intellectual property
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Nov 24, 2024
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(1) Does the case of Authors Guild v. Google Inc. 804 F3d 202, 229 (2d Cir 2015) help or
hinder Generative AI companies in relation to fair use? Copyright is a widely recognised concept. It is a subject that often goes unnoticed, although it is
a constant presence in our daily lives. Each instance of reading a book, report, or poetry,
producing an original artwork, or creating a diagram from the beginning is the creation of a
copyrighted work. If you have ever duplicated a movie or music, it is quite likely that you have
violated someone else's copyright.
Rights provided by Copyright law
Copyright holders of dramatic, musical, and textual works possess the sole authority to: 1.
create physical copies of the works (photocopying, scanning, filming, and recording); 2.
distribute copies of the works; 3.
communicate the works to the public via electronic mail, the Internet, fax, or
broadcasting; perform the works in public settings (e.g., performing songs in pubs); and 4.
adapt the works (as in the case of translating an English-language work into a foreign
language work). Exclusive rights to reproduce artistic works in tangible form, publish them, and disseminate them
to the public are reserved for the proprietors of the copyright. In addition to controlling rights pertaining to communication, public performance, and
rebroadcasting, copyright holders possess the exclusive privilege to reproduce their material in
the form of published editions, sound recordings, films, and broadcasts. Certain copyright
holders also possess the privilege of exclusive rental. Nevertheless, rental rights are restricted to
computer programmes, sound recordings, and works derived from sound recordings.
Laddie Critique
Intellectual property law expert Justice Hugh Laddie was concerned about copyright legislation
being too strict. Laddie suggested that copyright's long reach (author's life + many years) may
impede innovation and creativity by preventing works from entering the public domain.
1
Copyright laws, with their complicated worldwide norms and requirements (including digital
1
Jacob J, ‘International Intellectual Property Litigation in the Next Millenium (2000) 32 Case W. Res. J. Int'l L 507
https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/cwrint32§ion=29
accessed 12/14/2023
rights management), may be challenging for creators, particularly independent and small-scale
ones, to negotiate. Laddie stated that copyright may overstate its ability to foster creativity and
innovation. He thought commercial demand and internal drive were more important in creative
creation.
(2) What is property?
Established in 1958 by Jeremy Bentham and subsequently expanded upon by John Stuart Mills,
utilitarianism is predicated on the notion that the most favourable course of action is the one that
maximises societal happiness.
2
This philosophical framework places particular emphasis on the
inherent human inclination to evade suffering. The utilitarian perspective on intellectual property
rights is founded upon the notion that authoritative legislation is necessary to safeguard the ideas
and thoughts produced by individuals across various societal domains of expertise.
Utilitarians provide justifications for intellectual property rights that result in both favourable and
unfavourable outcomes. In general, proponents of utilitarianism hold that intellectual property
motivates individuals to disseminate their discoveries with the intention of advancing and
fostering societal development.
The pursuit of virtue, which should guide all members of society, should be the focus of
intellectual endeavours and ideas. However, critics frequently point to the utilitarian view of
intellectual property rights' limitations in order to disparage this view.
Critics frequently convene to debate the soundness of utilitarian theory and its position within the
framework of moral and rational ideologies that dictate society. It is critical to acknowledge the
vast variety of intellectual property and infringement types.
3
Their categorisation into distinct
groups is advantageous and crucial for enhancing their legal representation. In order to evaluate
the utility of patents, copyrights, inventions, business techniques, and trade secrets, it is
necessary to examine each of them separately. Furthermore, it is critical to note that the
utilitarian argument is formulated with regard to the users of intellectual products, not the
manufacturers of said objects. As an illustration, a patent can be defined as the sole entitlement
to develop a technologically advanced product. Nevertheless, patents invariably yield
unfavourable outcomes, as they impede the practical application of the patented product,
incentivize production, and "monopolise industries," thereby constituting a detriment to
intellectual property rights.
The utilitarian view of intellectual property rights is limited as it cannot accurately assess
whether a decision aligns with societal values and is constantly challenged for being inaccurate
and inconsistent with changing realities. Others maintain that the utilitarian perspective on
intellectual property rights fosters societal comprehension, notwithstanding these criticisms.
2
Blackorby, C, Bossert W and Donaldson D, ‘Utilitarianism and the theory of justice’ (2002) 1 Handbook of social
choice and welfare 543-596 https://www.sciencedirect.com/science/article/pii/S1574011002800157
accessed
12/14/2023
3
Shaw W H, ‘Contemporary criticisms of utilitarianism: A response’ (2006) The Blackwell guide to Mill's
utilitarianism https://onlinelibrary.wiley.com/doi/pdf/10.1002/9780470776483#page=203
accessed 12/14/2023
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(3) Derivative Work and Cumulative Creation
A derivative work refers to a novel creation that incorporates elements from a currently present,
copyrighted work. Instances such as a follow-up to a literary work, a film adapted from a graphic
novel, or a reimagining of a musical composition are classified as derivative works. The precise
meaning of derivative works may be seen within copyright legislation.
