Intellectual Property Law Essay Example

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    Law
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    Undergraduate
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Intellectual Property Law 3

Intellectual Property Law

Intellectual property law

Intellectual property is the part of law that works to ensure that rights of people who come up with original ideas are protected from people who tend to copy these original ideas and sell them as their own1. This law protects the intangible products such as music, literature and inventions. Intellectual property law is put in place so as to encouraged people to come up with new technologies, ideas and inventions that could help countries and companies realise economic growth. The reason behind this is that people feel motivated when they are sure that they will be able to benefit from their labour, and, therefore, will endeavour to invest in development of new technologies2. These developments will help in efficiency in production and this will lead to creation of more jobs to the people. The governing authorities have designed mechanisms of protecting intellectual property so as to ensure that the right procedure is followed. These mechanisms include copyright, patents and trademarks and they are discussed below3

. Copyrights This mechanism work to protect how ideas are expressed by their original owners. This means that the mechanism only protects the expressive rights of the idea. This means that the owners possess the only right to reproduce such work, only in case of music to perform or publicly display such ideas. Every person who intends to reproduce or use the idea should seek permission from the original failure to which this results to a crime. The mechanism also ensures that the originals owners benefit from every activity resulting from their original ideas
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. Patents

This mechanism works to ensure that all inventions from duplication by other parties for a given period of time. This allows the parties that invented the idea to benefit for that period of time without having any competition5. Patents are divided into three different categories which include utility, design and plant. The utility patents have been put in place so as to protect inventions that have a specific role or a function they are mainly to protect inventions such as computers and their accessories, technology and machine. The owners have a right to benefit from the idea before allowing competitors to benefit. The second category is design patent which has been put in place to protect the presentability of a product or an object6. This helps companies to gain their revenue through uniqueness of their products. This is done by ensuring that the patent law is applied. The last category is the plant patent which is related to the agricultural sector. The patent protects those who come up with plants varieties to enjoy before they are reproduced by anyone; this is mainly done on hybrid plants7. The intellectual property law does not apply patents automatically but requires one to apply for patent rights which are subject to approval8. This process at times can take a lot of time. Patents rights works to ensure that any person who produces the patented product during that period is in violation of law and should be punished. The given period allows the company to gain the invention costs and any other cost that was incurred before such an invention was realised.

Trademarks

The other mechanism of intellectual property law is the trademark that has been put in place to ensure that names and all features that a company identifies with are well protected. This is to ensure that there is no look alike or companies that use the same branding features so as to benefit from a brand name of another company9. The reason behind this is that trademarks allow customers to identify products in a simple way. This differentiates company products from those of a competitor. A trademark is developed before a product is introduced in the market because it is the identity of the product. This has been put in place to ensure that intellectual property rights are not violated and in case they are violated there is a basis to such a case10. The intellectual property law on trademarks ensures that every company have identity of its products and benefits from their developed brand names and logos. The reason behind this is that there is a tendency of people use brand names of the well established companies to sell their products which does not meet the quality of that company product. This end up spoiling the brand name of that company, therefore, to avoid such issues the intellectual property laws protects the companies’ trademarks so as to allow them benefit11. To the companies logos, pack designs and trademarks are their properties that help them market and sell their products. The companies argue that the government is depriving them of their property rights, and the government is assuming these rights in the place of these companies. The companies believe that plain branding will deny them rights over intellectual property and passing them to Commonwealth.

Intellectual property (IP) enforcement is an issue the Australian Government has been addressing in the recent number of years so as to allow economic growth and development of original owners of ideas and products. This is done to protect owners of intellectual property from any external harm. The most notable step by the Australian government is the parliamentally report ‘Cracking down on copycats: enforcement of copyright in Australia’ this report laid down strategies on how the intellectual property law should be implemented and enforced12. IP enforcement has been made possible by the involvement of the industry stakeholders within the reach of the government because they need to be protected from any infringements on their knowledge and property. This working relationship has been motivated by the fact that the technological environment is rising as a new set of challenge on how the IP matter should be enforced. This has allowed the government to come up with legal measures so as to ensure IP theft is minimized13. The government has also worked to establish strategies which should be followed in the enforcement of intellectual property right. The government has taken criminal and civil measures as remedies for violation of intellectual property law so as to make it effective14. The intellectual property law is a function of the Australian Federal Government because the laws should be uniform in all the states. The reason behind this uniformity is that it is easy for it enforcement and the federal government can act as the enforcing body through its agents.

