This is the 2nd part of the summarised transcript of the last 7:21 smalltalk by lawyer Rajendran Packiry as requested by some kakireka members. Raj covered the 2 topics that interests many designers, esp. if you're a freelance designer or you own a small design house setup.
Raj also spoke about Malaysian Intellectual Property Law - copyright, trademarks, patents, registered designs. And the difference between authorship and ownership of a copyright and how it applies to freelance designers.
Part 2 - "Who Owns The Design" or Intellectual Property
To read article, click into the comments link under this post.
If you have any questions, post it as a comment or email direct to Raj if you want more privacy.
Wednesday, January 2, 2008
What is Copyright, Patent, Registered, Trademark?
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INTELLECTUAL PROPERTY
What is Intellectual Property Law?
IP law is that area of law which concerns legal rights associated with intellectual creative effort or commercial reputation and goodwill.
The subject matter of IP is very wide and includes literary and ARTISTIC WORKS, FILMS, COMPUTER PROGRAMS, INVENTIONS, DESIGNS & MARKS USED BY TRADERS for their goods or service. The law deters others from copying or taking unfair advantage of the work or reputation of another.
PATENT LAW
Patent laws concern inventions which are new, involve an inventive step and are capable of industrial application.
The grant of a patent effectively gives the inventor or, more commonly, his employer, a monopoly to work the invention to the exclusion of others for a period of time not exceeding 20 years.
The invention might concern a new or improved product, for example a new type of window lock or an improvement to the design of say e.g. scaffolding clamps.
Patents were introduced essentially to safeguard the interest in the trade of their manufactured goods.
A patent is a form of personal property which may be assigned, licensed or charged by way of a mortgage. After expiry of the patent, the invention falls into the public domain and anyone is free to make use of it.
There are 2 kinds of Patents:
1. Process Patents
– mode of treatment of certain materials to produce a given result (the making of it).
2. Product Patents
– things which appear in tangible form, includes any apparatus, device, equipment etc (the finished product).
COPYRIGHT ACT
Copyright is a property right that subsists in certain specified types of works as provided for by the copyright, Designs and patents Act 1988. E.g. of works in which copyright subsists are original literary works, films and sound recordings.
The owner of the copyright subsisting in a work has the exclusive right to do certain acts in relation to the work such as making a copy, broadcasting or selling copies to the public.
The owner of the copyright can control the exploitation of the work for e.g. by making or selling copies to the public or by granting permission to another to do this in return for a payment. A common example of this is where the owner of the copyright in a work of literature permits a publishing company to print and sell copies of the work in book form in return for a royalty payments, usually an agreed percentage.
If a person performs one of the acts restricted by copyright without the permission or license of the copyright owner, the latter can sue for infringement of his copyright and obtain remedies.
Copyright law should not give rise to monopolies and it is permissible for any person to produce a work which is similar to a pre-existing work as long as the latter work is not taken from the first. It is theoretically possible, if unlikely, for two persons independently to produce identical works, and each will be considered to be the author of his work for copyright purposes.
For an example, 2 photographers may each take a photograph of a statue within minutes of each other from the same spot using similar cameras, lenses and films after selecting the same exposure times and aperture settings. The 2 photographs might be indistinguishable from each other but copyright will, nevertheless, subsist in both photographs, separately. The logical reason for this situation is that both of the photographers have used skill and judgment independently in taking their photographs and both should be able to prevent each other persons from printing copies of their own photographs.
Another feature of copyright law which limits its potency is that it does not protect ideas, it merely protects the expression of an idea. For example, Ali does not have a monopoly in romantic novels. Anyone is free to write a romantic novel since the concept of a romantic novel is an idea and not protected by copyright. However, writing a romantic novel by taking parts of a Ali’s novel infringes copyright, because the actual novel is the expression of the idea.
If the work is created by an employee working in the course of employment, his employer will own the copyright.
Why is copyright so important?
One important reason for this is that such works are of economic value and will usually be the result of investment and a significant amount of work.
Without protection there are many who would freely copy such things without having to take the trouble to create them for themselves and would be able, as a consequence, to sell the copied items cheaper than the person who developed or produced the original. If this were to happen, the incentive for investment would be severely limited.
How long does Copyright last?
It last for 50 years from the death of the author.
AUTHORSHIP & OWNERSHIP of Copyright
The author have moral rights while the owner of the copyright have economic rights.
Sometimes the author of a work will also be the owner of the copyright in the work, but this is not always so and many works have separate authors and owners as far as copyright is concerned.
