Part 1
CopyRight
Copyright is one of the notable elements in business. It is an intellectual property type protecting authorship’s original works, whereby the author fixes the specific work in an expressible form. The copyright law covers multiple types of works, including photographs, paintings, musical compositions, illustrations, computer programs, sound recordings, books, plays, and many more expressible forms of works. Copyright is an expression of originality, whereby original work entails work independently created by a human author and expresses at least a minimal degree of creativity. Independent creation entails creating something by oneself without copying (Legislation. go. the UK, 1988). However, there are instances when originality may not entail creativity, such as familiar symbols, slogans, short phrases, lettering, or typographic ornamentation. Although copyright aims at protecting originality, it does not protect aspects such as ideas, systems, processes, systems, methods, concepts, principles, and discoveries (Bouchoux, 2016). The copyright owner is anyone who creates original work, such as taking a photograph, recording audio, or another form of original work and fixing it. Work fixing entails capturing it in a sufficient perceivable that can be reproduced or communicated for a long time. Several copyright cases in the United Kingdom involve individuals or companies infringing others’ copyrights.
Clothing Ltd versus woolen Mill Ltd is one of the most notable copyright infringement cases in the United Kingdom. The judge found that “the copyright subsisted in a fabric design as a work of artistic craftsmanship and the sale of such garment amounted to copyright infringement (Myerson Solicitors, 2020). The case thereby presented significant development in English law, presenting guidance and scope in dealing with copyright cases in the United Kingdom.
Patent
Patent plays a relatively similar role to copyright in protecting business and individual rights. However, unlike copyright, a patent is an “exclusive” right granted after a product or process provides a new way of doing something or offering a technical solution to a particular problem. Getting a patent entails disclosing the invention’s technical information to the public. The patent owner has the right to prevent or stop others from utilizing the patented product for financial gain, thereby implying that patent protection implies that an invention cannot be commercially produced, distributed, used, imported, or sold without the owner’s consent. Patentable products and services include computer software, hardware, accessories, games, internet advances, business methods, jewelry, machines, and other helpful discoveries. Therefore, an invention can be patented if valid and has a patentable subject. The invention must further be novel and non-obvious, implying that it should meet the legal definition of the novel (Legislation. Gov.UK, 1988). There has had various legal cases in the United Kingdom and Europe involving patent infringement, thereby setting practical precedence for similar cases in the future.
Actavis v. Eli Lilly is a significant supreme court case in the United Kingdom involving patent infringement. The case background indicates that the approach to such cases entails addressing the case in two approaches, whereby the addressee to the suit is the patent owner. The issues include whether the respondent infringes any of the claims as a matter of standard interpretation or whether the variant infringes due to variations from the invention in immaterial ways. The case, therefore, resulted in the rise of a two-dimensional approach to addressing patent infringement cases. Some of the questions arising from the supreme case’ ruling include the exact definition of infringement as a matter of standard interpretation and the applicability of the purposive approach in dealing with such cases. The case, therefore, presented significant contributions, helpful in addressing similar cases in the future.
Trademark
A trademark is a common feature that distinguishes an enterprise’s products or services from those belonging to other enterprises. Trademark registration confers the exclusive right to its registered users, implying that only the owner can exclusively use it or license another party to use it in return for payment. The registration, therefore, provides legal certainty, reinforcing the rightful holder’s position in the case of litigation. The United Kingdom law provides that trademark registration gives the initial proprietor the right to stop others from using confusingly similar marks for their products. Some situations might allow the trademark owner to stop other producers from using a mark on products that may be comparatively different from their registered products. Trademark protection is therefore beneficial in giving the proprietor the right to use and protect a registered trademark.
One of the leading trademark cases in Europe is “the invalidation of Banksy’s flower thrower trademark,” which was a registered trademark for Pest Control Office Limited. Full color black limited sought the European Union’s intervention to invalidate the EU figurative trademark. 012575155, citing its similarity to the one held by graffiti artist Banksy’s flower thrower artwork. Although the authority initially established that the Pest control department did not intend to use the logo as a trademark, The European Union Intellectual property office’s cancellation department invalidated the trademark in 2020, agreeing with the complainant’s argument (Beyond Law firm, 2020). The case further presented the question of the primary purpose and difference between copyright and trademark protection.
