Chapter 8 & 9

Chapter 8 & 9

1. Chapter 8- The Law of Torts

   • Introduction
     • Contract & Tort
       • Independent on Contract
       • X Agreement
       • Infringement of Rights
       • Plaintiff suffers Harm
     • Criminal Law & Tort
       • Motive generally X relevant (X want to Happen)
     • Compensate Victims of certain forms of Harmful Conduct
   • Defamation
     • Elements
       • 1.Statement referring (Direct/indirect) to Plaintiff
       • 2.Published by Defendant to 3rd Party
       • 3. Tends to ↓ Plaintiff in Estimation of right-thinking members of Society Generally
       • 4.Tends to cause him to be Shunned/Avoided
     • Forms, Special Damages
       • Slander
         • Oral/Gestures
         • X prove suffered
           • Alleges Unchastity/Adultery to any Women/Girl
           • Calculated to Disparage Plaintiff in any Office, Profession, Calling, Trade/Business held/carried on
       • Libel
         • Permanent Form (Writing/Drawing/Email/Social Media)
         • X prove suffered
       • Loss Quantifiable in Money Terms
     • Untrue Statement published by Defendant to 3rd party that tends to Injure the Plaintiff's Reputation/Cause him to be Shunned/Avoided by Ordinary Members of Society
       • X prove Statement Untrue
     • Defences
       • Justification
         • words published True in Substance
       • Fair Comment
         • Public interest, expression of Opinion based on Facts, X Malicious
       • Absolute Privilege
         • X Defamatory if
           • Parliament; Parliament Papers; Course of State Communications; Course of Judicial Proceedings & Newspaper reports of Judicial Proceedings(Fair & Accurate)
       • Qualified Privilege
         • Made under Legal, Moral/Social Duty to another who has an Interest to Receive it
         • Statement X Published(unless necessary) & X Motivated by Malice
         • Testimonials
     • Mitigation
       • Expeditiously make Offer of Apology, Express Regret & Retract/Correcting Falsehood Communicated
       • X Defence
         • X affect Defendant Liability to Plaintiff
         • May ↓ damages payable
     • Through Written/Spoken Words, Electronic Communication/ Drawings/Gestures
   • Negligence
     • Elements
       • The Duty of Care
         • Neighbour Test/ Test of Reasonable Forseeability
           • Factual Determination, Reasonably Foreseeable that defendent's actions would cause harm to plaintiff
           • 1. Proximate R/S betw Parties
           • 2. Policy Considerations Negating Finding of Duty of Care
         • Careless Person Compensate Victim of his Carelessness
       • Breach of the Duty of Care
         • Exceptions
           • Adults & Minors
           • Physically Fit & Disabled
           • Expert Skill & Knowledge
         • X Reasonable Steps ensure Standard of Care required by Duty is compiled with
         • Reasonable= measured on Objective Standard
       • Causation
         • Plaintiff prove Direct Result of Breach (actual Physical Injury, Psychiatric Injury, Loss/Damage)
       • Damage X Remote
         • Plaintiff prove Damage resulted Directly from Defendant's Breach of Duty & Type of Damage Reasonably Forceable
           • Psychiatric Injury/Nervous Shock
     • Defences
       • Contributory Negligence (Partial Defence)
         • Conduct Contributed to Accident itself/Contributed to Nature & Extent of Injuries
         • Defendant X show Plaintiff Owed Duty of Care
       • Voluntary Assumption of Risk (Complete Defence)
         • Sports Events
         • Voluntarily Consented to Tort
       • Owed X Duty of Care to Plaintiff
       • Owed Duty of Care, Acted Reasonably & X Breached Duty of Care he Owed
       • Owed Duty of Care & Breached Duty, Breach X Cause Plaintiff Loss
       • Owed Duty of Care, Breached Duty of Care & Caused Plaintiff Loss, Plaintiff Loss Remote
     • Failure to take Reasonable Care
       • Negligent Act/Omission
   • Vicarious Liability
     • Liability for Tort of Another Person
       • Special R/S (Employer-Employee)
     • Difference betw Employee & Independent Contractor
       • Independent Contractor= Undertake to Produce Given Result, actual Execution X under Control of person for whom he does it
       • Employer Liable for Tort of Employee, X liable for Independent Contractor
     • Reasons
       • Employer Profits from work of Employee, Reasonable
         • Acts/Omissions
         • Claim Against Employer, pay Damages
         • Employee X Excused from liability, Plaintiff Choice Sue Employer & X Employee
     • Course of Employment
       • In the Course of Employment
       • Discharge Duties in Improper Way/ Way Expressly Forbidden by employer
         • Commit Tort
           • Employer Liable
       • Employer Liable if Employee Commit Wrongful Act/Omission ratified by him (Consent/Condone Act)

