This chapter begins with a historical overview of intellectual property rights. It traces the origin and evolution of the patent system, trade marks, and the copyright system, and then turns to the definition and justification of intellectual property, followed by a discussion of the current economic importance of intellectual property.
Chapter
1. Themes in intellectual property
Chapter
11. Copyright in the digital environment
This chapter examines copyright issues from copying and distributing information from the internet. It considers the discussion focuses on how the internet has challenged the application and development of copyright law, considering web-copyright concerns such as linking, caching, and aggregating, citing Google Inc. v Copiepresse SCRL. It spends considerable time discussing the operation of the temporary eproduction right though key cases Infopaq International, and Public Relations Consultants Association v Newspaper Licensing Agency. The analysis then moves on to examine the communication to the public right created by the Copyright and Related Rights in the Information Society Directive, examining the application of the right through key cases such as Nils Svensson v Retriever Sverige, GS Media v Sanoma Media, and Stichting Brein v Ziggo BV.
Chapter
20. Design and copyright
Aesthetic designs are protected under the provisions of the Registered Designs Act 1949, while functional designs are governed by the provisions of the Copyright, Designs and Patents Act 1988. This chapter discusses the natural overlap between design law and copyright, and the influence of the law reform in s. 51 CDPA 1988 on the defence created in the British Leyland case. It also looks at the reform of s. 52 CDPA 1988.
Chapter
10. The various types of copyright and the quality issue
This chapter discusses the conditions that a work must meet for it to attract copyright. Copyright will only exist if a work comes within the scope of a category of works defined in the Copyright, Designs and Patents Act 1988. The first set of categories requires some level of originality, and comprises literary, dramatic, musical, and artistic works. A second set involves mainly entrepreneurial rights. Originality as such is not required; often, these are derivative rights. This category includes films, sound recordings, broadcasts, and typographical arrangements of published editions.
Chapter
19. Intellectual Property Law
This chapter considers the major intellectual property rights in the UK and the protection the law gives to these rights. It explains the meaning of copyright, patents, trade marks, and design rights, and considers the types of works that might be protected by them. It explains whether the rights need to be registered and if so the process of registration. It examines the time limits for the protection of the various rights and the remedies available for infringement of them. It also considers the protection the law gives to intellectual property via the tort of passing off. The chapter concludes with a discussion of the possibilities of protecting intellectual property rights outside the UK.
Chapter
18. Protection of databases
Databases form a vitally important part of the information society. The traditional approach in the United Kingdom has been to protect their contents as compilations under the law of copyright. This contrasts with the approach adopted in civil law states which have historically required a more significant qualitative element as a condition for the award of copyright than has been the case in the United Kingdom. Databases would not meet this requirement – although many states would offer protection under unfair competition laws. The European Union’s database directive strikes something of a compromise between the two approaches. The chapter will consider the extent of the sui generis database right and consider its practical application in the, albeit limited, number of cases in which it has been considered by the courts.
Chapter
19. Design rights
This chapter considers two forms of design right available in the United Kingdom: registered and unregistered design rights. The former is the older concept and was initially applicable to designs intended to be imprinted on linen; the system was extended to other forms of product by the Copyright and Design Act of 1839. This offered protection for ‘the ornamentation and for the shape and configuration of any article of manufacture’. The notion of unregistered design right was introduced to the United Kingdom in the Copyright, Designs and Patents Act 1988. Design rights in tablet computers are also discussed.
Chapter
12. Copyright infringement in the digital environment
This chapter analyses cases of copyright infringement in the online environment. It begins by analysing some early cases regarding file-sharing technologies, including A&M Records, Inc. v Napster, Inc., MGM Studios, Inc. v Grokster, Ltd, and Sweden v Neij et al. (the Pirate Bay case). It assesses new techniques for fighting illegal file-sharing, such as blocking access to websites offering file-sharing technology or indexes with a focus on the operation of s. 97A website blocking orders. It examines the recent Supreme Court decision in Cartier International v British Sky Broadcasting which will have substantial implications for costs in these orders. Finally, it describes the slightly controversial process known as speculative invoicing.
