Utilitarianism And Natural Justice: Intellectual Property Rights Essay

Question:

Describe about the Utilitarianism and Natural Justice for Intellectual Property Rights.

Answer:

1. The recent writings in theory most of them consist of a struggle which is there between and with the different approaches towards intellectual property rights. The two of the main approaches that exist towards intellectual property rights are that of Utilitarianism and Natural Justice.

The most popular of the four theories is that of Utilitarianism, the utilitarian guidelines that the most common guidelines which the beacon of lawmakers follow for shaping of the intellectual property rights.[1] The principle behind this being that it is ensured that there is maximization of the social welfare in net. It is generally thought with respect to pursuit of such end for intellectual property is that it is required by the lawmakers for striking a balance which is optimal between, the exclusive right power for ensuring that there is stimulation of creation of works of art and inventions and, on the other hand, offsetting partially such rights that that it is able to curtail the public enjoyment which is widespread of such creations. From the Utilitarian aspect it must be noted that there is encouragement of Intellectual Property for creativity, it allows that the creator be able to make a profit from his own work, there is incentive which is there for being able to create work that is more useful. The aim of this theory, as has already be established through decades, is to ensure that it is able to achieve for the greatest number of people greatest happiness. This view is stated as being the ultimate view when it comes to IP with respect to the theory of utilitarianism.

The second most common theory when it comes to Intellectual Property Rights is that of utilitarianism. The theorists who work in this area of the theory of Intellectual Property Rights are usually in the practice of drawing their inspiration from the personal attachment and natural rights.[2] The work that is creative in nature is usually the expression of the creator’s personality. This is a requirement for ensuring that it is protected at all times. It is necessary to establish that there should be no one who would be allowed to use such work without the permission of the creator. It has been stated by Vaver D., “Some Agnostic Observations on Intellectual Property Rights” that- The reasons behind the extension of legal protection with respect to intellectual property are not evident as well as persuasive. The moral and economic motivations have been identified by the theorists. Morally, an individual is believed to possess a natural right with respect to their intellect; on the other hand the society has an obligation for rewarding the individuals to a level in which they have produced something valuable for the society. It is also rightly said that, as you sow, so shall you reap. However, these arguments are not valid with respect to the given case.

This argument is also the argument on materials that are judicial and legislative, typically there is a blending of the various types of arguments which are there with respect to intellectual property.

Though it may be that a modern reader might suppose the fact that there is commitment towards intellectual growth is required to be a goal that is entirely utilitarian in nature, peripheral largely to the natural justice considerations, there would not have been characterization of it by many of the thinkers of natural rights themselves. In the 18th century during the work mark that was high of thinking which related to natural rights, the view which was orthodox that was taken that the progress towards ensuring that there is enlightenment of humans is interwoven inescapably with the freedom of humans, that ensuring that there is liberation of the citizen and there is liberation of the mind were procedures that were complimentary in nature. These view of being able to access knowledge and progress were applicable to the questions which related to Intellectual Property Rights. While there are some perspectives with respect to natural rights which are committed internally for the dissemination and the growth of culture and learning there are various other which are not. An IPR advocate who is strong can accept simply instantiate their preferential establishment may certainly have unenviable consequences for the development of knowledge and societal epistemology’s aptitude for tracking the truth. Nonetheless – they might carry on – we cannot overlook the claiming of rights simply for the reason that we are concerned regarding inopportune consequences to improvement and understanding.

2. Part 1

Though in theory there is protection of shapes under trademark, there has been refusal of the majority of product shapes which are functional. The rejection of such shapes have been due to the fact that they do not qualify as being a trade mark, even though there may be categorization of shape as being with the definition of sign under the Australian Trade Mark Act 1995 section 6 and there may be registration of all signs as trade-marks however, to be able to qualify as being a trademark it is required that there must be usage of the sign either on or with respect to some services or goods. It is through section 7(4) that the same rule is set regarding the manner in which it is to be used in a trade mark which states that the usage of a trademark with respect to goods means that the trade mark is to be used either in physical, upon or other relation with respect to the goods. It is not possible for the trademark to become in itself a product, so there is exclusion by this requirement of being able to register the goods actual shape as being a trademark as it does not form a separate mark, which is to be used either in relation or on the product itself.

