PART 1: Advise the Editor of The Sunday Topical of the Copyright Issues in the Book and the Photographs.
Burchill is a writer who ghostwrote a biography of Justin Timbersnake, a well-known actor and pop star, which highly based on Justin’s lengthy personal diary. Burchill also given her publisher, The Sunday Topical editor, serialisation privileges, as well as photographs of Justin Timbersnake that she took whilst at Justin’s home, on the condition that they be included in her personal archive. Justin Timbersnake, on the other side, has licensed the book’s serialization rights to The Standard Newspaper, The Sunday Topical’s main competitor. There is a copyrights dispute involving the possession and authorship of a book and images. Who owns the rights to the book and the images between Burchill, the author, and Justin Timbersnake, the book’s subject? Is Burchill the owner of the rights to the images of Justin Timberlake she took under the pretext of personal usage, and do those rights enable her to publicly share the photos?
As previously mentioned, this is strictly a matter of copyright law, namely the Copyright, Designs and Patents Act, 1988, and the Copyright and Associated Protection Legislation, No. 2498, of 2003. This case is concerning copyright laws in particular and it involves moral privileges and commitments. In this situation, Justin’s photos were taken for her own use by Burchill, who has now promised to send them to the publisher of The Sunday Topical. Second, there’s the question of copyright and moral infringement: has The Sunday Topical’s editor infringed on Justin Timbersnake’s claim to the contents of Burchill’s book and photos?
It is true that Burchill is the source of Justin Timbersnake’s profile and the photos she took of him at his mansion. It’s also plain that Burchill’s biography or book is founded on Timbersnake’s diary, a daily life account of which Timbersnake is the sole author. Burchill was permitted to take Justin Timbersnake’s photos under the basis that they be included in her private archive. In these circumstances, The Sun Topical should decline to publish any photos provided by Burchill that Justin Timbersnake says he permitted her to take for her own personal album. Since Burchill holds the authorship license, Justin Timbersnake does not blame The Sun Topical for serializing the book because they have not infringed on his copyright in any way. Timbersnake, on the other hand, has the right to prosecute Burchill for publishing his private pictures in The Sun Topical. Similarly, the applicable statute in this situation is the Copyright, Designs and Patents Act, 1988, explicitly in regards to authorship, title, infringements, moral rights, and privacy, depending on the details described above.
The question of possession of the book and the photography must be settled depending on the details of the event. It’s also important to figure out whether Justin Timbersnake gave or sold his copyrights to Burchill by granting him access to his personal diary. If there was a copyright assignment or sale, it’ll be interesting to see if there’s some formal paperwork signed by or on behalf of the assignor. Another question to address is the essence of Burchill’s friendship with Justine Timbersnake in terms of both the photos and the book; was Burchill hired by Justin at the time she took the photographs? Or did Justin want her to write a book about his life and commission her to do so? These questions aid in identifying the original copyright holders for both the images and the book.
It is important to examine the question of piracy in comparison to the topic of copyright ownership and authorship. Determining whether or not there is fault, as well as the question of remedies in terms of negligence and/or criminal charges, is critical in this situation. It is unclear if Burchill owned the authorship rights to the book and images, whether Justin sold or delegated his ownership rights to Burchill, or if he had hired Burchill as a photographer or author, based on the case details. Assuming that Burchill owns the authorship and ownership rights to both the photograph and the book, then; The Sunday Topical has nothing to worry about with regards to the book serialisation. The Sunday Topical will have not infringed on the rights of Justin Timbersnake with regards to the book and the photographs. However, The Sunday Topical should be concerned with regards to the book and the photographs supplied to them by Burchill. If Justin sues them for copyright infringement, it can be determined that Justin is the first owner of the copyrights with regards to the photographs and the book. The Sunday Topical can be liable for damages if it can be determined that they have infringed on Justin’s privacy rights by publishing the photos supplied by Burchill. If it can be determined that Justin owns the copyright to the photographs and that there was a written or a binding agreement with regards to the use of the photos, it can be classed as an agreement that barred Burchill from using the photographs publicly.
Copyright is a division of English law that deals with the rights of intellectual authors, especially with those types of invention that are mainly associated with mass communication. It covers not only written media, but also television and sound broadcasting. (2010, Bently et al.) It’s necessary to remember that copyright refers to intellectual property owners and their works. This statute, known as Copyright law, protects the way a concept is expressed, such as the composition and selection of musical notes, forms, phrases, colors, and so on, rather than the idea itself. It is, in effect, a shield for the copyright holder against those who take and use works in their original forms as articulated by the artist, i.e., copying (Vousden, 2010). It’s worth remembering that, as in the case of Hawkes & Sons (London) Ltd v Paramount Film Service Ltd, copying here does not entail copying in its entirety, but rather copying even a limited part. To be covered by copyright, every kind of artistic work must be special. The term “initial” does not imply that a work must be inventive; but, as determined in the case of University of London Press v London Tutorial Press (1911) and later emphasized by Lord Pearce in the Ladbroke v William Hill (1964) case, the requisite originality must be related to the expression of thinking and not copied.
