Debunking Top Eight Copyright Myths

 There have always been many inquiries concerning the number of common misunderstandings and misconceptions about Copyright Law. This article attempts to debunk the top eight copyright myths.

#Myth1 - Copyright Can Safeguard Your Ideas

Copyright Protection applies to recorded works; it doesn't apply to something intangible such as an idea. Within some specific areas (like inventions), it may be possible to file a Patent Application. Since copyright protection applies to recorded works, such as artwork, music, documents, etc., if a competitor uses your copyrighted work (by copying, adapting, or stealing your creative work to promote their product or service), it would fall under Copyright Infringement. In such a scenario, you can undoubtedly take action against the infringer; however, it is essential to note that there is nothing much you can do to prevent an individual or entity from creating their work based on a similar idea as long as they are not copying or stealing your work to do so.

#Myth2 - Everything on the Internet Lies in the Public Domain and is Free to Use

It highlights the most common misconception about the term 'public domain' when used concerning copyrighted works. Creative works become a part of the public domain only after their copyright expires, which is generally many years after the owner's or author's death. Kindly note that creative works posted on the Internet may be publicly accessible, but they are certainly not in the public domain.

#Myth3 - Any Work Without a Copyright Notice isn't Safeguarded

Copyright protection shall apply whether or not there is a copyright notice attached. In the United States, a copyright notice was needed to retain copyright protection on creative works published before 1^st January 1978; however, it was the exception and not a standard and is certainly no longer the case. Besides, when the United States became a signatory to the Berne Convention for the Protection of Literary and Artistic Works, the copyright law in the nation was amended, and the use of a copyright notice on creative works published from 1^st March 1989 became optional.

#Myth4 - You Can Copy 10% of a Creative Work Without Causing Copyright Infringement

Such is not the case. Any unauthorized use of copyrighted work can potentially lead to legal action from its owner or holder unless it is explicitly permitted under fair use or fair dealing rules.

When we talk about using extracts or quotes, there exists no percentage or magic figure that could be applied since every case must be viewed on its merit. What is clear from the cases that have come to trial is that it is the perceived importance of the copied content instead of simply the quantity that counts. What we advise is to always seek permission from the copyright holders before using their creative works.

#Myth5 - If You Change Someone Else's Work, You Can Claim it as Your Own

Adapting or copying some individual's or entity's work is a restricted act. In legal terms, any adaptation is regarded as a derived work. Therefore, if you adapt the creative work of others, it shall still very much be their work, and they will own the right to object you from publishing such a work when they haven't given you any permission to do so. Additionally, they are entitled to reclaim any money you make from selling their creative works.

The safest option in this aspect is to create something not copied or adapted from the creative work of others or seek permission from the copyright holder (for which you should expect to pay a fee or royalties). The creative works of others can undoubtedly inspire you; however, when it comes to your creative works, have a fresh start and don't copy what others have already done.

#Myth6 - You Can Copyright a Title or Name

Copyright laws are indeed very restrictive; they don't apply to titles and names that may be legitimately used in unrelated instances or duplicated coincidentally. There exists no reason from a copyright perspective why two creative works can't have the same title. No infringement occurs as long as the content of the creative works isn't adapted or copied. However, it doesn't imply that there isn't any protection on the name since it may be covered by other laws. If the name holds Trademark Protection or it could be proved that the title's use confuses or misleads the general public (known as passing off), there can be issues. While copyright protection holds from the point a creative work comes into being, passing off is based on the general public perception of what the name means (i.e., one gets a clear idea of what to expect to be given if he asks for Coca-Cola).

#Myth7 - It's Difficult to Prove Copyright Infringement

Such isn't the case since copyright law is principally civil and not criminal. Civil law needs a lower burden of proof, thereby making it easier to prove copyright infringement. In a civil case, a plaintiff requires convincing the tribunal or court that his claim is valid and that it is likely that the defendant is guilty on the balance of probability. On the other hand, a defendant in a criminal case is innocent until, beyond any reasonable doubt, proven guilty.

