Law Notes Intellectual Property Law Notes
IP law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB Intellectual Property law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...
The following is a more accessible plain text extract of the PDF sample above, taken from our Intellectual Property Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Moral rights
When a work is accorded copyright – two types of rights arise
Economic rights to the first owner
Moral rights to the authors of certain works
Moral rights protect an author’s non-pecuniary or non-economic interests
1988 Act – provides authors and directors with…
The right to be named when a work is copied or communicated – the right of attribution
The right not to be named as to the author of a work which one didn’t create – the right to object against false attribution
The right to control the form of the work – the right of integrity
The moral rights recognized in UK – more limited than other jurisdictions
Right to correct the work, right to object to alteration/destruction of the original work/right to object against excessive criticism of the work/right to withdraw the work from circulation
Infringement of a moral right damages
Moral rights of integrity and attribution last for the same time as the copyright in the work
The right to object as false attribution – less extensive – only lasts for 20 years after the author’s death
After the author’s death, moral rights are exercised by their heirs
The 1988 moral rights – introduced to give effect to Art 6bis Berne Convention – requires Member States to confer on authors the right of attribution and of integrity
“Independently of the author’s economic rights… the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation”
Instead of replicating Art 6bis, the UK has provisions – each of which has a number of conditions, limitations and exceptions --- commentators have suggested that the UK has implemented Art 6bis in a “cynical, or at least half-hearted” way – Ginsburg [1990]
Support an criticism for moral rights
Criticisms
Founded on a romantic image of the author as an isolated creative genius who has imparted his personality on the work
Moral rights enable the author to maintain the “indestructible creational bond” that exists between his personality and the work – Dietz (1994)
---Unrealistic conception of authorship
It fails to acknowledge the collaborative and inter-textual nature of the creative process – P Jaszi (1992)
ALSO – moral rights are alien – they have their origin in continental copyright systems and cannot be absorbed into a common law system
Moral rights represent an unjustified legal intervention in the working of the free market
Moral rights typically secure author’s interests at the expense of entrepreneurs, disseminators
They may inhibit the creation of derivative creations – if the author were to use their moral right of integrity to prevent the publication of a parody then this would conflict with the right to freedom of expression and the broader public interest
Moral rights prioritise private interests over the public interest
The Right of Attribution
s77 CDPA – “right to be identified as author or director”
While the right of attribution cannot be assigned, it can be waived
The right lasts for the same period of time as the copyright in the relevant work
The right to be named – symbolic, economic and cultural consequences
The celebration and reward for the work for the author
The interpretation of the work – so far as it provides a biographical history of the author
The channeling of royalties
An author may be able to rely on a number of mechanisms other than the right of attribution to ensure they are named
Publishing contracts – terms dealing with attribution which can be enforced against the publisher and poss also against third parties who knowingly induce such breaches
Such a term might be implied into a contract
Subsistence of the right of attribution - 2 things
That the work in Q is the type of work to which the right applies
That the right of attribution has been asserted
Relevant works
The right is recognized in relation to original LDMA works and films
In the case of films – the right of attribution is granted to the director
Within these general categories there are exceptions:
Right does not arise in relation to works made for the purpose of reporting current events – s79(5)
It doesn’t apply to contributions to a newspaper, magazine, encyclopedia etc – s79(6)
These exceptions – difficult to reconcile with the Berne Convention
They reflect government concessions to the lobbying power of the newspaper and other publishing industries
There were fears that the need to name the author of a work would interfere with the prompt delivery of news
It was also feared that enabling an author of a news story to be named would undermine the image of the news as being objective and neutral
Act also states that the right doesn’t apply to computer programs, computer generated works, typefaces – s79(2)
No satisfactory justification has been given for denying authors of computer programs or typefaces the right
TRIPS Art 10 states that computer programs will be protected as literary works under the Berne Convention
While TRIPS Art 9 does not require that members apply Art 6bis, it seems that Art 10 requires that Art 6bis be applied as regards computer programs (?)
Computer-generated works – may be justified on the grounds that such works do not fall within Berne because Berne is a Union for the protection of author’s rights – Berne Art 1
Requirement of assertion
s78(1) – right does not arise until it has been asserted
Even if it has been asserted, in a action for infringement, the courts take into account any delay in asserting the right when considering remedies – s78(5)
The imposition of the assertion requirement – justified because Art 6bis only requires members of the Union to confer on authors the right “to claim” authorship
BUT it has been argued that such an interpretation is unsustainable because Art 5(2) Berne Convention requires that an author’s “enjoyment...
Buy the full version of these notes or essay plans and more in our Intellectual Property Law Notes.
IP law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB Intellectual Property law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...
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