From Advocatespedia, The Law Encyclopedia
Adelphi Charter is referred to a new set of guiding principles for copyright and patent rules, developed by a commission of artists, scientists, lawyers, politicians, academics and business experts, which would serve as a fairer and more efficient basis for protecting intellectual property and spurring innovation in the 21st Century.
The Adelphi Charter on Creativity, Innovation and Intellectual Property is a global statement of principles for a fair, user-friendly and efficient way of regulating creativity and intellectual property. John Howkins had the idea for the Charter and became its Director. The principles were officially launched on 13 October, 2005 at the Royal Society for the Encouragement of Arts, Manufactures, and Commerce in London. The charter calls upon the governments and other bodies to adopt new strategies for thinking about, and protecting intellectual property and public interest.The Charter seeks to remind policymakers that the original purpose of intellectual property (IP) law was to ensure both the sharing of knowledge and the rewarding of innovation. The Charter emphasises the importance of striking an appropriate balance between permitting access to the ideas, learning and culture of others whilst recognizing and rewarding creativity and investment.
The Charter argues for reasonable terms of protection for copyrights and patents, that a wide range of policies, including open source software licensing and open access to scientific literature, should be considered. However, this should be in the context of consultation and discussion to assess the balance between access to content and the rights of creators and developers.
The idea of IP dates all the way back to 500 BC. It came about because the Greek state of Sybaris allowed its citizens to obtain a patent for “any new refinement in luxury.” Since then, refinements have been made and laws regarding copyrights and trademarks have become more complicated. Jewish law includes several considerations, notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century.
The first statues involving these ideas occur in medieval times in Europe, when the Statute of Monopolies was initiated in 1623. During this time, various guilds controlled all major industries. Each guild held a significant amount of power, as the government endowed them to dictate which products and raw materials could be imported and how the items could be produced and sold. The guilds were also in charge of bringing new innovations to the marketplace. So, they had control over inventions, even if they did not create them themselves.
The Statute of Monopolies (1624) and the British Statute of Anne (1710) are seen as the origins of patent law and copyright respectively, firmly establishing the concept of intellectual property. The first known use of the term intellectual property dates to 1769, when a piece published in the Monthly Review used the phrase.
Formal copyright laws began in the United States in 1790 with the introduction of the federal copyright law. This law established a 14-year period in which inventors and other creators had eminent rights to their creations. During the 18th century, it started to become obvious that industrial inventions needed to be protected. This idea gave birth to patent laws.
When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property. The organization subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations.
The Adelphi Charter reads:
Humanity’s capacity to generate new ideas and knowledge is its greatest asset. It is the source of art, science, innovation and economic development. Without it, individuals and societies stagnate. Human rights call on us to ensure that everyone can create, access, use and share information and knowledge, enabling individuals, communities and societies to achieve their full potential. The expansion in the law’s breadth, scope and term over the last 30 years has resulted in an intellectual property regime which is radically out of line with modern technological, economic and social trends. This disconnect threatens the chain of creativity and innovation on which we and future generations depend.
We therefore call upon governments and the international community to adopt these principles:
1. Laws regulating intellectual property must serve as means of achieving creative, social and economic ends and must not be seen as ends in themselves.
2. These laws and regulations must serve, and never overturn, the basic human rights to health, education, employment and cultural life.
3. The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition which is essential for economic vitality and the monopoly rights granted by intellectual property laws.
4. Intellectual property protection must not be extended to abstract ideas, facts or data.
5. Patents must not be extended over mathematical models, scientific theories, computer code, methods for teaching, business processes, and methods of medical diagnosis, therapy or surgery.
6. Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.
7. Government must facilitate a wide range of policies to stimulate access and innovation, including non-proprietary models such as open source software licensing and open access to scientific literature.
8. Intellectual property laws must take account of developing countries’ social and economic circumstances.
9. In making decisions about intellectual property law, governments should adhere to these rules:
• There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights.
• The burden of proof in such cases must lie on the advocates of change.
• Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people’s basic rights and economic well-being.
• Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public detriments and benefits.
