Intellectual Property Law

This article discusses copyright infringement, potential legal ramifications, defenses, fair use, and advice for Tom. It also covers the challenges of copyright laws and the need for synchronization of copyright laws worldwide.

Running head: INTELLECTUAL PROPERTY LAW 1
Intellectual Property Law
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Introduction
Copyright is an intellectual property branch and refers to the creations of the human mind
that grants the original owner of some work exclusive rights to determine the conditions under
which their work can be used by others. Infringement of copyright means copying, reproducing
or using any content or work which has copyright in it by an unauthorized person, who is not the
owner of such work without having permission from the owner. Many countries have come up
with
Laws that govern and guides on issues regarding copyright that it’s a major challenges on
intellectual property. The term’s length depends on factors such as nature of publishing, musical
composition, or whether the work is created by a corporation or an individual. In most of the
countries the copyright term expires after fifty to hundred after the author has died and start
immediately after the creation of the work. There are a lot of conflicting issues on judging
whether an incidence is an infringement of copyright or not because there are some exceptions of
infringement of copyright. When someone infringes a copyright in, the owner of copyright has a
right to file a case against such person and sue them for compensation.
Potential Legal Ramifications of Copyright Infringements
Incase Write Right Wrights decide to use the content from the Wheat- Krinklers
cookbook, Wendy can sue company because she is the sole beneficially for parents owing to the
fact that the copyright period has not expired from when the author died in 1965. The company is
bound to face the consequences of breaking the copyright law. This can lead to the wastage of
time, money and reputation of the company profile (Khan, 201

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4). When the victims of the copyright infringement sues the violators in court of law there are
two possible outcomes, the first of which is an injunction which is an official order of the court
stopping the act of reproducing and distributing of the copyrighted materials . If one fails to
comply with a court injunction he/she can be arrested and charged for contempt of court. The
second outcome is an order compelling the plaintiff to compensate the victim financially.
If the company violates the copyright law by deciding to use the content from the Wheat-
Krinklers cookbook and the court finds that Tom is guilty, the company will be liable and a
monetary penalty was imposed on the victim.
lty will be imposed on the company. Courts determine the amount of fines based on the value of
unlawfully reproduced materials and inconvenience incurred by the victim. If the value of
reproduced contents is high the company will be fined costly fines which may lead the company
to financial constraints (Samuels 2010). If the violator actions cause a loss or bad reputation to
the victim the amount to be compensated can be higher bearing in mind that the attorney fee and
cost of lost productivity throughout the legal process will also be paid. Any person who loses a
case in the courts is liable to payment of fines that are not included in criminal fines or
judgments for compensation (Ricketson 2013). If Tom decides to continue with the idea of
publishing the book or writing an in-depth article, might cost the company financial burden if
Wendy decides to go to court and the company loses the case.
Copyright laws are taken very serious and can lead to imprisonment of the offender.In
some countries first time offenders are given a few years jail term of less than or up to five
years. The repeat offenders are jailed for long time in some cases more than ten years jail term
(Ginsburg, 2010). Depending on the formalities of the case one can be awarded a house

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imprisonment for some time so in this case tom will not get out of his home or community
service judgment where somebody will be required to do some work for the community.
The Defenses of Copyright Infringement
Some of the most effective defenses to copyright infringement include independent
creation. This happens when one creates the work without the knowledge of the copyrighted
work. In that regard, such work is not considered as a copyright infringement. This type of
defense, on eis expected to prove that he/she had no reasonable way of being aware of the
copyrighted work prior to the creation of his/her own work.
First sale
First sale occurs when the first owner sells the copyrighted work or disposes it. The buyer has the
right to display the copy of the work either in the museum or library. For instance, buying a
painting gives the buyer an exclusive right to display it and even assume its ownership and
distribution without infringing on the rights of the artist.
When a party realizes that there contents is reused they serve the said violator with
demand letter notifying the violator on the infringement of copyright. Upon receiving the
demand letter the said violator evaluate the validity of the claim and analyses the options to make
the decisions that favors his/her company. If taken to civil court of law the violator has the right
to defend his/her work by projecting the legal point of view (Hagin, 2011). There are some
exceptions to what copyright will protect such names of products,catchwords,listings of
ingredients in recipes, labels, and formulas so in this case the recipes as in the cookbook is not an

