Berti’s Approach to Intellectual Property

Intellectual property may be defined as a commercial product of human intellect, which is valuable either in the abstract or concrete form like a protectable trademark, human intellect or a trade secret (Bently & Sherman, 2014). As per the approach of Berti’s (2009), it can be stated that the intellectual property system is nothing but a crossroads. The developed countries are said to be more associated with the level of enforcement and perfection as it have been produced by the living multilateral treaties for protecting the growing intellectual property interests.

According to Berti (2009), the contemporary era is known to have become increasingly intricate with the advancement in the technologies, which has made it difficult to safeguard original works of authorship. The author has attempted to evaluate the issues that are associated with the copyright infringement. The author further explains the very objective of the introduction of copyright law, which is to strike a balance between the interests of the public and the interests of the creators of the original work. Furthermore, the author had offered some insight with respect to the reduction of the issues that are associated with copyright infringement.

The copyright system has conventionally maintained a stability between protecting the property rights of the creators and the exclusive right to control the use of the work created by the author and the public good that shall be present in fair access and use of such materials. However, this balance is questioned owing to the advancement of the digital technologies and the way it has changed the method of accessibility to and usage of such information (Berti, 2009).

Therefore, it can be stated that this approach has a few strengths as well as weaknesses. The analysis is done as per the time factor that includes the dynamic analysis since it always has been required in all the fields of science. In the fields of science, it consists of all the socio-economic activities. The analysis is well designed and hence carried out in this approach by adding necessary information and knowledge by contributing directly and indirectly for achieving all the superior performances. There have been development consisting of the technical, scientific, social and economic that has increased majorly.

However, a concept that has emerged roughly in the last three and four decades is management quality and performances depend on the capacity of the teams. The approach of human rights to intellectual property generally takes an explicit balance between the rights of the creators and investors and the basic interests of the wider society within the paradigms of the intellectual property (Bettig, 2018). However, in an approach it was therefore observed and analyzed that it somehow differs in a number of regards according to the standards set by the intellectual property law.

Moringiello and Fleming’s Approach to Intellectual Property

The weaknesses include certain issues that cannot be examined by focusing on the economics. Science is treated as one of the most international of all the activities that advances the requirement for the freedom of inquiry and the open availability of scientific data on an international basis. The implications of the developments in this sphere are plenty. It can be said that these developments in science have helped to operate these problems of intellectual property rights into the cyber security, which will help the individuals in future (Hunter, 2017).

However, it is important to state here that how researchers should significantly concentrate on the intellectual property rights already prevailing. The implementation of Intellectual property is of supreme significance to both less developed and developed nations. While the developed nations have expressed concerns regarding the increase in piracy, the less developed nations are equally concerned about the lack of protection for original work or expressions. This is because piracy is the main peril that is responsible for contravention of the original work and the rights of the creator. The intellectual property rights ensure that the rights of the creator or author of the work remain intact without being subjected to any infringement.

The development of the intellectual property system has given rise to challenging questions for policymakers, industry executives, commentators and academics. In the words of economist Fritz Machlup, he exerted, half a century ago that piracy and counterfeiting could provide benefits to US consumers. Policymakers and industry representatives usually intend to compare pirated products with goods of inferior quality to earn profits. Hence, it is incorrect to assume that the pirated products are considered mediocre.

The ultimate challenge concerns the interactions that are carried out with respect to a country’s competitive position and intellectual property protection. Although it is well-known that while an effective intellectual property protection is fundamental to American firms, greater intellectual property protection framework in China is likely to undermine the US competitive position. Although it might sound counterintuitive, but cannot be completely ignored and must be taken into consideration. From a long-term competition position, it can be assumed that an effective intellectual property protection framework that is likely to make China more innovative and therefore more competitive (Fang, Lerner & Wu, 2017). Such increased competition will slowly grind down the cutthroat frame that the United States has been enjoying because of its stronger and more effective intellectual property standards.

Comparison of Approaches

The approach used by the author Berti (2009) that in this internet age, copyright law has been established to strike a balance between the interest of the creators and the interest of the public. In order to reduce the issues associated with the copyright protection, it has been suggested that longer copyright terms would be advantageous for corporate coffers. The provision has been incorporated in the Copyright Act 1976 and the Sonny Bono Copyright Extension Act 1998. It will also be profitable for creators and will encourage trade priorities for the US government. However, modern scholars have criticized this approach on the ground that the approach fails to recognize the attrition that is caused to the public domain due to delay in inclusion of worl into the public domain.

