Intellectual Property

Is about protection of human creativity
1. IP law can't protect anything that's sill in your head, it must be in a form that can be communicated to others. People can't steal anything out of your own head but you also can't make money out of it either until it's in tangible form.
2. Is a business asset so must appear in the balance sheet
  1. Every business has some form of IP even if it's just in terms of branding
IPONZ - Intellectual Property Office of NZ
1. Role is to grant and register IP rights
  1. Also maintains public registers, so they can be searched at anytime
2. There is a Commissioner of Trademarks, Patents, Designs and Plant Varieties whose role is to ensure that all statutory obligations imposed on the commissioner are fulfilled
COPYRIGHT
1. What is protected?
  1. Copyright Act 1994 s14 (1) provides: Copyright is a property right that exists in original works of literary, dramatic, musical or artistic works; sound recordings; films; broadcasts; cable programmes; typographical arrangements of published editions
  2. s14 (2): A work is not original if it is, or to the extent that it is a copy of another work, or it infringes the copyright in, or to the extent that it infringes the copyright in, another work
  3. s2 of the Copyright Act defines "artistic work" as: a graphic work: Photograph, sculpture, collage, model, work of architecthture being a building or model of a building: or a work of artistic craftsmanship
  4. But note s.15: for literary, musical or dramatic work there must be recording, in writing or otherwise to obtain copyright protection - while it is in your head you cannot do anything with your creation
2. Who gets protection?
  1. s.18 if any of the authors or joint authors is a NZ citizen, a NZ resident or a NZ company
    1. A citizen, resident or company of a prescribed foreign country
  2. s.19 OR if the work was first published in NZ or a prescribed foreign country
  3. s.20 a communication work qualifies as work if it is made from a place in NZ or prescribed foreign country
  4. s.21If the work is being commissioned, the person commissioning the work becomes the author
  5. s.21 If the work has come from an employee's contractual obligations, the the employer becomes the author of the work. e.g. Andrea's slides are property of the uni
3. SHANTON APPAREL LTD v THORNTON HALL MANUFACTURING LTD
  1. FACTS: TH manufactured and sold reasonably high priced women's clothing. SA also produced women's clothing on a budget level. TH designed a dress which was released for sale in Feb 1987, priced at $248.50. SA advertised a similar dress at $37.50. TH brought an action for breach of copyright.
    1. ISSUES: TH claimed copyright in sketches and drawings of the dress; the pattern created for the dress; and the sample dress (model or prototype): and claimed SA infringed these copyrights
    2. FINDINGS:After minutely examining the dresses, both HC and CA found SA had breached TH's copyright. The differences in the dresses were minimal and explained by the need to produce the dress more cheaply - the similarities could not be accidental. The test is that something is a copy if it brings to mind the original - s14(2) Copyright Act.
      1. It didn't help SA that they could not produce evidence, as TH did, of the processes involved in created their dress
      2. In a visual comparison the eye does not catalogue individual differences and similarities, but is left with an overall impression in which either substantial similarity prevails or it does not.
4. How do you obtain copyright?
  1. NZ has no formal registration for copyright
  2. To protect copyright creator needs to include a statement of notice on the work although not required by law
  3. copyright indicator together with the name of the copyright holder and year work created or first published is the most common indication the work is copyright
  4. Putting your work with a copyright licensing agency is a means of protection against unauthorised use
  5. To enforce copyright the courts are used
5. How long does protection last for?
  1. Different time frames for different kinds of copyright
  2. s.22 literary, dramatic, artistic and musical works is the life of the creator/author plus 50 years
  3. s.23, 24 sound recordings/films and cable programmes/broadcasts is 50 years from the end of the calender year in which it was made/broadcast
  4. s.25 typographical arrangement of published editions is 25 years from the end of the calender year in which it was published
  5. After expiry work enters the public domain
6. When does copyright rules not apply?
  1. Fair dealings for purposes of criticism, review, news reporting, research or private study - but not overuse.
  2. Limited copying for particular educational purposes and by librarians/archivists in special circumstances
  3. Exceptions that relate to the crown
  4. Copying for making copies in Braille
  5. Recording a tv programme to make a complaint or for "time-shifting"
7. How is copyright infringed?
  1. Copyright in a work is infringed (s29) when someone undertakes one of the restricted acts set out in ss330 to 34
PATENTS
1. 1. Difficulty because you have to ensure that there is nothing else like it, in the public domain anywhere in the world when applying
2. 1. Novel = New, must be able to prove
    1. When patents are examined, novelty is determined on whether the invention has at least one new feature over existing products or inventions
      1. If the step is novel but obvious, it is unlikely the patent application will succeed
3. EXCLUSIONS:
  1. S.15 - states that an invention will not be patented if doing so, and allowing for commercialisation would be contrary to the public interest and/ morality e.g. methods of cloning
  2. S.16 - another group of exclusions including: an invention of a method of treatment of human beings by surgery or therapy; an invention of a method of diagnosis practiced on human beings
5. Basic requirements for patent application (exam question):
  1. 1. Must be novel i.e at least one new feature 2. Must not be obvious 3. It can't already be in the public domain 4. Complete specification of the invention or provisional specification - effectively it is the instruction manual for the invention and must be written in such a way that someone possessing reasonable skills in the same field could read and understand it
6. Application process (exam question)
7. Issues with enforcing rights (exam question)
  1. A patent holder may bring an infringement claim but this can only be done after the grant of the patent so it could take a few years before the ability to act on an infringement arises, if your still at the provisional specification stage for example
8. WHAT DOES THE PATENT HOLDER GET? (exam question)
  1. The patent holder gets the right to exploit the invention, and to license or authorise others to do so BUT only in the region in which the patent is registered. exploiting the invention means to make, hire or sell or otherwise dispose of the invention

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Intellectual Property

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	Created by michellesilson over 10 years ago