The owner of a copyright in a protected work is entitled to use the work however he or she sees fit under copyright law, but must take into account lawfully accepted desires and rights of others. A copyright owner has the ability to prevent anyone from using his or her copyrighted works without his or her permission. This is in line with Section 16(1) of the Copyright, Designs and Patents Act 1988, which grants copyright owners the freedom to make copies of their work, issue or circulate copies to the public, lend or rend their work to the public, play, display or perform their work to the public, and transmit their work to the public. When copyright-restricted actions are carried out without the express or tacit consent or sanction of the copyright owner, the act is called a violation of the copyright that resides in those works.
The author is the first owner of the copyright for an image, pursuant to Section 4(1) of the Copyright, Designs and Patents Act 1988, whether he or she was commissioned to take the picture or was working and was taking the photograph on behalf of his or her employer. As a result, the person being photographed has granted the photographer exclusive rights to make copies of their work, issue or distribute copies of their work to the public, lend or rent their work to the public, play, display or perform their work to the public, and communicate their work to the public as long as he/she follows all legal guidelines. The rights to the photos is held by the employer or the individual who commissioned the taking of the photographs whether the owner is commissioned to take photographs or takes photographs on behalf of an employer. As explained in the case of Mail Newspapers pic v Express Newspapers, the author has no ability to publicly circulate or make copies of those images without the copyright owner’s permission.
According to the statute and prior court decisions, it is legal to claim that since Burchill was not commissioned by Justin Timbersnake to take the images or compose the novel, he holds the rights to the book and the pictures in this case. As a result, it can be claimed that by granting The Sunday Topical serialisation privileges, Burchill passed his possession of copyright on all works to The Sunday Topical in the eyes of the statute, s 90 (3). As a result, The Sunday Topical has not breached Justin Timbersnake’s copyright in any way. However, if there is no written assignment to that purpose, this assumed transition of copyright rights could be considered invalid under section 90 (3) of the Copyright, Designs and Patents Act 1988. The publisher of the Sunday Topical will file a court order prohibiting Justin Timbersnake and the Standard Newspaper from serializing the book or printing some of Burchill’s images of Justin. As a consequence, Justin could be barred from collecting any penalties or disciplinary action against the Sunday Topical.
If Justin Timbersnake commissioned Burchill to take the photos and compose the novel, Justin Timbersnake holds the rights of all works under Section 11(2) of the Copyright, Designs and Patents Act 1988. In this situation, Justin Timbersnake’s right to privacy with respect to the images is assured or covered under s 85. As a consequence, Justin Timbersnake, like William’s v Settle, will sue Sunday Topical for violation of his copyright and for breaching his privacy with respect to the images. Additionally, as in the case of Mail Newspapers pic v Express Newspapers, Timbersnake can request a court injunction to prohibit the release of the photographs taken by Burchill.
PART 2: Justifications for the Legal Protection of Patents in the U.K.
A patent gives the patent holder the right of excluding others from using, making, offering to sell, importing or selling a novel patented invention or idea. According to Section 1(1) of the Patent Act 1977, a patent is only granted for an invention if it is new, involves an inventive step, can be applied in industrial situations, and/or is not excluded by subsection 3, 2 or section 4(A) of the same act. A patent, however, does not provide the holder the right to practice a given technology since it may, under certain circumstances fall under a broader patent that others own. It, instead, provides to exclude others from using, making, offering to sell, importing or selling the patented invention without authorisation of the patent owner. Regarding the question, this discussion aims at explaining the reasons for the legal protection of patents. This question is in some way ambiguous, specifically, the phrase, “…legal protection of patents,” because, patents in itself is a legal protection for novel inventions that involves an inventive step, can be applied in industrial situations, and/or is not excluded by subsection 3, 2 or section 4(A) of the same act. Therefore, the question would have been better phrased as the “justification of patents or legal protection of novel inventions that satisfy Section 1(1) (2) (3) and Section 4(A) of the Patents Act 1977, in the UK Patent Act 1977. In dealing with this ambiguity, this paper will address the reasons for patents, its provisions in law and examine previous case laws with the view of identifying its success with regards its stipulated role of excluding others from using, making, offering to sell, importing or selling a novel patented invention or idea without the authorisation of the patent holder.
The impacts of the issue of a patent are that, the patented invention cannot be exploited in the country in which the patent was issued, by any other person other than the patent owner, unless the patent owner issues authorisation or permission for such exploitation. However, the owner of the patent is not given a statutory right to practice or exploit his invention, although is given a statutory right of excluding others from practicing his invention. This implies that the patent owner has a very important right, according to the Patents Act 1977 of taking action against persons exploiting their patented invention in the country in which it was issued without their permission. This gives them the right to derive material benefit for their intellectual work or effort and compensation for expenses incurred in experimentation and or research leading to the invention (Machlup & E.Penrose 1990). It should be noted that, despite the fact that the U.K grants patent rights to inventors, it is not obligated to enforce them and as a result, it is up to the patent owner to enforce the rights and bring actions under civil law of infringement on his/her patent rights. Additionally, patents are issued for only a limited period of time. The question, therefore, is, are patents necessary?
