Intellectual property laws

Introduction

Intellectual property right (IPR) laws play an essential role in promoting entrepreneurship by providing innovators control over their creativity and innovation (Smartt 2011).  Intellectual property rights laws provide innovators power to make major decisions regarding the use and transfer of the property (Nicola 2015). Bruke and Faster (2012) emphasise that IPRs laws contribute to increment in return on investment amongst innovators by limiting imitation of their innovation.

IPR laws are not limited to tangible products but also entail intangible products such as artistic creations. The United Kingdom has integrated intellectual property laws in its legal system by ensuring that the content of the law is clearly defined. For example, in 2012, the UK Supreme Court outline the content of the IPR law to cover different aspects that include musical and artistic copyright, broadcasts, films, dramatic content, recordings, and literary content (Alpin & Davis 2013).  In line with this ruling, it is possible for music artists to protect their creativity and innovation.  In addition to trade markets, intellectual property laws are further comprised of copyrights. The application of IPRs has significantly contributed to enhancing innovation and creativity. To illustrate the applicability of IPRs in the real environment, this paper reviews two main scenarios. The first scenario relates to provision of    advice to a music band, ‘YOU TUBERS’, on how it can legally protect the name of its band, the band’s logo, and the potential of protecting its image rights. This section specifically focuses on application of trade marks.  On the other hand, the second scenario relates to application of copyright in protecting musical work. The analysis of the two scenarios is undertaken in relation to applicable case laws and legislations.

Part 1

Approaches to protect the band;

 Trade mark

One of the most feasible approaches  that the band can integrate in protecting its creativity and innovation entails registering for a trade mark, which entails a symbol or sign that is used in relation to a specific producers or traders goods or services. The purpose of trade mark is to ensure that one’s goods or services are adequately protected and differentiated from competing products (Fhima 2009). The band can register for legal protection under the Trade Marks Act 1994 (Hart, Clark & Fazzaani 2013).   

The band is conscious of the likelihood of encountering intense competition from well established bands in the UK and Europe such as the renowned French ‘The Vous Tubes’ cult rock band.  To deal with competition, the band has entrenched a number of strategies amongst them developing and launching a range of merchandise. The band has also designed a logo and name that is comprised of the words ‘You’ and ‘Tubers’, whereby the word ‘You’ is in black against a white background while the word ‘Tubers’ is in white against a red background. In addition to these aspects, the band can enhance its future competitiveness by protecting the name and logo of its band.  Registering the logo and the band’s name will ensure that the band’s name cannot be used for any other purpose by competitors. Thus, the name of the band will act as a source of brand identity.

The definition of a trade mark under the 1994 Act has been improved to include designs, numerals and names under the trade mark law.  One of the fundamental requirements for a trade mark is that it must be possible to graphically represent the sign or logo to be registered as the trade mark  in accordance with EC Directive 89/104 Article 2 (Davis 2011). Registering non-corporeal embodiments such as smell and colours as trademarks may be relatively difficult as evidenced by the Court of Justice ruling in the Seickmann v Deutsches Patent- und Markenamt (2002). In this case, the applicant intended to use an olfactory mark in registering a trade name. The Court ruled against such intention arguing that it is not possible to represent non-corporeal embodiments in two dimensions (Davis 2011).  The band has a designed a logo that is capable of being represented graphically.   Therefore, it is possible for the band to protect its name ‘You Tubers’ and logo under the trade mark law. Nevertheless, it is important for the band to ensure that its logo is comprised of a unique logo that optimally differentiates its products from competing bands.

The importance of integrating an effective logo is underlined in the case of Coca Cola Trade Mark Applications [1986] 2 All ER 274.  In this case, the Coca Cola Company sought to use the design of its bottle in registering the for trade mark protection. However, the Registrar affirmed that the company was trying to register ‘thing itself’ (Gilles 2004). According to the House of Lords, allowing the Coca Cola Company to use the bottle in registering its trade mark would have given the firm undesirable monopoly with reference to developing containers (Hart, Clark & Fazzani 2013).  

Evaluation of the band’s past performance indicates that it has begun to gain considerable competitive edge as evidenced by growth of interest on the band by music publishers, the press and record labels.  The band has also established a booking agent in London.  This indicates that the band has developed a remarkable celebrity’s image. Under the TMA 1994, the members of the You Tubers band have a right to protect their image from exploitation by different parties for any purpose such as product or service endorsement. The image rights under trademarks law is underlined by the case of Irvine and others v TalkSport Limited (Tomkowicz 2013). In this case, TalkSport, a radio station, had used Irvine’s photo, a renowned Formula One racing driver, in promoting the 1999 FIA Formula One Grand Prix World Championship without Irvine’s consent. In determining over the case, the Court of Appeal held that Irvine had legal right to protect his image by suing the radio station for damages. By using his Irvine’s photo without his consent, the radio station was infringing on the celebrity’s rights by depicting him to be endorsing the station (Sparrow 2016). In line with this aspect, the band should consider applying for a trade mark in order to caution its members against exploitation by different parties such as agents, music publishers and record labels without their consent. Therefore, trademarks ensure that the goodwill inherent in a specific individual or entity is maintained.

