Copyright And Trade Marks Assignment Sample

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Introduction

The essay is focused on analysing the copyright and trademark protection for a particular software created for the enhancement of music. As per the case study, it is evident that Jasmine has left Bournemouth University to start her own business by creating software that will play songs based on a user’s request. The application is able to compose a music track upon a request. Jasmine is approaching potential investors and business parties for collaboration. This study is based on analysing the methods of protection of intellectual assets by legal processes. Discussions regarding ownership of rights and related laws in context to intellectual property protection will be discussed as well as the infringement of third parties rights and forms of legal protection along with trade mark acts.

Discussion  

Subsistence and Ownership of Rights

Protection of intellectual property requires the creator’s work to be original. As per the Copyright Act, 1988[1], original works have been derived from connotations through several case laws throughout the years will not directly fall under government legislations. One of the most valuable things mentioned under this act is of significane that a work has to be owned by the creator or author to make its intellectual protection available[2].

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‘Subsistence’, in the context of copyright and other related rights, that are coupled with the original entity requires three specific things:

Firstly, the existence of the subject matter should be of a protectable type that is it must be tangible and can be physically protected. Secondly, the thing or the entity must be sufficiently connected related to the territory. Territory, in case of copyright, refers to a state where the entity can be protected[3]. Finally, applicable formalities are an integral part of such protections. The entity must come under the guidelines of the act where it can satisfy the criteria for applicable formalities[4].

In the case of the European Union, it is said that the principles which are responsible for governing all the requirements must be categorically harmonized related to the international copyright act 1886. The United Kingdom has its own copyright act commonly known as, The Copyright, Designs and Patents Act 1988[5]. This act is extremely significant for creators all over the UK as it extensively gives all the creators related to dramatic, literacy and artistic works a right to control their creation. The creators have all the rights related to maintenance and further use of their content[6].

In this case, it has been seen that Jasmine has created software which can identify as well as create music on a user’s request .It can be largely categorized into artistic works and will be protected under the guidelines of The Copyright, Designs and Patents Act 1988 and Trade Marks Act 1994 of the UK[7]. These guidelines defined under Copyright, Designs and Patents Act 1988[8] mention public performance and broadcasting via adapting, copying, issuing, lending copies and renting are all prevented and the subject can be prosecuted if found under such circumstances. There are several cases in the Trade Marks Act 1994 of the UK where the user can be strictly identified as an author to the related object[9].

Copyright of a particular entity arises when an organization or an individual creates a work that can be applied to a social degree consisting of degree of labour, judgement or skill. The duration of the International Copyright Act 1886[10] largely varies depending on the type of work done by an owner. Work cannot live infinitely as in case any literary or dramatic related to music or art will be covered under the guidelines of The Copyright, Designs and Patents Act 1988[11] for 70 years. Computer programs have been added in such acts as it is mentioned under The Copyright (Computer Programs) Regulations 1992 that living periods can be extended in case of a program or software created using a computer[12].

The software created by Jasmine will also help a user to compose a piece of music; these kinds of music will be created by the software program and machine learning. The owner of originally created songs and music will be the user responsible for the creation of a music theme[13]. These created with the help of the software will fall under the guidelines of International copyright act 1886[14] will be considered as original for 70 years. Since the entire work is considered artistic, each element of music will be covered under the The Copyright, Designs and Patents Act 1988 [15].

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As per regulations of CDPA 9(3), it is possible that Jasmine can claim coyright within music tracks and can be produced by software. However, unlikely, under law of EU, intellectual creation intends to deem with author’s own reflection that reflects personality of individuals. Creation here implies author’s own that author is in conjunction with creation regarding individuals’ work. This poses creative ability to make free and develop creative choices. In Painer that is case of C-145/ 10, CJEU tries to portrait by constituting work in sense with inter alia. This harmonise criterion of originality with precise content views. Furthermore, it is legally argued by CJEU that it harmonises EU containing originality criterion that applies catagorisation with work in field of database, term directives. Under EU criterion, creation qualifies being work only when creation is originality creation of author.

CJEU concludes section of 38 in relation to Infopaq Painer and implies that originality criterion is sarisgied through specific selection and data arranegement. This specify expression of author with respect to creative ability that makes free with creative choices and incur personal touch on work. Similarly, in case of Jasmine, such criterion is possible to satisfy to handle creative choices amd offers stamps with personal touch into work.

There are several ways for the protection of computer software created by an individual. In any case, an individual can address the courts by proving that his or her works have been stolen or used in some way or form. Under the section of Act 23 of 1983 of  Trade Marks Act 1994 of the UK, an owner can claim copyright based on any kind of proof provided to the court. The UK government provides relaxation on such acts to the owner as the work is automatically revoked once the owner creates a new work. However, if the owner is creating work under employment of a company or an organisation then the actual owner of that particular work is the organisation and in no circumstance can an individual can use that Act.