#Myth8 - Confusion over Copyright Protection in the Music Industry

A sound recording has separate copyright protection from the underlying musical composition. It implies that a new sound recording of an old piece of music shall still very much be copyright protected even if the copyright protection in the original musical recording has expired.

Vroom in the Automobile Industry Fueled by Intellectual Property Rights

 The transportation industry majorly contributes to employment numbers and the GDP of a nation. In the EU, it accounts for 5% of their GDP, and in the USA, it accounts for 7.7% of their GDP. Since the transportation industry plays a dominant role in a nation's growth and development, businesses must safeguard their interest in this industry. In this article, we shall discuss the various alternatives that businesses should consider while seeking protection under various forms of Intellectual Property Rights (IPRs).

 

Trademarks

In simple terms, a trademark refers to a word, symbol, letter, sign, or a combination of words or designs that enable the identification and differentiation of products or services of one from those of others. The rights under trademarks are afforded by domestic Trademark Laws, federal laws (where applicable), and common laws. The registration of such marks affords the proprietor of such rights to exclusively use the mark for the defined products or services in the particular place where the registration has been sought.

 

Particularly in the transportation sector, a trademark may be utilized to reserve rights over several products or services belonging to a single entity. The same shall deem useful to protect the parent brand and the subsidiaries. Consider the example of the famous automobile giant originating from Japan, namely, Toyota, where Toyota is the prime brand and the other subsidiaries like Lexus, Ranz, and Daihatsu are safeguarded by trademarks.

 

Copyright

Copyright is vested in original works of authorship fixed in a tangible medium of expression. Like, any IPR, Copyright Protection can be availed under domestic copyright legislation or common law. However, only registered copyright can avail of the remedies enlisted in the respective legislation.

 

In the transportation industry, several crucial elements may be safeguarded via copyright. The same includes website content and display, software source code, and instruction manuals.

 

Patents

A patent may be obtained by inventors of new and useful inventions that are non-obvious to the person skilled in the art. Such rights give the inventor the exclusive right to use the invention while excluding others from making, using, selling, offering to sell, or importing into the jurisdiction where such protection has been obtained over the patented subject matter for a limited time.

 

Patents are significant and pivotal in the transportation industry since they provide an edge in the market and an advantage for first-move makers. Developing a patent landscape in such an industry can also aid the R&D process to converge strategic efforts in an invention's development.

 

Industrial Designs

An industrial design is a property right that is available to someone who has invented any new, original, and ornamental design for a product. It safeguards the aesthetics of a product and not its utilitarian features. Furthermore, Industrial Design Registration provides the proprietor with the exclusive right to the three-dimensional (3D) shapes and configurations and two-dimensional (2D) features of a product or service. Therefore, it may be utilized to protect either the entire product or a segment of it.

 

In the transportation sector, it can be used to complement Patent Rights over an invention by safeguarding the look and feel of the automobile or a part of the automobile.

 

Trade Secrets

Trade secrets include the ideas, know-how, and other significant information valuable to the business, like the names of trusted contractors or suppliers or information on the internal operation of a business that sets apart one entity from others. Such information should not be publicly available or known to others.

 

In the transportation sector, such confidential information is safeguarded by the mode of entering into legally binding agreements of non-disclosure. Where two entities are involved in a collaborative effort, it may also be beneficial to cross-license or exchange trade secrets under mutual circumstances.

 

Uber's Resolve to Protect Intellectual Assets

Uber has been utilizing IPRs since 1996 as a strategic tool to maintain an edge in the market while also building a niche. It has safeguarded several visual manifestations of its brand in the form of logos and icons. In 2016, it changed its logo to depict flexibility and brand fluidity. It also utilized the protection under utility Patent Law to safeguard its business methods.

Initially, patents registered in favor of Uber dealt with the dynamic adjusting of prices for availing its services, diagnosing a location related to on-demand services via the use of portable computing devices, and providing information related to the position of goods in transit to a computing device.

 

Later on, Uber's patents were observed to be filed on aspects based on splitting the fare for an on-demand service, optimizing the selection of drivers for requests of transportation, providing notifications to devices based on real-time conditions related to an on-demand service, and assistance related to trip planning and implementation.

