Bài Giảng Intellectual Property Law ( luật sở hữu trí tuệ - english ) ( combo full slides 5 units )

Trang 3 INTELLECTUAL PROPERTY LAW Trang 4 • Intellectual Property IP is the product of human intelligence • Graphic works: company logos, covers of magazines, appearances of products, e

INTELLECTUAL PROPERTY

LAW

INTELLECTUAL PROPERTY

LAW

INTRODUCTION TO IP LAW

• Intellectual Property (IP) is the product of human intelligence

• Graphic works: company logos, covers of magazines, appearances of

products, etc

• Creativity and design generates not only useful ideas but also IP

• As graphic designers, you are in business of creating IP

4

Graphic Design and IPRs

• Intellectual property rights mean legal rights resulting from intellectual

activities in industrial, scientific, literacy and artistic fields In other words, intellectual property rights are a bundle of legal rights attached to IP

• Exclusive rights, inter alia, are the most important right granted to a holder

of intellectual property rights

• Intellectual property rights are intangible property bearing economic value

• In graphic design, intellectual property rights are normally affixed to

graphic works

02/09/202 4

Justification for protection

• Protection of the product of mind

is one way to encourage creativity

02/09/202 4

Justification for protection

Demand

• In practice, IP value occupies

significant proportion of corporate

asset value

• For the firms of which business is

in innovation and creativity, IP is

much more essential for their

existence and development

Action

• Your product of mind should be

protected for long-term success in business

02/09/202 4

Justification for protection

02/09/202 4

Justification for protection

- You may produce IP everyday

- IPRs may be your valuable assets

- Do something appropriate to protect your IPRs as the best way to protect

your property, business, and success

02/09/202 4

Sources of IP law

• Law is a set of rules enacted and enforced by a sovereign state

• IP law means an area of law governing IPRs

• IP law is made up of national law and international law

02/09/202 4

Sources of IP law

Statutory law (Act of Parliament)

- Copyright, Designs and Patents Act 1988;

- Broadcasting Act 1996

- Copyright, etc and Trade Marks (Offences

and Enforcement) Act 2002

- Legal Deposit Libraries Act 2003

- Enterprise and Regulatory Reform Act 2013

- Registered Design Act 1949

- The Patents Act 1977

- The Trade Marks Act 1994

National law

02/09/202 4

Sources of IP law

Statutory instruments:

- Trademarks Rules

- Patents Rules 2007

- Patents (Fees) Rules 2007

- The Registered Designs Rules 2006

- The Registered Designs (Fees) (No 2) Rules

2006

- The Copyright and Related Rights

Regulations 1996

- The Copyright (Regulation of Relevant

Licensing Bodies) Regulations 2014; and

- So forth

National law

02/09/202 4

Sources of IP law

Case law: (judge-made law) – Doctrine of Precedent

- Decisions made by the court of appeals

- Decisions made by the Supreme Court

National law

02/09/202 4

Sources of IP law

1) Charter of Fundamental Rights of the

European Union (2000/C 364/01)2) Directive (EU) 2015/2436 of the European

Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks

3) Directive No 2012/28/EU of the European

Parliament and of the Council of 25 October

2012 on certain permitted uses of orphan works

4) Directive 2004/48/EC of the European

Parliament and of the Council of 29 April

2004 on the enforcement of intellectual property rights; and

5) So on

EU law

02/09/202 4

Sources of IP law

1) WIPO-administered treaties (26 treaties),

such as:

- Berne Convention (adopted in 1886)

- Paris Convention for the Protection of

Industrial Property (1883)

- Trademark Law Treaty (TLT)

International Registration of Industrial Designs (1925);

International Registration of Marks2) WTO: Agreement on Trade-Related Aspects

of Intellectual Property Rights (TRIPs agreement)

International Law

02/09/202 4

Types of IPR

Convention Establishing the World Intellectual Property Organization

(WIPO), concluded in Stockholm on July 14, 1967:

• literary, artistic and scientific works,

• performances of performing artists, phonograms and broadcasts,

• inventions in all fields of human endeavor,

• scientific discoveries,

• industrial designs,

• trademarks, service marks and commercial names and designations,

• protection against unfair competition;

• Other rights resulting from intellectual activities in industrial, scientific,

literacy and artistic fields

02/09/202 4

How to protect your product of intelligence

- Register to protect your IP rights: Intellectual Property Office (UK), NOIP

(Vietnam), COV (Vietnam)

- Take action against infringers: Courts

- Make Confidential Agreements/Non-disclosure agreements

- Consult IP lawyers if necessary

02/09/202 4

Overlapping protection

• A graphic design work may be protected by many types of IPRs

• Different rights last for different lengths of time

• Some based on statutory law

• Some based on judge-made law

02/09/202 4

Overlapping protection

What types of IPR in this

advertisement? What types of IPR in this picture?