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infringement of copyright. Recipe or step by step instructions of cooking a certain food cannot
change so Tom by rewriting the cookbook cannot be taken as infringement of copyright. The
idea–expression divide gives the differences between ideas and expression, and states that
copyright protects only the original expression of ideas, and not the ideas themselves. The
Wheat- Krinklers could not be the inventors of the recipe because the foods illustrated in there
cookbook were there even before they were born so what they did is to put the recipe in writing
(Merschman, 2011). Works that are not original are not subject to copyright protection.
Is it for fair use? There are four non-exclusive factors to consider in fair use analysis that
define if an instance is a fair use or not
• The character and purpose of one’s use
• The nature of the work under copyright
• What proportion of the whole work was taken.
• The effect of the use upon the potential market for or value of the copyrighted
work.
Fair dealing provisions define and limit the right of copyright owners. A copyrights law does not
only specify the right of authors and owners but also the right of users (Cohen, 2012). Copyright
does not prohibit all copying or replication. It is posle to copy copyrighted materials without
permission from the owner and yet remain within the law. Copyright laws do not apply when the
work is being used for the purpose of commentary use (Moohr, 2014). In this case Tom wanted
to commentate on the book that was written long time ago into the new modern world so that
cannot be taken as infringement of copyright.

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Advice to Tom
Tom can continue with implementation of the idea because recipe and ingredients of
cooking a certain food cannot be taken as an infringement of copyright. They are like formulas
of cooking which are not contained to what copyright protect. Wendy cannot claim that Tom
infringed her copyright because those types of foods illustrated were there long time ago and
people did cook, so what the parents did its only putting in a book. There is no mistake in tom
using the contents of the cookbook because he will be bring back the styles that were used to
cook long time ago and from different places into the new world (Boorstyn, 2011). In this world
people live in try and error methods so it’s good if Tom implement the idea because there is no
infringement of copyright by looking into all factors. Even though the company might speed
heavily on this case if Wendy takes the matter in the court of law the company might win and it
will bring great fortune after selling of the book or article.
Conclusion
The issue of copyright is very critical and faces a lot of challenges worldwide.
Originality, many people may think they are the original creators of a certain idea while there is
another person who implemented the same idea long time ago in another country and that
become an infringement of copyright because copyrights laws apply internationally. There is a
lot of confusion in determining whether a certain event is an infringement of copyright or not
because there are exceptions of copyright. Timeline issue is also a big challenge on when and
until when copyright will cover the author. There are a lot of critics from some people who
oppose copyright laws regarding them as evil and malicious laws that denies and limit other

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people rights. Countries should come up and synchronize the advices from all quarters of the
world so that they can come up with best copyrights laws.

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References
Boorstyn, N. (2011). Copyright Law. Lawyers Co-operative Pub. Co...
Cohen, A. B. (2012). Arising under Jurisdiction and the Copyright Laws. Hastings LJ, 44, 337.
Davis, M. H., & Miller, A. R. (2010). Intellectual property: patents, trademarks, and
copyright in a nutshell. West Group.
Ginsburg, J. C. (2010). International copyright: from a bundle of national copyright laws to a
supranational code. J. Copyright Soc'y USA, 47, 265.
Hagin, L. J. (2011). A Comparative Analysis of Copyright Laws Applied to Fashion Works:
Renewing the Proposal for Folding Fashion Works into the United States Copyright Regime.
Tex. Int'l LJ, 26, 341
Khan, B. Z. (2014). Does Copyright Piracy Pay? The Effects of US International Copyright
Laws on the Market for Books, 1790-1920 (No. w10271). National Bureau of Economic
Research.
Merschman, J. C. (2011). Anchoring Copyright Laws in the Copyright Clause: Halting the
Commerce Clause End Run Around Limits on Congress's Copyright Power. Conn. L. Rev., 34,
661.
Moohr, G. S. (2014). Defining Over criminalization Through Cost-Benefit Analysis: The
Example of Criminal Copyright Laws. Am. UL Rev., 54, 783.
Ricketson, S. (2013). Berne Convention for the Protection of Literary and Artistic Works: 1886-
1986. Centre for Commercial Law Studies, Queen Mary College: Kluwer.
Samuels, E. B. (2010). The illustrated story of copyright (p. 155). Thomas Dunne Books/St.
Martin's Press.