1. Has the creator a natural right to enjoy the fruits of his intellectual effort and labour?
2. Should one reward creators for their contribution to the greater good? Or are we blinded by the “lone inventor in an attic” stereotype to the reality that most inventions are the result of the application of capital?
3. Does the existence of IP provide an incentive for a greater amount inventive research? Or would economic necessity force the same degree of activity with the “reward” of avoiding bankruptcy a sufficient incentive to innovate?
4. How does economic theory support IP?
5. What does democratic society gain? Is this a wider value in IP?
• How much interference with the free market is justified?
• Is the notion of “unfair competition” sufficient in itself to justify IP rights? (think in terms of the various stakeholders identified in the last series of questions).
• Is the existence of IP rights a necessary stimulus / incentive to produce more intellectual product or would such product be created anyway from the need to maintain market position?
• Which poses the risk of the greater “harm” – “free-riding” e.g. peer to peer file sharing) or unrestricted freedom to compete e.g. a very wide fair use exception? Does this depend on what you mean by “harm” and the issue of “harm to whom”?
• Does the need to design around existing IP rights stimulate creative effort to avoid such rights or does it create much wasteful economic activity by forcing unnecessary “reinventing of the wheel”
• Do the answers to each of the above questions depend upon which type of IP right is being discussed?
Task 1 Justifications
Consider the arguments to the following questions:
• To what extent do you agree with the argument in favour of IP law that it is necessary to encourage creativity. See the arguments of Bently and Sherman or Waelde et al as identified in the Handbook?
• Do we have the right balance between the strength of the law to protect owners and the availability of defences to copyright infringement? In particular consider the width of the US defence of fair use (Lanham Act) against the more restrictive concept in the UK of fair dealing (s29-30 CDPA).Note: this is the topic of the first Assignment
Task 2 Copyright
Chick Berry is employed as business manager by Juicy Limited that runs the affairs of the music group The Juicy Fruits. Last year he published a highly successful novel about the life of a music group on the road. The novel was written by him but he was helped by Mick, the press officer for Juicy Limited who provided some general photographs of a music tour. Chick is planning a sequel to be released in 6 months time but he has received a letter from the solicitors of author George Weston who claims that Chick’s novel is copied from a book previously published by George and that Chick’s book infringes George’s copyright. They are seeking an interim injunction to withdraw Chick’s book and prevent him from publishing the sequel.
Consider the following questions:
• What rights may Chick have in his novel ?
• How would you balance these against any rights that George would argue that he has ?
Task 3 The design regime
Philippa is an industrial plastics engineer. She has designed a case that is suitable to protect all brands of electronic tablet computers.
Philippa`s design incorporates a number of unique features:
(i) The outer "skin" is made out of a relatively unknown plastic not previously used. It offers durability and flexibility and is very easy to print thus making the product more visually attractive.
(ii) Philippa has designed a new way of attaching the case to the tablet which makes it easier to use and more protective.
Advise Philippa as to the possibilities of protecting her design. You should assume that there is no possibility of patenting the novel features