Copyright v Patent Protection

This Article will go on to compare and contrast the differing protection offered by the law of patents and the law of copyright, and are these differences accidental or do they have a sound commercial or legal basis?

Intellectual property[1] is seen as ‘products of the mind, inventions, literary and artistic works, any symbols, names, images and designs used in commerce.’[2] Now to protect these IP’s there are four main methods.[3] Patents, copyright , Trademarks and registered designs.

‘Of all things, the produce of a man’s intellectual labour is the most peculiarly distinguishable as his own.’[4] As with all produce the marketable ability of the produce must be fully realised and protected. The biggest ‘realisation’ methods of intellectual property are encompassed by two of the four mentioned above; the first being copyright and the second being patents.

For the purpose of this article I will be focusing on each in turn looking at how they are created, the protection offered and any basis to the apparent differences of the two.

Starting with copyright law, I feel a bit of background is needed to understand fully the need for it and its commercial ramifications.

Prior to the 15^th century there was no method of video recording, audio recording or even mass producing literary works.[5] The method of producing copies of books was done by hand and mostly by learned personal of the church.[6]

The introduction of the printing press was firstly controlled by licensing to the printers certain books for a period of time. The first copyright act[7]shifted this onus to the authors giving them rights if which they could transfer to the printers who would print their work.[8]

The Berne Convention[9] attempted to ‘unify’ international copyright law as to provide protection of the law throughout the world. The law as it stands is held in The Copyright, Designs and Patents Act 1988 (‘CDPA’)[10]

We can see that the main trigger for the introduction of copyright law was the introduction of mass production. Mass production and distribution being the trigger, because it gave rise to the possibility of exploiting another’s work without proper credit given.

This ability to mass produce further extended copyright protection to include dramatic and musical works, databases, artistic works, sound recordings films and broadcasts.[11]

So with the background set and to an extent we must ask what exactly does copyright protect and how do we get it?

To be protected by copyright law firstly it must fall in to one of the above ‘types’.[12] Secondly the work must be original.[13][14] This does not mean the item has to be totally unique but your version or interpretation must be unique. This gives it great scope and materials such as coupons for football pools[15] or compilations of programmes[16] can be held as copyrightable.

Copyright law protects the ‘expression’ of the author but not the idea, procedure or methods of operation.[17] This meaning that there can be a number of different versions of a story about a cat and mouse, but your version of the story would be protected.

The last requirement is that the item has to be ‘recorded, in writing or otherwise’.[18]

Once these requirements are fulfilled according to the Berne convention which set the basis for the current UK law, the author(s) automatically gain copyright protection with no registration needed.[19][20]

The period of protection depends on what section the type of work falls in to. For example if they fall in to Section1 (1)a. i.e. literary, dramatic, musical or artistic works, then the protection lasts for the life of the author and 70 years.[21] For sound recordings it is 50 years from the end of the year that it is produced.[22] For films it lasts 70 years from the end of the year of which the last of the specified personnel die.[23] Lastly for typographical arrangements it lasts for 25 years from the end of the year it was first published.[24]

The next question that must be asked is what is protected? The main areas protected are held in S16 CDPA, which states the following:

(a) to copy the work;

(b) to issue copies of the work to the public;

(ba) to rent or lend the work to the public;

(c) to perform, show or play the work in public;

(d) to communicate the work to the public;

(e) to make an adaptation of the work or do any of the above in relation

to an adaptation;

As well as these ‘Economic’ rights[25] there are also some Moral Rights.[26] These rights arise when the work is commercial published or made available to the public.[27] There are two main ‘moral’ rights that last as long the economical ones.

Firstly there is the right for ‘paternity’ this basically gives the right to the author to be identified for his work.[28] To protect against infringement of this right though it must be asserted by a statement of writing.[29] This right though does not apply to computer generated items (s79(2) CDPA),or published works such as newspapers encyclopaedias or other collective pieces of reference.[30]

The flip side of this right then is that a person has the moral right not to have work attributed to him that is not his.[31]

The second big moral right is held under section 80 of the CDPA, which states that an author or director has a right to prevent derogatory treatment of their work.[32] This right unlike the paternity right does not require any assertion on the copyright holders side and comes in to play with ‘alterations adaptations which amounts to distortion or mutilation of the works…’[33] [34]

Patents like copyright stems from the late 15^th century. The crown issued monopolies to people for different methods of productions etc. The earliest of such patents recorded in 1449 in which Henry VI granted a patent to Flemish-born John of Utynam.[35]

Patents now are governed in majority by the Patent act 1977 and have the same aim as envisioned by the 15h century model. Namely the monopoly granted by registering the patent by the inventor is used as an incentive to encourage innovation.[36]

To apply for a patent there are three main bodies you can apply to the UK intellectual property office for national protection,[37] or apply to the European patent office, which under European Patent Convention 1973 gives ‘the applicant …a bundle of national patents effective in each country under the countries own jurisdiction.’[38] The last alternative is to apply to the International Bureau of the World Intellectual Property Organization (WIPO) in Geneva under the terms of the Patent Cooperation Treaty 1970. [39] Though this unlike the previous two this does not grant immediate protection, what it is, is a body that conducts international search on current patents and creates a report on items that may cause issues for the patent.[40]

For the purpose of the next part I will be focusing on the UK-IPO process. To apply for a patent the following is needed under the patent act 1977[41]:

(a)     the invention is new;
(b)     it involves an inventive step;
(c)     it is capable of industrial application.