 

However, tracing the recent developments, Uber's patents are more focused on autonomous vehicles with features like advancing remote assistance to an autonomous vehicle, an autonomous vehicle operated with guide assistance of human-driven vehicles, an autonomous vehicle with independent auxiliary control units, an intelligent lens masking system, etc.

 

Conclusion

As seen from the discussion hereinabove, innovation in the transportation industry is ever-evolving and focuses on developing a more efficient, safe, and consumer-friendly approach. Therefore, industries, companies, and start-ups need to be aware of the significance of safeguarding their innovative products and processes while also building on their brand value and image by securing IPRs to boost the commercial value of their inputs in the automobile industry.

Patent Thickets: An Intertwining Web of Inventions

What are Patent Thickets?

In the words of Carl Shapiro, an American economist, a patent thicket is "a dense web of overlapping Intellectual Property Rights that a company must hack its way through to commercialize new technology." Some industries face the issue of patent thicketing more than others since few are regulated by fewer or single patents. For instance, the pharmaceutical industry usually has a product coming from a single patent that protects a molecule. However, in some other industries like the telecommunication industry, there are intertwined technologies protected by several patents. Consider a cell phone covered by at least 2,50,000 patents, including LCD, antennas, processors, batteries, etc. In such complex environments, it is necessary to gather access to all surrounding technologies to enable the protection of that individual cell phone.

Origin of the Defensive Strategy

Earlier in 1856, a group of entities jointly acquired a dominant position by patenting sewing machines, forming the first patent pool in the world that continued until 1877. Then, a company named Draper acquired an authoritative patent position for loom temples and consequently began a long-term practice of employing aggressive use of patent thickets. Since then, entities have formed multiple patent thickets in the last 150 years.

One of the earliest sectors to have adopted this strategy of 'mutual non-aggression' came to be witnessed in the semiconductor and computer industries leading to software companies obtaining several 'defensive' patents.

Even though the origins can be traced to 1856, it was in the 1970s that the term 'patent thicket' came to be used in common parlance when Xerox dominated the photocopier industry. These defensive thickets substantially decreased Research and Development (R&D) incentives for many upcoming inventors; however, they came as an advantage to those who became a part of it, reduced the transaction costs, and created a vertical monopoly.

 

Do Patent Thickets Prevent Innovation?

• Patent thickets significantly disrupt innovation since the smallest components are owned by individual proprietors or independent companies that make the process of obtaining patents an uphill battle.
• They increase the scope and number of patent litigations.
• They complicate the process of negotiating licensing agreements due to an increase in the number of parties to a single transaction.
• They weaken the inventive drive since they also encourage patent-ification of all small and, therefore, innumerable inventions and products.
• They increase the cost of a patent transaction since newer patent holders are encouraged to seek prior approvals of proprietors of all small components incorporated in the invention.
• They reduce the scalability of profits.
• They potentially decrease the incentive to innovate.
• The cost of the end product is ultimately heightened with patent thickets.

 

Thickets: A Burden on Common Man

Five of the top ten selling drugs in the United States of America include Humira, Enbrel, Keytruda, Revlimid, and Imbruvica. A total of 584 Patent Applications have been obtained after their initial Food and Drug Administration (FDA) approval. For example, on Humira itself, there are additional patents on the autoinjector device and a separate patent for the 'firing button' on the device. It is a typical case of patent thicketing.

The cost of these transactions is ultimately borne by the common man. Therefore, they heavily obstruct medical aid at reasonable prices. It also means they are a welcoming step for anti-competitive practices hindering the ability to negotiate.

 

Furthermore, it also promotes the evergreening of certain patents and creates a monopoly in the hands of a few. Again, let us take the example of Humira. The patent covering Humira had expired way back in 2016; however, the other 132 drugs thicketing the drug expire not before 2034. It implies the entry of biosimilars and generics as well. Yet, in the case of Mayor and City Council of Baltimore v. AbbVie Inc, 7^th U.S. Circuit Court of Appeals, No. 20-2402, it was held that AbbVie did not block competition by erecting a thicketed fence.