Ownership flows from authorship; the person who makes the work is normally the first owner of the copyright in the work, providing that he has not created the work in the course of employment, in which case the employer will be the first owner of the copyright.
The owner may assign the copyright to another, that is transfer the ownership of the copyright to a new owner, relinquishing the economic rights under the copyright law.
AUTHORSHIP
The author of a work is the person who creates it (i.e. the creator or originator). For example, the author of a work of literature is the person who writes it, the author of a piece of music is its composer, the author of a photograph is the photographer and so on. The director of a film will have no claim of authorship because it is the producer (or the film company employing the producer) who makes the arrangements necessary for the making of the film, not the director.
If the work is a computer-generated literary, dramatic, musical or artistic work, that is generated by computer in circumstances such that there is no human error, the author is deemed to be the person by whom the arrangements necessary for the creation of the work are undertaken, a similar formula to that for sound recording and films.
An example a case in England where a reporter made reports of speeches made by a person which were printed verbatim after they had been corrected and revised. The person sued the press. It was held that the reporters were the authors of the reports and, as a result of the terms of the reporter’s employment, the copyright in the reports belonged to the Times (the newspaper).
In the case of a song, the person writing the music will be the author of the musical work whilst the person writing the lyrics will be the author of the those lyrics as a literary work; two copyrights will exist in a song, each having different authors.
OWNERSHIP
The basic rule that the author of a work is the first owner of copyright. This will apply in a good number of cases, for example to persons creating works for their own pleasure or amusement, independent persons not employed under a contract of employment and even to employed persons if the work in question has not been created in the course of their employment.
However there are some exceptions to this basic rule and where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of the copyright.
On the other hand, if an employee produces a work, the creation of which lies outside his normal duties (that is not created in the course of his employment) any agreement that the employer will be the owner of the copyright and this must be in writing and signed. The reason is that the employee automatically will be the first owner and the copyright must, therefore, be assigned to the employer.
Freelance workers and consultants may be difficult to classify as employees in the normal sense of the word. If you look at the word ‘Employed’. ‘employee’, ‘employer’ and ‘employment refer to employment under a contract of service. Freelance is a contract for service.
A person as an employee or self-employed person is so crucial to the question of ownership of copyright that it requires further exploration and employment law may provide some guidance as to how the distinction may be made.
REGISTERED DESIGN LAW
There are two types of designs recognized by law. One is the registered design provided for by the Registered Designs Act 1949, and the other is design right provided for along principles of copyright law.
In legal terms, a design is defined by reference to the provisions applicable to either the registered designs or the designs right.
Designs may be for functional articles, such as can opener, glass, lamp shade, gate, a tool box, a container for frozen food etc.
In order to become ownership of the product is acquired through an application for registration of the design. Once accepted, the applicant’s name will be registered in the register book as the registered owner or proprietor of the design.
The registered designs becomes the personal property of the owner, thus giving the right to the owner to exploit the design. The owner of a registered industrial design has exclusive right to make or import for sale or hire, or for use for the purposes of any trade or business, or to sell, hire or to offer or expose for sale or hire.
The registered owner also has the right to institute legal proceedings against any person who has infringed or is infringing any rights conferred by the registration of the industrial design.
TRADE MARKS
A trade mark primarily identifies the source or origin of goods and services. Trademark is defined as: - “…a mark used or proposed to be used in relation to goods or services for the purpose of indicating, or so as to indicate, a connexion in the course of trade between the goods or services and a person who has the right, either as proprietor or as registered user, to use the mark, whether with or without an indication of the identity of that person”.
Definition of “mark” as follows:- A device, brand, heading, label, ticket, name, signature, word, letter or numeral, or any combination thereof.
Transcript prepared by:
Rajendran S. Packiry
Tel: 03-26932672
Email: rajpackiry@yahoo.com
Raj adds...
If your claim is less than RM5,000 ie. suing someone to recover debt for the sum of RM5k and less, then the matter will be filed in the Small Claims Court.
Small Claims Court
- No legal representation (no lawyers) for an individual (you represent yourself to plead the case infront of a judge) except if a company is sued.
The Modes of Execution procedure on bankruptcy/winding up cannot be filed in the Small Claims Court... only the High Court has the
jurisdiction.
Finally, if you obtained a judgement (win!) at the Small Claims Court, then you can enforce the judgment by issuing a Writ of Seizure & Sale or Judgment Debtor Summons (JDS).
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