To apply for the patent the patentee has to firstly prepare a specification, which must include a written description (along with illustrations), legal ‘claims’ that set out the distinct technical nature of the invention, and a summary of all the import technical aspects of it. This must be sent with the 1/77[42] form.

After the filing is complete form 9A/77 must be filled to conduct a search to see of any similar patents are already there therefore making this one void. Also at this stage the invention is also checked for has taken an inventive step as required by 1(b).

If your meet the criteria and the application is not repealed then the patent is published. After this you will have to fill out form 10/77 which results in a substantive examination, which results I you getting possible amendments or getting granted the patent for a maximum period of 20 years (subject to renewal fees).[43]

Once complete Under s.60(1)(a) of the Patents Act 1977, UK patents provide an inventor the protection to prevent others from: ‘making, keeping, disposing of, offering to dispose of, using or importing the product.’[44]

The protection provided by the patent is determined by: i) the nature of patent as a right against independent inventors; ii) the uses of an invention exclusive to the patent holder; iii) a determination of scope of the invention claimed in the patent; iv) the range of available defences and compulsory licences; and v) the duration of the right.[45]

This wide scope on what is a monopolistic regieme has caused problems an example of which can be seen in the speech of Lord Hoffman in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005][46], where he stated:

“The need set clear limits upon the monopoly is not only…in the interests of others who need to know the area ‘within which they will be trespassers’ but also in the interests of the patentee, who needs to be able to make clear that he lays no claim to prior art of insufficiently enabled products or processes that would invalidate the patent.”[47]

Now with the basis for methods set I would like to look at the possible basis of the current standing of the law in each area.

It has been argued that the protection of intellectual property is akin to a cyclic pattern consisting of rewards which act like an incentive for further innovation which are then rewarded. [48]

Furthermore the economical basis on which these protections stand is to give a monopoly to the person of successful.

So it would seem economical and innovations are the two main driving factors of creating and protecting intellectual property.

If we firstly compare the requirements we can see that while copyright is akin to an automatic right for the most part the protection offered as seen above is to protect the economical value of item. For example Copying, rights to distribute, rental, public performance and communication and adaption rights are all which hold economical value for owner of the copyright.

If we then look at the exceptions provided by copyright law such as making temporary copies,[49] Research for a non-commercial purpose,[50]Private study,[51]Critiquing and reviewing,[52]Lending by public libraries,[53]Use in relation to non-commercial disabilities, all public administrative work done and incidental inclusion.[54]

These exceptions arguably do not take away and economical value of the copyrighted good. [55] Therefore falling in to the cyclic explanation as described above.

If we then look at patents we can see that its requirements from the offset require the need of innovation[56] and the requirement of commercial application.[57]

Further to the point of encouraging innovation, it is argued that all innovation is based on the cumulative knowledge of the area in which it is based. This ideology can be seen in the default length of patents. The period though extendable to maximum of twenty years, is rarely done so due to fast moving nature of the majority of industries.

This viewpoint of encouraging innovation is further extended by the newly in enforcement of the European Patent convention;[58] Which sets the following as non-patentable:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.[59]

These exceptions can be seen vital to the backing of the ideology as these are all methods (article 52) that would enhance and possible increase the chance of innovation and progress in the fields. Or just improve and create new business[60].

The problem with this viewpoint that patents are there to encourage innovation is that firstly the fact the process to apply for patent is an expensive process and the only way an inventor can do this is either be willing to take the financial risk or sell his product before hand to a 3^rd party who would be willing to cover the costs.[61] The danger of approaching third parties with your new idea is that if it results in the ‘idea’ being common knowledge it would result it in no longer being novel and therefore would fail the patent criteria.

Secondly due to this cost involved of getting a patent the inventor if not relying on a third party for financial banking would have to pick and choose which innovations he would want to patent, on top of this the criterion for the innovation to be industrially applicable creates another problem, as the inventor does not necessarily have the business acumen to know what is and what isn’t commercially viable, i.e. what will sell and what would not.[62]

This leads me to the conclusion that the main aim or basis of patents is the commercial aspect, not in the sense of copyright where all work has a possible commercial benefit but the fact that patents are aimed at encouraging innovations that would make money. Therefore possible cutting out ‘humanitarian’ innovations, adding to the fact article 53 states:

(a) inventions the publication or exploitation of which would be contrary to “ordre public” or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;

This getting rid of the incentive for researching these innovations, adding more to the fact that cosmetic surgery techniques are patentable where as normal surgery and treatment methods are not[63] is further de-motivation for this area.

In conclusion we can see that patents started as a monetary incentive for innovation and this monetary incentive is what has been sculpting the law to its current position, to achieve maximum economical benefit, though this has moved to a wider economical field then to just for the inventor. While copyright started off as a controlled incentive became a way to innovate more creativity due to the fact of its easy acquisition, its wide array of protection and its easy economical utilization.

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