 

Conclusion: Resolving the Issue and Untangling the Web

The following solutions and approaches can be adopted to prevent patent thicketing:

1. Patent Pools: A patent pool requires "an agreement between two or more patent owners to pool their patents and license amongst themselves or to a third party on pre-determined licensing terms." This strategic outlook was also first adopted amongst the sewing machine entities resulting in the creation of a 'Sewing Machine Combination.' Since a patent pool may enable innovation in the early stages of a new invention being developed and harnessed, in the later times, it may lead to a serious threat of the creation of cartels that operate on supremacy and monopolization by regulating the market process, controlling demand and supply, etc. To prevent this, the USA has implemented a broad parameter, i.e., in the USA, the entire patent pool system has been brought under one parameter - blocking (essential) or complementary patents belong to a pool, while substitute or competing patents are to remain separate.

 

2. Proactive Role of Courts: Courts should take proactive measures and stringent steps to accord protection to the IPRs of individual inventors. Therefore, the specialized knowledge of experts should be used to understand and adjudicate patent-related matters.

 

3. Tougher Scrutiny to Grant Patents: The Patent System was introduced and implemented to inspire innovation and creativity, thereby enabling the growth of the economy while granting a monopoly for a limited time in return. However, the ordeal of granting patents way too easily for trivial innovations and unsubstantial products or processes has made the patent system discourage breakthrough innovations and ideas. The examiners and registrars should pay great attention to the state of the art and the knowledge of a person skilled in the art before deducing whether or not a patent shall be granted.

 

4. Cross Licensing: Cross licensing agreements that license present portfolios and future inventions reduce transaction costs. To quote a few examples, Intel entered into many broad cross-licenses with other companies such as IBM, agreements between Microsoft and JVC, which came into being in 2008, and the agreement between Hewlett-Packard and Xerox to amicably settle their outstanding patent disputes.

 

Contemplating the Theories of Confusion in Trademarks: Confuse No More!

 

As is understood, a trademark is a mark that helps identify the origin or source of goods and services with the help of a uniquely differentiable graphical representation, which may be manifested in the form of a sign, symbol, word, label, or even a combination of several elements put all together. Therefore, it aims to differentiate the goods and services of one from that of another in today's era of a global market, eliminating the risk of confusion and losses accompanied by such risks.

 

When a trademark is scrutinized by a Trademark Office or when it is underdetermination for possible infringement, it is often subjected to the test of "likelihood of confusion." Hence, in such a scenario, there is a clear division of parties and their interest. The party that first adopts a mark by using it in the market is termed as the Senior or First User, and the one that adopts a similar mark later than that of the Senior User comes to be identified as the Junior User.

 

The Initial Interest Theory: The Consumer Perspective

The main aim of a consumer while seeking a particular good or service is finding a distinguished quality and preferred price. Due to the plethora of options available in the physical market and the digital space, there has been an unprecedented growth in the number of counterfeit goods, which misappropriate trademarks resulting in consumer confusion. The initial interest theory is often taken into consideration by judges and courts to understand the psychology of consumers when contemplating similarities between trademarks by considering the imperfect recollection memory of a consumer, the behavioral pattern of a consumer while deciding what to purchase, etc. This theory is further bifurcated into two crucial theories, which can be understood in the next segment.

 

The Forward Confusion Theory

In infringement cases, it is often witnessed that there is a small entity, which is a new entrant, wrongfully posing as another massive entity to take advantage of the established reputation and goodwill by simply creating consumer confusion while misrepresenting its trademark. A deliberate attempt to create confusion is made to suggest an affinity with a Senior User, which harms the commercial and moral interest of the Senior User as well as that of the consuming audience since such goods often under-deliver and underperform on the scale of quality and quantity.

 

The Reverse Confusion Theory

The very opposite of the forward theory of confusion is the theory of reverse confusion. In such cases, a consumer fails to distinguish between goods and services of the Junior and Senior User of a mark and associates the underlying products to be originating from the Junior User on account of a robust marketing and a saturated market. The same leads to a lack of recognition of the Senior User causing potential harm. It can be somewhat mindboggling.

