LW30322 INTELLECTUAL PROPERTY LAW 2015

COURSE DIRECTOR HAZEL CARTY email hazel.carty@manchester.ac.uk

INTRODUCTION AND COURSE OUTLINE
SCHEME OF LECTURES
INTRODUCTORY LECTURE (Hazel Carty)
WEEKS 1-3 TRADE MARK LECTURES (Jasem Tarawneh)
WEEK4 TRADE MARK LECTURES (first and second lectures); COPYRIGHT
LECTURE (third lecture; Hazel Carty )
WEEKS 5-7 COPYRIGHT LECTURES (Hazel Carty)
WEEK 8 IMAGE RIGHTS (Hazel Carty)
EASTER VACATION
WEEK 9 IMAGE RIGHTS (first lecture); PATENT LAW (second and third lectures)
(Hazel Carty)
WEEK 10 PATENT LAW (Hazel Carty)
SEMINARS BEGIN IN WEEK 2 AND FINISH IN WEEK 11. THE SEMINAR
HANDOUT IS ON BLACKBOARD (AS ARE ALL THE HANDOUTS)
THIS COURSE IS EXAM ONLY (AND CLOSED BOOK). YOU ARE REQUIRED
TO ANSWER THREE QUESTIONS FROM SIX IN 2 HOURS 30 MINS. THE
EXAMINATION IS NOT DIVIDED INTO PARTS NOR ARE THERE ANY
COMPULSORY QUESTIONS.
UNASSESSED COURSEWORK MUST BE SUBMITTED ELECTRONICALLY
TO YOUR SEMINAR TAKER BEFORE WEEK 9. QUESTIONS FOR
UNASSESSED COURSEWORK ARE AT THE END OF THE SEMINAR
HANDOUT.
THE SCHEME OF SEMINARS IS AS FOLLOWS:
Seminar 1: Trade marks (functions/registration)
Seminar 2: Trade Marks (infringement)
Seminar 3: Copyright I (subsistence)
Seminar 4: Copyright II (infringement and defences)
Seminar 5: Patents/Image Right (NB these topics are not related but we only have 5
seminars!)

INTRODUCTION TO INTELLECTUAL PROPERTY LAW

Aims and Learning Outcomes of the Course
Texts
Please note that the primary reading is that given in the teaching materials. All
textbooks cover far more ground than is covered in the course.
The 3 main academic texts are:
Bently and Sherman Intellectual Property Law 4ed 2014 (OUP)
Cornish, Llewelyn & Aplin Intellectual Property: Patents, Copyright, Trade Marks
and Allied Rights 8th ed 2013 (Sweet and Maxwell)
Waelde (et al) Contemporary Intellectual Property Law and Policy 3rd ed 2013
(OUP)
THIS YEAR WE RECOMMEND BENTLY AND SHERMAN
In addition:
Holyoak and Torremans Intellectual Property Law 7th ed 2013 (OUP)
Bainbridge Intellectual Property 9th ed 2012 (Pearson)
Spence Intellectual Property 2007 (OUP)
Specialist Journals
EIPR (European Intellectual Property Review)
IPQ (Intellectual Property Quarterly)
IIC (International Review of Intellectual property and Competition Law)
Ent LR (Entertainment Law Review)
ALL ARE AVAILABLE ON WESTLAW
Specialist Law Reports
RPC (Reports of Patent Cases)
FSR (Fleet Street Reports)
Note the Patent Office is now called the UK-IPO or simply the IPO
Gowers Review of Intellectual Property Dec 2006 [www.officialdocuments.gov.uk/document/]
Hargreaves Review of Intellectual Property and Growth May 2011 [available on IPO
website with a dedicated page to provide progress reports]. Following this, the
government in December 2011 issued proposals to modernise the copyright system
IPKat weblog is an amusing and very informative blog written by IP specialists
1. What are IPRs?
IP Rights are increasingly important and expanding. Cornish [IPs] increasing
economic significance for countries with any degree of industrial development is
making it both more international and more complex.
The 3 main rights are

