International Intellectual Property Law - Research Proposal Example

Introduction Intellectual property rights (IPR) are important for innovation. If an artist does not get compensated for his work, or if a pharmaceutical company cannot get a patent for their formulas, then innovation might be impaired, as these industries would have less reason to create. Additionally, innovation leads to more innovation, as these industries get the money from their patents and copyrights, and use the money to create further. Therefore, it is important to protect intellectual property rights. However, in the case of globalization, there are different concerns. One is that emerging countries might not have the same technology as advanced countries, and need to copy advanced companies to innovate. This is an issue that is addressed below. However, the bulk of this article will deal with copyrights, especially with regards to British Law regarding the same. Discussion Intellectual property rights have become one of the buzzwords surrounding globalization. Globalization may be defined as “an extent of internationalisation at a level where boundaries are blurred or appear close, where networks and solidarities are communicating, [and] where interdependencies are increasing.”1 On a technological basis, modern globalization is dependent upon the structures for communication, transportation, computation and enforcement interlocking.2 Globalization has reached many sectors, including intellectual property, financial services, money capital, goods and financial instruments.3 There are obvious positive aspects of globalization, and negative ones as well, as globalization leads to clashes, prejudices, tension and cultural misunderstandings such as those seen on 9/11, and the Bali, Madrid and London bombings.4 Intellectual property is one of the core businesses in the World Trade Organisation (WTO), in which one of the WTOs founding element with regards to intellectual property is the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.5 The TRIPS Agreement, in a nutshell, establishes a global harmonisation of protection for Intellectual Property and enforcement, as well as created international standards regarding patent, copyright, trademark and design protections.6 The existing regimes of the United States, Europe and Japan with regards to intellectual property were largely the same, so their laws did not need as much harmonising. However, there were some areas that were a problem, as far as different countries having different rules, and they were “first to invent systems, scope of patentable subject matter, treatment of plant and animals, geographical indications and the degree to which moral values should influence the granting of intellectual property rights.”7 According to Archbugi & Fiilippetti (2010)8, there are four learned lessons about intellectual property with regards to globalization. One is that “knowledge is not information.”9 In other words, knowledge is not just comprised of information, but also “a wide range of competencies, skills and tacit knowledge.”10 Information could be considered to be a good that is costly to produce, but transmission would be cheap. With knowledge, those willing to acquire it must invest in not only the IPR, but also invest in getting the infrastructure and skills to use this knowledge for economic purposes.11 The second lesson is that imitation of existing intellectual property is essential to learn and innovate. An example of this is with countries that needed to catch up, technologically speaking, such as Japan, South Korea, Singapore and Taiwan, needed to imitate the technology that was already developed in other countries.12 This has been true of all emerging economies, in that they rely upon the technological advances of other countries to build their own technologies. There are a variety of interconnected channels through which intellectual property may be transmitted globally. Intellectual property may be transmitted through foreign direct investments, in which multinational companies provide host countries with their technological advancements; joint ventures and strategic alliances, which allows different countries to combines their technological expertise; technology licensing, in which IPRs are acquired, along with training and technical assistance; and embodying technology into imports, especially equipment and capital goods.13 The third lesson is that domestic firms must have the infrastructure to take advantage of the intellectual property rights. In order to create an environment where an emerging economy can take advantage of these rights, the emerging country should have the right public policies, human and education resources, legislative system, and the right incentives and trade policies.14 The fourth lesson is that the way to profit from IPRs is infinitive. There are two broad ways that firms can profit, and that is through legal channels and the second is through other economic methods, such as “industrial secrecy, lead time, differentiation and market distribution.”15 According to Archibugi & Filippetti, patents are really only important to the pharmaceutical industry and to the chemical industry. It is not important, competitively, to high-tech industries, such as electronics, telecommunications, motor vehicles and machinery.16 And, with aerospace and nuclear energy, industrial secrecy is much more relevant than patents.17 These are the lessons learned about globalisation with regards to intellectual property rights. The following section will detail the arguments for and against copyrighting, as well as the landmark cases in this one area of intellectual property law. Copyrights A copyright is, in a nutshell, an exclusive right that someone can own to “copy the work; issue copies of the work in public; perform, show or play the work in public; to broadcast the work or include it in a cable programme service; or to make an adaption of the work or do any of