Summative Assessment on

Intellectual Property and Justification on Intellectual Property

Rights and The Legislative Approach on Facilitating Online
Copyright Infringement: How Do Virtual Businesses Safeguard Their
Rights, Logos, Products, Websites and Designs from Virtual Piracy?

Module: International Intellectual Property Law

Submitted By

Md Asifur Rahman
UBNo: 21038820
Introduction
The term "intellectual property (IP)" refers to things like inventions, machines, novel ideas,
and other things made by people using "mental or creative labor," and the legislation
governing intellectual property normally refers to is "highly politicized." it is a legal status
and protection that enable individuals to own intellectual property (IPR) in the same way they
own tangible goods. Intellectual property (IPR) is the intangible result of creativity and
invention embedded in tangible items. A company's intellectual property rights (iprs) govern
the results of effort across a variety of fields, according to the world intellectual property
organization (WIPO). There are various types of intellectual property rights (IPR), including
copyright and associated rights, trademarks, geographic indications, industrial designs,
patents, integrated circuit layout designs, and anticompetitive behaviour in trips licensing
contracts1. According to the world trade organisation (WTO) intellectual property (IP) refers
to the broad term used for the set of non-physical assets (intangible assets) owned as well as
legally protected by an individual or firm from implementation or outside usage without
taking the consent of the owners. Ip is not a physical property, however, is also known as the
product of the original idea. It includes artistic work and literacy, images, designs, names and
symbols used in businesses and commerce2. The most prominent types of ip include patents,
copyrights, trade secrets, moral rights and trademarks. Wto also revealed that ip rights refer
to the legal authority given to the inventors or creators to secure their creations and the prime
aim of these rights is to increase economic stability and growth by encouraging new

1
Christopher May and Susan K. , Intellectual Property Rights: A Critical History (First Edition, Lynne Rienner
Publishers 2005) 5

2
Mike Peng and others, 'History and the debate over intellectual property' [2017] 13(1) Management and
Organization Review 15-38
inventions and creations. Ip system also intends to create an environment that can assist in
flourishing innovation and creativity3.

Basis of Intangible Property Tangible Property

Differences
Definition A property that does not have A property that has a physical
any kind of physical existence existence and can be touched is
is known as an intangible known as tangible property
property
Examples  Trade name  Stocks
 patents  Land
 service marks  Machinery
 trademarks
 trade secrets
Property Fuzzy and limited even in Clearer and more comprehensive in
Rights developed countries general especially in developed
countries
Rights Comparatively easy Comparatively difficult
Enforcement
Transfer Costs As rises with the tacit portion As it depends on transportation-
therefore Hard to calibrate related costs, therefore, Easier to
calibrate
Financed Mostly hard to financed Can easily be financed
Liquidate As they lack physical existence As they physically exist therefore
Ability therefore hard to liquidate easy to liquidate.
Amortisation Depreciates quickly and Depreciates slowly and amortises
or Depreciation amortises slowly quickly 4

3
Holgersson van santen and others, '"The business of intellectual property: a literature review of IP management
research' [2018] 1(1) Stockholm Intellectual Property Law Review 44-63

4
“Difference between Intangible and Tangible Assets” (Byjus) <https://byjus.com/commerce/difference-
between-tangible-assets-and-intangible-assets/> accessed November 12, 2022.
Three theories are frequently used to support intellectual property rights (IPRs): the incentive
(Jeremy Bentham/Utilitarian), the personality (GWF Hegel), and the reward for labor (John
Locke) theories. It is from the deontological/normative school of thought that rewards for
work and personality theories are derived, whereas the incentive-oriented theory is from the
consequentialist school. Three sorts of justifications for intellectual property rights are
frequently used. According to personality theorists, one's intellectual property is an extension
of their personality. According to utilitarians, the foundation of intellectual property rights is
societal advancement and innovation incentives. Rights are justifiable in light of work and
success, according to Lockeans. A fourth, more contemporary strand of reasoning is also
included. This more modern defence examines the prisoner's dilemma concerning access and
content creation. Out of prudence and self-interest, we all have the motivation to embrace and
support organisations that protect intellectual property. Even though each of these
justifications has shortcomings, they all have some benefits5.

Justification on Intellectual Property Law

Labour

According to proponents of the reward for labour (Lockean) theory, creators of intellectual
property ought to get ownership rights as compensation for their labor-intensive efforts.
According to a popular interpretation of Lockean incentive theory, all resources are
considered "commons," although Labour may be applied to common resources to create new
goods. It is an individual's personal or private property to produce items that result from their
intellect, skills, labor, and resources (the sweat of their brows), as long as there is enough and
enough good for others. "Everyone should be entitled to the fruits of his labour" is upheld
here as well as the tenets of "everyone has an innate right to his labour6.