Applying for a trade mark will be a source of invaluable competitive advantage for the band by making it easy for customers to identify the band and its products (Henning-Bodewig 2006). However, to ensure that the trade mark communicates value to the target customers, the band should focus on improving the quality of its performances and products.  Moreover, the band should commit itself at developing its reputation (Mazziotti 2008). On the basis of the trade mark, the band can use it for promotion purposes, which is underscored by the European Court of Justice ruling  in the SA CNL-Sucal v Hag GF AG [1990] 3 CMLR  571, 608  case (Naser 2010). According to Hart, Clark and Fazzani (2013) the court ruled that ‘the essential function of a trade mark is to give the consumer or the ultimate user, a guarantee of the identity of the origins of the marked product by enabling him to distinguish, without confusion that the product form others of a different provenance’ (p.86).

Incorporation of trade mark will also provide the band adequate protection against passing-off or unfair competition.  The trade mark confers proprietors’ exclusive right over a logo, name, symbol or sign hence limiting competitors from taking unfair advantage. This aspect is underlined by the case of Arsenal Football Club plc v Reed (2002) (Davis 2011). Judging from the band’s exemplary performance, You Tubers stands a great chance of acquiring extensive global reputation.  Galloway et al. (2010) asserts that ‘well known marks are vulnerable to damage that can be seen in practices such as the willingness of the Indonesian Trade Mark Office to register marks such as Levi Strauss, Dunhill and Charles Jourdan, which area renowned international marks but not registered in the local Indonesian market’ (p.234).  Under Section 56 of the Trade Mark Act 1994,   owners of a well-known mark can take action preventing such registrations (Galloway et al. 2010). 

The band has established online presence as evidenced by development of an official website and social media platforms, viz. Facebook, Twitter and Instagram accounts. Considering the fact that the band intends to use the online platforms in its marketing activities, the band should consider protecting its website and social media platforms using trade mark. According to Galloway et al. (2010), website designers develop codes that enable search engines to pick up sites. The band can use its trade mark, trade name, or sign as a metatag or keyword to increase the chance of end users searching the band’s website easily. Metatags and keywords are protected under Trade Mark Act 1994.  Through this approach, the band will eliminate the likelihood of its trade mark, sign or logo from being use by other competitor, which would constitute an infringement. This aspect is illustrated by the case of Roadtech Computer Systems Limited v Mandata Limited (2000) (Galloway et al. 2010).

Part 2; Copyright 

The UK government’s commitment to promote innovation and creativity through implementation of IPR laws further is further comprised of copyright laws, which are governed by the Copyright, Designs and Patents Act 1988. According to Hart, Clark and Fazzani (2013), copyright entails the right that gives an individual power to restrict other people from reproducing or copying all or part his or her work either directly or indirectly.  Section 1 of the 1988 Act specifies the different types of work that can be protected under the copyright law. Amongst the categories of work protectable by copyright include musical and artistic works, original literary, music, artistic and dramatic work, and sound recording, broadcasts and films (Hart, Clark & Fazzani 2013).

 Musical work constitutes one of the major categorisation of works protectable under the Copyright Act.  Hart, Clark and Fazzani (2013) affirm that one of the distinguishing characteristics of musical work protectable under copyright is that ‘the music work must be recorded in some fixed form for copy right to subsist’ (p. 156). The significance of this definition of musical work is underlined by a ruling in the Sawkins v Hyperion Record Ltd [2005] EWCA Civ 565 case.  In determining over this case, the court ruled that the performance practice indicators and tempo depicted by a musician is sufficient to attract warrant copyright protection.  According to the CDPA 1988, the record producers possess copyright over a sound recording. Moreover, the music producer further possesses copyright over the musical work. However, the music composer own copyright over his or her literary work while a song’s lyrics are protected separately from the literary work under the copyright law.

Music artists are adequately protected under the CDPA 1988. Copyrights are applicable for varying duration. For example, if a sound recording has not been communicated or distributed publicly, the law protects such recording for a period of 50 years. As sound recorders, musicians retain significant rights with reference to reproduction and distribution of his work (Intellectual Property Office 2014).  Therefore, within this period, a music artist retains exclusive rights over his artistic work, which is a source of competitive advantage.

In the UK, engaging in copying or reproducing other people’s music work infringes the copyright law unlike in other countries such as the United States whereby copying music does for personal use does not constitute infringement on copyright law.  The UK copyright law has undergone significant changes as a result of transformations that have been witnessed. Amongst the notable transformations relate to emergence of digital age and technological development (Homan, Cloonan & Cattermole 2015). The emergence of digital age and technological innovation has presented a major challenge with reference to innovation. Murray (2016) asserts that digital age and technological development has increased the incidence of infringement on intellectual property rights. The media and entertainment sector is one of the sectors that have been adversely affected by the digital and technological revolution. For example, a study conducted in January 2013 shows that approximately 25% of internet users in the UK who either stream or download music, film or television programs did so illegally at least once (Sweney 2013). As a result of this practice, over 400 million files were digitally pirated during the first quota of 2013.

