Intellectual Property: The Enforcement Mechanism and Controversies

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Table of Contents

Introduction
Intellectual Property
Controversies
Conclusion
Reference List

Introduction

Intellectual Property refers to possessions of knowledge which can be included in touchable items within specific time and without limited copies across the universe.

There are various creations which include images, names, designs, inventions and works of artists. Intellectual property is mainly divided into two groups that are namely copyright and industrial property (Alces & See, 2004 p. 113). Substantially, copyright consist of poems, works of artists, drawings, and works done in music, films, and novels. In contrast, Industrial property entails industrial designs, trademarks, and patents.

The objective of this paper is to discuss the enforcement mechanism of any three statutory intellectual property laws which are currently operational in New Zealand and comment on the extent to which they are effective in protecting the rights of the intellectual property right holder in the marketplace. The paper also discusses some controversies that have arisen with regards to enforcement of intellectual property rights, both in New Zealand and abroad, over the past five years. Finally, the paper addresses opinions on how these controversies should be dealt with (Colston & Middleton, 2005, p. 88).

Intellectual Property

Enforcement mechanism: Copyright Tribunal

Owing to increasing technological changes in the world today, there is great need for enforcement mechanisms. It is very important to protect information which is usually incorporated in touchable items. In New Zealand, there are quite a number of enforcement mechanisms that are put in place in order to regulate the laws governing intellectual property (Anderson, 2006, p. 103). Copyright Tribunal is a statutory body with enforcement mechanism which stipulates that individuals should be accountable for a copyright work. As an enforcement mechanism, the tribunals are supposed to handle dispute cases that arise from license related issues.

The enforcement mechanism of this statutory is one which ensures that people who copyright do not use other people’s work without a license. It is therefore aimed at controlling piracy whereby some individuals use other peoples’ wok without accounting for it. In New Zealand, it is mandatory for copy right owners to obtain license in order for them to copyright. Clearly this is also stipulated in section 205 which is in the Act (Colston & Middleton, 2005 p.58). There are some individuals who normally take advantage of other peoples information without caring about the repercussions. Such individuals normally assume and take things just for granted.

Enforcement mechanisms are meant to deal with such individuals who do not adhere to laws and regulations. To some extent, enforcement mechanisms are effective in protecting the rights of the intellectual property right holder in the marketplace. This is because the right holder can file against the person who copy right without a license. As a result, the statutory intellectual property laws are aimed at preventing similar actions and giving hints on how to act in certain cases. As New Zealand has the statutory laws which stem from common laws, it is necessary to explain that the statutory laws are those enacted by a legislative body. Consequently, the laws included into the currently operating intellectual property laws in New Zealand are based on previous decisions of the courts and enacted by the Parliament.

The case of Tiny Intelligence Ltd v Resport Ltd (2009) can be set as an example of the laws which presuppose actions when the copyrights are infringed, according to the Copyright Act 1994. Thus, the paragraphs addressed include “way of damages, injunctions, accounts, or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right” (Copyright Act, 1994, sec. 6, 120(2)). In this case the right holder claimed to receive compensation from the person who copied the work or a part of work without a license.

Due to the enforcement mechanism, some people are always vigilant not to copyright since they fear the consequences. If by chance, such individuals are obligated to copyright, they will always ensure that they follow the right procedure so as to shun from mistakes (Cornish, 1989, p.108). In this case, the right holder is protected in the marketplace since his work is not negatively interfered with. This enforcement mechanism may however not be effective to some extent since there are some violators who normally know how to manoeuvre with copyright. Some enforcement mechanisms can be considered not to be effective to the extent that they are able in the full measure to protect the rights of the right holder. As a result, the right holder may not get protection of his/her work hence may lead to some loses. Enforcement mechanisms may not be effective since there are individuals who copyright within hidden places like their homes and so it may not be easy to catch up with (Coombe, 1998, p. 59).

The example set includes the case of Hammar Maskin Ab v Steelbro New Zealand Ltd (2010) about the specific law. In this respect the Patents Act 1953 was considered and addressed the components of a specification and appropriate elements; “Every specification, whether complete or provisional, shall describe the invention, and shall begin with a title indicating the subject to which the invention relates” (Patents act, 1953, sec. 10 (1)). Thereby, the right holder should know his/her rights and the appropriate procedure of completing the documents. When the copyright is not properly completed the problems can arise including the refutation to make a decision in favour of a right holder.

Measures to be taken at the border

In New Zealand, intellectual property is usually protected at the border whereby the enforcement mechanism is put in place so as to deal with those who infringe copyright goods (Dratler, 2003, p.124). Frequently, people are normally caught at the border with infringe copy right goods which may be in a process of importation of exportation. Enforcement measures at the border are therefore meant to prevent infringed goods from circulating within a given country.

The enforcement mechanism at the border is only applicable if the rights owner can give credible proof that certain goods have been infringed (Varey, 2009, p.35). In other words, it is not enough for a rights owner to claim that goods have been infringed yet they do not have any kind of evidence. Considering its effectiveness, the enforcement mechanism governing intellectual property at the border is basically conditional. It can only protect a rights holder in the marketplace only if there is credible proof that goods are infringed. Once valid proof is given to the customs authority the infringed goods are suspended from circulating in the country. Violators of the intellectual property laws at the border can also be punished and prevent them from repeating the same actions. In this case, the right owner is protected in the marketplace.