2. Chapter 9- Intellectual Property

   • Copyright
     • Sources
       • Copyright Act, Berne Convention, WTO
     • What it Protects
       • Literary Works
         • Books, Lyrics, Articles, PC games
       • Dramatic Works
         • Scripts (Film/Plays/Stage)
       • Musical Works
         • Musical Scores
       • Artistic Works
         • Sculptures, Paintings, Drawings, Photographs, Buildings
       • Other Works
         • Sound recordings, Films Television & Radio Boadcasts, Cable Programmes, Performances, Published Editions of Literary, Dramatic, Musical & Artistic Works
           • Entrepreneurial Copyrights
     • Ownership
       • Author, Entrepreneur producing Recording, Films, Broadcast, Cable Programme/Published Edition
       • Copyright Sold for Valuable Consideration
         • Author sell to Publishers in ex▲ Royalties
       • Employer Copyright if Employee Create Work/Subject Matter under Employment Contract
     • Rights
       • Reproduce Work in Material Form
         • Copies of Work
       • Publish the Work
         • Publish in Print/Internet
       • To make an Adaptation of Work
         • Non Dramatic Work → Dramatic Form
     • How it Arises
       • X Registration, ✔ Evidence Prove Ownership
     • Duration
       • Literary, Dramatic, Musical, Artistic Works
         • 70 Years from end of year Author died
         • 70 Years after first Published (after death of Author)
       • Published editions of Literary, Dramatic, Musical/ Artistic Works (layout)
         • 25 Years from end of year Edition 1st Published
       • Sound Recording & Films
         • 70 Years from End of Year Release
       • Broadcasts & Cable Programmes
         • 50 Years from End of Year Making of Broadcast
       • Performances
         • 70 Years from End of Year of Performance
     • Infringement
       • Primary Infringement
         • Nature of Protected Material
           • Compilation Works, ↑ entries, X 1/2
         • Amount of Effort, Skill & Labour used to Create Original Work
           • ↓, need ↑ copying → Substantial Copying
         • Essential Part of Original Work Taken
           • Chorus of Song
         • Idea VS Expression
           • Protect Forms of Expression X Idea Itself
             • Express same Idea Differently
           • Produced must X "look & feel" Original Work
         • Person who X own the copyright in a work & who does any of the Exclusive Acts of the Owner w/o Owner's Permission Infringe Copyright
       • Infringement by Authorisation
         • Person who could take Reasonable Steps within his Control, Prevent another person from committing Primary Infringement but Fails to do so
       • Secondary Infringement
         • Person who Commercially distributes Infringing Copies
           • Software, Books, Other Subject Matter
     • Defences to Copyright Infringement
       • Fair dealing for Research/Private Study
         • 1 whole article in Periodical Application
         • up to 10% of no. of pages in book comprising of >=10
         • Book ÷ chapters, up to 1 chapter (even if exceed 10%)
         • work stored Electrical Form, Copy up to 10% total bytes
       • Copying by Non-Reprographic process
         • by hand (course of Education)
       • Recording for Private & Domestic use
       • Back-up Copy of Genuine PC Program
       • Fair Dealing for Criticism/Reveiw
         • sufficient Acknowledgement of Work
       • Copying by Educational Institutions, Libraries
       • Students in Educational Institution-LMDA
         • Performance course of activities of Educational Institution before audience
         • Literary & Drama: Audience, persons connected to Institution
     • Remedies
       • Injunction against Threatened Infringement
       • Seek Damages & Account of Profit (if Infringer made Profits at Expense)
     • Offences & Penalties
       • Civil Liabilities
       • Import/Sale Infringe Copyright→ Criminal Offence
       • Fines, Imprisonment, Premises Searched (Infringing Copies of Original Work)
     • Intellectual Property right given to the Creator of an Original Work
   • Trade Marks
     • Contains
       • Name (Company/Individual/Firm) represented in Special/Particular name
         • Written/Printed X sufficiently Distinctive
       • Invented Word
       • Any other Distinctive Mark
     • Registration
       • Lasts 10 years, Renewable every 10 Years
     • Infringement
       • Any other Person who uses Trade Mark or confusingly Similar Trade Mark
         • may be Liable under Civil & Criminal Law
           • Claim Damages & Apply for Injunction
     • Sign/Symbol represented Graphically, capable of Distinguishing Goods/Services of 1 Person from another
       • Register Trademark from IPOS
         • Identical/Similar to earlier Trademark & Registered for Similar/Identical Goods/Services X Register
           • Likelihood of Confusion (Public)
   • Passing Off
     • Business Goodwill
       • Benefit attached to brand name, trade description/Packaging customers associate w particular business
     • Defendant Committed acts of Misrepresentation leading to Confusion & Deception
     • Reasonably Foreseeable that Misrepresentation cause Injury to Business/Goodwill of another trader
       • Plaintiff must carry on Business in SG/Engaged in pre-trading activities in SG→generate goodwill wished to protect
         • Pre-trading activities:Advertising & Promoting Business through Press realeases & Publicity events, distribution of flyers & Brochures to potential clients & taking orders & filing applications for registration of trademark
     • when TradeMark Refused
     • both Tort as well as a matter that gives rise to intellectual property issues
     • Occurs when 1 trader represents that his goods are those of the plaintiff.
     • Defendant has tried to fool the public into believing that his goods provided by/connected with the plaintiff
     • done by Direct Misrepresentation (Plaintiff Marks/Imitations of Plaintiff Marks)
   • Introduction
     • Protects Products, Literary Works from Intellectual Effort, Labour & Investment from Piracy
     • Rights comprised in Copyright & TradeMark