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25. How Design Protection Arises in the United Kingdom  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter considers the way in which design right comes into being, whether by registration in the case of registered designs in the United Kingdom or automatically in the case of unregistered designs. It also discusses the conditions that must be satisfied for an unregistered design right to arise, as well as the procedures for applying for national registered design protection in the UK. The chapter also explains the ramifications of Brexit for design protection in the UK.

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28. Ownership, Exploitation, and Infringement: Registered Designs and Supplementary Unregistered Designs  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter focuses on who is entitled to apply for a design registration as well as the rules relating to ownership and exploitation with respect to registered designs in the UK and unregistered Community designs. It also discusses infringement and exceptions in the three harmonized systems. It begins by considering the question of who is initially entitled to a design, citing entitlement under the UK Registered Designs Act 1949. It then turns to assignment and licensing, the optimal period of protection for a design, and the British approach to infringement. Finally, the chapter examines exceptions and defences that are available when dealing with design protection.

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30. Design Right  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter focuses on the unregistered Design Right as a means of protecting designs in the United Kingdom under Part III of the Copyright, Designs and Patents Act 1988. It begins by considering the subsistence of the Design Right, with emphasis on the requirement that there be a ‘design’ and exclusions to design protection by the unregistered design right. The chapter then discusses issues of ownership, duration, and infringement as well as the defences that are available in cases of infringement of unregistered designs.

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35. Trade Mark Registration  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter focuses on the process of registration for trade marks in the United Kingdom, including changes introduced by the UK leaving the EU, as well as international protection. It begins by explaining the procedures and documentation needed in filing trade mark applications at the national and international levels, while outlining the examination process. After considering national registration, the international filing systems established under the Madrid Agreement on the International Registration of Marks of 1891 and the Madrid Protocol of 1989 are described. The chapter concludes by presenting possible avenues through which to acquire trade mark protection.

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10. Patent regimes and the application process  

This chapter assesses the rationales and justifications commonly seen for and against patents, which inform all aspects of patent law. Against this backdrop, the chapter explains the architecture and procedures of contemporary patent systems as they operate in the UK, within the European patent system, and through international agreements, instruments, and procedures. The chapter considers the patent registration process in the UK. Unlike copyright—and like registered trade marks and registered designs—patent protection is a registered right, granted by an intellectual property office following an application and examination process. The chapter also reviews changes over time and areas of particular debate and possible future evolution.

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2. Copyright 1: history, rationale, and policy context  

This chapter considers the evolution of modern copyright law against the background of its historical development in the UK and the international and European legal frameworks within which UK copyright law has been set since the nineteenth century. It examines the rationale and justifications for copyright and identifies the general policy context within which law and policy has developed in the UK and the EU. It also highlights the rapid development of new technologies which has brought copyright reform to the forefront in recent times, the difficulties which this new environment presents for the copyright framework, and how the framework has developed to meet such challenges.

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5. Copyright 4: exceptions and limitations  

This chapter discusses exceptions and limitations to the rights of the copyright owner. Copyright law establishes many such exceptions and limitations, listed in the Copyright, Designs and Patents Act 1988 (CDPA 1988) as the ‘permitted acts’. These acts can be carried out in relation to the copyright work without the owner’s permission or, in some cases, can be performed subject to terms and conditions specified by the statute rather than by the copyright owner. The chapter discusses the influence of the international framework and EU directives on exceptions and limitations. It analyses the ‘permitted acts’ and discusses the freedoms afforded through them to users of protected works in the UK, and also briefly considers how far they may be set aside by contractual provision.

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8. Registered designs  

This chapter discusses the law of registered designs. It explains the international treaty context for design law, outlines the history of European harmonisation in this field, and considers the implications of Brexit for registered design protection. It reviews the substantive law of registered designs in the UK, and across the EU in the form of the Community registered design. Issues considered include: what designs may be validly registered, exclusions from protection, treatment of spare parts and component parts of complex products, challenging the validity of a registration, rights conferred by registration, and defences to infringement. The chapter also looks briefly at the interaction between registered design protection and other IP rights, in particular copyright.

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24. Rights Related to Patents  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter is concerned with two areas of law that are related to, but not traditionally part of, patent law: the system of plant variety that gives protection to the breeders of new plant varieties, and supplementary protection certificates that extend the length of patent protection in the UK and are meant to compensate owners for time lost while awaiting regulatory approval to market their patented products. The procedure to be followed when applying for plant variety rights is also discussed, along with issues of ownership, duration, and patent infringement. The chapter concludes by considering exceptions and compulsory licences relating to the plant variety system.

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29. Copyright Protection for Designs  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter deals with the conditions under which copyright law might protect designs as well as the limitations on the term of design protection. It first considers the subsistence of copyright in designs via two routes: either directly, by protecting the form and decoration of articles as artistic works (particularly sculptures, engravings, or works of artistic craftsmanship), or indirectly, by protecting the author of a preliminary document on which a design is based. It then discusses the limitation on protection afforded by design documents in section 51 of the Copyright, Designs and Patents Act 1988.