Book
Information Technology Law: The Law and Society is the ideal companion for a course of study on information technology law and the ways in which it is evolving in response to rapid technological and social change. The fourth edition of this groundbreaking textbook develops its unique examination of the legal processes and their relationship to the modern ‘information society’. Charting the development of the rapid digitization of society and its impact on established legal principles, Murray examines the challenges faced with enthusiasm and clarity. Following a clearly defined part structure, the text begins by defining the information society and discussing how it may be regulated, before moving on to explore issues of internet governance, privacy and surveillance, intellectual property and rights, and commerce within the digital sphere. The author’s highly original and thought-provoking approach to the subject also makes it essential reading for researchers, IT professionals, and policymakers. This fourth edition includes expanded coverage of net neutrality, cryptocurrency, and blockchain technology as well as being significantly explained to cover developments in data retention and protection in light of significant developments in the area.
Chapter
9. Software
This chapter examines whether software should be protected by patent law or by the law of copyright, or through a sui generis form of protection. It first provides a historical background on software and copyright protection, before discussing the scope of software copyright protection and copyright infringement. The chapter then looks at several forms of copyright infringement such as offline, online, and employee piracy, and also explains the look and feel infringement by citing three cases: Navitaire v easyJet, Nova Productions v Mazooma Games, and SAS Institute v World Programming Ltd. In addition, it considers permissible acts under the UK’s Copyright, Designs and Patents Act 1988 without infringing the rights of the copyright holder. Finally, the chapter analyses cases relating to patent protection for computer software, including software patents under the European Patent Convention and the decision in Aerotel v Telco & Macrossan.
Book
Information Technology Law: The Law and Society is the ideal companion for a course of study on information technology law and the ways in which it is evolving in response to rapid technological and social change. The fifth edition of this ground-breaking textbook develops its unique examination of the legal processes and their relationship to the modern ‘information society’. Charting the development of the rapid digitization of society and its impact on established legal principles, Murray examines the challenges faced with enthusiasm and clarity. Following a clearly-defined part structure, the text begins by defining the information society and discussing how it may be regulated, before moving on to explore issues of internet governance, privacy and surveillance, intellectual property and rights, and commerce within the digital sphere. The author’s highly original and thought-provoking approach to the subject also makes it essential reading for researchers, IT professionals, and policy-makers. This fifth edition includes expanded coverage of AI authorship and computer generated works, cryptocurrency, cryptoassets and blockchain technology as well as being significantly expanded to cover developments in defamation law, net neutrality, data protection, and smart contracting.
Chapter
11. Copyright in the digital environment
This chapter examines copyright issues arising from copying and distributing information on the internet. The discussion focuses on how the internet has challenged the application and development of copyright law, considering web-copyright concerns such as linking, caching, and aggregating, citing Google Inc. v Copiepresse SCRL. It spends considerable time discussing the operation of the temporary reproduction right through key cases Infopaq International and Public Relations Consultants Association v Newspaper Licensing Agency. The analysis then moves on to examine the communication to the public right created by the Copyright and Related Rights in the Information Society Directive examining the application of the right through key cases such as Nils Svensson v Retriever Sverige, Stichting Brein v Ziggo BV, VG Bild-Kunst v Stiftung and Tunein Inc. v Warner Music. It concludes with a discussion of the newly enacted Copyright in the Digital Single Market Directive.
Chapter
12. Copyright infringement in the digital environment
This chapter analyses cases of copyright infringement in the online environment. It begins by analysing some early cases regarding file-sharing technologies, including A&M Records, Inc. v Napster, Inc., MGM Studios, Inc. v Grokster, Ltd, and Sweden v Neij et al. (The Pirate Bay case). It assesses new techniques for fighting illegal file-sharing, such as blocking access to websites offering file-sharing technology or indexes with a focus on the operation of s.97A website blocking orders. It examines the Supreme Court decision in Cartier International v British Sky Broadcasting and its application in the Nintendo cases Nintendo Co Ltd v Sky UK Ltd and Nintendo Co Ltd v British Telecommunications Plc. Finally, it describes the slightly controversial process known as speculative invoicing and examines the recent case of Mircom International v Virgin Media.
