Intellectual property
Protection, infringement, consultation and formal legal correspondence
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Lead-in
Start with what you already know, before we get into the legal distinctions.
Discuss these questions with a partner.
- What is intellectual property?
- How can intellectual property be protected?
- What particular problems are there in protecting intellectual property today?
Starting distinctionIntellectual property does not protect every idea in the same way. The legal category, the protected subject matter and the acts controlled by the right holder all matter.
Reading: intellectual property protection
Read for the main purpose first, then go back for the legal categories and the rights they control.
First-reading questions
- What two reasons are given for ensuring intellectual property protection?
- What are the two legal categories mentioned?
- Why does the article mention these two categories?
Intellectual property protection
Domestic legislation enacted within countries ensures intellectual property protection for two reasons: firstly, to give statutory expression to the moral and economic rights of creators in their creations and to the rights of the public in accessing those creations; and secondly, to promote creativity and the dissemination and application of the results and to encourage fair trade, thereby contributing to social and economic development. The division of intellectual property into two distinct legal categories, namely industrial property and copyright, results in different rights, duties and obligations, giving rise to varying degrees of protection and enforcement.
Industrial property, in broad terms, protects inventions and includes patents to protect inventions and industrial designs. In addition, it covers trademarks, service marks, layout designs of integrated circuits, commercial names and designations, as well as geographical indications and protection against unfair competition.
Copyright, also known as authors’ rights in most European languages, relates to artistic creations, such as books, music, paintings and sculptures, and films and technology-based works, such as computer programs and electronic databases. While the expression copyright refers to the main act, that act is the making of copies of the work, whereas the expression authors’ rights relates to the creator of the artistic work, namely its author. The author has certain specific rights in his creation which only he can exercise, such as the right to prohibit or authorize its reproduction, distribution, performance, communication to the public, translation or adaptation, and these are recognized in most laws. Other rights, such as the right to make copies, can be exercised by other persons where permission or a licence has been obtained from the author. A created work is regarded as protected as soon as it comes into existence. Copyright ensures the protection of the authors’ rights and provides remedies for the author in the event of any infringement.
Essentially, copyright protects the form of expression of ideas, whereas in the context of industrial property, inventions can be considered as new solutions to technical problems, and these solutions are ideas and are protected as such. In fact, protection of inventions under patent law does not require the invention to be actually physically in existence. The difference between inventions and literary and artistic works gives rise to different degrees of legal protection. As protection for inventions gives a monopoly over the right to exploit an idea, the duration of such protection is usually about 20 years, which is quite short. On the other hand, the protection of literary and artistic works prevents unauthorized use of the expression of the ideas, so the duration of the protection can be much longer. Furthermore, the public must be made aware of the fact that the invention is protected, and this is done publicly through disclosure in an official register, whereas a created work is considered protected as soon as it exists, and a public register of copyrights is not required.
A legally recognised entitlement or power held by a person.
A responsibility attached to a role, office or legal relationship.
A binding requirement to do or refrain from doing something.
Whole-article questions
- What is the difference between the expressions authors’ rights and copyright?
- Does an invention have to exist to be protected?
- Why does the duration of protection for industrial property and copyright differ?
- How is the public made aware that an invention is protected?
- Why is there no need for a register of copyright?
Reveal sample comprehension answers
- Copyright focuses on the act of making copies; authors’ rights focuses on the creator and the rights attached to the work.
- No. The article states that a patentable invention does not have to be physically in existence.
- A patent gives a time-limited monopoly to exploit an idea, while copyright prevents unauthorised use of the expression of ideas and can last much longer.
- Through public disclosure in an official register.
- A created work is protected as soon as it exists, so a public copyright register is not required.
Language work
Pick up the word partnerships that let you explain the law precisely and in few words.
Learn the whole unitDo not record only permission. Record obtain permission from the author, grant permission to reproduce and use without permission.
