LEGAL ASPECTS

LEGAL ASPECTS

1. PATENTS (PATENTS ACT 1977)

   • - Give protection to technological invention
   • - the patent is granted to the inventor or someone who may have bought it
   • MUST be an invention
     • e.g. an article or proccess which is not obvious to someone with subject knowledge
       • - Belong to the employer if the invention is made during employmet hours, - Inventions during employee's own time belong to the employee, - employee rights to compension
   • CASE: DYSON APPLICANCES LTD V HOOVER LTD 2001
   • MUST be new
   • MUST be capable of industrial application
   • iNFRINGEMENT - selling or making without owners permission - actionable under civil law (injections, damages)
   • EXCLUSIONS - Discoveries e.g. graverty, literacy etc.
   • PATENT - lasts up to 20 years (fee included) - after four years you have to renew annually,

2. TRADEMARKS (TRADE MARKS 1994)

   • A sign which distinguishes a brand from their competitors - words / logos / both - E.g. Mcdonalds Marble Arch 'I'm Lovin' It'
   • INFRINGEMENT - Using a mark confusingly similiar to an exisiting one, e.g. Coka Cola and the trademark red bottle.
     • CASE: ARSENAL FOOTBALL CLUB PLC V REED (2005)
   • REGISTRATION : Mark must be distinctive and registered to the brand
     • CASE: NESTLE V MARS (2003)
       • Nestle wanted to register 'Have A Break' but failed because it was not distinctive enough to be used in several contexts
     • CASE: INTERLEGO AG'S TRADEMARK APP (1998)
       • Lego brick not sufficiently distinctive
   • TRADEMARKS ACT
     • Criminal offence of unorthorised use of trade mark material and goods
     • Counterfiet / Fake Goods
     • Local Authority Standars Agency, (unlimited fine and up to 10 years imprisonment)

3. DESIGNS (DESIGNS ACT 1949)

   • Registered Designs The way a product looks, e.g. design, colour and shape
     • Application to register is made to the Intellectual Property Office Registration gives the design owner protection for 5 years renewable for four further periods of 5 years, totalling 25 years
       • Infringement may entitle the design owner to damages, injunction, account for profits from wrongful use and delivery of infringing copies
   • Unregistered Designs - The Copyright, Designs and Patents Act 1988 provides for a design right which is automatic and does not require registration.
     • It lasts for 10 years from when first marketed or 15 years from when designed, whichever period expires first – in last 5 years anyone can make the article on paying a royalty to design owner
       • Infringement – damages, injunction, delivery of infringing materials

4. PERFORMERS RIGHTS

   • Performers are entitled to various rights in their performances, whether these take place on the stage, during a concert and so on. Performers also have rights in any recordings, films or broadcasts of their performances.
     • A performer has the right to control the broadcasting of his or her live performance to the public. The permission of a performer must also be sought before a recording of the live performance is made. These are referred to as a performer's non-property rights.
       • Once a recording of the performance has been made, the performer's permission is also needed to make copies of that recording.
         • It will usually be necessary, therefore, to obtain permission from the performers in advance for activities that would infringe any of these rights.

5. Internet

   • Internet User infringing copyright can be liable and possibly intermediaries in the communication chain where they know of the infringement
   • To protect music and film industries against unauthorised downloading on the Internet
   • Performers have the rights to consent or prohibit Internet transmission of their performance to the public *Criminal offence to make infringing copies and communicate them to the public
   • Computer Misuse Act 1990
     • Offence knowingly to cause a computer to perform any function with intent to secure unauthorised access - maximum 2 years prison and/or an unlimited fine
       • Offence to gain unauthorised access with intent to commit further offences eg theft, blackmail – maximum 5 years prison and/or an unlimited fine

6. Licensing

   • Examples of copyright infringement – burning a CD from a friend’s purchased copy, copying a hired DVD, downloading copyrighted files from the Internet, background music in a public place
     • It may be possible to obtain a licence to copy from the copyright owner to avoid copyright infringement
     • CBS Songs Limited v Amstrad Consumer Electronics plc (1988)
       • CASSETTES - CBS brought an action against Amstrad to prevent the sale of the machines on the ground that they facilitated copyright infringement by users of the machine.
         • The House of Lords ruled there was no copyright infringement by the manufacturers. The machines were capable of being used for lawful purposes as well as unlawful, the manufacturer had no control over what the purchaser did and it was made clear in the advertising that the manufacturer could not authorise copyright recording