Intellectual Property Rights

Question 1

Copyright is arguably all about originality, whether one looks at it from a civil law or from a common law perspective. How is that assessment to be reconciled with the fact that the word originality does not appear in the Berne Convention? Discuss.

Copyright law is concerned with the protection of original works of authorship. In the United States, copyright law is enshrined in the Constitution, which gives Congress the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries (US Constitution, 2022). Under U.S. copyright law, a work is considered original if it is the product of an individual author's independent creative effort. This requirement of originality is different from that of other countries, which generally protect any work that is not a mere copy of another work. Nonetheless, the level of originality required for copyright protection in the United States is relatively low; even a small amount of creativity will suffice. From a civil law perspective, copyright protection encourages creativity by giving authors financial incentive to create new works. From a common law perspective, copyright protection is seen as a way to foster competition by giving authors exclusive rights to their works and preventing others from free riding on their labor. Thus, both perspectives recognize that originality is at the heart of copyright law.

The Berne Convention for the Protection of Literary and Artistic Works is an international agreement that was first drafted in 1886. Article 2 of the convention states that the author shall enjoy the exclusive right of making copies of his work. This right is typically known as the copyright (Abdollahi et al., 2021). Still, many people believe that copyright is all about originality, even though the word originality does not appear in the Berne Convention. This belief may be excusable considering that the convention was drafted before the concept of originality became widely accepted in copyright law. Nevertheless, it is still possible to argue that copyright is all about originality, both from a civil law perspective and from a common law perspective.

From a civil law perspective, copyright is about originality because it protects works that are deemed to be original. In order for a work to be protected by copyright, it must be shown to be original. This means that it must be the result of creative effort and not simply a copy of another work. The concept of originality is thus central to civil copyright law. It is implicit or inherent in the overall idea. So even if the word is not found din the Berne Convention, the idea is nonetheless inherent, implied, and essential to the meaning of Article 2.

From a common law perspective, copyright is also about originality. In common law countries, copyright is typically seen as a property right that gives the owner of the copyright the exclusive right to exploit their work. In order for someone to have a valid property right in their work, it must be shown to be original. This means that, similar to civil law, the concept of originality is central to common law copyright.

Thus, while the word originality does not appear in the Berne Convention, it is still possible to argue that copyright is all about originality. This is because the concept of originality is central to both civil law and common law approaches to copyright. It is not explicitly stated because such explicit definition was not thought of or necessarily needed at the time. However, the concept is implicit within the article.

Question 2

Intellectual property rights provide exclusivity and there is therefore, an element of a monopoly in them. How can that be reconciled with the fact that they are created by legislature with the aim of enhancing competition? Discuss.

Intellectual property rights are a type...…helping consumers to make informed decisions about the products that they buy. Without them, the market would be much less efficient and consumer choice would be reduced. Consequently, it is inaccurate to say that trademarks only play a vital role for businesses. They are also of paramount importance for consumers.

A trademark is a sign used by a business to distinguish its products or services from those of other businesses. Trademarks can take many forms, including words, logos, and images. For consumers, trademarks play an important role in helping to identify the source of a product or service. When you see a familiar trademark, it can help to create a sense of trust and loyalty. In addition, trademarks can help to communicate important information about a product, such as its quality or price. As a result, trademarks play an essential role in the marketplace, helping businesses to build customer relationships and drive sales.

This is one reason counterfeit products that are falsely labeled with a trademark are illegal: they violate the publics trust (Alaknanda, 2020). On the flip side, what happens if the public loses trust in the trademark altogetheri.e., no longer sees the trademark as representing something good for consumption. For instance, what if a vaccine companys trademark becomes synonymous with corruption in the eyes of some of the public? What good is the trademark in that case?

When consumers no longer trust trademarks, businesses are forced to adapt. In some cases, they may find that they need to change their entire business model. For example, a luxury fashion brand that has built its reputation on the quality of its products may need to focus more on customer service and building personal relationships with customers. Or, a food company that has relied heavily on branding and advertising may need to invest more in research and development to create new, innovative products. In any case, it is clear that businesses must be prepared to…