copyright a range of works such as literary and artistic works (hence the term
intellectual property) but also including what European jurisdictions would term
neighbouring rights(eg broadcasting right). Spence terms this the protection of
creative assets
patents - inventions monopoly protection. Spence terms this the protection of
technology assets
trade marks distinguishing marks used by business. Spence terms this the
protection of marketing assets
These are all covered in this course. They protect what is termed INTANGIBLE
PROPERTY. In addition we assess the contribution the common law should make to
an area of law that protects valuable intangibles.
2. International Dimension
Obviously the protection afforded by IPRs would be severely reduced if international
protection were not given to them. Various international treaties exist in this area.
Normally treaties give equal treatment protection so foreign creators are given the
same rights as national creators.
The 2 most important treaties are:
Berne Convention for the Protection of Literary and Artistic Works 1886 [basic
copyright updated by the WIPO Copyright Treaty]
Paris Convention on Industrial Property 1883 [patents, industrial design, trade marks
and unfair competition]
However in addition be aware of
GATT: contracting parties reached agreement on the TRIPS initiative (Trade Related
aspects of Intellectual Property Rights). TRIPS Agreement requires its Contracting
States to comply with most of the provisions of the Berne Convention. To be part of the
world free trading system have to agree (cf old system worked on voluntary basis).
World Trade Organisation to administer: all states which subscribe to WTO bound to
mutually recognise IP rights
3. Importance of IPRs
IPRs give commercial power
Cornish :"one characteristic of all these rights is that individuals acquire power to stop
others engaging in commercial conduct of a particular kind; they may be prevented from
producing and marketing a patented machine, substance or process, a copyrighted book,
film or picture; or they may be enjoined from selling goods or services using another's
trade mark or get-up". They enhance market power or even grant monopolies.
4. Pressure for Extended Protection
"...the current economic importance of intellectual property is indeed huge. This is
even more so because intellectual property is now involved in almost every aspect of
our highly developed economic life with its strong emphasis on technological
progress and brand names One could even argue that the original presumption in
favour of free competition and the perception of intellectual property rights as
exceptional rights whose grant was only appropriate in cases of exceptional
innovative and creative activity no longer exists. This point of view accepts that
industry now presumes that intellectual property protection will now be available for
every new product and every new development and sees full scale free competition as
the exception" Holyoak and Torremans

5. Rationale of IPRs
Fisher Theories of Intellectual Property
http://cyber.law.harvard.edu/people/tfisher/iptheory.pdf (first 8 pages only)
What is their purpose and how can ip laws be squared with a pro-competition policy?
Moral rationale
Natural law/reward: moral obligation to reward inventors and the Labour Theory: Locke,
the right to the labour of his body, the work of his hands. There is also the personality
theory, shaped by the writings of Kant and Hegel
Economic rationale
The utilitarian/instrumental justification. Incentives to create and/or disclose. The
effect of intellectual property rights is to promote efficient competition and benefit
competition on the innovative level. So in the case of patents, by rewarding the
inventor you encourage further research and development; by providing incentives for
authors and entrepreneurs, through copyright and trade marks you are more likely to
have successful goods and this commercial success will create useful revenue for the
state and strengthen the economy generally.
A separate economic theory, the neo-classical theory, argues that by transforming
potentially valuable artefacts into property rights, those artefacts are likely to be
exploited to their optimal extent Bently and Sherman
[the distinction between copyright and authors right] reflects not so much a matter of
terminological chance as a profound chasm between the common law and civil law
approaches to copyright. Common law protects a work because it can be copied with
undesirable results, while civil law protects an author because he has a moral entitlement
to control and exploit the product of his intellectual labour Phillips and Firth
The argument in favour of trade mark protection slightly different: encourage
commercial success but also information role/consumer protection

HAZEL CARTY JAN 2015