FAMOUS CASES ON INTELLECTUAL PROPERTY RIGHTS
1. S. Victor Whitmill v. Warner Bros. Entertainment Inc.
In the movie The Hangover Part II, Stu Price, a dentist, has tribal tattoo wrapped around his left eye. Price’s tattoo is identical to the one Mike Tyson has, and it alludes to the boxer’s cameo in the original 2009 movie The Hangover. Tyson’s tattoo artist S. Victor Whitmill filed a lawsuit against Warner Bros. Entertainment. Since he obtained a copyright for the eight-year-old “artwork on 3-D” on April 19, he claimed that the use of his design in the movie and in advertisements without his consent was copyright infringement. United States District Court denied an injunction on the movie’s release, but said Whitmill still had a case. If it meant avoiding a long trial, Warner Bros. said, in early June, that it would be willing to “digitally alter the film to substitute a different tattoo on Ed Helms’s face” when the movie is released on home video. But that ending was avoided on June 17, when Warner Bros. and Whitmill hashed out an agreement of undisclosed terms.
2. Kellogg Co. v. National Biscuit Co.
In 1893, a man named Henry Perky began making a pillow-shaped cereal he called Shredded Whole Wheat. The product surprisingly took off. After Perky died in 1908 and his two patents, on the biscuits and the machinery that made them, expired in 1912, the Kellogg Company began selling a similar cereal. In 1930, the National Biscuit Company, a successor of Perky’s company, filed a lawsuit against the Kellogg Company, arguing that the new shredded wheat was a trademark violation and unfair competition. Kellogg, in turn, viewed the suit as an attempt on National Biscuit Company’s part to monopolize the shredded wheat market. In 1938, the case was brought to the Supreme Court, which ruled in favor of the Kellogg Company on the grounds that the term “shredded wheat” was not trademark able, and its pillow shape was functional and therefore able to be copied after the patent had expired.
3. Adidas America Inc. v. Payless Shoesource Inc.
In 1994, Adidas and Payless got into a scuffle over stripes. Adidas had used its three-stripe mark as a logo of sorts since 1952, and had recently registered it as a trademark. But Payless was selling confusingly similar athletic shoes with two and four parallel stripes. The two companies hashed out a settlement, but by 2001, Payless was again selling the look-alikes. Fearing that the sneakers would dupe buyers and tarnish its name, Adidas America Inc. demanded a jury trial. The trial lasted seven years, during which 268 pairs of Payless shoes were reviewed. In the end, Adidas was awarded $305 million—$100 million for each stripe.
4. Louis Vuitton Malletier v. Haute Diggity Dog.
In 2007, the high-end signature hand-bag and luggage maker, Louis Vuitton Malletier, lost an outrageous copyright infringement case against comedy fashion company Haute Diggity Dog. The comedy designers had released a line of parody products named Chewy Vuitton, the U.S Court of Appeals ruled against the claim of copyright breach, stating that because of the element of parody, the products were adequately differentiated and unique, thereby negating any copyright or trademark infringement.
5. Mattel Inc. v. MGA Entertainment Inc.
Barbie was 42 years old when the exotic, puffy-lipped Bratz dolls strolled onto the scene in 2001. Tensions escalated as the Bratz seized about 40 percent of Barbie’s turf in just five years. The Bratz struck first. In April 2005, their maker MGA Entertainment filed a lawsuit against toy powerhouse Mattel, claiming that the Barbie copied the big-headed and slim-bodied physique of Bratz dolls. Mattel then swatted back, accusing Bratz designer Carter Bryant for having designed the doll while on Mattel’s payroll. In July 2008, a jury ruled in favor of Mattel, forcing MGA to pay Mattel $100 million and to remove Bratz dolls from shelves. But the two toy companies continued to duke it out. In yet another court case, underdog MGA prevailed, proving that Mattel was actually the one to steal trade secrets.
2. Royal Society of Arts (Great Britain), ed. (2006). Promoting innovation and rewarding creativity (PDF). RSA. pp. 7–8.
3. Mark A. Lemley, Property, Intellectual Property, and Free Riding Archived 2009-02-26 at the Wayback Machine., Texas Law Review, 2005.
4. Brad, Sherman; Lionel Bently (1999). The Making Of Modern Intellectual Property Law: The British Experience, 1760–1911, Cambridge University Press.
5. Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use: How To Put Balance Back In Copyright (University of Chicago Press, 2011).