the above in relation to an adaptation.”18 A copyright infringement is simply doing any of the above without permission of the author of the work.19 The author is the person who creates it, and, in the case of music, is “the person by whom the arrangements necessary for the making of the recording or film are undertaken.”20 Copyrights expired after 50 years.21 Basically, if you create a piece of music, you own that piece of music for fifty years. You, and you alone, have the right to copy your piece of music, issue copies to the public or perform the music, broadcast it or adapt it. It is yours. If you wrote the lyrics, then you own the lyrics. If you wrote the music, then the music is yours. If you performed the music, then you own the recording of the live performance. Songs are owned by the songwriter.22 Copyright law may lead to some ridiculous results, one of which was included in Vaidhyanathans (2001) book Copyrights and Copywrongs: the Rise of Intellectual Property and How it Threatens Creativity. In this book, Vaidhyanathan relates an event that concerned the Marx Brothers 1940s movie called A Night in Casablanca. Upon receiving a letter from the legal department of Warner Brothers that the film title could encroach upon the copyright of the film Casablanca, Groucho Marx understandably skewered the attorney. Marx pointed out that Casablanca, being the name of a Moroccan city, could not be owned by MGM or anybody else for that matter. He also quipped that American film-goers could probably tell the difference between the two projects, and be able to distinguish Ingrid Bergman from Harpo Marx, adding “I dont know whether I could [tell the difference] but I could certainly like to try.”23 This exchange underscores a difficulty inherent in copyright law – while it is important that artists are compensated for their creative work, there is a danger in going too far. There is the danger that a porous copyright system will discourage creativity and artistry, because budding artists might not see the point to creating if they can just have their work appropriated at any given moment without compensation.24 On the other hand, a heavy hand when it comes to copyright infringement does not do much justice, either. Beckerman-Rodau (2006) argues that copyright law exists to provide benefits to the public, not to maximize the economic benefit to the music creator, therefore broad copyright protection is contrary to the stated purpose of copyright law. According to this theory, the law should protect artists only to the extent that they would not be discouraged from creating, as that is what copyright law is for – to encourage creation, not to overly enrich the creator.25 After all, human culture itself is derivative, as is music. Franz Liszts “Hungarian Rhapsody” is based upon folk melodies, while Hank Williams “Wild Side of Life” is based upon Roy Acuffs “Great Speckled Bird.”26 All romantic comedies resemble one another, as they are all based upon a formula and are therefore derivative. An overreaching system of copyright protection would completely stifle creativity and new works, because there is really nothing new under the sun. Society and the law must constantly balance these concerns when crafting copyright law through judicial decisions and codifications. That said, artists have a defense to copyright infringement. For instance, there is the UK doctrine of fair dealing, which refers to permitted uses of copyrighted material without permission. The “Fair Dealing” exceptions include using copyrighted material for research, criticism or review and reporting current events. “Fair dealing” is much more restrictive than “fair use”, however, as it does not contain an exception for the use of parody.27 However, proponents of copyright law reform are looking for the UK to reform its copyright laws, as the UK has been deemed to have “the worst, by far” laws regarding copyrights, in that it fails to balance the interests of the consumers with the right holders, and is considered to be out of date and not adapted to the changing technological world.28 According to Jim Killock, Executive Director of Open Group, a Digital Rights campaigner, the UKs stringent laws are not only “ridiculous” as they ban sampling, parody and CD copying, but they also cause lost credibility with the UK citizens, as the laws make a vast majority of citizens criminals, and might be a cause of lost UK industries, as outfits such as Google will set up in countries where there are more open copyright laws. A reform of the UK copyright laws are necessary, according to Killock, to “provide exceptions to copying activities that cause no, or minimal economic harm to the rights holder” - activities such as backing up files, time shifting television shows, and sharing copyright materials with family and friends.29 Google has also called for UK copyright reforms for the same reason.30 Landmark Cases Regarding Copyrights The important case in copyright law is Hyperion Records Ltd. v. Warner Music (UK) Ltd..31 The plaintiff in Warner attempted to establish that a copyright extends not just to an entire piece of music, but in the individual notes of the composition. The court was not persuaded, however, stating that “if the copyright owner is entitled to redefine his copyright work so as to match the size of the alleged infringement, there will never be a requirement for substantiality”, which necessarily implies that UK has a requirement for substantiality in the law.32 Sawkins v. Hyperion Records Ltd.33 is another case that deals with copyrights with regards to music. In this case, the claimant was an authority on a composer who had died in 1726. The claimant performed the works of this composer, and the defendant produced a compact disc of the claimants music without the claimants knowledge or consent. The defendant admitted that they would have to pay the claimant damages relating to the fact that they used the claimants work, therefore he was entitled