45
In order to lawfully produce a derivative work, it is often necessary to get approval from the
copyright owner of the original work. The development of a derivative work entails the
alteration, conversion, or adjustment of the copyrighted content, and this is a privilege
exclusively held by the copyright owner.
6
An important case is Nova Productions Ltd v
Mazooma Games Ltd [2007]. The Court of Appeal addressed the question as to whether the
video game "Pocket Money" constituted a derivative work of the video game "Jackpot." The
court determined that while there were resemblances, the later game did not replicate a
significant portion of the original, so it was not considered an infringing derivative work.
7
Cumulative Creation
In the UK, cumulative creation is often defined as the process of building upon earlier works to
produce new and original creations.
8
New works in technology and literature typically build on
previous ones. UK legislation aims to strike a balance between safeguarding unique works and
fostering innovation and progress. Fair dealing allows limited copyrighted material use without
permission for study, criticism, and teaching, maintaining balance. An applicable precedent is the
legal case of Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000].
9
It was claimed that
the defendant copied the plaintiff's cloth pattern. The House of Lords found infringement
because the defendant's work copied a significant component of the plaintiff's design.
4
U.S. Copyright Act, s 101
5
Designs and Patents Act 1988
6
Deneau K, ‘The Historical Development and Misplaced Justification for the Derivative Work Right’ (2013) 19
BUJ Sci. & Tech. L 68 https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/jstl19§ion=6
accessed 12/14/2023
7
Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219
8
Narayanan V K Yang Y and Zahra S.A, ‘Corporate venturing and value creation: A review and proposed
framework’
(2009)
38
(1)
Research
policy
58-76
https://www.sciencedirect.com/science/article/pii/S0048733308002060
Accessed 12/14/2023
9
Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416
For and against intellectual property, for the rights owner it is always going to be a “for”
intellectual property and for the infringer it is always will be an “against” argument.
Discuss The IP rights argument encompasses complicated pursuits, integrity, the field of economics and
legislation. Rights owners want extensive IP protection, while infringers frequently dispute its
scope and enforcement. Understanding this debate's points of view and claims requires
examining all sides.
Arguments for Intellectual Property
1.
Intellectual property rights are widely recognised as crucial for fostering innovation and
creative thinking. Intellectual property law incentivizes innovators to devote time and
money into generating new works by providing them with privileged rights.
2.
Intellectual property rights may serve as valuable economic resources. They facilitate the
monetization of creators' and enterprises' discoveries or works, hence fostering job
growth and stimulating economic progress.
10
3.
A significant expenditure is often necessary for many innovative and imaginative
undertakings. Intellectual property laws safeguard this financial commitment by enabling
inventors and investors to recover their expenses and gain from their endeavours.
4.
Intellectual property laws often acknowledge the ethical entitlements of artists,
guaranteeing that they be attributed for their effort and may safeguard the authenticity of
their inventions.
11
Arguments Against Intellectual Property
1.
Detractors contend that intellectual property regulations might erect obstacles to entry,
especially in critical domains such as health or education. Rigors intellectual property
regulations may provide challenges for anyone seeking to expand upon preexisting
information, thereby impeding the pace of creativity.
10
Himma K E, ‘The justification of intellectual property: Contemporary philosophical disputes’ (2008) 59(7) Journal of the American Society for Information Science and Technology https://asistdl.onlinelibrary.wiley.com/doi/abs/10.1002/asi.20853
accessed 12/14/2023
11
Lee B A, ‘Making sense of moral rights in intellectual property’ (2011) 84 Temp. L. Rev
https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/temple84§ion=5
accessed 12/14/2023
2.
Enforcing intellectual property rights may incur significant expenses and consume a
substantial amount of time.
12
Detractors contend that the allocation of resources towards
litigation around intellectual property should be more effectively used in other areas.
3.
Intellectual property rights have the potential to create monopolies, giving the holders of
these rights the ability to dominate industries and establish exorbitant pricing. This
situation may not align with the best interests of the general public, particularly in crucial
sectors such as medicines.
4.
There is a contention that concepts and information need to be included in the general
public's possession and readily available without restrictions for the betterment of
society. Rigors intellectual property regulations may impede the free dissemination of
thoughts and creative manifestations.
12
Posner R.A, ‘Intellectual property: The law and economics approach’ 2005 19(2) Journal of Economic
Perspectives 57-73 https://www.aeaweb.org/articles?id=10.1257/0895330054048704
accessed 12/14/2023
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