Intellectual Property and Media Law
Intellectual Property and Media Law
LEX4701 week 1 (second activity): Different kinds of writing about law
The first stage of this week’s session (i.e. the first activity) was concerned with different types of document which play a role, as legal source material, within law: they were mostly operative legal documents such as treaties, statutes, and law reports. It is essential you get as much practice as you can in recognising, reading, summarising and discussing such material. In all your courses on the LLM you’ll read such materials.
One of the aims in examining these extracts was to gain a better sense of the degree of difference between them as regards how they are laid out, written and presented, as well as how you make sense of them because of what you know already about law and what purposes such documents serve
The second activity for this week extends the process of familiarising yourself with kind of documents you will need to read. We look at another important domain of documents you’ll be working with: secondary materials, or writing about law as opposed to documents within law. Such material ranges from articles in law journals and monographs published by legal publishers through to legal blogs and topical news articles in professional magazines, newspapers and online.
To embark in this second direction in your reading, today’s task requires you to compare six short extracts of writing about law. As with the first activity, the extracts are chosen to illustrate differences, not to be the best or most important in some way. By comparing them, we can begin to discuss the aims, scope and methods needed for the writing tasks you’ll face during the year: writing essays, a literature review, and a dissertation.
For each extract you have time to consider below, you must now write something rather than simply discuss. Write a self-contained brief but continuous response addressing the questions given below. It can be quite short but it needs to indicate as precisely as possible your reactions and overall thinking.
Our discussion in class will look at people’s comments in relation to what the authors themselves say in the extract. So take care to achieve as much accuracy as you can in your writing. Your account of each passage should aim to be intelligible without extra comment. It should explain to a reader who doesn’t know the passage what the passage is about, in the various respects identified below.
- Describe the kind of text you think the extract comes from. Most genres of writing have a common name they are known by (e.g. review, abstract, etc.). If there’s no single word that describes the passage, offer a description in a few words of what aspects of its topic it deals with and from what angle.
- In deciding what kind of text, you should include something about the extract’s aims and coverage.
- Now think about the reader who the piece appears to be addressed to: what (and how much) is that reader assumed to already know about the topic? What are they assumed to want or need to know about it? Is any sense given of why they want to know that – what value the material will have or use it will serve?
- Does the text tell you whether it forms part of some larger class of writing about law, or some particular kind of academic project?
- In considering this question, you may wish to think about how the extract begins (this is often where links to a larger text or context are presented). Then look closely at the first sentence of each paragraph. Then look closely at the beginning of each sentence (where sentences join up with other parts of the passage). What, if anything, does the passage says about its author(s)? What professional or academic context is depicted as the relevant background? And what words describe the writer’s or writers’ aim (e.g. ‘describe’, ‘explain’, ‘propose’, ‘oppose’, etc.)
- The examples in this activity are about IP and media law (a field some of you may be studying with me this year). You might find it interesting to consider in passing how similar or different you think an equivalent cluster of extracts would be if related to a different substantive area of law, e.g. criminal law, European law, international maritime law, or human rights law.
- Finally, think about this question: When you are asked to write essays in your LLM for which you yourself have to choose the topic – a major change for many of you from prescribed topics and exams – which of the idioms exemplified in this session could you adopt? Describe why certain types of approach would not be available to you as models. And what kind of research would you have to do if you undertake a project based on each type of work exemplified here?
The definition of infringement is crucial for any copyright statute, since it draws the boundary between what is protected and what is public. The Act of Anne made it illegal to ‘print, reprint, import, or cause to be printed, reprinted or imported’ books without written consent signed in the presence of two ‘credible’ witnesses.
Knowing sale without consent was likewise prohibited. The statutory penalty was forfeiture of the infringing copies to the proprietor, ‘who shall forthwith Damask and make Waste Paper of them’, plus a fine of 1d a sheet, half to the Crown, and half to whoever sued for it.43 These fines were increased to 3d per sheet in 1801. There was a new £ 10 fine for importing books first published in the United Kingdom and reprinted elsewhere, and a new power to reward customs officers for seizing such books.
There was, however, an exception for books not printed in the United Kingdom in the previous twenty years, and also for books reprinted abroad but inserted in a collection which was largely first composed and written abroad.44 The list of infringing acts remained unchanged by the 1814 Act, as did the penalties, although the reference to ‘credible’ witnesses disappears.
