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Week 1 - Basic Principles & Justifications of IP

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Queensland University of Technology

PRINCIPLES OF COPYRIGHT (Week 1) What is intellectual property? Generic term for the various rights or bundles of rights which the law accords for the protection of creative effort (McKeogh, Stewart & Griffith) International aspects Much of what is contained in Australian domestic law is found in international law. • Paris Convention for the Protection of Industrial Property 1883 • Berne Convention for the Protection of Literary and Artistic Works • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations • Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) • WIPO Copyright Treaty 1996 (WCT) • WIPO Performers and Phonograms Treaty 1996 (WPPT) Benefit = promotes harmonisation of laws (beneficial to people who go beyond state business and export to the world); although registration is a domestic issue (if you register a patent in Australia, you will only get patent protection in Australia) Constitutional basis of intellectual property Section 51(xvii) • ‘Parliament has the power to make laws with respect to ‘copyright, patents of inventions and designs, and trade marks’. • HC endorsed the Commonwealth’s action of enacting plant breeder’s rights, even though this is not expressly allowed or mentioned under the Constitution: Grain Pool of Western Australia v Commonwealth Section 51(xxix) • External Affairs Power: gives Parliament the power to enact laws reflecting the contents of international treaties and conventions. Section 51(vi) • Post and telegraph power Section 51 (xxxix) • Incidental powers FORMS OF INTELLECTUAL PROPERTY PROTECTION • Copyright: protects expressions (not idea), no registration/formalities i.e. exists on creation, narrow but long lasting protection (life + 70years) • Patent: protects invetions/product, requires application and grant, requires public disclosure of invention details, strong and broad protection for short period (20 years) • Trade Marks: protects identifying symbols from deception/confusion, requires registration and use must be maintained to maintain protection, relates to goods and services • Registered Designs: protects visual elements of commercially manufactured goods (to stop other products looking like yours), requires registration, overlaps with copyright • Suis Generis rights: plant breeders’ rights, circuit layouts, geographical indicators (on food, cheese, wines etc.) POLICY ISSUES: NOT Natural Rights That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of many, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature: Thomas Jefferson (Letter to Isaac McPherson, 1813) Why then? To encourage the production of ideas: John Locke (if you mix labour with land then you deserve reward) JUSTIFICATIONS FOR COPYRIGHT: Australian tradition in copyright is more explicitly utilitatirn: in the sense of seeking to maximise social welfare, rather than focusing on IP as having intrinsic value and hence merit. In this context, maximising social welfare involves maximising the difference between the social value of IP created and used, and the social cost of its creation, including the cost of administering the system of IP rights itself. 1. Utilitarian Economic Theory: provide incentive by preserving rights - IP is recognised in the US Constitution to enable progress IP provides an incentive for third parties to invest in the creation, product and dissemination of copyright works that benefit society – by granting a temporary monopoly over the creation and thus guaranteeing a return on investment. - Information itself is non-rival (consumption by one does not exclude consumption by others) and non- excludable (can’t prevent people who have no paid for it enjoying its benefits) therefore a public good - The marginal cost of distribution of ideas and expression approaches zero (e.g. once book is written it costs a tiny amount to distribute via copies), therefore: o at the competitive price, an author/inventor will never recoup their investment o thus without exclusion a producer is unable to set a price that allows a return on investment - Standard Economic Model  At the socially-maximising point price = marginal cost of distribution • creator would never recoup investment costs
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