27 March, 2013

Retrospective - Where it all began

The history of IP law is a colorful one. The changes it has undergone and how the rapid evolution of both the creation and sharing of ideas and expression has made the landscape where the law operates very different to what it was when it all started.


Queen Anne was a fan of books, and a snappy dresser
Great Britain was the first nation to enact a law which regulated copyright, instead of it being handled by the parties involved without any government interference, mainly the Stationers' Company. The law in question was the Statute of Anne 1710. The law sought to encourage learning and advance it through the limitation of certain rights in books, ones which echo even today's legislation, although very faintly: it gave the rights to print and copy published material to its creators, not the publishers of the books. This was a significant move from a system that lasted for almost 50 years. Copyright didn't exist automatically in any works, unlike like today, but all works needed to be registered for any rights to exist in that material. The Statute of Anne was a major piece of legislation until its repeal through the Copyright Act 1842, lasting for well over 100 years. The Americans largely followed the Statute, although it is still disputed whether they actually did. This lasted till the enactment of the US Constitution.


Most of the Commonwealth countries have their patents laws base on the Statute of Monopolies 1623. It is seen as the first real law dealing with patents, both in the United Kingdom, and through it subsequently adopted in one form or another in its former colonies. It both abolished old patents existing before the law, during and in the future. It also restricted the application of patents and set strict limits to who can give them. The Statute was a major change, and is one of the most important pieces of legislation in the history of patents. The US, yet again not wanting to conform, did not follow the Statute of Monopolies as such, however their use of patents in commerce is believed to have stemmed from the law. The US Constitution set out broad principles for all IP matters, which also dealt with patents, however more specific legislation was enacted both in individuals States, and finally on a Federal level in 1790. Patents have since gotten more specific and complex, yet the heart of the original laws still remain.

Trade Marks

A relatively late bloomer in the sphere of IP legislation, trade marks did not have any codified protection until the Merchandise Marks Act in 1862. The old law, much like copyright and patents, also echoes the sentiment of current legislation, although speaking of "defrauding", which is not used in today's laws. The United States, much like the UK and its colonies, protected trade marks through the common law (meaning no laws protected them specifically, but unwritten customs and precedent), until the enactment of the Trademark Act 1881


The first instance of designs protection was in the UK, with the enactment of the Designing and Printing of Linen Act in 1787. The Act, as its name so implies, dealt with the designs related to a number of different fabrics, and only offered protection for a measly two months after printing. The Act was expanded on almost 50 years later, in the Copyright and Design Act 1839, taking designs protection further than the textile industry alone, and introduced a system of registration for designs.

As you can see, the roots of IP law are deep in all common law countries. What it was a few centuries ago can still be seen in today's laws, and the impact their development has had, and continues to have, on people and their expression is profound. Most of them were protected well before the enactment of specific laws relating to them through the common law, so their roots go even further if you go beyond laws alone. 

25 March, 2013

You bought it, you own it - The First Sale doctrine in the US Supreme Court

The American Supreme Court delivered its judgment a few days ago on a case which was long anticipated to possibly change the landscape where copyright exists, both in the US and globally. And it possibly might have done just that.

Kirtsaeng v John Wiley & Sons set an interesting precedent in the world of reselling a copyright work you have legally purchased, once you're done with the item. The case itself dealt with the resale of College textbooks by Mr. Kirtsaeng, which he brought over from Thailand, having been sold there for significantly less than in the US, making this the perfect opportunity for him to make a quick buck, while retaining the moral high-ground of helping his fellow students saving said buck (to use on nice things, I'm sure).

In previous years, had you done just what Mr. Kirtsaeng did, you would've been sued for copyright infringement the moment you brought the books over into the US and attempted to sell them. How was this allowed, even if you legally bought the books and merely brought them over to sell what's yours? This is due to the interpretation of the First Sale doctrine in the US Copyright Act under section 109, which states that: "the owner of a particular copy [of a copyrighted work]... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy..." When looking at the language of the section in itself, one cannot understand why it would act exactly against what it plainly says; that a person can sell what he has legally purchased without asking the copyright holder's for permission to do so. The interpretation of the section limiting it only to copies bought within the US was yet another Supreme Court statement in a different case, Quality King v L’Anza Research International. In the case the Supreme Court found that the definition of section 109, albeit stated purely as dicta (a legal term meaning it was not a matter contended in the case itself, but is merely a statement of opinion as to what the law is, making it non-biding in future cases, but can be used as a persuasive argument), that it would prevent the sale of copies in the US bought outside of the US itself. This definition has since been used to do exactly what Mr. Kirtsaeng contended. The outcome allows a person to sell what's rightfully theirs, even if it was bought outside of the US (though the copy has to be a legally made one, authorized by the copyright holder - I'm looking at you, bootleg CDs, videos and the like!).