Chapter
1. Introduction to copyright
This introductory chapter provides an overview of copyright protection. It discusses how United Kingdom copyright law has developed from the mid-16th century onward. The purpose of giving this account is to highlight two recurring themes: firstly, the law's struggle to keep up with changing technology; and, secondly, the effect of external influences on domestic law. The chapter then looks at the theoretical justifications for copyright and the extent to which they accord with the current law, and the principal characteristics of copyright, including the crucial difference between protecting an idea and protecting the expression of that idea. There are a number of aspects of copyright that do not apply to other intellectual property rights like patents and trade marks. Understanding these differences will help one in distinguishing between the different types of intellectual property right.
Chapter
4. Infringement of copyright
This chapter focuses on the two types of copyright infringement within the CDPA 1988: primary infringement and secondary infringement. In primary infringement, the defendants are directly involved in copying, performing, and issuing to the public the copyright work, whereas secondary infringement involves people who deal with infringing copies, or facilitate such copying or other activities that are restricted by copyright. Besides this difference that has to do with the scope of rights, there is also difference on the mental element. Unlike primary infringement that does not require knowledge or intention to infringe on the part of the alleged infringer and is hence subject to strict liability, secondary infringement occurs where the defendant knew or had reason to believe that activities in question are wrongful. This is assessed on the basis of an objective test, namely what matters is what a reasonable person would have thought in the relevant circumstances.
Chapter
2. The international and European framework
This chapter considers the international aspects of intellectual property rights. It summarizes the various international conventions, treaties, agreements, and protocols that are in place, all of which are administered by the World Intellectual Property Organization. The chapter also discusses European initiatives in the areas of patents, trade marks, industrial designs, and copyright.
Chapter
22. Unregistered designs
This chapter discusses the law on unregistered designs. The Copyright, Designs and Patents Act 1988 defines unregistered designs as the design of any aspect of the shape or configuration (whether internal or external) of the whole, or part, of an item. In order to secure protection, such a design must be original, in the sense that it should not be commonplace in the design field in question at the time of its creation. Unregistered design rights roughly offer 15 years of protection, during which the right holder has the exclusive right to reproduce the design for commercial purposes. Infringement consists in anyone making an item to the design without authorization and in the making of a design document that records the design for the purposes of enabling someone else to make items to it, again without authorization.
Chapter
27. Grounds for Invalidity: Novelty, Individual Character, and Relative Grounds
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter explores the criteria that are applied to determine the validity of a design, whether a registered design in the UK or an unregistered design: the design must be ‘new’; the design must have ‘individual character’; the applicant or the right holder must be entitled to the protected design; and the design must not conflict with earlier relevant rights (including earlier design applications, copyright, trade mark rights, and rights relating to certain types of emblem). The factors to take into account to determine the novelty of a design, such as prior art, are also considered. The chapter concludes by looking at relative grounds for design invalidity.
Chapter
7. Duration of Copyright
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the debate over the question of the appropriate period of protection that ought to be granted to copyright works, with emphasis on literary, dramatic, musical, and artistic works as well as films and entrepreneurial works (sound recordings, broadcasts, and typographical arrangements of published editions). It begins by considering the provisions of the EU Term Directive with regards to the duration of protection for such works and then discusses a number of exceptions to the general rule that the duration of copyright works is life plus 70 years. It also analyses the so-called publication right provided to those who first publish works in which copyright has lapsed. The chapter concludes with an assessment of the optimal term of copyright protection.
Chapter
14. Industrial Designs
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses design protection in the UK and EU and the impact of the UK’s departure from the EU on this protection. In particular, it traces the history of industrial design protection before turning to examine in detail the registered designs and unregistered design right systems. The chapter also analyses the relationship between copyright and industrial designs, the tensions that arise from this interrelationship, and how this interface will be regulated in future under UK law.