02/09/202 4

Overlapping protection

What types of IPR in this cover? What types of IPR in this design?

02/09/202 4

Management of IPRs

Management of IPRs: Firms of any size

02/09/202 4

Management of IPRs

• IPRs strategy:

- Generation of new ideas

- Protecting the new ideas by IPRs

- Market watch in broad sense

- Trading IPRs

02/09/202 4

Thank you for your attention

Questions & Answers

02/09/202 4

INTELLECTUAL PROPERTY

LAWCOPYRIGHT

• Artistic works: works of drawing, painting, architecture, sculpture,

engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science (Article 2(1) of Berne Convention)

• Copyrightable graphic works are protected by artistic copyright

4

Copyright & Graphic Works

What is copyright

• Copyright is a right to prevent a work being copied without the copyright

owner’s consent Copyright also protects against a work being issued to the public, performed, shown or played in the public, broadcast or adapted

(Essential Law for Marketers, ArDi Kolah, p 104)

02/09/202 4

What is copyright

1) Expression v idea: Copyright protection

shall extend to expressions and not to ideas, procedures, methods of operation or

mathematical concepts as such (Article 9(2)

of TRIPs)2) Original work

Copyrightability

02/09/202 4

Is it an idea or expression?

Copyrightability

02/09/202 4

What is copyright

Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 W.L.R 273 (U.K.: House of Lords):

Facts: The plaintiff devised a popular football betting coupon The defendant copied the format and bets from this coupon, but gave some bets new names and worked out the odds independently

Was the plaintiff’s work original?

Copyrightability

02/09/202 4

- Public performance right

- Public communication right

What is copyrighat

Tidy v Trustees of the Natural History Museum, (1995) 39 I.P.R 501 (U.K.: High Court):

The plaintiff, a cartoonist, drew some large dinosaur cartoons in black and white for the defendant museum to exhibit The museum, without the plaintiff’s authority, published a book on dinosaurs, including reproductions of the plaintiff’s cartoons, a seventh the size of the originals and with a pink and yellow background The plaintiff’s authorship was acknowledged but the plaintiff sued for both breach of his copyright and his moral right of integrity The defendants admitted the breach of copyright, but disputed the moral rights breach Who might win?

Moral rights

02/09/202 4

Duration of copyright

Berne Convention

- Copyright lasts for life and further

50 years after the author’s death

UK law

- Copyright lasts for life plus further

70 years after the author’s death

- For copyright works generated

before January 1996, the duration

is life plus 50 years

- Computer-generated copyright: 50

years from the end of the year in which the copyright work was created

02/09/202 4

Ownership of Copyright

Kenrick & Co v Lawrence & Co (1890) 25 Q.B.D 99 (U.K.: High Court:

A person had the idea of creating a voting card for illiterates, by drawing a

hand holding a pen making a cross in a box Not himself being able to draw,

he asked an artist employed by his firm to make such a drawing The employer clearly had the right to decide whether to adopt the finished product or to

throw it away Nevertheless, when the employer, claiming to be the sole

author of the work, sued a third party for copyright infringement, the court

dismissed the action because it could not accept his claim to sole authorship

Do you agree with the court’s decision?

02/09/202 4

Ownership of Copyright

R Griggs Group Ltd & Ors v Evans & Ors, Court of Appeal - Civil

Division, January 25, 2005, [2005] EWCA Civ 11:

The claimants commissioned an advertising agency to produce the combined logo for them and paid for the commission The drawing for the combined logo was in fact done by the first defendant who, at that time, was working for the advertising agency on a freelance basis The terms on which he worked for the agency were that he was to be paid a standard rate of £15 per hour, it being recognised that on occasions some work might need to be charged at a higher rate and some at a lower rate

Who owns the combined logo?