There are many cases where an organisation or an owner cannot invoke copyright regulations[16]. It is mentioned under the guidelines of the International copyright act 1886[17] that if the work is used in case of any research or studies, performance related to educational purposes, incidental inclusion and criticism then an owner cannot invoke the law[18].

Public undertakings in case of copyright exhaustion are mentioned under Section 28-A of the The Copyright, Designs and Patents Act 1988[19]. Protection of intellectual property is not controlled by one act of the government; however, the Enterprise and Regulatory Reform Act 2013[20] also restricts the use of original content.

A person or an individual working for a company if found guilty will be charged under subsection (2) (a), subsection (2) (b), subsection (3) (a), subsection (3) (b)[21]. These subsections do not follow the guidelines under Trade Marks Act 1994 as section 77 mentions that design and software cannot be held in this act[22]. Section 11 (2) and section 30 can be invoked by an owner for further investigation on such matters. The issue in case of software programs and user interface designs falls largely under section 80 of The Copyright, Designs and Patents Act 1988 as the owner can claim his or her right under the following situations. Situations are the work must be used in case of business, selling and hiring of the original work made by the owner and illegal distribution of such works. Works created by Jasmine are all protected under The Copyright, Designs and Patents Act 1988 of the UK[23].

Infringement of third parties

Intellectual properties related to business or an individual are protected all over the world by respective governments. These laws related to copyright, trademark, right of publicity, right of privacy and trade secracy are created to restrict the use of original work done by an owner. Infringement is a legal term used by governments to portray the use of the owner’s intellectual property by any other person without their consent. Abuse of infringement laws can have a large detrimental effect on an owner’s business.  

All the intellectual properties related to an owner or an organisation is considered as valuable assets. Infringement acts are all related to the protection of valuable assets. This particular law typically addresses and restricts third party use of original content. The Copyright Act 1988[24] can critically address the issue related to infringement as an owner can claim that a substantial part of his or her work has been the use or copied. There are several criteria such as non-duplicate and the work should mean no harm to any religion or community. It is also mentioned in the case of third-party protection that the work can be either directly or indirectly copied from a source. It is stated in the act that copying the look and feel of an original work falls under the guidance of this act[25]

Protection from third parties is also covered under abusing secondary infringement. This is related to a theft that has occurred in some other countries such as America and other European countries, since the owner and the work both reside in the UK it will be covered under national law. Infringement of an original work can occur under circumstance namely, if the work has a copyright notice and a person is copying negligible information, it will be considered as an infringement[26]. Name of the work, along with user interface (in case of software), and look and feel comes under the guidelines of this law.

A person who wants to copy or get inspired for a particular work can save themselves from getting infringement charges as they have to change the entire overall look of the matter. Making X number of changes in the original work will result in saving a person from invoking infringement[27]. This can also be invoked based on priorities of subsections included inside an original work. A person can invoke this law by stating that a significant part of his or her work has been copied. Under the guidelines, in a case of fair dealings, an owner cannot invoke infringement laws as the person has agreed to lend his work under government authority. This can happen if Jasmine chooses to sell the product or license the product to a company.  

One of the major rules under infringement laws is that a person can be accused of false attribution of work. These rules are not concerned with any particular field of work but are related to the attributes of that work. Issues must be related to public copies of an original work. On alteration of the work description, a person can largely invoke infringement. All the infringement laws are stated under sections of the The Copyright, Designs and Patents Act 1988 of the UK[28]. Guidelines of section 31 refer to the inclusion of incidental or complete work falling under categories of artistic work[29].

Music tracks has been generated through iMix using software of Music Maker that underline works to maintain sound recordings in this case scenario. If the extracts are identified in resulting work via CJEU Pelham, then sampling regarding sound recordings can be maintained by Jasmine that would require before authorization. It would entail two second sample to undergo music compositon and allows provision for publication along with exploitation to undertake independent work. This might make free usage of work involving another person regardless of Jasmine. Apart from this, employment ownership of IP administer that employer would be able to own intellectual property that has been created by employees during employment course. In addition, intellectual property is developed by employee and is been owned through employee and not by employer. Considering this aspect, it is however not clear from the case study that whether University has claimed for a copyright or not.

Besides, GUI attracts copyright as the artistic work and it is apparent from case of Navitaire Inc V Easyjet[30]. This particular case investigate idea and expression of dichotomy where Court of Appeal does not extend protection of copyright to functional effects. It is similar to application of distinctive sequence of opening sound where companies as per Judge’s comments are forced to remain with same program as well as software developer to undergo changes. This is similar in case of Jasmine as she has developed app containing catchy interface of use that are allowed to carry distinctive sequence of opening sound. In addition, her development of app has been provisionally devised in order to name it iMix and this has assisted to compose tracks of music along with recording including allowance of user’s request[31].