Part II

While it was out of originally the tort of passing off that the system of trademark registration grew, there exists a difference which is fundamental between the manner in which there is conferring by the registered system protection on the trademarks and the manner in which the tort of passing off.[3] The tort of passing off is a protection that has been conferred not on the per se the trade-mark. Instead this protection has been conferred on the associated reputation of the trademark. This proposition which is fundamental form the cause for some of the debates which had been going on for years altogether but is now a proposition that has been irrefutable and entrenched. The English authority which is leading with respect to this point is the decision of House of Lords in the case of Spalding and Brothers v AW Gammage Ltd[4], soon after there was a turn of the 20th century, wherein it was stated that the usage of the of a term that is descriptive rather than a term which is inventive will require on the plaintiff much more effort for establishing that there was a secondary meaning which existed to it.

Futher in the case of CampomarSociedad v Nike International[5] it was stated that there is restrain that is put on a person under passing off from using descriptive terms, names or other such indicia for persuading the customer or the purchaser to believe that the said services or goods have an endorsement or quality which would belong or belongs to services and goods of, or are associated with others or another.

Part III

Though there are provisions which attempt to protect the 3D designs however it is challenge for the designers in Australia to try and protect their works in the near future when there are technological chance which are precipitated by the advent of their being manufacturing that is additive which is known also as 3D printing. This process is the once which there is recreation of the form of a solid entity by means of layering of various objects in layers which are successive. It may be used for the creation of shoes, clothing jewellery to furniture, sculptures, parts of machine and even instruments of music. However, the present framework which is in existence in Australia there is a general loss that is faced by the designs which are applied industrially to the benefit of copyright protection. The point at which the protection of design expire after only a period of period of ten years, unlike a copyright which lasts entirely through the period of life of the author and another plus 70 years, there is no further protection that would be in existence for the designs. It was stated in the submission by the Advisory Council on Intellecutal Property’s Reviewing of Designs Systems issues document that “this technological advancement possess the potential of posing same challenges to the regime of our intellectual property as alters to the digital financial system have been pretentious in Australia for the previous decade”.28 The need for reforming a comparison between the regimes of Australia and the foreign jurisdictions and looking to the future of technology of design as well as manufacturing for demonstrating that the policy of Australian justification for the exclusive rights and designing overlap provisions that are obsolete and out of step with the international equivalents.

4. In the case of National Research Development Corporation v Commissioner of Patents (NRDC) [6] it was indicated by the High Court that the approach which was policy-oriented should be adapted to the meaning of the term. The word manufacture in the present Act finds its position not as an anticipated word for reducing the question of patentability to a verbal interpretation question, as merely as the title which is generally prevalent in the Statute of Monopolies. The question that is correct is whether this is a subject, which is proper form the patent letters according to the principles that have been under the relevance of the principle of the said Statute. It was interpreted in the NRDC case that for there to be an invention, which is a manufacturing manner it is, required that it belongs to fine arts rather than usual arts. There must be material advantage, which should be provided, and the value to the contrary must in the economic endeavor field.


3. Part I

This is a situation of joint authorship between all the individuals who have contributed to the paper in various ways. In the case of Godfrey v. Lees[7], the copyright dispute concerned in an arrangement that was recorded of various songs by the band called Barclay James Harvest. The band’s producer had contributed toward the arrangements of the string and other elements of music to songs eventual released version i.e. the work of music in question. There was a correct identification of the arrangement as being distinct from the work that was underlying and there was a joint authorship which was awarded to the producer in the arrangements.

Part II

Jasmine will have to ensure that the disclosure is a confidential disclosure. If a confidential disclosure is made for the purposes of commercialization it shall not affect the novelty of the product.

Part III

No, the argument which is made by Malcom is not a valid argument, since the disclosure which had been made was a confidential disclosure and there will be liability on Malcolm and Hope for breach of intellectual property rights of Amanda.

Part IV

There is protection which is provided under copyright to not the idea itself but the manner in which the idea has been expressed as opined in the case of Autodesk Inc versus Dyason there is no expression of idea with respect to the said chair and it is an idea in itself hence there will not be any copyright protection that would be provided to it.

Part V

The required under section 17 states that the trade mark is required to be sign, there must be an intention attached for using it or it is to be used and it should be able to distinguish the service or the product. Though there is no geographic indicator attached to it the trademark is not innovative and will not be able to distinguish the goods for which it is being registered for it is already a form of cotton. Thus, it may not be advisable to register the same as a trademark.

Part VI

Issac would be able to obtain a patent for his invention since though he had referred to various documents through his research however he has come up with an invention that is completely thus satisfying one of the ground criteria of patents that it ensures that there is invention and development.

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