Design Rights
Registered or unregistered design rights protect the significant features determining a product or article’s appearance. The United Kingdom’s right protects product appearance, including the entire product or its parts resulting from the colors, shapes, contours, graphic designs, packaging, two-dimensional ornamentation, or digital media products. Three legal rights are thereby employed in design protection: artistic design rights, unregistered design rights, and registered design rights. Design registration where possible is the commendable approach, as the others may present significant limitations on the rights. The initial design registration can last for up to five years and is renewable for 25 years (Kuzma, 2010). On the other hand, protection for unregistered designs lasts for ten years and can be renewed for up to fifteen years from when the product was designed.
The UK supreme court 2016 determined that images could be used in determining the scope of registered design protection. The decision was litigation involving a community registered design for magmatic Limited’s children’s ride-on suitcase, sold under the trademark ‘Trunki’ and consisted of six CAD produced images “in monochrome with grey-scale shading” and significantly distinct tonal contrasts. Magmatic issued a legal proceeding against PMS international group in 2013, alleging that the former was importing and selling products to the United Kingdom, infringing “Trunki’s” CRD (Stone, 2016). The case proceeded from the high court to the supreme court, which established that the respondent’s case did not infringe Trunki’s CRD, thereby agreeing with the court of appeal ruling, based on the need for global comparison, the relevance of ornamentation, and color contrasts. The case, therefore, established the various instances whereby design protection infringement may not be applicable.
Evaluating Whether The UK Law Adequately Protects Modern Forms Of Artistic Protection
The UK copyright law presents various aspects helpful in protecting various forms of artistic expression. However, critics of the laws argue that although the provisions cover a wide range of artistic forms, they are limited in covering modern forms of new and relatively unpopular forms of art. Section 4 of the 1988 copyright, designs, and patents act presents a limited definition of the various rights and protection (Legislation. Gov.UK, 1988). It insinuates that an artistic work entails a graphic work, sculpture or collage, or photograph, irrespective of quality. It further defines an architectural work as a building, a building model, or artistic craftsmanship work. Some of the notable limitations in the provision include the definition of a photograph as a “recording of light or other radiation on any medium on which an image is produced or from which the image is produced, and which is not a part of a film. The provision may thereby be insufficient in protecting new and modern forms of artwork.
Comparing the current and previous practices with the law in the United Kindom and other jurisdictions indicates the need for continuous changes to enhance their effectiveness in protecting modern forms of art that may not be covered in previous provisions. Nagariya (2021) indicates that various modern art forms significantly redefine the challenges and traditional definitions of art. However, some modernism critics insinuate that the current legal definition is sufficient as it covers artistic creativity and originality.”
The UK’s copyright law significantly differs from such provisions in other jurisdictions, such as the United States. The main notable difference between the two is in aspects whereby some reproductions may be considered infringements in the United States and otherwise in the United Kingdom. Although they are both based on legislation and practical application, the US employs the fair use concept, while the UK employs fair dealing copyright exceptions. The US’ fair use exception considers several factors in determining, including the nature of the copyrighted work, purpose and character of use, substantiality, and quantity of what has been taken from the copyrighted work, and the effect of the use on the potential market after the use. On the other hand, the UK’s fair dealing policy considers non-infringement to be based on the work is used in non-commercial or personal study, review or criticism, instruction illustration, parody, quotation, pastiche, or quotation (Morin and Gold, 2014). Further provisions in the two jurisdictions differ significantly in interpretation and applicability, whereby aspects that may be considered infringement in one may be considered otherwise.
Several factors hinder the UK’s copyright law’s effectiveness in protecting modern art forms. Torsen’s (2006) “Beyond oil on canvas” establishes that the UK’s copyright law is limited and cannot accommodate multiple aspects of artistic production. Digital media growth has created significant challenges to the law since its creation. The law thereby protects various visual art, including traditional arts, paintings, drawings, and several aspects of modern arts such as decals and wall covering designs. However, the law does not cover significant aspects whereby intellectual property rights may be infringed, limiting their effectiveness in protecting the modern, relatively newer forms of artwork.