The infringement clause in Talfourd’s 1837 bill was to a large extent modelled on earlier Acts. The prohibited acts were printing or causing to be printed within British Dominions any book (or any portion of a book) in which there was subsisting copyright without consent of the proprietor; importing such a book; selling, publishing, exposing to sale, causing to be sold, published or exposed to sale, or possessing for sale such a book knowing it to have been unlawfully printed or imported.45 The proprietor’s rights could be defended by bringing a special action on the case, to recover minimum damages of 40s, plus costs. Again there was a special penalty for importing foreign reprints of U.K. books: the fine was £10 as before.46 The exception for books brought in as part of a collection was likewise reproduced, but was deleted after 1839.
The purpose of this chapter is to introduce the key features of the provisions of Part III, Sections 1 to 5, of the TRIPS Agreement entitled ‘Enforcement of Intellectual Property Rights’. This part of the Agreement elaborates in twenty-one articles the enforcement procedures that Members have to make available to permit prompt and effective action against infringements of IPRs covered by the TRIPS Agreement. It is divided into five sections:
- general obligations (Article 41);
- civil and administrative procedures and remedies (Articles 42 to 49);
- provisional measures (Article 50);
- special requirements related to border measures (Articles 51 to 60); and
- criminal procedures (Article 61).
Unlike the substantive standards for the protection of IPRs in Part II of the TRIPS Agreement, which draws extensively on the existing body of international IP law, Part III incorporates only a few relevant provisions from earlier treaties; these are mentioned briefly below.
Consumer protection directives
2.1 Distance Selling Contracts
The Distance Selling Directive is one of the milestones in consumer protection. The Directive began its life in 1992 with the first proposal and culminated in 1997 with the final text. The implementation deadline was in June 2000. The Directive, therefore, began its life long before the Internet took hold in Europe and was not designed with the intricacies of the modern web in mind. Nevertheless, its technology-neutral architecture helped it withstand the test of time and made it an important instrument in consumer protection on the Internet.
In general, the Directive covers transactions that take place ‘at a distance’. Article 2 provides definitions but, at the same time, sets conditions that must be fulfilled for a transaction to be treated as occurring at a distance for the purposes of the Directive. Primarily, a ‘distance contract’ is one concluded between a supplier and a consumer under an organized distance sale. The fact that the sale is organized means that a supplier is normally running such sales and has not approached a particular consumer on an ad hoc basis. The ‘consumer’, for the purposes of the Directive, is a person who is acting for purposes outside his trade. A ‘supplier’, on the other hand, is acting in his commercial or professional capacity. The parties must be, for the purposes of the contract, availing themselves of the ‘means of distance communications’. Such means are defined in Annex I to the Directive, and include, among others, electronic mail or teleshopping. It must be inferred that advertising goods on the Internet also falls in this category.
Finally, the distance is only relevant ‘up to and including the moment at which the contract is concluded’. It is clear that the Directive applies to consumer contracts and not to contracts between business parties.
Article 3 contains a list of exceptions, contracts to which the Directive does not apply. These include contracts relating to financial services covered in a non-exhaustive list in Annex II: investment, insurance, reinsurance, banking, futures and options. The main reason for excluding those mentioned is their presence in other EU instruments. Further to that, automatic vending machines and automated commercial premises are excluded, as are public payphones, contracts relating to immovable property and auctions. The exclusion of contracts concluded through
automatic commercial premises (such as ticket machines) seems understandable as such contracts do not really seem to be concluded at a distance. Websites, arguably, will not fall under such automatic premises. The exclusion of immovable property also seems understandable as such transactions are often subject to special formalities.
- The Bad, the Good, and the Ugly
In a famous 1958 study on the economics of the patent system, the distinguished economist Fritz Machlup, paraphrasing an earlier statement by his long-time co-author Edith Penrose, concluded 1
If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.
Almost fifty years later, the first half of this illustrious sentence is more valid than it has ever been. Sadly, the recommendation has not been followed: far from maintaining the status quo, the patent system has been enormously extended, and there is no sign of the end of the expansion of intellectual monopoly to every corner of our economic system. Moreover, the fifty years since have turned up no evidence that patents serve to increase innovation. It is time to reconsider the second recommendation.
