their ownership in a single person as a result of the transferable nature of copyright. In case of a joint ownership the owners are entitled to equally receive profits in relation to the copyrights. Thus if one of the owners bears all the cost of production he would not be provided with any additional copyright as compared to the other owners. Defenses There are certain defenses which attempt to mitigate the disadvantages of copyright law in relation to restricting innovations. The defense is in relation to the fair use of copyright material. When literary works are produced the students are allowed to use such work in a fair manner with proper acknowledgement. This allows for fair research work without infringing the copyright of others. The concept had been discussed in the case of Hubbard v Vosper, [1972] 2 Q.B. 84. In case the copyright owned by a business or an individual is infringed there are both civil and criminal remedies available to the owner. The civil remedies which are available to the owners of the copyright under the legislation includes interlocutory injunctions, pecuniary remedies, Anton Pillar orders , Mareva injunctions and Norwich Pharmacal order. The infringer is also liable to be prosecuted criminally by the courts. Patents As defined by LaLonde Gilson (2016) a patent is an exclusive right which has been provided by the state to a business for a limited period in return of publically disclosing the invention. The invention has to be a solution for a particular problem, process or product. The right to make sell or use an invention is not provided by a patent under law. From the legal point of view it is the right to exclude others from selling, using, or making the patented discovery for a specific period which is generally for twenty years and subjected to maintenance fee or payments. In the business content a patent provides the right to its owner from using it in court to exclude the others. A patent like any intellectual property can be sold, assigned, mortgaged or abandoned. Rights for business under patents Although the patent is an exclusionary right it does not give the owner a fixed right to exploit the invention in relation to the patent. Dispute arises as many patents are a extension of prior invention and may be covered by other patents as well. Only if the previous patent holders givers permission the new patent holder would be allowed to use the invention. In some jurisdictions patents are imposed with working provisions which means that they can only be exploited in a particular jurisdiction which is covered by them. The consequence of not continuing research on an invention also varies between jurisdiction which includes revocation of the patent and proving compulsory license to the other parties towards exploiting the invention. The revocation can be challenged by the patent holder by providing evidence which suggests that reasonable public requirements have been met (Horwitz Horwitz 2016). Challenges The validity of an issued or allowed patent can be challenged by any party in the national patent offices in a process known as opposition proceedings. The validity of a patent can also be challenged in court. In both the cases the parties making the challenge tries to prove that the patent should not have been granted. There are various grounds of challenges which are available to the parties. These include that the subject matter cannot be patented, the subject matter was not new, was general to experts in the same filed and there was fraud in obtaining the patent. If any of such reasons succeed the patent is found to be invalid as a whole or in part. Trademarks Boldrin Levine (2013) defined a trademark as an expression, sign or design which can be recognized in relation to the identification of a service or a product. They are used to distinguish the source of a particular product or services from the other. A trademark can be owned by a business or an individual or any legal entity. A trademark may be found on the voucher, label or package of the product. The trademarks are displayed on the company building in the sake of corporate identity. Trademarks also come under intellectual property rights. Usage in business The brand owner of a particular product or service is identified through a trademark. Trademarks can be provided as licenses to others. The unauthorized use of trademark gives rise to civil penalties where the owner can claim monetary compensation and injunctions. Legal action can be commenced by the trademark owner in case of any infringement of their rights. Common law rights of trademark are recognized in the UK. There are several disputes between the business where identical trademarks are developed and used. Summary Form the review of the above discussed literature it is clear that the IPL have a significant impact on businesses. These impacts are visible in industries like the music industry. The rights and ownership allocation also raises significant issues in the employment relations are there is a lack of concrete provisions of deal with the issue. The courts have broad range of powers towards interpreting the term in the course of employment. In addition there are significant challenges in the music industry towards analyzing the ownership of copyrights as the rights have to be divided among several owners. Businesses also uses patents in order to prevent the others form involving in relation to a particular product, process or problems. The grant of patents can be challenged by the other parties in court and they can be revoked in part or as a whole. Trademarks are also used by the business in order to distinguish the brand from the others. A business is not allowed to copy the trademark o f another business or they may be subjected to provisions of trademark infringement. References Bently, L., Sherman, B. (2014).Intellectual property law. Oxford University Press, USA. Boldrin, M., Levine, D. K. (2013). The case against patents.The journal of economic perspectives,27(1), 3-22. Hart, T., Clark, S., Fazzani, L. (2013).Intellectual property law. Palgrave Macmillan. Horwitz, L., Horwitz, E. (2016). Discovery in Trademark Cases in the Courts and Trademark Trial and Appeal Board.Intellectual Property Counseling Litigation,5. Hovenkamp, H. (2016).IP and antitrust: an analysis of antitrust principles applied to intellectual property law(Vol. 1). Wolters Kluwer Law Business. Joyce, C., Ochoa, T. T., Carroll, M. W., Leaffer, M. A., Jaszi, P. (2016).Copyright law(p. 85). Carolina Academic Press. Kelbrick, R., Visser, C. (2013). Intellectual property law.Annual Survey of South African Law,2013(1), 691-715. LaLonde, A. G., Gilson, J. (2016).Foreign Trademark Protection(Vol. 3). Gilson on Trademarks. Lerner, J., Tirole, J. (2015). Standard-essential patents.Journal of Political Economy,123(3), 547-586. Moser, P. (2013). Patents and innovation: evidence from economic history.The Journal of Economic Perspectives,27(1), 23-44. Nard, C. A. (2014).The Law of Patents. Wolters Kluwer Law Business. Nimmer, D. (2013).Nimmer on copyright. LexisNexis. Tan, T. J., Ng-Loy, W. L. (2013). Intellectual property law.Singapore Academy of Law Annual Review of Singapore Cases, (Annual Review 2013), 412. Torremans, P. (2016).Holyoak and Torremans intellectual property law. Oxford University Press. Williams, M. (2015). Intellectual Property at the Edge: The Contested Contours of I