The theory came much into the picture in Big O Tire Dealers, Inc. vs. Goodyear Tire & Rubber Co., wherein it was held that "the second use of a trademark is actionable if it simply creates a likelihood of confusion about the source of the first user's products."

Last year, the case of Ironhawk Technologies, Inc. v. Dropbox, Inc. (decided on April 20, 2021) came forth to the Ninth Circuit, where the theory was under much speculation. Herein, the plaintiff was a computer software developer of 'SmartSync' developed in 2004, utilizing compression technology to enable an efficient transfer of data, particularly in bandwidth-challenged environments. Its products were sold majorly to the US Navy. Dropbox brought cloud storage software to be made accessible throughout the world. Its software featured 'Smart Sync' while enabling a user to see and access files in his Dropbox cloud storage account without using up any of the user's hard drive storage. Furthermore, Dropbox launched its Smart Sync feature in 2017 and was previously aware of Ironhawk's SmartSync mark. Ironhawk brought a case against Dropbox for the violations of the Lanham Act alleging Trademark Infringement and unfair competition, pleading that Dropbox's use of the name 'Smart Sync' intentionally infringed upon Ironhawk's 'SmartSync' trademark. At an earlier event, Dropbox had attempted to acquire Ironhawk, evidencing recognition of the competitor. The Ninth Circuit deduced in favor of Ironhawk since it stated that there was a likelihood of reverse confusion. However, when the case went for further trial, Judge Wallace Tashima found the judgment of the Ninth Court to be erroneous since Ironhawk only had a "sophisticated audience," unlike Dropbox, catering to a much wider audience. Therefore, it was found that it was unlikely that reverse confusion may have occurred.

 

Conclusion: Points of Consideration

There is no rigid test laid down to deduce the application of the theory of reverse confusion; however, courts have developed a case-bade modified multi-factor test. The underlying factors shall be taken into consideration when deciding on reverse confusion:

 

• The conceptual strength of the mark - The courts evaluate whether the mark is suggestive, arbitrary, fanciful, or descriptive. The more strength it carries, the more distinctive it is. Therefore, if a mark is more distinctive, there is more likelihood of confusion since the attempt to imitate becomes rather apparent.
• The similarity between the two marks: The court will determine the visual, ocular, and phonetic difference between the marks while drawing a comparison of the totality of the mark.
• Possibility of actual confusion: The likelihood of confusion will be assessed considering the adjoining factors like channels of trade and commerce, the consuming audience, the quality and quantity of the product, etc.
• The intention of the infringer

 

Even though the courts are bringing to consider such theories of confusion, it will be interesting to observe how they would grant awards supporting the theory since it may land a chilling effect by over-compensating the Junior User.

What are Neighboring Rights?

 

Copyright is that branch of Intellectual Property (IP) that protects and covers all creations that are a culmination of the creative human mind, irrespective of what form or merit they hold and the audience that consumes them. Copyright in creative works is created automatically and immediately, and therefore, it does not require a formal procedure to seek protection from a third party.

Additionally, copyright also vests in people who are not technically the authors of the work created; instead, they are crucial supporters and participants who make the work possible. These could include artists, producers of phonograms & others involved in television, radio & broadcasting. In them, vest certain rights known as the neighboring rights.

Cracking the Basics

The term 'neighboring rights' can be found in the World Intellectual Property Organization (WIPO) Glossary, which can be understood as a right granted to protect the interests of performers, producers of phonograms, and broadcasting organizations relating to the activities of the public use of an author's work. Often the term 'related rights' is also used to mean the same as neighboring rights. The notion of different countries has varied in determining the scope of these rights.

These rights are not essentially the same as copyright, but they are based on works protected by copyright. Most importantly, they offer the same exclusivity as copyright, albeit they do not cover the actual work.

Categories of Neighboring Rights

Neighboring rights can be segregated into three different kinds of categories, which are mentioned below:

• Performer Rights: These rights vest in performers, which include musicians and actors. They protect their performances against any unauthorized and illicit recording or transmission. The same also gives the power to exploit and guarantee a certain degree of control over the exploitation and remunerations earned whenever these recordings, including their performances, are commercially exploited. It means that only when the performer's content has been legally obtained can the work be communicated to the public; otherwise, it shall be a violation of his neighboring rights.

