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7. Rights akin to copyright: database right and performers’ rights  

This chapter considers two rights similar to copyright in many ways, in terms of both subject matter and the substantive contents of the rights: (1) the special or sui generis database right, which operates alongside the copyright in databases; and (2) performers’ rights. Both rights have been relatively recently introduced into the armoury of intellectual property law. The chapter gives an account of each of these rights, comparing them with copyright but also underlining the differences between the regimes, and the reasons behind these differences. The chapter considers relevant the relevant international and EU frameworks and also highlights the nature and importance of these rights.

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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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18. Privacy and control of information  

This chapter considers the extent to which individuals can and should be able to prevent others referring to them and their activities and, conversely, the extent to which individuals and companies should be able to commercialise and control a reputation that they have built up. The discussions cover the evolving right to personal privacy (through the tort of misuse of private information) and its base in human rights, particularly in respect of photographs; obtaining and dealing with trade marks in respect of well-known personalities; the relationship between passing off and endorsement and merchandising; and the extent to which individuals and businesses can and do control the use of their image through endorsement and sponsorship. The chapter also considers data protection in this context, as well as the balancing of privacy and freedom of expression.

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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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13. Rights Associated with Copyright  

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

This chapter deals with regimes that are related to, but fall outside of, the remit of copyright law: performers’ rights in their performances (recognized internationally and often designated as a ‘neighbouring right’ or, in the EU, a ‘related right’); database right, sometimes referred to as the sui generis database right; public lending right (that is, an author’s right to claim remuneration from a public fund, the remuneration being calculated by reference to the frequency with which a given author’s book is loaned by public libraries); rights relating to technological protection measures (‘TPMs’); rights management information (which, along with TPMs, are sometimes designated ‘para-copyright’); and the so-called droit de suite (artist’s resale royalty right, that is, the right to claim a proportion of the sale price when an artwork is publicly resold). The chapter discusses each regime in turn, considering relevant factors such as the subsistence, types of rights available, duration, infringement, exceptions, defences, and remedies.

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19. Free movement of goods and intellectual property  

This chapter examines the European Union (EU) rules on the free movement of goods as they impact on intellectual property (IP) rights. It discusses the tensions arising between the aims of creating a single market and intellectual property, with particular reference to the Treaty provisions relevant to this area. The chapter examines the relevant case law with a focus on intra-EEA parallel imports, repackaging, legitimate interests in opposing the further circulation of goods, international exhaustion of rights, and the relation between IP rights and free movement of services. The chapter also discusses developments in exhaustion of rights in the online environment as well as the potential exhaustion regimes that may be adopted in the UK post-Brexit.

Book

Cover Contemporary Intellectual Property

Abbe Brown, Smita Kheria, Jane Cornwell, and Marta Iljadica

Contemporary Intellectual Property: Law and Policy, fifth edition, offers a unique perspective on intellectual property (IP) law, unrivalled amongst IP textbooks. An accessible introduction to IP law, it provides not only a comprehensive account of the substantive law, but also discusses the overarching policies directing the legal decision-making, as well as areas for further debate. Intellectual property law is an increasingly global subject, and the book introduces the relevant European and international dimensions to present a realistic view of the law as it actually operates. It explores IP law as an organic discipline, evaluating the success with which it has responded to new challenges. Images and diagrams, with analysis of key cases and key extracts, are all incorporated alongside the author commentary to clearly illustrate the core principles in IP law. Exercise, questions, and discussion points are provided to help the reader to engage with the material, and additional material is provided in the Online Resources. Beyond providing an up-to-date account of IP law, the text examines the complex policies that inform modern IP law at the domestic (including Scottish), European, and international levels, giving the reader a true insight into the discipline and the shape of things to come. The focus is on contemporary challenges to IP law and policy, and the reader is encouraged to engage critically with the text and the subject matter. The book has been carefully developed to ensure that the complexities of the subject are addressed in a clear and approachable way.

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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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17. Breach of confidence  

This chapter discusses contemporary law and policy relating to the protection of confidential information. It considers the key elements of breach of confidence: the nature of confidential information, circumstances imparting obligations of confidence, and unauthorised use of confidential information. The chapter also considers the increasing impact of the Human Rights Act 1998 (HRA 1998). The chapter summarises some key cases to give examples of the issues that arise (eg in the employment context), discusses the evolving relationship between secrecy and innovation, and the impact of other forms of information control. The impact of Trade Secrets Directive, including post-Brexit, is also discussed.

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20. EU competition law and intellectual property  

This chapter provides an overview of the tension between the application of European Union (EU) competition law and the exercise of intellectual property (IP) rights. Key issues are the circumstances in which competition law may be applied to moderate the exercise of IP rights in the relevant market; clauses in intellectual property licensing agreements between undertakings that might be permissible in terms of EU competition law and those which are not; the conditions under which a refusal to supply products protected by an IP right might constitute an abuse of a dominant position by the right holder; and when competition law can provide a defence to an infringement action. The chapter also considers the implications of Brexit.

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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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38. Relative Grounds for Refusal  

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

This chapter focuses on ‘relative grounds’ for denying an application to register a trade mark as set out in section 5 of the Trade Marks Act 1994. It identifies ‘earlier trade marks’ and ‘earlier rights’ before turning to the tests which allow a prior mark to oppose the registration of a subsequent one. First, it reviews the so-called double identity ground, where an identical (later) mark is applied for, in the context of identical products. Second, it considers when likelihood of confusion may be established. Third, it surveys three situations referred to collectively as ‘dilution’, where the later mark may mentally evoke the earlier one in a way that is not confusing, yet still wrongful. It also explains the ‘advertising function’ of a trade mark, along with requirements relating to reputation and ‘due cause’. Finally, the chapter discusses relevant provisions governing unregistered trade marks, copyright, and the various design rights.