Part 2
Question 1: Designing a product
The process entails designing a simple electric plastic bale-making machine, a modification of an existing product in the European market. The designing process aims to develop a machine, produce plastic waste-based construction materials, and make sustainable and eco-friendly construction materials. The product will significantly differ from seemingly similar products in the market in terms of design, capability, and the type of material produced. Although the machine will produce products almost similar to the ones already on the market, ours’ will focus on facilitating small-scale construction materials manufacturing, thereby allowing contractors and small-scale traders to lower the construction cost and facilitating a quick and efficient way of managing waste in the United Kingdom. Unlike the other sustainable construction materials manufacturers, whereby the baler is, and the manufacturing components are in separate equipment, the new machine will combine the multiple aspects to form a single machine capable of bailing the plastic waste products and processing them into construction bricks, which will have significant differences from the existing similar products.
The product design will focus on creating significant structural and functional differences to enhance functionality and distinguish between the equipment and other proprietors’ products. Some of the notable features of the equipment include the colors, whereby it will be initially produced in silver and black colors. More notable features include the measurements, whereby the height will be twice the width for all the products, thereby allowing for the production of different product sizes. The color combination for the product will entail a mix between the two selects, with the larger or industrial equipment colored grey, while the small-scale use product will be colored black. Other products include efficiency, whereby the machine should be able to process between 1 and 100 tonnes of waste plastics to construction bricks. Traders and contractors will be allowed to use the machine after purchasing on a large scale for reselling or leasing or purchasing as the final consumer.
Question 2
- Is there a demand for such products?
There is a significant increasing direct and indirect demand for sustainable construction-material-making machines due to several factors, including the rising need for environmentally sustainable development technologies (Reddy, 2004). Studies indicate a global demand for green construction materials that are expected to experience significant growth over the next few years (Almalkawi et al., 2019). A 2019 research on the subject indicated that the product market would grow by approximately $217 billion in 2020 and $ 238 billion in 2021, implying a compound 10.1% compound annual growth. The growth is thereby attributable to the growth in awareness of economic sustainability, thus driving the demand for environmentally sustainable products. The industry’s market capitalization is further expected to reach approximately $383. Eighty-five billion by 2025 (Research and Markets, 2021), indicating that the market for related products is also likely to increase.
Several major players are operating successfully in the industry both locally and internationally, insinuating the products’ market stability and further growth potential. Although the demand for sustainable and environmentally friendly construction materials is evident in the European market is evident in Europe and the United Kingdom, there are relatively fewer players in the market than in Asia and America, implying local dependence on foreign players (Hossain et al. 2020). The major players in the industry include Certainteed Corporation, Interface Inc., Forbo International SA, Kingspan Group PLC, RedBuilt LLC, Armstrong Word Industries Inc., and other local and international players (Naditz, n.d.). The green building materials industry thereby consists of producing and selling eco-friendly, renewable, and durable green building materials. However, the product on focus serves the double purpose: producing the materials and selling the manufacturing equipment to the manufacturers, thereby tapping into a broader potential market.
Although the product falls under the sustainable-green-construction materials selling and manufacturing industry, it is also under the construction equipment market, with a different set of players. The industry has experienced significant growth over the last few decades due to the rising demand for faster and more efficient construction equipment. The industry’s players can be categorized into two major groups: the heavy equipment market and the light equipment market. Although the industry experienced a significant drop in 2020 due to the economic effects of Covid-19, it is expected to continue with the uptrend as the market recovers. Some of the major players in the industry include Caterpillar Inc, Komatsu, XCMG, Sany, and Volvo CE. The companies have continued to record significant profits over the last few years and express signs of further potential growth, opening room for more new companies (Andeso, 2022). The study, therefore, establishes the existence of a potential market for sustainable construction materials-making machines based on the growing demand for environmentally friendly construction materials and the demand for better and more advanced construction technologies.
- Product’s Unique Proposition
Although the machine produces products seemingly available in the market, it further presents
Significant unique attributes. The unique attributes help enhance competitiveness, including its capabilities and size variations. Unlike most competing products, which are primarily available for large-scale manufacturers, our product will be available for small-scale and large-scale manufacturers and traders. Studies indicate that product variations significantly enhance customer experience, thereby increasing sales (Akçay and Karaesmen, 2022). The product further aims at solving multiple problems, including facilitating environmental conservation and providing affordable construction materials to the construction industry. The aspect thereby presents significant unique attributes, whereby most of the other related products present a separate plastic waste baler and construction materials making aspect. The unique attributes aim to make plastic management and availing cheaper and efficient construction materials at a relatively competitive price.