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31. Introduction to Passing Off and Trade Marks  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter introduces the common law of passing off and the statutory regime that protects registered trade marks found in the Trade Marks Act 1994. It commences with a brief history of trade marks and the development of their legal protection. This is followed by a discussion of the ways in which legal protection of signs and symbols are justified. It then considers the international and regional background that informs and constrains the law on trade marks in the UK, with particular reference to registration and the harmonization of standards. The chapter concludes by looking at challenges posed to trade marks by electronic commerce and the use of trade marks as domain names, as well as recent developments in artificial intelligence which will impact this field.

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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.

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3. Copyright 2: subject matter, first ownership, and term  

This chapter first examines the subject matter in which copyright subsists and the criteria for copyright protection as set out in the Copyright, Designs, and Patents Act 1988 (CDPA 1988). This centres on the concept of the ‘protected work’ and makes use of a distinction between what are sometimes known as ‘author works’ (literary, dramatic, musical, artistic, and film works) and ‘media works’ (typographical arrangements, sound recordings, broadcasts, and adaptations). It then considers the identification of the first owner of copyright when it comes into existence. It discusses the concept of joint authorship and ownership of copyright works when created in the course of employment. The final section discusses the duration of copyright.

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4. Copyright 3: economic rights and infringement  

This chapter considers the ‘economic rights’ the copyright owner enjoys while copyright protection endures. These are the rights that the Copyright, Designs, and Patents Act 1988 (CDPA 1988) calls ‘acts restricted by copyright’, which may be exploited by transferring them to others or licensing others to use them for a price. The chapter discusses the rights flowing from ownership of copyright and the international framework that underpins them, noting the influence upon UK law of a number of EU directives. It identifies the general principles pertaining to infringement of economic rights, before turning to the detailed rules on each economic right: to make copies; issue copies to the public; rent or lend commercially to the public; perform, show, or play in public; communication to the public; and make adaptations. It discusses authorisation of infringement (accessory liability) in relation to these economic rights, and finally considers secondary infringement of copyright.

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6. Copyright 5: authors’ rights, and exploitation of copyright  

This chapter begins by examining the rights granted exclusively to authors—moral rights and artist’s resale right. It discusses ‘moral rights’ first, that is, the right to be identified as the author of the protected work, and to have that work’s integrity respected by others, followed by the artist’s resale right. The rest of this chapter discusses fundamental rules and controls on exploitation and use of copyright. This includes dealings in copyright, such as assignment and licensing; specific features of copyright exploitation, for example collective licensing; and also contemporary issues related to the use of copyright works, for example the challenge of orphan works for users, and the application of technological protection measures by right owners to prevent unauthorised use of or access to protected works.

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11. Exploitation and Use of Copyright  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter examines the ways in which copyright can be exploited or transferred, with emphasis on the two most important forms of exploitation: assignment and licensing. It also discusses the transfer of copyright in the case of mortgages, bankruptcy, or death, as well as situations in which compulsory licences and voluntary licences are used to exploit copyright. In addition, the chapter considers testamentary dispositions, techniques for exploiting works that rely on the use of technological protection measures, and the role of collecting societies in copyright exploitation.

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2. Introduction To Copyright  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter provides an introduction to copyright and the history and functions of copyright law, as well as international and European trends and developments that have influenced copyright law in the UK. It first considers ‘author’s rights’ and ‘neighbouring rights’ before turning to justifications that have been put forward for copyright, with particular reference to arguments invoking natural rights, rewards and incentives, neoliberal economics, and the ‘democratic paradigm’. The chapter also examines the seven significant treaties that have influenced British copyright law as well as European directives that have had an important and growing impact on British copyright law, including the Software Directive, the Related Rights Directive, and the Information Society Directive.

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13. Trade marks 1: key features, theoretical underpinnings, and the national, EU, and international regimes  

This chapter introduces the key features of registered trade mark law, highlighting core aspects of registered trade mark protection and differences to other IP rights. It discusses the theoretical underpinnings for registered trade mark protection and accompanying policy tensions, particularly ongoing debates over whether registered trade mark protection should focus on the origin function of the mark or also extend to other trade mark functions associated with the creation and maintenance of brand investment and brand image. The chapter introduces the legal regime for the protection of trade marks from an international, EU, and UK perspective, and considers the impact of Brexit on registered trade mark law. The chapter also outlines the various international treaties relevant to the protection of trade marks.

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9. Unregistered designs  

This chapter discusses unregistered design protection. The chapter examines the UK unregistered design right established by Part III of the Copyright, Designs and Patents Act 1988, and analyses the Community unregistered design which provides unregistered design protection across the EU. The chapter also considers in more detail the evolving and complex interaction between design protection and copyright in UK law, and the implications of Brexit for unregistered design protection, including the UK’s creation of two further UK domestic unregistered design rights, the continuing unregistered design and the supplementary unregistered design.

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4. Criteria For Protection  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter examines the criteria used to determine whether a work is to be protected by copyright. More specifically, it considers the requirements for copyright protection: the work must be recorded in a material form; must be ‘original’; should be sufficiently connected to the UK to qualify for protection under UK law; and should not be excluded from protection on public policy grounds. There is discussion of the traditional British conception of originality, harmonization of ‘originality’ in Europe, analysis of differences between British and European standards on originality, and the issue of whether the UK can—and does—protect non-original works. The chapter concludes by focusing on subject matter excluded from copyright protection.