Every April 26, the World Intellectual Property Organisation (WIPO) celebrates World Intellectual Property Day to learn about the role that intellectual property rights play in encouraging innovation and creativity:
This year, we are exploring the future of culture in the digital age: how we create it, how we access it, how we finance it. We will look into how a balanced and flexible intellectual property system helps ensure that those working in the creative sector and artists themselves are properly paid for their work, so they can keep creating.
To mark the day, Adapt Centre in Trinity is hosting an event on Technology, Freedom and Privacy in the 21st Century.
Intellectual property (IP) refers to creations of the mind for which the law affords exclusive protection. This legal protection can be provided by legislation (as in the case of patents, copyright, trademarks, and design rights) or at common law (as in the case of passing off, or the protection of trade secrets and other confidential information). Patents [main Irish Act here] largely protect inventions, and the ongoing disputes in courts all over the world between Apple and Samsung illustrate the centrality of patents to modern businesses. They are so important, in fact, that section 32 of the Finance Act 2015 (the 2015 Budget) a patent box, a special tax regime for IP revenues, to encourage research and development, innovation and invention. But patents can be pushed too far, if a patent troll acquires large bundles of patents, and then seeks to enforce them far beyond their original scope.
Copyright [main Irish Act here] largely protects expressions in the form of original literary, dramatic, musical, artistic and other related works. The central premise from which copyright law has developed is that it is the potential reward provided by copyright that encourages the art, movie, music, programming and writing. In that sense, copyright law fosters and protects innovation. Moreover, copyright provides rights-holders legal protection for the artistic integrity of their works. Nevertheless, both of these justifications look not only to the rights-holder, but also to the public benefit of the work: the State affords copyright protection to rights-holders because a diverse range of work is for the public benefit or the common good; and the appropriate reward afforded to the rights-holder is not an end in itself, but rather the means to this diversity, competition and innovation. Ongoing reform processes in Ireland and the EU are designed to calibrate this balance more precisely, the better to meet the challenges posed by the digital world.
A trademark [main Irish Act here; consolidated here (pdf)] is a recognizable sign which identifies products or services of a particular source, and distinguishes them from those of others. In 2007, Apple Inc finally settled its long-running trademark dispute with The Beatles’ company, Apple Corps Ltd, in a deal that paved the way for Beatles’ music to be sold on iTunes. But the three decades of dispute pale into insignificance before the more-than-a-century-long dispute between Budweiser in the US and Budejovicky Budvar in the Czech republic, which has been fought out in courts in more than a 100 countries worldwide since 1907! In Ireland, the not-quite-so-long-running trademark dispute involving the Northern Ireland Tayto Group (entirely separate from the Republic of Ireland Group) has recently ended up in the Court of Justice of the European Union.
Design rights [main Irish Act here] protect the shape of a three-dimensional design. These rights prevent Dunnes Stores from copying the design of a Karen Millen dress A recent decision of the UK Supreme Court considered the extent of the design right protecting the Trunki ride-on suitcase for kids, holding that its design was not infringed by the not-similar-enough design of the Kiddee Case.
Passing off is a common law cause of action, which protects the goodwill of a trader from a misrepresentation that goods or services of another are connected it. It ensures that any vendor of lemon juice in a lemon-shaped container must make it clear to the ultimate purchaser that it is not Jif lemon in its famous lemon-shaped container, that Brennan’s bakeries cannot copying the packaging of McCambridge’s brown bread, and that Tophop cannot sell tee-shirts bearing Rhianna’s image without her consent.
Finally, the law relating to breach of confidence protects trade secrets. The classic case of breach of confidence involves the claimant’s confidential information, such as a trade secret, being used inconsistently with its confidential nature by a defendant, who received it in circumstances where she had agreed, or ought to have appreciated, that it was confidential.
Plainly, there is much to celebrate – so, happy World IP Day to all my readers.
How can tort law account for the harm of defamation? One answer to this question is to argue that our reputation is or is like property. While this analogy may make sense to tort law theorists, particularly those seeking to give an internal account of tort law, it may not make sense to property theorists. In addition, it is not clear whether this approach fits with the case law. Whether or not thinking about reputation as property makes sense raises the question of whether tort law theory understands property differently than property theory does. It also raises the question of whether the theory of the tort of defamation fits the case law. In what ways does it make sense to think about reputation as property, and in what ways does it not?
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