The fact those long copyright terms protect works for longer decades, thus, restricting the public from accessing the information or works, affects the advancement of knowledge. Nevertheless, the incorporation of such provision within the statutes has weakened the importance of the public domain by delaying the free availability of materials for public accessibility including the inspiration to develop new works. The recent changes to the current laws have also attributed to other copyright issues related to the ‘fair use’ of information or works created by the author (Hunter, 2017). While some criticize that the current changes in law have made the corporate go beyond the legal provisions, which had a detrimental impact on the public’s right to fair use, some consider that such extended copyright terms have enhanced America’s opportunity to earn profits. It is believed that the approach adopted by the author regarding balancing the interest of the public and the interest of the creator which can be achieved using longer copyright terms have not only increased controls over digital accessibility but has also  ensured profitability of copyright besides promoting trade interest of the United States (Fang, Lerner & Wu, 2017).

According to the approach adopted by Moriengello and Flaming (2008), intellectual property rights are granted only at a time and to the extent that they support invention. The cases related to IP rights vary from patent, copyright law and trademark. Several laws have been applicable to internet copyright infringement cases such as lex loci delicti, lex fori and lex protectionis rule. As per the lex fori rule, it is assumed that the law of that country shall be applicable where the court, which is deciding the violation case, is situated. On the other hand, the legal rule ‘lex loci delicti’ rule states that while determining a case, the law of that country shall be applied where the infringing conduct had taken place. Further, the ‘lex protectionis’ rule stipulates that while determining a case related to IP Protection, the law of that country shall be applicable for which the IP protection is usually sought (Fang, Lerner & Wu, 2017)..

Implications for policymakers and industry executives

In the words of Moriengiello and Flemming (2008), with the progress and development in the electronic environment over the past decades which is termed as ‘cyberspace law’ courts are currently adapting to the prevailing statutes and the common law to deal with the new electronic and internet communication transactions (Albert & Whitesel & Saret, 1999). New laws and statutes are being passed surrounding the cyberspace and electronic transactions for regulating the new ways of carrying out the business operations in this internet age.

In the context of protection of intellectual property rights in business operations, contract law is an area in which courts are effectively applying the common law to deal with new challenge that are presented by electronic presentation of contract terms. In contract cases, issues related to modification of online contracts are dealt with by adding law on formation, incorporation by reference and unconscionability. Electronic payment systems give rise to several issues to the regulators, legislators and current courts. Thus, Moringiello and Fleming (2008) believes technology has provided the people with the medium to reach wider audiences and has enabled people to innovate, distort, edit, audit and redistribute sounds and words or images

From the above facts, it can be inferred that the only similarity between the above two approaches is that the authors aim at safeguarding the interests of the creators and that of the public. Both the approaches aim at safeguarding the invention of the creators by granting them temporary monopoly or ownership of exclusive rights for a particular period. The other significant similarity between the two approaches is that it focuses on the protection of intellectual property rights in the internet age or as cyberspace law that has brought about several changes to the conventional concept of copyright system as Internet has enhanced the possibilities making piracy more popular.

Both the approaches aim at enabling businesses to navigate the internet world of information, commerce, retail, exchange of social networking and information  and yet safeguard its business methods, ideas, creativity which are valuable assets of a business from being misappropriated or copied. The intellectual property rights including copyrights, trade secrets, patents not only ensure protection of works but also safeguard the rights of individuals or the original creator of such works. This is done by entitling them to be the owner of their works for a fixed period of time and their works can only be used by other persons through licensing or transferring of their individual rights. According to the Moriengello and Flaming (2008), trademark is considered as the most recognizable characteristics of most businesses compared to copyright protection as it can instantly convey the knowledge of reputation, product affiliation and others.

References

Albert, G. P., & Whitesel & Saret Laff. (1999). Intellectual Property Law in Cyberspace (pp. 416-17). Bureau of National Affairs.

Bently, L., & Sherman, B. (2014). Intellectual property law. Oxford University Press, USA.

Berti, J. (2009). Copyright infringement and protection in the internet age. IT Professional Magazine, 11(6), 42-45. doi:https://dx.doi.org.proxy1.ncu.edu/10.1109/MITP.2009.118

Bettig, R. V. (2018). Copyrighting culture: The political economy of intellectual property. Routledge.

Copyright Act 1976

Fang, L. H., Lerner, J., & Wu, C. (2017). Intellectual property rights protection, ownership, and innovation: Evidence from China. The Review of Financial Studies, 30(7), 2446-2477.

Hunter, D. (2017). Cyberspace as Place and the Tragedy of the Digital Anticommons. In Law and Society Approaches to Cyberspace (pp. 59-139). Routledge.

Moringiello, J. M., & Fleming, M. F. (2008). More electronic communication, more challenges: Introduction to the 2008 survey of the law of cyberspace. The Business Lawyer, 64(1), 153-156. Retrieved from https://search.proquest.com.proxy1.ncu.edu/docview/228475074?accountid=28180

Sonny Bono Copyright Extension Act 1998