The enforcement of the Intellectual property law in Australia is the role of Attorney General’s Department which provides advice to the Attorney General on issues of copyright law and policy which are his roles. The ministry for Tourism, Industry and Resources is also charged with the responsibility of industrial property law so as to protect people of Australia from any external harm. This two ministries work closely to ensure that the law is effectively enforced15. The government has set the Australian Federal Police (AFP) as the primary intellectual property law enforcement agency and this allows the government to monitor all the process laid down as ways of eliminating violation of intellectual property law. The police enforce criminal law and also ensure that country’s interests are well protected from any crimes. The AFP is highly charged with the enforcement of International law in Australia and to ensure that all polices have been put into practice. The police alert the government on any threats on the government policies on intellectual property law and this allows the government to take the necessary action. The police investigate on the issues of intellectual property law and hand in their reports to the Federal Director of Public Prosecutions so as to charged and prosecute those who are found in violation of IP law. The Australian Customs Service also plays a role in enforcing property rights related to counterfeit trademarks and ensure that they fight with pirated copyright goods at the Australian borders. These powers have been given in the Copyright Act 1968 and the Trade Marks Act 1995. The customs Service is charged with ensuring that there are no counterfeit goods entering the country. There has also been the Plant Breeders Act of 1994. This act has set out criminal provisions for the enforcement so as to ensure that private rights are put in place.

Effectiveness of the laws protecting copyright

Australia law on copyright has worked to ensure that there are provisions of criminal offences.16 The range and type of criminal offences has developed over time.17 The Act provides a range of criminal offences so as to ensure there is elimination of copyright piracy. These provisions include abuse of rights management, misuse of devices and decoding of broad cast service. These offences were inserted in the Copyright Act during the implementation of World Intellectual Property Organization (WIPO) Copyright Treaty. These laws have been amended so as to comply with Free Trade Agreement. These offences have been provided so as to fight copyright piracy on commercial scale so as to cope with World Trade Organization. This is to ensure that any piracy is criminalised so as to protect tools such as computer software, books, music and other recordings are very well protected. The law has ensured that there are penalties put in place for those who violate this law. The penalties are very high such as 5 years imprisonment for those who violate these commercial laws18.

Intellectual Property Rights and Economic Development

Many intellectual property laws should work to ensure that they do not hinder economic development in any way. The measure of the benefits of intellectual property laws is by utilitarian which states that benefit of something should outweigh its negative side. The negative effects of the laws should be out done by the positive effects. The laws should promote investment that will allow innovation and creation of knowledge that will help in establishing rights which are exclusive on how the innovated products and knowledge should be treated by the original and the competitors. This is to ensure that the company that originates with a knowledge or an idea benefit from such an issue. This is to ensure the companies which do not incur cost in innovation do not benefit from copying from their competitors. This means that if there is weakness of these laws will make the companies to steal ideas without the owners’ consent which will hinder competition in a certain market. These laws therefore, work to ensure that companies which have invested in research and development gain benefits for a given duration of time before the competitors can gain information on these ideas. This means that the owner of the gains immunity for a given period of time so as to recover research costs. During the immune period the company can produce and market its products without having any competition from any other company because of the grace period. This is to ensure there is fair competition as companies invest in research and development so as to innovate.

The intellectual property rights also work to ensure that the knowledge is widespread so as to allow economic growth and development in the economy by ensuring that the knowledge from information is shared by companies in a given industry. The owners of the rights after the given grace period is over they are obliged to place the idea on the market to be utilized by the competitors. The reason behind this is that knowledge is treated like a public good to ensure there is no rivalry in the industry and the company helps each other to produce the best products in the market in the best interest of the customers. This is done to ensure economic growth is achieved through allowing easy and wide access of new ideas and technologies once they have been realized. This is done to economically to lower marginal production cost which would result to high prices of products. These laws should not be protective because this could limit on the social gains realized through inventions. This is to provide incentives to allow easy dissemination of these ideas. These laws should find a balance so as not to be weak so as to make other companies to get lazy in innovativeness.