A 2015 survey on online downloading and streaming in the UK shows that the country has experienced significant growth with reference consumption of digital media (Intellectual Property Office 2015). With referent o music, the study showed that 15.6 million internet users accessed music online. Twelve million users streamed music online while 10.5 million users downloaded music. Despite the benefits associated with growth in digital media, the trend presents a challenge to musicians due to growth in the rate of piracy.

In recognition of this challenge, the UK government formulated the Digital Economy Act 2010, which stipulates that piracy of intellectual property for either personal or profit purposes constitutes theft, which is a criminal offence punishable under the law (Smartt 2011). Piracy infringes copyright law in that in entails copying or reproducing another person’s original work, which is against the European standard of originality (Waelde 2016). Engaging in illegal download and streaming of digital content infringes digital the standard of originality. The concept of originality is aimed at protecting an artist’s intellectual creation. The concept of originality under the copyright law is underlined by the case of Newspaper Licensing Agency Limited and others v Meltwater Holding BV and others [2011] EWCA Civ 890 (Rahmatian 2015).

In this case, Meltwater an online media monitoring service was sued by Newspaper Licensing Agency for copyright infringement.  The Newspaper Licensing Agency argued that copyright subsisted and hence Meltwater was culpable for copyright infringement. In determining over the case, the court ruled that the cached and on-screen copies that were generated as a result of the end-user’s browsing on Meltwater media platform without the consent of NLA was illegal. This ruling underlines the fact that internet users who downloads, prints and distributes online materials without the author’s or publisher’s permission violates the copyright laws. In line with this ruling, the individuals who engaged in illegal download of musical work are liable under Article 5 (1) Directive 2001/29/EC (Sherrell & Smith 2014). However, streaming music or film online without downloading does not constitute infringement of the copyright laws.

Digital technology has presented a unique opportunity through which owners of musical work can distribute content to end users through different online mediums. To distribute music through online platforms, musicians enter into contract with online or internet service providers. Under this relationship, the internet service provider has a duty to ensure that the musicians’ interests are adequately protected. Amongst the fundamental interests entails protecting the musician against copyright infringement. If end-user engages in copyright infringement due to the service provider’s failure to integrate adequate technological measures, the service provider is liable for any damages suffered by the copyright owner. The copyright owner has the right to take legal action to compel the service provider to implement the necessary protective measures.

This aspect is illustrated in the case of Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch) (Pila & Torremans 2016). On the basis of the CDPA 1988, the court issued the service provider an injunction, which stipulated that considering the fact that the service provider has adequate technological knowledge, its failure led to infringement of copyright by the ender user. Despite the fact that ISP only acted as an intermediary between Twentieth Century Fox Film Corporation and Newzbin, the court ruled that allowed the end-users to use its platform in committing copyright infringement.  Copyright laws are not only intended at preventing continuance of copyright infringement but are also focused on limiting their future occurrence.  This aspect is underline by the case of L’Oreal v eBay, which involved trade in counterfeit products hence breaching the intellectual property law (Kruger, Nickolay & Gaycken 2013). By trading in counterfeit products, L’Oreal infringed on eBay’s copyright laws.  This case underlines the fact internet or online service providers have a legal responsibility to ensure that their online platforms are not used to conduct copyright infringement.

Conclusion

Analysis of the two scenarios reveals that the UK has undertaken significant efforts in promoting innovation and creativity through integration of intellectual property laws such as copy right and trade markets. The laws applicable to trademarks and copyrights are effectively entrenched under the Trade Act 1994 and the CDPA 1988. Trademarks and copyright ensure that the work of different parties is adequately protected. For example, trademarks protect innovators against unfair competition. Therefore, integrating trademarks can contribute to creation of a competitive edge. For example, trademarks contribute to optimal differentiation of a product from competing products.   However, to benefit from trademarks, it is imperative for innovators to ensure that the requisite elements are taken into consideration. First, the symbol, letters or sign to be registered as a trade mark must be uniquely designed and possible of being represented graphically.

Analysis of the scenarios further underlines the significance of copyright in protecting innovation. Copyrights can be effectively applied in protecting musical work against piracy. One of the essential characteristics in registering for copyrights entails originality of the piece of work or innovation intended to be protected.  The technological innovation and emergence of digital media currently being witnessed in the contemporary market has presented significant challenges in enhancing the relevance of IPRs. However, the UK has undertaken adequate measures to ensure that the intellectual property laws are optimally aligned with the technological changes currently being experienced. One of the ways through which copy rights enhances protection is by ensuring that third parties involved in distribution of digital content carry the burden of ensuring that copy right laws are not infringed. In summary, the applicability of trademarks and copyright laws in resolving situations involving infringement of copyright and trade mark laws is underlined in different case laws.

 

Reference List

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