 

• Broadcasting Rights: These rights are vested in a broadcasting organization, including television, radio, or other telecasting providers. It means that where a live performance is facilitated by a broadcaster, he has all the rights to authorize or prohibit the use of the program. Hence, if the same program is recorded and put on the internet for the public to see, it is a violation of the broadcaster's rights.

 

• Recording Rights: Similarly, by law, where a sound recording of someone has been recorded with the prior consent of a performer, the performer's consent is further required for any communication that is to be made to the public. Such rights can be enforced by the legal representatives of the performer or artist after his death.

What is the International Guiding Framework?

The Rome International Convention, also known as the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations, specifies that performers have the right to oppose the broadcast, communication to the public, fixing, or reproduction of their performances. The Convention is one of the most crucial conventions on an international level, which was adopted way back in 1961. It is jointly managed and directed by the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the International Labour Organization (ILO), and WIPO.

 

Apart from the Rome Convention, it is also a part of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement, 1994, which came into force on 1^st January 1995. The Rome Convention 1961 protects neighboring rights for up to 20 years from the end of the year in which the performance, the recording, or the broadcast of the work took place.

 

Other than the previously mentioned conventions, the WIPO Performance and Phonograms Treaty (WPPT) and the Beijing Treaty on Audio-Visual Performance (BTAP) also protect the performers, producers, and broadcasters in various ways that may appear to be more extensive in nature. They offer protection of neighboring rights for up to 50 years with an increased scope of protection of the rights of performers and producers while expanding into the digital era with the protection extended to the exploitation of protected works even over the internet.

 

Conclusion

It is imperative that the rights of each contributor in the creative ecology are sustained and preserved to give the due weightage of labor. Also, it is pertinent that in such preservation of rights, the freedom of information and access to knowledge are not compromised and liquidated. Therefore, it is integral to recognize the contribution of all artists related to the primary copyrighted work to incentivize further creation of art and culture by protecting rights underlying sounds, images, or both.

Till now, because of WIPO, authors, performers, and phonogram producers have been granted a broadly worded exclusive right of communication covering all the possible aspects of neighboring rights. It is essential to imbibe such international standards in national regimes to observe an expansion of such rights.

 

 

Safeguarding Fashion Shows: Copyright Laws on the Runway

Fashion shows in today's time are more than just a couple of models walking the ramp adorning beautiful clothes and accessories. Contemporary fashion shows involve the projection of stories and performances for which substantial investments and hustling of creative minds are required.

Consider the example of Fendi's iconic defile on the water of the Trevi Fountain in Rome or the angelic performances of Victoria's Secret models coupled with a live music performance by famous artists. These can and should be legally safeguarded to ensure that models ethically enjoy adequate protection.

The First Case to Provide Legal Protection: Ashby v. Gaulme, Kenzo et Lacroix

In the Ashby case, the Supreme Court opened new doors for including fashion shows in the non-exhaustive list of copyrightable works found in Article L.112-2. The case was brought forth by the French Federation of Couture, and five haute couture companies, which included Chanel, Christian Dior, and Hermes, against three photographers for uploading photographs and videos of the fashion shows on a website. A strict system to monitor and regulate the taking of photographs was developed by the French Federation of Couture, as per which Ashby and the other two photographers claimed that they were allowed to upload photographs on the internet to report the current event in consonance with the French Intellectual Property Code and the European Convention on Human Rights.

In the first instance, the photographers were not found guilty; however, the Paris Court of Appeal reversed the decision and gave a rather more elaborate form of protection to this form of art. The Court held that the photographers were guilty of Copyright Infringement not only of the claimants' apparel but also of the fashion shows themselves. Later, the photographers moved to the European Court of Human Rights (ECHR) for the alleged violation of freedom of expression. However, the matter was adjudicated in favor of the claimants again as the ECHR stated that the freedoms envisaged in the European Convention on Human Rights are not absolute in nature and are rather subject to some specific duties and responsibilities in addition to conditions, restrictions, or penalties.