Possessing intangible assets exclusively is difficult because they cannot be secured physically against being accessed by a third party hence they are non- excludable. Most rights of intangible property do not last indefinitely but instead, they last for just a given time period for example copyrights and this may be very hard in intellectual property transfer since, the new owner may be hindered from the full use of the property until the expiry of the copyrights . Some rights of intellectual property can last indefinitely for example trade mark registrations. In this case, exclusivity goes on as long as the property registration is maintained.

The IPRS is defined as the rules, practices and regulations put in place to control the way companies conduct their activities19. It is aimed at balancing the interest of different stakeholders to ensure the companies do not take advantage of their position20. Most companies are working to attain high levels of protecting their property because in the current economy the companies are realizing that they should demonstrate good competition apart from being profitable.

Conclusion

In conclusion, International Competition law works to regulate the conduct of countries and companies in their trade operations. The law acts as the guideline on how competition should be undertaken without harming other who operates the same business. The World Trade Organisation has acted as a unifying in the international trade where it ensures that International competition Law is put in place, and there is no violation of the set laws and standards. The body also ensures that legal issues that arise during international trade are solved in the best ways possible. International trade law also acts as a direction to nations when conducting international and ensures agreements are reached. The law also helps punish nations which violate the set trade agreements. This is done through penalties and sanctions to such a nation. It also provides a direction in solving the legal issues that arise during trading. The law protects the weak nations against the powerful nations which could exploit such nations in the international trade. The World Trade Organisation has taken an initiative to ensure that countries compete in a fair way in the international trade through its set laws. Many countries have adopted the international competition law so as to control how business is being operated nationally and internationally. This has led the world trading bodies to coming up with bodies to monitor international trade and to identify issues that might arise. They have also come up with bodies of solving the arising issues so as to ensure trade is carried out in the fairest way possible. The bodies also punish the countries that do not follow these regulations by applying sanctions. The sanctions act as lessons to other countries so as to enable them trade in the right and allow free trade to prevail.

References

Bishop, B., and Walker, M.The Economics of EC Competition Law: Concepts, Applicationand Measurement,( 2.ed. London: Oxford press, 2002).

Bossche, P. The law and policy of the world trade organization: Text, Cases and Material.

(Sydney: Cambridge University Press, 2008).

Carr, I. International Trade Law: Principles of law series. (Arizona: Routledge, 2005).

Choi, W.M. Like products in the International Trade Law: Towards a consistent: GATT/WTO.

(London: Oxford University Press, 2009).

Chuah, J. Law of International Trade. (New Orleans: Sweet and Maxwel, 1998).

S 14(1) Copyright Act 1912.

The Copyright Amendment Act 1980 amended the penalties in the Copyright Act 1968. Four years later the Copyright Amendment Act 1984 made distribution of a computer program a criminal offence.

1Chuah, J. Law of International Trade. New Orleans: Sweet and Maxwel, 1998.

2Dabbah, M.M. International and Comparative Competition Law. London: Routlege, 2010.

5Carr, I. International Trade Law: Principles of law series. (Arizona: Routledge, 2005).

9 Abbott, K, Pendlebury, N and Wardman, K. 2007. Business Law. Sydney: Cengage Learning.

12 Adamson, J.E. 2010. 21ST Century Business: Business Law. London: Cengage Learning.

16 S 14(1) Copyright Act 1912.

17 The Copyright Amendment Act 1980 amended the penalties in the Copyright Act 1968. Four years later the Copyright Amendment Act 1984 made distribution of a computer program a criminal offence.

19Tricker, B. (2009). Corporate Governance: Principle, policies and practices. New York: Oxford university press pg. 2-79.

20 Velasquez, M. 2012. Business ethics concepts and cases (7th ed.). Prentice Hall: Upper Saddle River, New Jersey pg. 3-68.