to a fee, yet denied that they owed him royalties for the music itself. The claimant claimed that the works were original, as he added his own scholarly exertions, as he was an expert on this particular composer. The court agreed with the claimant, and stated that the effort, skill, and time that the claimant spent made the works original, even in spite of the fact that the works were no longer protected by copyright and the claimant did not add any notes of his own. The court came to this conclusion by stating that the notes of a composition were not the only basis for a copyright, any more than the words of a play would be the only basis, without regards to the actor who is speaking them.34 Another copyright case that was brought in Great Britain, this time with regards to literature works. The case was Balgent v. Random House Group Ltd.35 In this case, the plaintiffs brought suit against the publisher of the book The Da Vinci Code, claiming that the Da Vinci Code essentially stole the central ideas that the authors had published in their book The Holy Blood and the Holy Grail. Their ideas that were supposedly appropriated by The Da Vinci Code included the idea that the Holy Grail was the metaphor for Mary Magdalene, and that Jesus had a bloodline that was carried through Merovingian dynasty in fifth-century France. The claimants argued that these were the central ideas of The Da Vinci Code, therefore they were entitled to compensation. The Belgent court did not agree, however, stating that copyrights do not cover the borrowing of ideas, and that there must be a fair balance struck between “protecting the rights of the author and allowing literary development.”36 Illegal downloads is another problem that is related to copyrights. Although Great Britain currently does not have a landmark case regarding this, international courts have already weighed in on the matter. For instance, in MGM v. Grokster, a United States Supreme Court case that states that content owners can not only sue the individuals who illegally download music, but also companies that distribute the “software which facilitates illegal music downloading”.37 The court looked at a variety of factors in making their unanimous decision, including that Grokster knew that their software was used for peer-to-peer file sharing; that Grokster enabled its user to download copyrighted material, and promoted this to users; that Grokster made no effort to impede the downloading of copyrighted material; and that their business model depended upon users downloading copyrighted material – Groksters revenue was exclusively from advertisers on its site, and these advertising rates increased with the number of users. Therefore, the more users downloading copyrighted material, the better.38 Conclusion Intellectual property protection is important to encourage innovation, and there are many lessons that have been learned with regards to sharing intellectual property with developing countries. Developing countries, and all countries for that matter, must rely upon previous technology to innovate, and they must have the infrastructure in place in their own countries to take advantage of this. The bulk of this article dealt with copyrights, as this is an important area of intellectual property. The cases in Great Britain are clear, as far as the contours of copyrighting goes. If a musician takes a piece of music and, essentially, “makes it his own” with his own arrangement, he has a copyright on that music, even if he does not change a single note. In the literary world, ideas cannot be copyrighted. As far as music sharing goes, which is a serious area of copyright infringement, Britain does not have a landmark case, but should follow the lead of the United States in the Grokster case, and hit the companies who sell file-sharing software where it hurts, so that this will be discouraged. An artist should be able to compensated for his work, and file-sharing completely undermines this. Sources Used Archibugi, D. & Filippetti, A. 2010, “The Globalisation of Intellectual Property Rights: Four Learned Lessons and Four Theses,” Global Policy, vol. 1, no. 2, p. 138. Balgent v. Random House Group Ltd. [2006] EWHC 719 Buttel, F. 2003, “Some Observations on the Anti-Globalisation Movement,” Australian Journal of Social Issues, vol. 38, no. 1, p. 96. Copyright, Designs and Patents Act 1988 “Fair Dealing Exceptions in UK Copyright Law.” MyITLawyer. Available at: http://www.myitlawyer.com/2009/fair-dealing-exceptions-in-uk-copyright-law/ Frost, V. “Google calls for UK Copyright Reforms.” Guardian.co.uk. 22 Jan. 2009. Available at: http://www.consumerfocus.org.uk/news/uk-has-worst-copyright-laws-by-far Hermans, H. & Dimaggio, G. 2007, “Self, Identity, and Globalization in Times of Uncertainty : A Dialogical Analysis,” Review of General Psychology, vol. 11, no. 1, pp. 31-61. Hyperion Records Ltd. v. Warner Music (UK) Ltd., UK Ltd (Chancery Division) 17 May 1991. Jobes, P. 2003, “ Globalisation and Regional Renewal Revisited,” Australian Journal of Social Issues, vol. 38, no. 1, p. 74 Juma, C. 1999, “Intellectual Property Rights and Globalization: Implications for Developing Countries,” Available at: http://www.cid.harvard.edu/archive/biotech/papers/discuss4.pdf MIPI. “Sampling Music – Are You Doing the Right Thing?” Available at: http://www.mipi.com.au/IgnitionSuite/uploads/docs/Sampling %20music%20-%20are%20you%20doing%20the%20right%20thing%5B1%5D.pdf Rimmer, M. “The Grey Album: Copyright Law and Digital Sampling.” Media International Australia Incorporating Culture and Policy. Feb. 2005: pp. 44 Sawkins v. Hyperion Records Ltd.[2005] EWCA Civ. 565 “UK Has Worst Copyright Laws “By Far”. Consumer Focus: Campaigning For a Fair Deal. Available at: http://www.consumerfocus.org.uk/news/uk-has-worst-copyright-laws-by-far Withol de Wenden, C. 2009, “Immigration and Globalisation,” Available at: http://www.mcrg.ac.in/rw %20files/RW33/4.IMMIGRATION_AND_GLOBALISATION.pdf Read More