Defenders of intellectual monopoly like to portray intellectual property as a powerful and beneficial medicine. If a medicine has serious side effects and
scientific studies have found at best weak evidence of temporary benefits,
would you employ such a drug on an otherwise healthy patient? Probably not, unless the illness was life threatening. Yet we have documented that innovation thrives in the absence of intellectual monopoly (the patient is healthy), that the latter has serious side effects (the evils of intellectual monopoly), and that a series of scientific studies have found weak or no evidence that it increases innovation (the proposed beneficial effect is probably absent). The case against intellectual monopoly is decisive, and we must conclude that the second half of Machlup’s policy advice is now obsolete.
“On the basis of the present knowledge,” progressively but effectively abolishing intellectual property protection is the only socially responsible thing to do.”
1.2 As its title suggests, the ERPG was established in order to consider ways in which claims, principally against the media but also involving individuals and companies, whether for defamation or invasion of privacy or malicious falsehood, might be capable of earlier (and therefore cheaper) resolution than is currently possible through litigation.
1.3 The ERPG is not convinced that in relation to privacy cases, there is a serious problem. They are most commonly determined by pre-publication applications, where the outcome substantially rests on whether the threatened publication is restrained by interim injunction or not. Insofar as shortcuts are reasonably available, the Group believes the current CPR provides the Court in such cases with extensive management powers already. The ERPG also did not see any need for changes in relation to malicious falsehood. Both causes of action are triable by Judge alone and are not therefore bedevilled by the issue of meaning and by uncertainties over mode of trial in the same way as defamation actions are.
1.4 The ERPG is convinced that the principal obstacle to early resolution in defamation cases is the lack of a procedure for determining the actual meaning of the material complained of before service of a defence, rather than merely circumscribing the (often wide) range of arguable meanings as presently provided for by CPR Part 53 PD 2.3. The objective is easily stated; achieving that objective has proved to be far from straightforward. This report includes in section 4.3 a short summary of the principal solutions that were considered by the Group but either rejected or left to others to formulate. At Appendix 3 the Group has set out a summary of the minutes of the Group’s meetings. Section 4.3 and Appendix 3 have been included in order vividly to illustrate the problems which need to be overcome if early resolution of claims against the media is to be achieved in a manner which is consistent with the current legislation (in particular section 69 of the Senior Courts Act 1981) and the Civil Procedure Rules (notably CPR 53, PD 2.3 and 4). Any solution has to be consistent with established principles and must strike a fair balance between claimants and defendants.
While it is important to ensure that the various intellectual property regimes offer appropriate and adequate protection for the results of creative effort, the other side of the coin is the availability of measures to enforce those rights. A frequent criticism of the operation of the intellectual property laws in practice has been the difficulties encountered when it comes to enforcement of those rights. Such arguments have particular force in relation to combating organised crime, given that litigation is invariably so expensive and time-consuming that it is likely to be out of reach of all but large corporations. Enforcement has become an increasingly challenging area in the fight against the importation of fake goods as well as due to the rise of the digital environment. Historically, crime has always followed the economy and as the knowledge-based economy provides more opportunities, that is where the criminal element has moved.
Piracy and counterfeiting are a real threat to intellectual property owners both domestically and internationally as well as for consumers and the government. Counterfeiting refers to wilful trade mark infringement, for example: fake replica rock band or football shirts; trainers and clothing branded with fake marks. Piracy refers to wilful copyright infringement such as fake digital versatile discs (DVDs) and compact discs (CDs), or unauthorised downloading of music from the Internet, and so on.
There are a range of civil remedies and criminal sanctions provided in order to enforce intellectual property rights. These are interim and final injunctions, damages, account of profits, search orders, orders for delivery up and destruction, and declarations of infringement. Usually, an IP owner will focus on obtaining civil remedies, but some criminal sanctions are also available. Four types of action are possible:
- civil proceedings;
- criminal proceedings;
- administrative action by giving notice to UK HM Revenue & Customs, or the
- UK Advertising & Standards Authority;
- self-help by IP
Final pecuniary remedies are remedies such as damages or an account of profits. These remedies provide financial compensation for losses caused by infringement. However, an intellectual property right owner cannot enjoy both damages and an account of profits. They have to make an informed choice to elect one or the other.
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