An appropriate course of action by the owner can also be taken when the owner finds out that the original work has been tampered by a set of labourers who also contributed in the creation of this original work[32]. This is mostly done in case of organisations as numerous employees are contributing to one single sector of work. This infringement can also be invoked when an owner or an organisation finds out that all original texts and samples have been altered by the same set of labours.

An owner cannot invoke infringement despite finding out that the texts and other materials are altered only when he or she has done a fair deal. Fair dealing in case of criticism or review cannot be considered under the guidelines of the UK’s copyright act. In this case, an application has been created which can monitor online music and create or compose a music theme based on the user’s choice. This is one of the most appropriate cases which can be invoked by the person for infringement, as once this facility is registered under UK’s copyright act, a company or an organisation cannot advertise a similar material. On identification of an advertisement which directly relates to the concept of this particular software, a user can invoke infringement.

However, infringement cannot be invoked under several circumstances where the owner has agreed on a deal that involves supply agreement. In this case, the works and their details can be altered and will not fall under government legislation. Once an infringement has been invoked the owner can also increase the period. Time periods mentioned under strict guidelines can be extended by using Section 27, Section 31A, Section 31B or 31A. The terms under these sections are unenforceable and the owner will not be able to invoke further infringement copyright[33].

As per Kogan V Martin of 2017, impacts regarding infringement of third parties is seen similar to present case of Jasmine. Extent of collaboration implies in this case where order of new trial occurs in IPEC, however this took different judge. Based on background of the case, it is evident that Ms Hogan has appealed to Court of Appeal. In relation to law of this particular case, it follows Section 10 and Part 1 of Copyright Designs & Patent Act of 1988 and governs works with joint authorship[34]. Firstly, firstly extention of collaboration highlights among two and many people where undertaking of wotk development with common design takes place with general outline. Secondly, contributed elements intends to authorship an non-distinctness in this case where Appeal Court considers various authorities upon joint authorship.

Contributions of Ms Kogan to screenplay is sufficient prior to reaching conclusion and it is found that Court of Appeal’s notions is introduced with contributions of non-textual. This depends on whether putative authors worked together being collaborators or whether contributed elements has expressed intellectual creation of person. Effective legal advice is being provided from this case and that is why the case is relevant to present case study. Reasons behind legal advice includes Appeal court that set out clear terms on joint authorship regarding copyright works[35].

Forms of Protection

Although registration of iMix has been made for development of Music Maker in the case study, however there may be certain opposition under TMA 5(3). Registered trademarks of EU in both classes 33 and 34 states that trademark search is essential to maintan trademarke application in relation to EUIPO. Issue of trademark is necessary in order to monitor as well as renew the trademark. In this aspect, iMix based on case study needs basic administration and regulations of trademarks practices to compliance registration of it. Publication with reference to EU bulletin of Trademark is necessary in case of dealing with trademark and that is why Jasmine has published series with scientific pages to conduct trademark in presence of international conferences.

Enrichment of opposition based on aforementioned trademarks is assessed regarding admissibility to imply cooling off period. The registration of trademark is attained only when award of the costs is made to Applicant and when it is offered through effective conversion with an Appeal by the applicant. In this similar way, Jasmine needs to compose trademarks to incur further legal implications in her business. Therefore, formation of protection can be made in this case also by configuring effectiveness of trademarks and implicating music tracks adequately.

In order to gain information related to all the different forms of protection, intellectual property can be divided into many segments. There is a chance that intellectual property has multiple owners. The intellectual property which is to be protected must follow all the guidelines stated under a patent, design or copyright act of the UK. Buying an intellectual property from any other company will not directly fall under these circumstances. Protection of a well-known product or brand will fall under different categories of the The Copyright, Designs and Patents Act 1988 of the UK[36].

Intellectual properties can be protected under several means namely, patent, copyright, design rights related to an individual or industry, trademarks and trade secrets. An application can be protected in three different measures such as treatment, copyright and patent protection. The government of the UK states that intellectual property can be automatically protected by adding the symbol of copyright protection. These are mainly done in case of artistic and other works which are sold and customer-oriented[37].

Design of a particular product is one of the most common things that can be replicated by an individual or an organisation. The design regulation under all copyright acts mentioned in the EU is registered for three years. IPO (Initial Public Offering) is capable enough to address the design concerns of software or any original work[38]. All the design restrictions are mentioned under Rule no. 14 of the Design Right. This rule is a subpart of Rules 1989, which is responsible for governance and licensing of products concerning original design attributes. All the possible duplicates must be proposed to the government and each ground of duplicate must be covered as mentioned under the guidelines. IPO critically states that the final five years of any kind of design rights protection must be provided with appropriate licensing[39].

