Intellectual Property Law.

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Intellectual Property Law

Law 5695

Assessed Essays, semester 2: David Lange, writing in 1981, suggested that “the growth of intellectual property in recent years has been uncontrolled to the point of recklessness.” As a consequence he suggested that the “recognition of new intellectual property interests should be offset by equally deliberate recognition of individual rights in the public domain.” With reference to copyright law in particular, critically assess the meaning and significance of the ‘the public domain’.

By Miss Xin Qi

Student No. 20120000562701

LLM International European Business Law

Total No of words: 4756

For the attention of Ronan Deazley.

Bibliography:

Books:

Bently.L & Sherman.B, Intellectual Property law, 1st ed., (Oxford University Press, 2001).

Paul Torremans, Intellectual Property law, 2nd ed., (Butterworths, 1998)

Simon Stokes, “The copyright system: Its justification and history”, in Art & copyright (Hart Publishing, 2001)

W. R. Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 4th ed., (Sweet & Maxwell, 1999).

Keith E. Maskus, Intellectual property rights in the global economy, (Institute for international economics, 2000)

Articles:

David Lange, “Recognising public domain”, (1981) Law and Contemporary Problems, 147 

Gordon, “A property right in self-expression: Equality and individualism in the natural law of intellectual property” (1993) Yale Law Journal 1533

James Boyle, “The second enclosure movement and the construction of the public domain”, (2001) Conference on the public domain (Nov 9-11)

Jessica Litman, “The public domain”, (1990) Emory Law Journal, 965

Edward Samuels, “The public domain in copyright law”, (1993), Journal of the copyright society 137

Jeremy Phillips, “The diminishing domain”, (1996), European Intellectual Property Review

Jonathan Griffiths, “Copyright in the English literature: denying the public domain”, (2000), European Intellectual Property Review

Norma Dawson, “Copyright in the European Union: Plundering the public domain”, (1996) NILQ 193

Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, (1993)102 Yale L.J. 1533

William Van Caenegem, “The public domain: Scientia nullius”, (2002), European Intellectual Property Review

Introduction:

Nowadays Intellectual Property has attracted a lot of attention due to the development of modern international trade. The intellectual property law, which establishes the protection over the intangible work also plays an important role in the law system. It creates property rights in a very wide and diverse range of things regulates the creation, use, and exploitation of mental or creative labour from novels, films, televisions broadcasts, paintings, computer programs, and performances, through to pen designs, genetically modified animals. We are now surrounded by and constantly interact with the subject matter of intellectual property law. Everyday we are reading the copyright work in the library; marking the book with a pen that has been patented, wearing a dress being protected by design rights, drinking the coca with Coca-Cola trade mark…in fact even the words of a story, the sound of a melody could fall in the protection of intellectual property law.

Surly the intellectual property law is pretty important in today's sophisticated industrial growth; it can induce or encourage desirable behavior. With its protection, the production and broadcasting of culture objects could happen at an optimal level. While on the contrary, the intellectual property law is not absolutely good, some of the aspects are not justifiable; it also has the potential to inhibit the public’s ability to communicate, restrict people to develop ideas and produce new works, and slow up the way people interact with and use cultural objects, from time to time it will make our life inconvenient and expensive. The result is, when performing any activities, we feel difficult to tell whether it has broken the law or not. For instance, when you buy a protected CD and make a tape of that CD for a friend, it is fairly proper at first glance, but actually this behavior is not legal. Therefore we must pay attention to the extent of permitted use of business and manufacturing software; care about the design of the dress, always notice the name of our products…any unwary may make us fall foul of third-party rights in property unconsciously.

Then is there anything we can use freely? The answer is ‘yes’, the public domain can, this notion is commonly regarded as a bulwark against excessive private appropriation of human knowledge. Yet the intellectual property rights expanded too fast and too quickly, as David Lange said “the growth of intellectual property in recent years has been uncontrolled to the point of recklessness,” the public domain is diminishing correspondingly. The intellectual property law is based on the idea of what is good for society and public in general, however, the noble concept of public domain is there alone to face the variety of threats, has nobody to protect or even care about it, we are all public domain users, must keep it healthy for the sake of ourselves and our descendant, therefore, David Lange suggested that the “recognition of new property intellectual property interests should be offset by equally deliberate recognition of individual rights in the public domain.” In this essay, with reference to copyright law in particular, I will focus on the meaning and significance of the ‘the public domain’.

Public Domain and Copyright Law

A. General

Generally copyright is a right given against the copying of defined types of cultural, informational and entertainment production. In the mid-nineteenth century, copyright law took its modern meaning as a discrete area of law that grants rights in works of literature and art. It is the scope of ‘literature work’ that begins the dispute, because “It may be difficult to define ‘literary work’…but it seems to be plain that it is not confined to ‘literary work’ in the sense in which that phrase is applied, for instance, to Meredith's novels and the writings of Robert Louis Stevenson ...”. Commonly the subject-matter of copyright law is human knowledge, because it consists of rights in what are ultimately expressions of either practical or artistic human knowledge. For example, a sculpture represents human knowledge of artistic experience and creativity ideas, etc, it defines in copyright law as intangible goods or property, then what is ‘intangible’ or ‘property’, the use of these abstract concepts in this field of law caused further uncertain, it is “nothing if not confusing”.

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Despite the abstract definition, copyright law has been used in a very flexible way, covers almost everything around us. This kind of monopolistic control on works of literature works has many detrimental effects. Above all, it is going against the spread of scholarship. The copyright will increase the price of the editions of works, a copyright owner can prevent the development of alternative editions of the original text, he can also refuse to license quotation by users of whom he disapprove These activities will inhibit the public’s ability to communicate. Therefore we need free and dynamic conditions to satisfy the ...

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