Author of Fashion Shows

Now that it is ascertained that fashion shows can be safeguarded, it is crucial to determine who shall be considered the owner or author of this kind of work. Fashion shows are conducted through the cumulative efforts of several artists like architects, set organisers and designers, sound and light technicians, hairdressers, makeup artists, seamstresses, etc.

One way of safeguarding the rights of each of these contributors is utilizing the option of 'composite works,' where works cannot be segregated into parts. It allows everyone involved in the process to be recognized as a co-author of the component that is a part of the communion regime. Therefore, the same shall entitle all the co-authors to autonomously utilize and exploit the rights vested in the component, which is a culmination of their effort, unless the same is cited differently in writing.

Another way is to utilize the rights under the regime of 'collective works' where different components of the work can be broken down into separate segments. It allows individual and autonomous authorship.

The safest mode of safeguarding these rights is to transfer the rights vested in each individual to a company. It shall ensure that the rights are safeguarded well. Furthermore, it shall ensure that same or similar works are not replicated or slavishly imitated to promote fair competition and mutual appreciation of arts.

Fashion Models as Performers

Artists consist of several kinds of performers, not primarily limited to actors, singers, musicians, or dancers. A reflection of this can be found in the WIPO Performance and Phonograms Treaty stating that protection can be afforded to "actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works." The Rome Convention also extends a great deal of protection to performers, which can be deduced to be in favor of the rights of fashion models. Despite such interpretations, the national laws and regulations do not recognize the work of fashion models to be included in the definition of 'copyrightable work.' Therefore, this neglect of policymakers requires a shift from the traditional notions and understanding of Intellectual Property Rights (IPRs).

Objection to Treat Fashion Shows as Copyrightable Subject-Matter

One objection against safeguarding fashion shows under the copyright regime is they are a 'volatile' creation. Since they are displayed once and are most likely not to be repeated in the same medium and format, they have insufficient unity and definition. However, the fashion shows these days, as witnessed, often have a plot, a definite storyline, which could theoretically be repeated. However, 'fixation' of work or reproducing the same on paper is a prerequisite for claiming copyright in most parts of the world. But, there are some territories where less stringent laws apply in this aspect. As can be seen under Italian law, fixation is not required for Copyright Protection, and therefore, the oral manifestation of works is also protected. Furthermore, copyright protection in Italy can be granted to creations that vary over time within the lines of a given plot.

Another commonly raised objection is that unlike dramatic works or artistic performances, which primarily have a cultural aim, fashion shows have only an underlying commercial purpose. They are carried out only to support the launch and sale of fashion apparel and accessories. However, most laws do not impose any restrictions on the operation of copyright protection for works that have a commercial purpose. 

Conclusion

Although copyright protection in the domain of fashion shows and runways is comparatively ill-explored, it would be interesting to note how various national policymakers make way for such artists in their legal Intellectual Property (IP) regime. Until the stance on the matter settles, it would be a safer alternative for companies to conclude agreements clearly indicating and defining the scope of IPRs vested in the many contributors that aid in the facilitation of such fashion shows. The same would ensure the due exercise of economic rights in an orderly fashion.

  

Second Medical Use Claims

 The repurposing of drugs to find immediate solutions for new diseases is witnessed commonly in the pharmaceutical sector. In recent times, the same is instead a frequent instance to treat flues and viruses, as also perceived while identifying the solution for the Big-C, the 'Coronavirus.' The antivirals used to cater to diseases like HIV and SARS were clinically tested to adjudge their efficacy in the fight against COVID-19. Remdesivir, which was earlier utilized for the treatment of Ebola, is now used as a dose of Coronavirus vaccine. Similarly, acetylsalicylic acid, often known as Aspirin, was developed by Bayer in the year 1897 to treat pain and fever. However, it is now also utilized as an effective cardiovascular medicine that decreases the chances of suffering a heart attack or stroke. While the Patent Law safeguards the exclusive rights of an invention's proprietor up until a specific specified period, it also protects new uses of known drugs. Let us find out how.

Can a Patent be Sought for Second Medical Use Claims?

