Intellectual Property Rights

Intellectual Property Rights
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Tables of Content TOC \o "1-3" \h \z \u 
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1.0 Introduction  PAGEREF _Toc292804957 \h
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2.0 Intellectual Rights  PAGEREF _Toc292804958 \h
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3.0 Why Intellectual property is promoted and protected  PAGEREF _Toc292804959 \h
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4.0 Results in the owners of IP and the Consumer  PAGEREF _Toc292804960 \h
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4.1 Tension arising from Intellectual Property Law  PAGEREF _Toc292804961 \h
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4.2 Transactions involving IPR’s  PAGEREF _Toc292804962 \h
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4.3 EC Law  PAGEREF _Toc292804963 \h
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4.4 IPR’s and the doctrine of Exhaustion  PAGEREF _Toc292804964 \h
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5.0 Examples of Intellectual Property Rights cases  PAGEREF _Toc292804965 \h
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5.1 Silhouette international Schnied GmbH v.Hartlauer Handelgesellschaft mbH [1998] ECR 1-4799.  PAGEREF _Toc292804966 \h
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5.2 Apple sues Samsung  PAGEREF _Toc292804967 \h
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5.3 Kingspan v. Rockwool  PAGEREF _Toc292804968 \h
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5.4 Judgement  PAGEREF _Toc292804969 \h
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5.5 Football Dataco Ltd v Sportradar (2011) EWCA Civ 330  PAGEREF _Toc292804970 \h
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6.0 Intellectual Property Reforms  PAGEREF _Toc292804971 \h
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7.0 Conclusion  PAGEREF _Toc292804972 \h
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8.0 Bibliography  PAGEREF _Toc292804973 \h
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8. 1 Books  PAGEREF _Toc292804974 \h
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8.2 Online Cases  PAGEREF _Toc292804975 \h
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8.3 Websites  PAGEREF _Toc292804976 \h
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1.0 Introduction
According to the world intellectual property organization, Intellectual property is the formations of the mind and they are classified as for instance inventions, literary and artistic works and symbols and other formations used in commerce. Intellectual property is divided into two categories which are industrial property and copyrights.
According to world intellectual property, industrial property refers to such items as trademarks, industrial designs and geographical indications and lastly patents for inventions. On the other hand copyright includes literary works which comprise such things as musical works, novels, poems and others. Artistic works are also placed under copyright law and include such things as paintings, drawings, architectural designs and sculptures.
2.0 Intellectual Rights
Intellectual rights are the laws that have been put in place which allow inventors and other creators the right to earn from their own works. The world intellectual property, states that intellectual property was first recognised in the Paris convention. It was aimed at protecting Industrial property in 1883.In 1886; the same rights were similarly recognised in the Bern convention for the protection of art work and literature. Both treaties are said to have been processed by the World intellectual property organization (WIPO).
3.0 Why Intellectual property is promoted and protected
Intellectual property is dealt with in a delicate manner since from long ago, the importance of having benefits given to the particular individual who came up with the idea; story or invention was deemed important. It was also important to recognize individual work in order to prevent plagiarism, fraud and lack of creativity from the continuous duplication of various works.
Therefore, intellectual property is usually endorsed by various bodies because it has been recognised as a vital source for new inventions both in technology and culture. This is made up of literary works and artwork. According to world intellectual property, legal protection of these new creations encourages the spending of additional resources in creating room for further innovation.
Protection of intellectual property has also been said to aid in a regions economic growth and development. This is realized through the creation of new jobs and industries. World intellectual property, states that the intellectual property system allows equilibrium to get created between public interest and the interest of the innovator. In the long run a favourable environment is found that allows the growth of both creativity and invention.
4.0 Results in the owners of IP and the Consumer
In the UK the addition of competition rules in intellectual property law has brought forth some complications in competition law. Dabbah states that for competition lawyers the issues of considering the relationship between competition law and IPR’s have them asking one basic question. To what extent does the existence of an IPR impact market power?
Competition rules can control the reliance of a firm on an IPR depending on the type of IPR in question. IPR’s also give rise to issues related to market integration. Thus the article shall look at two important areas of discussion regarding IPR’s.
This includes the two important freedoms under EC law. The first freedom involves the movement of goods and the second is the free movement of services.
As mentioned earlier an intellectual property right is defined by law as a right that has been granted to protect intangible property which includes creative work or an idea. IPR’s also assist in protecting other property such as goodwill and brand names from free riders who might destroy a companies name and even confuse their consumers. An IPR can range from a monopoly to a more or less permanent exclusive right of use. In both cases its holders are allowed exclusive use and exploitation of the IPR which prevents third parties from infringing upon it. However the owner of a patent has greater rights than the owner of a copyright.