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10. Moral Rights  

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

This chapter focuses on moral rights conferred by the Copyright, Designs and Patents Act 1988 on the authors of certain works to protect their non-pecuniary or non-economic interests. It begins by describing the nature of and rationales for grant of moral rights as well as a number of criticisms made about such rights. This is followed by a detailed consideration of the moral right of attribution or right of paternity, the right to object to false attribution, and the right of integrity. This discussion identifies when such rights arise (including the requirement of assertion of the attribution right), when the moral rights are infringed, and exceptions to such rights. The chapter also considers how far such rights can be waived.

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14. Introduction to Patents  

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

This chapter introduces the reader to patents, how they work, and the laws governing them. It begins with a history of the patent system in the UK up to 1977. This is followed by a discussion of various justifications that have been proposed in support of the patent system, such as the natural rights of inventors to their work and the public benefits that flow from the grant of patent monopolies. It also considers the current regulatory regime governing the creation and use of patents in the UK and Europe, with particular reference to the European Patent Convention and the Patents Act 1977. Finally, the chapter discusses the impact of the European Commission on patent law and some of the international treaties that have influenced British patent law, including the Patent Cooperation Treaty, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the Convention on Biological Diversity. The chapter also speculates on the impact of Brexit on UK patent law.

Book

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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. Intellectual Property Law: Text, Cases, and Materials provides a complete resource for undergraduate and postgraduate students of intellectual property (IP) law. The only text of its kind in the field, it combines extracts from major cases and secondary materials with critical commentary from experienced teachers in the field. The book deals with all areas of IP law in the UK: copyright, trade marks and passing off, personality and publicity rights, character merchandising, confidential information and privacy, industrial designs and patents. It also tackles topical areas, such as the application of IP law to new technologies, such as artificial intelligence, and the impact of the internet on trade marks, copyright, and privacy. While the focus of the book is on IP law in a domestic context, it provides international, EU, and comparative law perspectives on major issues, and also addresses the wider policy implications of legislative and judicial developments in the area. The book is an ideal resource for all students of IP law who need cases, materials, and commentary in a single volume.

Book

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Stavroula Karapapa and Luke McDonagh

Intellectual Property Law aims to provide a comprehensive text on all aspects of this field. The first part looks at the complexities of copyright law, from authorship and first ownership to infringements and defences. It also covers moral and related rights. The second part looks exclusively at passing off. Then the text turns to trade marks. It examines the absolute grounds for refusal and the relative grounds for refusal of registration. It looks in detail at infringement and loss of registration of trade marks, and this part of the book ends with an examination of defences to trade mark infringement. The next part is about patents. After an introduction to patents the text analyses ownership and infringement of patents. The text then moves on to confidential information, in other words, trade secrets. Designs are examined after this. The final few chapters are about the exploitation and enforcement of intellectual property. The text concludes.

Book

Cover Contemporary Intellectual Property

Abbe Brown, Smita Kheria, Jane Cornwell, and Marta Iljadica

Contemporary Intellectual Property: Law and Policy, sixth edition, offers a unique perspective on intellectual property (IP) law, unrivalled amongst IP textbooks. An accessible introduction to IP law, it provides not only a comprehensive account of the substantive law, but also discusses the overarching policies directing the legal decision-making, as well as areas for further debate. Intellectual property law is an increasingly global subject, and the book introduces the relevant European and international dimensions—along with the implications of Brexit—to present a realistic view of the law as it actually operates. It explores IP law as an organic discipline, evaluating the success with which it has responded to new challenges. Images and diagrams, with analysis of key cases and key extracts, are all incorporated alongside the author commentary to clearly illustrate the core principles in IP law. Exercise, questions, and discussion points are provided to help the reader to engage with the material, and additional material is provided in the Online Resources. Beyond providing an up-to-date account of IP law, the text examines the complex policies that inform modern IP law at the UK, European, and international levels, giving the reader a true insight into the discipline and the shape of things to come. The focus is on contemporary challenges to IP law and policy, and the reader is encouraged to engage critically with the text and the subject matter. The book has been carefully developed to ensure that the complexities of the subject are addressed in a clear and approachable way.

Chapter

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47. Misuse of Private Information  

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

This chapter examines the tort of misuse of private information. It begins by considering the sort of information that can be considered private. It then moves on to examining the test for whether there is a reasonable expectation of privacy over such information. The chapter looks at the ‘ultimate balancing test’ that is the balancing of rights under Articles 8 and 10 of the European Convention of Human Rights and concludes by touching on reform.

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49. Civil and Criminal Remedies  

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

This chapter deals with civil and criminal remedies that are available where intellectual property rights are violated. It first considers the civil relief that is available before a trial takes place, namely, interim injunctions and prevention of imports. It then outlines the civil remedies that are available at full trial: final injunction, delivery up or destruction, the awarding of damages, the account of profits, and publicity orders. Finally, the chapter examines the various criminal remedies that intellectual property right holders may avail.

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6. Nature of the Rights  

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

This chapter is about the rights conferred by the law on copyright owners and the types of activity that amount to copyright infringement. It begins by considering the right to copy the work, in particular its distinct definition for different categories and types of work. It then looks at other rights granted to copyright owners, including distribution right (and the concept of its ‘exhaustion’); the right to rent and lend copies of the work, including the distinctive treatment of digital copies; the right to perform the work in public and UK law’s concept of ‘the public’; the right to communicate the work to the public, including the CJEU’s extensive case-law on the concept of ‘a new public’ and its treatment of hyperlinking, file-sharing, and content-sharing platforms; and the right to make an adaptation of the work. The chapter concludes by considering the copyright owner’s right to ‘authorize’ the carrying out of any of the exclusive rights as a mechanism to extend the field of responsibility.