When a substance or composition is already known for primary medical use, it may still be safeguarded as a patent for a second or subsequent medical use; however, the proprietor must prove that such use is novel and inventive. Furthermore, such patents should be meticulously drafted and litigated.

 

There are several instances where existing medicines are being developed for new medical uses. Consider the following examples:

• Sildenafil citrate, which is primarily used for heart and vascular diseases, came to be later marketed as a drug for erectile dysfunction.
• Finasteride, primarily meant for the treatment of prostate disorders, was at a later stage found to be effective in the treatment of androgenetic alopecia.
• Thalidomide was patented for respiratory infections; however, its second use was found to help relieve morning sickness in pregnant women. Also, it was discovered to be useful in the treatment of diseases like leprosy and cancer.

The European Stance on Second Medical Use Claims

Second medical use claims were not permitted until a fairly long period in Europe. However, after 1984's landmark G5/83 decision, second medical use claims began to be acted provided they were written in the 'Swiss-type' format depicting:

"Use of Compound X for the manufacture of a medicament for use in the treatment of Disease Y."

 

This legal trend of the Swiss-type format was then substituted by the "purpose-related product claims" since it became the new mandate after the EPO Enlarged Board appealed the landmark G2/08 decision. A purpose-related product claim should be in the format depicting:

"Product X for use in the treatment of Disease Y."

 

The second medical use patent may address the following concerns:

 

1. The use of a known drug to treat a new disease ("Known drug/new disease")

In most patent claims, the phrase "for use" is interpreted as "suitable for use." However, second medical use claims are an exception to this generality and are fully use-limited product claims. They can be used for the treatment of multiple diseases by covering them in a single claim, but the treatment of all such diseases must form a single general inventive concept as stipulated under Art. 82 EPC.

2. The use of a known drug to treat a known disease using a new therapeutic method ("Known drug/known disease/new therapeutic use")

A second medical use claim can also be filed for the treatment of the very same disease in the form of providing a new therapeutic method in the form of a new dosage regime, administration mode, or patient group, as also provided under G2/08.

 

Issues Surfacing Second Medical Use Claims

Lord Justice Floyd once said, "Whilst it is widely recognized that there are valuable, sometimes life-saving inventions, which are made through the discovery of the new use of a known drug, their protection in patent law is problematic." Let us look into these problematic concerns.

 

The main reason for claiming a second medical use patent is to prevent third parties and competitors in the market from infringing upon the proprietary rights of the inventor. However, generic drug manufacturers are often seen flouting the laws to seek commercial gains. To prevent such acts of infringement, it is a settled law that purposeful arrangement should be proven. The purposeful arrangement can be understood as a form of use wherein there is a recommendation in the form of a packaging insert, labels, or on medical information slips or prescriptions, which are distributed along with the drug.

 

Also, it is considered infringement only if the generic manufacturer intends to use the second medical use claims for the treatment of the patented indication, proving which is undoubtedly an uphill battle. Therefore, generic manufacturers adopt the following measures to prevent being trapped in a series of endless litigations:

• Using "skinny labels" by carving the patented indication from the medical leaflet, which comes along with the medicine;
• "In-label use" - the use in an indication that is mentioned only generically on the label and not in the specific form that is patented; or
• "Off label-use" - the use in an indication for which the drug has not received regulatory approval.

 

Furthermore, the problem heightens when we look at certain jurisdictions that do not offer any protection to second medical use claims. It includes countries like those in Latin America. Even mass producers of generic medicines like India do not afford any rigid and concrete protection against such patents.

 

Conclusion

It should be understood that inventions in the domain of pharmaceuticals involve great capital expenses and abundant research and development initiatives. Bringing a new molecule itself does not cost any less than one billion, and therefore, this time-consuming process is cushioned if second medical use patents are safeguarded. It is a relatively cheaper route; however, qualifying clinical trials of all stages is yet another elaborate affair. Therefore, laws should address the infringement issue of second medical use patents to protect these claims adequately while also keeping misuse like doubt patenting and illicit activities under check. It shall be interesting to observe how lawmakers juggle around this issue to afford better and affordable protection.