4.1 Tension arising from Intellectual Property Law
The Intellectual property rights have been noted to as having an effect on the human rights in various fields ranging from public health, being in a position to be granted knowledge as well as access to agriculture. It is therefore a public knowledge that several human rights activists are coming up with an aim of challenging the laws which they see as hindrance to human dignity. The intellectual property policy making was hence challenged by several speakers who were brought together by the United Nations office of the High Commissioner for Human Rights. This was an opportune moment for advocates for justice to challenge the idea of intellectual property policy.
For instance, Agriculture was adversely affected by the application of the intellectual property rights as was observed during the Assembly. Twenty years ago, people could easily access knowledge from all frontiers. The concept has changed ever since and the environment realized in the 1990’s is no longer available, furthermore, there is a complete transformation where no single person can bear the responsibility of change. It is important to state that intellectual property has seen the commercialization of agriculture and a result, there have been an increase in monoculture. This type of culture is having a negative bearing the conservation of agro-biodiversity and biodiversity. Furthermore, researchers noted that Intellectual Property rights are known to encourage cash crops like cotton. Cotton is a cash crop that is opposed to the food crops.
Others yet observe that intellectual property rights have have some limitation in the preservation and access to education. There has been hindrance in the right to free expression as well as the right to cultural participation. Experts majoring on the scientific field have concluded that the progress in scientific invention is being derailed with the rules governing the protection of copyrights. IPRs have within its great achievement that include the conversion of good science into tangible benefits and their characteristics as monopolies endears them to cause tension between public good and the private profit. Consequently, they have the ability to limit the free exchange of information and ideas where science has been known to excel. It has led to conclusion by several scientists that a good balance makes provision of the necessary incentive which encourages research and development through the potential rights holders. On the other hand, it retains a high level of benefits to the community at large. While many may have respect of the IPR having fundamental gains in the society, we ought to look at the several demerits that are posed by their promulgation.
4.2 Transactions involving IPR’s
There are two known transactions involving IPR’s which include the assignment of IPR’s and granting a licence. An IPR is said to be assigned in a situation where the creator of the IPR cannot benefit from it and wishes to transfer all the rights to another individual who can exploit it. The transfer in such a situation is referred to as an assignment. A licence on the other hand covers a situation in which a third party is given the right to exploit an IPR by its original owner. However, the exploitation is subject to some conditions such as the payment of royalties to the holder and others.
4.3 EC Law
The practise of EC competition rules to IPR’s is said to be quite difficult because it involves the merge between the rules of competition and those that deal with the free movement of goods. However, Dabbah states that the rules have been used to broaden single market objectives in the following ways; for private firms they are prevented from re-erecting national barriers to trade .This could be through anti-competitive agreements and behaviour.
Furthermore with regards to rules related to the free movement of goods, Article 28 has provisions addressed to member states which states, “Quantitative restrictions on imports and all measures have equal effect are not allowed in member states”. However, Dabbah further adds that this is subject to exception from article 30 which states, “The provisions of articles 28 and 29 shall not introduce restrictions on imports, exports or goods in transit based on grounds of public morality, policy or security. Under the article it is important to protect the health and life of humans, animals or plants. Other items protected under the article include; national treasures possessing artistic, historic or archaeological value, industrial and commercial property. Such barriers should not comprise of a means of illogical discrimination or a masked barrier to trade between affiliate states.”
Protection is also provided for industrial and commercial property which shall be read along Article 295EC that states, the importance of the treaty not discriminating against rules of affiliate states which involve the property ownership system. According to Dabbah the laws create the issues of existence and the exercise of IPR’s as developed by the ECJ in Article 81.The idea of the specific material involving an IPR is also seen in Article 28.
4.4 IPR’s and the doctrine of Exhaustion
The doctrine of exhaustion indicates that an IPR owner may loose their right to it in case of the sale of an item openly. Further sales of a product bearing a particular mark are said to be used up after the product has been sold. However an exception is given when the IPR holder disagrees with the continuous commercialisation of goods when they have been altered once they were introduced into the market. Therefore the doctrine tries to substantiate whether the IPR owner allowed alteration of the commercial products by the party. In the EC this takes the form of sale of a product with the permission of the IPR owner. If this is allowed then the IPR is regarded as exhausted.
5.0 E...