Paired talk
Student A: The need for intellectual property to be protected.
Student B: The legal situation regarding protection of intellectual property in your country.
Client consultation
Take a client from their first worry, through your questions, to careful advice and an agreed next step.
Read the opening and closing stages of a telephone consultation
“Thank you for calling, Professor Daykin. Could you give me a quick outline of the situation before we go any further?”
“Of course — go ahead and ask me anything. I’d rather talk it through properly now than leave any gaps.”
“Good. Please let me know immediately if anything else relevant comes to mind as we continue.”
“I feel at this stage that you should write out in detail what you’ve told me and send it to me so that I can look into the matter further and get back to you.”
“That’s excellent. I’ll get down to it right now, and maybe you could give me a call when you’ve had a chance to look at it.”
“That sounds perfect. We’ll leave it at that for now. I’ll be in touch as soon as possible. Goodbye for now, Professor Daykin.”
Consultation routeConcern or problem → factual account → clarification → provisional advice → next action. A lawyer often needs to delay a firm conclusion until documents and facts have been checked.
Role-play: lawyer and new client
Student A · Lawyer
- Listen to the client’s problem.
- Reassure the client without promising an outcome.
- Ask focused questions.
- Encourage as much relevant detail as possible.
- Pause appropriately and summarise.
- Suggest next steps and give provisional advice.
Student B · Client
You have discovered that work given to one of your students has been copied and is being sold for profit on the university campus.
- Explain why you are upset and worried.
- Describe the problem and what you know.
- Say that the student denies copying and selling the work.
- Ask what you should do next.
- Explain your concern about a false accusation and your relationships with other students.
Writing: formal legal correspondence
Turn a client’s account into a clear record, and then into a firm, professional letter.
Case file: Professor Daykin and Five-Star Document Services
Professor Daykin teaches at Sarvat University. Sarvat University Press manages requests to reproduce copyrighted course materials and arranges royalties or permission fees. Five-Star Document Services, referred to below as FSDS, has an agreement with the university press to produce course packs for students enrolled on particular courses. Once permissions have been processed, the press supplies the relevant materials and an estimate of student numbers. Under the agreement, FSDS may copy and supply materials only up to that estimated number, for the enrolled students on that course; it has no permission to make further copies or sell copies to the public.
Professor Daykin alleges that FSDS made additional copies of one of his course packs and sold them to the general public. The pack contains material in which Professor Daykin and several other authors claim copyright. The manager of FSDS has said that the company’s actions are legitimate.
After an initial telephone consultation, Professor Daykin sends a written account to his solicitor, Mr Howard. Mr Howard must identify the facts and documents that require verification before writing to FSDS on his client’s behalf.
Discuss in groups.
- On the information currently available, which facts may support Professor Daykin’s position?
- Which facts, documents or contractual terms should Mr Howard verify before reaching a view?
- What should Mr Howard’s next step be, and why?
Useful language for a lawyer’s letter
| Opening and representation | Background and breach | Damage, response and required action |
|---|---|---|
Professional cautionA training letter can practise register and organisation, but it is not legal advice. In real practice, verify the facts, governing law, authority, remedy, deadline and professional obligations.
Reading: Part 1
Read the whole gapped text first. Then choose the word that best fits the meaning, grammar and collocation of each sentence.
Work from the whole textGet a general understanding first. Then predict a word before looking at the four choices.
Fair use
Complete gaps 1-12 with the best word: A, B, C or D.
What is fair?
| Gap | A | B | C | D |
|---|
Speaking: Part 2
Select one topic and give a short talk of about two and a half minutes. Your partner should ask a brief question afterwards.
- Making a good impression
- Gaining the client’s trust
- Clarifying procedures
- Difficulties in establishing ownership
- How copyright can be infringed
- Remedies for copyright infringement
Teacher’s answer key
Enter the classroom passcode to reveal all answers, accepted alternatives and concise teaching notes.