These kids paid nothing for their books
So what does this mean for the consumer or the media industry? It will remain to be seen. Whether it will change the pricing dynamic in the US, bringing prices more closer to foreign ones if cheaper, is something that only time will tell. Will consumers take this and run with it? Will companies act preemptively to undercut their own prices to match those in cheaper countries? Personally I can't really say. With college textbook prices increasing over 600% since the 1990s, one can only hope the benefit will be to the end consumer, even in other categories of media.


So now you might be scratching your heading thinking "I have heard of intellectual property, but I'm not entirely sure what it encompasses". Let me enlighten you!

Intellectual property law covers a number of areas, and without getting too technical they are as follows:


Internet pirates are real
The first, and far most influential and controversial topic of them all in today's society. Internet piracy and its alleged effects are discussed almost on a weekly basis in the news, and as technology evolves how copyright grows with it is an interesting sight to behold. Remember when cassettes were killing the music industry? No? Well you just made me feel incredibly old. Whether it is 8 tracks or torrents, what's protected is still the same; the artistic output of an individual. It deals with a wide variety of things. That song you wrote and sang on the train? Covered. That "amazing" joke you came up with? Protected. That book you've been writing for years and 'totally will finish and publish soon'? Safe. As long as it's tangible (i.e. in a physical or real form, even electronic), and it's original, it'll be covered under copyright.


A brand in its natural habitat
You've probably seen the  or ® signs next to slogans, logos etc? That is what trademarks cover. Essentially what it is is the protection of the reputation of something, established through activity and popularity, also called 'good will'. Are all slogans or logos covered under trademarks? No. It depends heavily on circumstances, and sometimes, intention as well. Brands like Apple and Coca-Cola have invested a lot of money on marketing and selling their brand, and rightfully seek for it to be protected, and that is what trade marks do.


Now this is a topic which cannot be easily explained, especially in practice. What patents protect is innovation - something that takes an inventive step to either build on prior technology, or to create something completely new. This topic requires in depth knowledge as to the inner workings of medicine, engineering or what ever subject matter any given patent deal with. Patents award a monopoly for that innovation for a certain period, but for a price; you have to provide detailed instructions as to how the thing is made, so once the patent expires, it is free to be used, built upon etc. This is best showcased by generic medicines, which have been under patent but have expired. Other pharmaceutical companies can then use the formula to make their own and freely sell it (Cialis via email anyone?). Patents require more evidence and have stricter requirements to attain, but offer better and stronger protection than other forms of IP.


Matt Damon loves his Grandma's knit work 
The last topic is one which protects the overall look of something, and possibly its separate components. Largely relevant in the clothing industry, but can protect a variety of things. That sweater grandma knit you last Christmas is probably ok, don't you worry. The topic I'm the least familiar with, but will endeavor to touch upon as much as possible.

That should give you a nice overall view of the areas dealt with in IP law. Albeit a very simplified overview, brevity is beauty isn't it? Specific cases will address specific issues within the topics, and will offer a better view into them when dealt with, but if one or more of them strike a cord with you, please do go ahead and read more about them.

24 March, 2013

Welcome to IP Iustitia

The idea behind this blog is simple: to discuss, explain and expand on current developments within the field of IP law, and to also revisit old land mark cases (relevant or not today), and to give a broader overview of the topic to both laymen and professionals alike. The topic is more relevant today than ever, and the dynamic nature of it has the topics constantly change, evolve and influence the modern world we live in. Due to this impact I found it interesting to attempt to aid those interested to understand the topics more, and for the ones more knowledgeable to keep up with further developments. Legal topics tend to be tough to read, so I'll attempt to approach the subject with a light-hearted view, while still trying to keep the substance there.

I will discuss items of interest as they happen, but I will also do Retrospectives, where I will look at cases from days past, and discuss their influence and why they mattered. I might also touch on cases of interest, not necessarily because of legal precedent, but because of facts that some might find entertaining.

As the blog is still in its infancy, feedback is essential, and I encourage everyone to comment and let me know what might be wrong or what doesn't seem right. I'm only human, and even though I have dealt with the law for years, I make mistakes and can overlook things.

Thanks for reading and hopefully I might inspired you to learn more about your rights and how IP influences you.