There are many different forms of action which can be taken by an individual, one of the most vulnerable parts of original work is its services. An individual can take any kind of legal action based on unpermitted usage or original work. Legal actions can also be taken based on counterfeiters. Symbol of trademark present in a product or any other original work specifies that the work is original and only belongs to the owner. Any kind of duplicity seen against these trademarked works is a punishable offence. Trademark protection can only be given to such works which are not sold and licensed to an organisation or a third party[40]

Computer programs or particular software design can be registered under the regulations of the Copyright Act. The IPO critically states that once a design is registered, it is fully covered under the regulations of this act. The appearance of original work along with its physical shape, decoration and configurations will all be protected under this act. This act states that the government will look after the original work for 25 years and a party must renew design registrations every five years in the complete 25 years period[41].

It must be taken into consideration that the entire design process takes up to one month provided that it meets all the criteria under government rule. There are a few major criteria such as the work must be new and original, the product of the work should not mean offence to anyone or any organisation. The product should not use any kind of protected symbols or flags and it should not be an idea, it should be a patent which will help it to fall under government regulations[42]

Patent Protections are one of the most significant in such cases since it provides complete protection under government regulations with the help of The Patents Act 1977[43]. The UK patents are designed and written in such a way that it could provide complete protection to a product. The main objective of the patent is to give the authority to an individual to legally protect his or her innovation[44]. There are several criteria to fall under UK patent namely, the original work must be related to something that can be later used in any kind of research work or industry, the product must be new and never seen before and the product must be innovative, it cannot be a simple modification of a product which already exists in the market. In the case of Jasmine’s application, it is a new product based on music creation and those created music and themes can even be further used by individuals.

Judicial Decisions in the UK are taken mostly based on any wrongdoing and exhaustion of law. All the legal decisions taken in UK court are managed by Free Access to Law Movement (FALM[45]). Decisions based on any crime falling under the copyright law are changed or revised every year by BAILII (British and Irish Legal Information Institute[46]). Major concerns are shown to acts concerning data protection and patent protection irrespective of any industry.

Furthermore, protection of the sound mark in business of Jasmine can be developed by subjecting to Trademark of European Union (EUTM). Competent authorities should reveal protection matter and it mus be determined under appropriate form to incorporate sufficient register signs including tradeholders’ role. As per Regulation of 2017/1431 and registrability of EU, protection of trademark exists with three adequate law levels and they ar national, international, EU, respectively. Article 3 of TMD must be implied in adjacent to Jasmine’s case to input implications of national laws along with its harmonization. Apart from this, unified protection with trademark must be regulated in it to enforce system purpose and produce alternative protection therein. One such exemplary include Directive of Trademark of 2015/2436 and Regulation of European Trademark of 2017/1001 as well that would harmonise trademark laws and would assist in dealing with free products movements and services.

Article 4 of EUTM and case of 283/01 states basic requirements to draw registration in maintaining trade mark practices. Considering this aspect, the provided case study should afford such legal concerns to govern effects of Sieckmann case, thereby understanding case of protection with certain trade mark. Clarification of Appeal from Board (BOA) must be intended in this case to examine legal certainty and strengthen protection in this case thereafter.

Conclusion

Based on the above analysis it can be concluded that data protection using patent and copyright acts of the UK government can help an individual or an organisation to protect its intellectual properties. Protection of intellectual property is entirely based on the type and originality of a work. There are several subsections of Copyright Act 1988 that supports the protection of intellectual property. Infringement of third-party protection has numerous subsections which let an owner choose the type of section that can be invoked on the prosecutor. Degree of labour and originality of the concerned work are the main concerns in protecting intellectual property. It can be said Jasmine’s creation will be entirely protected by the International and National Copyright Act.

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[1] Tan E M M, Yockey S D, Razali N M,  &  Daud W S A W, ‘Copyright Laws & the Digital Arts; Changes Ahead Under the Trans-Pacific Partnership (TPP)  In Proceedings of the Art & Design International Conference (&IC 2016)‘ (2018) pp  83-88 <https://link.springer.com/chapter/10.1007/978-981-13-0487-3_10> accessed 20 March 2019

[2] WIPO ‘Berne Convention for the Protection of Literary and Artistic Works’ (2020) <https://www.wipo.int/treaties/en/ip/berne/> accessed 02 April 2019

[3] EU Legislation ‘Copyright, Designs and Patents Act 1988’ (2020) <http://www.legislation.gov.uk/ukpga/1988/48/contents> accessed 02 April 2019

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