02/09/202 4

Infringement and Enforcement

Primary infringement (infringement by copying)

Copying without the copyright

owner’s permission

- Copying entire copyright work

- Copying in a different medium

- Copying a substantial part of a

copyright work

- Copying by adaption

- Public use; and so on

Secondary infringement (infringement by trading

- Deal with the infringing copies

commercially;

- Know or have reason to know that

the copies taken without permission

02/09/202 4

Infringement and Enforcement

Taylor Corporation v Four Seasons Greetings, LLC, No 04-1088 (4th

Cir 2004):

Facts: While employed by Four Seasons, Stockmal, Shelton, and Brunettin (the ex-employees of Creative Card which purchased by Taylor) created six card designs Taylor contends are similar to six card designs the artists previously created for Creative Card Taylor sued Four Seasons for infringement of copyright in six card design

What is your opinion on this issue?

02/09/202 4

Infringement and Enforcement

• Taking an insubstantial part is not infringement:

“If one considers the originality said to be involved in the photographs, namely, focusing, lighting, choice of object and camera angle, it seems to me that really nothing remains in the logos Obviously, focusing and lighting do not carry through to the logos, although, in a sense, the selection of the particular object does translate in the logos; the logos are gross, as opposed to refined, and the nature of the particular object dictates the shape Further, the precise angle of the object, although possibly a subtle matter in a photograph, cannot really be said to be reflected to any significant extent in the logos.” (Antiquesportfolio.com v Rodney Fitch & Co Ltd [2001] E.C.D.R 51 (U.K.: High Court)

02/09/202 4

Infringement and Enforcement

Infringement and Enforcement

Inc v Boutique Elfe Inc (1991) 43 C.P.R (3d) 416 (Canada: Court of

Quebec):

Facts: A firm asked an artist to copy a Christmas card titled “Un Noël de

Rêve” that the firm’s manager bought from a retail store The firm had 1,300

of the copied cards printed for $C 165 and sent them out for New Year to its

customers The plaintiff claimed the full retail price of 1300 cards as damages, over $C 2,000 The defendant offered $C 500, being what the plaintiff had

charged a third party for a licence to reproduce, for publicity purposes, another similar card (“Toutes voiles au vent”) by the same artist

How could the damages be assessed in this case?

02/09/202 4

Infringement and Enforcement

Criminal liability

10 years imprisonment; and/or

Unlimited fine

Administrative sanctions

For example, suspension of release

by custom authorities (for importation of goods)

02/09/202 4

Thank you for your attention

Questions & Answers

02/09/202 4

INTELLECTUAL PROPERTY

LAWRIGHTS IN DESIGNS

• ‘Design’ means the design of any aspect of the shape or configuration

(whether internal or external) of the whole or part of an article

4

Design Rights

Design Rights

• Requirements for protection: Originality: It must not commonplace

• Automatic protection: Legal protection is available from the moment the

design is created

• Exceptions to design right:

1) Surface decoration;

2) A method or principle of construction;

3) The ‘must fit’ exception

4) The “must match” exception

02/09/202 4

Design Rights

- The multitude of items made by industry should be legally protected in

recognition of the substantial design effort expended on them (Textbook 1,

p 35)

- Design right applies to articles

02/09/202 4

02/09/202 4

- Dealing with the infringing copy;

- For commercial purpose;

- Know or have reason to know that

the article is an infringement of design right

02/09/202 4

Design Rights

Exceptions to infringement:

- For the last 5 years, the owner cannot stop competitors from manufacturing

articles to the design, because a license of right is available under 1988 Act

- Use by the Crown

02/09/202 4

Registered design

• ‘Design’ means the appearance of the whole or a part of a product resulting

from the features of, in particular, the lines, contour, colours, shape, texture and/or materials of the product itself and/or its ornamentation

• A design can be two or three dimensional, it can be whole of party of a

product

• Community registered design

02/09/202 4

Registered design

• To be registrable:

1) Novelty: It must be new throughout the World A design is new if no

identical design or no design whose features differ only in immaterial details has been made available to the public before the relevant date

2) Individual character: a design has individual character if the overall

impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the relevant date

02/09/202 4

Registered design

Exclusions from design registration

1) a feature of a product is dictated by its function;

2) a feature which allows a product to fit to another product

02/09/202 4

Registered design

The contested design Farbfolge II, 12 Stunden im

5-Minuten Takt’ (in colour)

02/09/202 4

Kastenholz, v Office for Harmonisation in the Internal Market (Trade Marks and

Designs) (OHIM), Qwatchme A/S [2013] EUECJ T-68/11 (06 June 2013)

Registered design

The contested design Farbfolge II, 12 Stunden im

5-Minuten Takt’ (in colour)

02/09/202 4

Kastenholz, v Office for Harmonisation in the Internal Market (Trade Marks and

Designs) (OHIM), Qwatchme A/S [2013] EUECJ T-68/11 (06 June 2013)