Since the inception of patent rights, there are various justifications for and against the patent systems. Those in support of the patent system have emphasised the natural rights of inventors for the intellectual properties resulting from their mental labour. On the other hand, antagonist of the patent system have argued that inventors should be granted rewards as a way of recognising their inventions rather than granting them rights that exclude others from exploiting certain inventions. Most commonly, a theory put forward is in relation with the public benefits that accrue from the grant of patent monopoly. Since the 19th century, these theories have dominated discussion with regards to the necessity of patents (Palmer,1990). Particularly, it is argued that, patents act as motivations to organisations and individuals to disclose information, which are collected and constitute a database of technical information that could have otherwise remained secret, as was reaffirmed in the UK Patent Act 1977 (Machlup & E.Penrose 1990). According to Kitch, the grant of patents could be emphasised in a way that the grantee is motivated to invest in the prospect of exploiting his/her invention (Kitch 2007). Additionally, the patent system encourages new inventions and implementation of such inventions.
The patent system is based on the theory that the opportunity that arises from the acquisition of exclusive rights to an invention triggers technical progress in four ways: it acts as an incentive for research and invention; it encourages inventors to disclose their discoveries rather than keep them as trade secrets; and it compensates inventors for the costs incurred in developing the invention.
Those opposed to the exclusive rights provided through patents include free traders, economists, social states, and developing countries. They argue that, patents give absolute monopoly over the manufacture, sale and use of an invention, despite it being limited to 20 years. (cite) As a result, clear conflict exists between the interests of the manufacturer, patent holder and that of the consumers. Monopolistic behavior by certain patent holders results in lack of competition, which in turn resulting in greater rewards for the manufacturer and very high prices for consumer, as was the case of Improver Corp v Remington Consumer Products, 1990 (Colston, 1999). Additionally, there are instances in which patent holders may opt to suppress the developments of their inventions so as to capitalise on them while ignoring the fact that their inventions may, if developed, benefit the public. Sometimes, patenting in itself is considered retrogressive; this is because there are certain special circumstances in which patent owners themselves may fail to use their own invention simply because, they might be infringing on other people’s patent rights. Consider a case in which an inventor Charles obtains patent protection for a device that is made of X and Y component; later, inventor Tom improves on Charles’s invention by adding component Z, and goes ahead to obtain patent protection for his invention including components X, Y, and Z. In so doing, Tom prevents everyone from using a device with components X, Y, and Z. he can also not use that invention as well, since, he will be infringing on the Charles’ patent (Desrochers, 2000).
Additionally, those in opposition of patent protection argue that, many inventions are, in recent times, patent purely for reasons of defense, which in the end result in patent office and patent lawyers’ fees. They argue that these overhead fees are unnecessary and as such, in their absence, companies, corporations and individuals, would not spend large amounts of money defending against of obtaining patents (Desrochers, 2000).
On the basis of the law, a patent can only be given for inventions that are novel and are applicable in an industrial situation. It is justifiable since it acts as a reward for effort made in research and experimentation (Colston, 1999). According to Raymond, (1996) the patent system plays a very important role as far as the UK economy is concerned. The patent system so far has led to the production of better, good and protection of consumers. The advantages allow for competition which offers consumers a variety of choices, better employment and better living standards. However, the disadvantages are that there are dangers of monopoly that may be associated with patenting, as argued by those opposed to patent protection, including higher price margins, lack of direct competition and temporary ban of a use of information that is available. This can result in concentration if cross licensing is practiced, but with a competition policy and compulsory licensing. In conclusion, the justifications for patenting outweigh those against therefore with the research and evidence above; legal protection of patents in the U.K can be justified.
- Anon, Copyright, Designs and Patents Act 1988, http://www.legislation.gov.uk/ukpga/1988/48/contents.
- Anon, The Patents Act 1977, http://www.ipo.gov.uk/.
- Bently, L., Davis, J. & Ginsburg, J.C., 2010. Copyright and Piracy: An Interdisciplinary Critique L. Bently, J. Davis, & J. C. Ginsburg, eds., Cambridge: Cambridge University Press, pp.322-365.
- Colston, C., 1999. Principles of Intellectual Property Law, London: Cavendish Publishing Limited, pp.20-27
- Desrochers, P., 2000. Excludability, Creativity and the Case against the Patent System. Institute of Economic Affairs, (September), pp.14–16.
- Kitch, E., 2007. An economic review of the patent system. Journal of Law & Economics, 200, p.265.
- Machlup, F. & E.Penrose, 1990. The Patent Controversy. Journal of Economic History, 10(1), pp.11–17.
- Palmer, T.G., 1990. Are Patents and Copyrights Morally Justified ? The Philosophy of Property Rights and Ideal Objects. Harvard Journal of Law & Public Policy, 13, pp.817–865.
- Raymond, C., 1996. The Economic Importance of Patents, London: IPI, pp.22-34
- Vousden, S., 2010. Infopaq and the Europeanisation of Copyright Law. THE WIPO JOURNAL, 2(1), pp.197–211.