Performer’s rights

Enforcement mechanism within performer’s right is mainly aimed at protecting works of a performer. Performers in New Zealand can always protect their work from individuals who imitate exactly what they have performed. In this case, the enforcement mechanism enables a performer to protect his performance from negative exploitation. Group performers can not be in a position to claim rights of their work in case it has been infringed. Performance may include musical work like live performance and also drama or movie. The initial performer of a particular performance is always in a position to report anyone who exploits his work without consent. Particularly, a performance can be infringed either through live performance or incorporated in audio –visual media. Whichever the case, a performer has the right to protect his/her performance from violators. This enforcement mechanism is supposed to ensure that violators do not carry out any kind of performance without the consent of the owner. Ideally, this enforcement mechanism is effective because it offers protection to a particular performer (Skinnon, 2001, p. 134).

In the current world of competition, performers are always vigilant of people who may interfere with their work in the market place. Enforcement mechanisms are essential since it control the usage of other people’s performance without their consent. Infringed performance can result to various impacts such as losing credibility as a performer, tarnishing a performer’s name and also cause legal problems. Unfortunately there are some violators who usually infringe performance and go unnoticed by the initial performer. In such a case, a violator may opt to conduct live performance in a different country where he/she can not be caught. Thus, it would be hard for the initial performer to monitor violators who travel in other countries. As such, the enforcement mechanism is applicable within certain boundaries.

Controversies

Discussion of controversies

Basically, there are several controversies that surround the issue of intellectual property. To begin with, students in New Zealand and even abroad are very unhappy because they do not get protection in terms of intellectual property laws. Apparently, students especially those in universities are increasingly suffering in the hands of the law (Vaver, 2006, p. 84). This is because they are usually sued by the music industry for illegally using other people’s work.

Ideally, people should always recognize and appreciate other people’s work which may include drawings and paintings (Gadbaw & Richards, 1989, p.128). What normally happen is that people tend to assume that such intellectual property is for public domain especially when they are displayed in places where everyone can see. Because of assumptions, there are people who think that they can freely use intellectual property in public places. In a controversial manner, people continue to argue about the protection of intellectual property in public domain.

Some people argue that intellectual property in public domain should not be protected while there are those who say that it should be protected. Logically speaking, every intellectual property owner has the right for protection. People should always seek permission from property owner even if the property is located in public place (Halbert, 2005, p. 90).The idea of giving license for people who copyright is another controversial issue. This is because it has been alleged that some people use fake license to claim that they have the right to use other people’s property. As a result of this, there are some individuals who argue that no- one should be convicted for copyright so long as they have a license. However there are others who say that it is not enough evidence for someone to have a license. Many violators normally escape conviction since they produce fake license in order to protect themselves.

Opinion about the controversies

As a way of dealing with the controversies, the law within a country should also protect the right of students. The law should not favor some people and organizations at the expense of students. It is so unfortunate that students do not get protected when other individuals use their intellectual property (Torremans, 2008, p.65). Much as organizations get protected, students should also be protected by the law in order to avoid controversy.

For those individuals who take advantage of intellectual property in public domain, strict laws should be placed against them. In this case, violators would be penalized for using the intellectual property. In terms of license, there should be unique characteristics that can easily distinguish a fake license from a real one. This may help to reduce controversies about those who use illegal license that is not recognized in a country. The new enforcement mechanism is supposed to ensure that violators do not carry out any kind of performance without the consent of the owner (Spinello, 2005, p.107).

Conclusion

Introduction of property laws was surely a brilliant idea since it has helped millions of people to claim their rights. Intellectual property laws have been of good help although there are some people who still violate the rules. The government of New Zealand should come up with more mechanisms of dealing with people who violate laws of intellectual property. This is because there are some individuals who are violators of intellectual property even with the currently operating enforcement mechanisms. When the statutory intellectual property laws are established, they become a part of the legislation and should be followed as the basic laws.

Reference List

Alces, P., & See, H. (2004). The Commercial law of intellectual property. US: Aspen Publishers.

Anderson, B. (2006). Intellectual property rights: innovation, governance and the Institutional environment. US: Edward Elgar Publishing Limited.

Colston, C., & Middleton, R. (2005). Modern intellectual property law. US: Cavendish Publishing.

Cornish, W. (1989). Intellectual property: patents, copyright, trade marks and allied rights. California: Sweet & Maxwell.

Drahos P. (1996). A Philosophy of Intellectual Property. Australia: Australia National University, 6(978):270.

Dratler, J. (2003). Intellectual Property Law: Commercial, creative and industrial property. Washington, D. C.: Law journal Press.

Dreyfuss, R., & Zimmerman, D. (2001). Expanding the boundaries of intellectual property: Innovation policy for the knowledge society. New York: Oxford University Press.

Gadbaw, M., & Richards, T. (1989). Intellectual property rights: global conflict? Boulder, Colorado: Westview Press.

Gibson J. (2001). Creating selves: intellectual property and the narration of culture. Farnham, Surrey: Ashgate Publishing Limited.

Halbert, D. (2005). Resisting intellectual property. NY: Routledge. Hammar Maskin Ab v Steelbro New Zealand Ltd NZCA 83 (2010).

Patents Act 1953. Public Act 1953 No 64.

Pugatch P. (1998).The intellectual property debate: perspective from law, economics And political economy. (2006). Cheltenham, Glos : Edward Elgar Publishing Limited.

Spinello, R. (2005). Intellectual property rights in a networked world: theory and practice. Westport, Connect: Greenwood Publishing Group Skinnon, J. (2001).The Law of Marketing in New Zealand. Wellington: Butterworths.

Tiny Intelligence Ltd v Resport Ltd 9 NZBLC 102,623 (2009).

Torremans, P. (2008). Intellectual property and human rights. Rotterdam: Kluwer Law International.

Varey, R. (2009). Law of Marketing in New Zealand. Wellington: Lexis Nexis.

Vaver, D. (2006). Intellectual property rights: critical concepts in law. NY: Routledge.

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