Question 3
- Protecting the idea using the available laws
Protecting the idea entails the application of various legal provisions available in the
The United Kingdom. The first step in protecting the idea entails registering a patent for the product’s new inventions; patent registration protects the invention, thereby granting the right to take legal action against individuals or enterprises that may use, import, or sell the product without the innovator’s permission (Legislation.gov.uk, 1988). Although the product entails various aspects of improvement to existing services, there are several inventions, including combining the plastic waste recycling aspect and brick and tile making aspect in a single unit. Further steps to protecting the idea include registering copyright for the final product, thereby enhancing the idea’s protection against corrupted products.
Patent registration will entail a process with a series of stages and thereby financial cost. The business will hire an attorney or an advisor, whereby the cost is approximately £4000, and the process is likely to take five years. The process entails eight steps when the application for patent protection is made through the Intellectual Property Office. The steps include; searching for similar patents to ascertain the invention’s originality, preparing for a patent application, filing the application and requesting IPO’s search, receipt of the search report and deciding whether to continue with the application, application publication which happens 18 months after filing, request for substantive examination within the first six months of publication, responding to IPO’s comments after the substantive examination which may take several years, and application grant or refusal (Iasechko et al. 2020). Once granted, the proprietor can now benefit commercially from the patent use through selling, licensing, or mortgaging the patent.
To accelerate the process and allow operations to continue, the proprietor will apply for copyright protection which is relatively cheaper and faster. The right protects the work from unauthorized use. The author receives automatic copyright protection upon creating original, musical, dramatic, or artistic work, including photography and illustration, original non-literally work such as web content, software or databases, and other related creative works (Rout, 2018). The copyright thereby protects the artistic work in the product, thus preventing others from copying the work, making adaptations, lending or renting copies of the work and related forms of unauthorized use, awaiting patent granting.
Question 4
- Explain What Actions You Would Take To If You Later Discovered That Someone Had Infringed Your Copyright Or Began To Sell Your Product Without Your Knowledge
Defending an innovation against an infringement entails taking the appropriate legal action against the perpetrator. The process entails filing a legal proceeding through the courts or the intellectual property office. Some types of claims can only be filed using either of the two options. Copyright infringement can only be filed through the courts (Atanasova, 2019). However, the court expects an attempt to resolve the dispute using alternative dispute resolutions before filing the legal proceeding (Romualdi, 2018). Therefore, the proprietor will seek an intellectual property professional’s assistance to identify and attempt the key issues and attempt to address them before filing a legal complaint through the courts.
Addressing the issue may therefore employ a formal or informal approach. The informal approach entails negotiation between the parties, which entails informal correspondence exchange or phone calls. The negotiation takes place between the professional representatives of the parties involved. Some of the high costs of the approach include facilitation fees for the representatives. The two out-of-court alternatives include mediation and arbitration, whereby a third party or an arbitrator is an expert in the dispute. When the out-of-court alternatives fail, the final alternative is the court action, whereby the parties make their arguments before a judge, who then decides the outcome of the law.
- Discuss the steps you would take, what external services you would use and what likely reactions can be expected from your actions.
The course of action will entail a series of steps, involves various players to enhance the
chances of arriving at the desired outcome. The first step includes the informal negotiation between the parties will involve third-party players, including professionals in the product design field, who will play a significant role in establishing the structural similarities between the products, thereby negotiating effectively in favor of the rightful copyright owner. The stage will also engage legal professionals to accord the necessary legal counsel during the negotiations. The identified perpetrators at this stage are expected to present a counter-argument during the negotiations, claiming to be the original producers of the contested product (Lintaman, 2020). Therefore, it will be commendable to identify a neutral arbitrator to listen to the parties’ views and make the necessary recommendations. If the options do not yield, the final option entails presenting the matter in a court of law whereby the judge will make a ruling. The rightful copyright owner will receive financial compensation. The perpetrator will be barred from using the product commercially until they get authorization from the proprietor.
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