An alternative argument for intellectual property rights starts with the assertion that people
have a right to own the results of their labor. In general, it is assumed that a person acquires

5
Khair MH and Hashim HN, "Justifications of Intellectual Property Rights: A Discussion on Locke and Hegel's
Theories" (2020) 11 Jurnal Hukum Novelty 114

6
Michael Spence, Intellectual Property, Clarendon Law Series (Oxford University Press 2007) 42
property rights through the clearing of unowned land, the raising of crops, the construction of
a home, or the development of a new thing. Individuals who work hard, create things, think
critically, and persevere have a right to the results of their labour. Rights are made when
people combine their work with an unowned item, subject to some limitations. A labor
requirement, a no-waste requirement, and the "enough and as good" caveat are examples of
restrictions or constraints on acquisition. For Locke, the best way to understand labour is as a
metaphor for the constructive activities required to support and advance human well-being.
The non-waste criterion nullifies a property claim if the appropriator takes more than she can
use or eat without causing spoiling.Contrary to the work metaphor, Locke defines spoiling as
the rotting or ruin of an existent good that is necessary for maintaining human existence.
Finally, Locke uses an example to best demonstrate the "enough and as excellent" stipulation.
It is as though no water is taken at all when someone drinks from a river. This purchase has
little impact on his peers.7

Personality oriented justification

According to personality-based (Hegelian) philosophers, intellectual works are reflections of

the personalities and characters of their authors. Therefore, to honour their dignity,
reputation, and personality, creators should have authority over their creations. Hegel barely
addresses IPRs, in contrast to Locke. According to Hegel, treating individuals as autonomous
creatures includes giving them property rights over their inventions. The personality-based
philosophy has been criticized for prioritizing the interests of the original creators and
limiting how other people can use or express the protected works.Another complaint is its
suitability for technology items protected by industrial property instead of artistic and
creative expressions protected by copyrights. Technology is typically created to address a
specific need rather than to showcase the creator's personality. The light bulb he (Thomas
Edison) invented, for instance, would be difficult to describe as an extension of him.8

7
Samuel Duncan, “Labour-Based Justifications of Intellectual Property and the Problem of Disruptive
Innovations” (2020) 37 Journal of Applied Philosophy 804

8
Shlomit Yanisky-Ravid, “The Hidden Though Flourishing Justification of Intellectual Property Laws:
Distributive Justice, National versus International Approaches” (2017) 21 Lewis & Clark law review 8.
Incentive-based orientation justification

Inventors' interests are not considered by incentive-oriented theorists when justifying IPRs.
Instead, they defend IPRs by arguing that they promote innovation and advance the common
good. This argument contends that the monopoly and exclusive rights provided by IPRs
encourage innovators to spend money on creating new items. There would be little
motivation to invest in original items if products could be duplicated quickly and without
consequences. Monopolies limit competition and innovation, according to a counterargument.
Furthermore, some innovators could be inspired to create new things for other factors,
including interest, passion, want, pleasure, curiosity, expression, reputation, or to address
social problems.

The ability to apply for protection is still open to inventors who are not motivated by IPRs.
For instance, Jeff Bezos, the creator of Amazon, claims that the company would have created
the technology even if it were not patentable, even though Amazon received a patent for its
"1-click" technology9 .

9
Robert Merges P., Justyfying Intellectual Property (Harvard University Press 2011) 102
The Legislative approach on facilitating Online Copyright Infringement: How do
virtual businesses safeguard their logos, websites, products and designs from virtual
Piracy?

Fact

Intellectual property is the term that belongs to human intellect creation. It acts as
imperceptible in nature and it is necessary to protect the original creator of this property, as
this concept is endorsed by the evolution of intellectual property laws and regime protection.
Whenever perceptible property protection is easy rather than protection of intangible property
because tangible creation is the same as stringent protection. In the present knowledge-based
economic culture, companies are conscientious to identify and protect their intellectual
property because of its tremendous nature in the economy 10. The website of the company is a
significant asset and tool to increase the sales of the business. There is a huge risk in the
market that the company website essentials are copied, copping of the website logo. design
and products ultimately lead to increased competition in the E-commerce market. Moreover,
there is also the risk of using the intellectual property by unauthorised people, so the loss of
sales and intellectual assets are ultimately damaged. The website of the company is composed
of various components and designs owned by the company that created and designed it, this
website is the intellectual asset of the organization. No one can copy the designs, logos, and
products, of an organisation, if any company or person steals the website, logos, designs, or
products it is under virtual piracy11. Virtual piracy defines as the unlawful copying or
spreading of copyrighted material through the internet and this piracy adversely influences
the company's reputation and sales. It considers the illegal activity of copying websites,

10
Rudy Farid, ' Brand Identity Design of" Favorlt" Skin Care Products' [2021] 12(4) Turkish Journal of
Computer and Mathematics Education (TURCOMAT) 695-712

11
Alena Kuzmina, 'Protecting video games against online copyright infringement: a Russian approach to site
blocking' [2021] 4(2) Interactive Entertainment Law Review 122-127
music, videos and logos designs without the proper authorisation from their original creator.
In this regard, several intellectual property laws have been established to protect different
elements of the websites, as these elements are safeguarded by the different IP laws provided
12
categorically to all the website elements. In addition, the website design is the expression
which shows the novel idea for establishing the website, and this must be protected by
utilising the copyright rules and laws. It must be ensured that the content visible on the
website is presented in written materials such as a photograph, graphical designs, music and
videos protected under copyright law. The significant databases of websites are protected by
means of two ways such as by implementing the copyright law or by employing the sui
generis database laws13. Further, the graphic designs and symbols, designs logos, graphic user
interference, and webpage must be safeguarded by the Industrial Design law under the IP law
and using the trademark and watermark or time stamps also help to disable the right clicks on
the websites that ultimately act as the best approach to protect the intellectual property of the
company14. Thus, the legislative approach to facilitating Online Copyright Infringement
supports virtual businesses to safeguard their logos, websites, products and designs from
virtual piracy.

Procedural History

From the above-mentioned problem, various laws are available for safeguarding virtual
businesses. Virtual piracy negatively affects the virtual business organisation because there
the issues of copyrighting the business logos, designs, graphics and even webpage which is
unethical and ultimately damages the rummage sale of the company 15. In 1483, Richard III
valued the literary works and encourages the spread of their printings, but at the same time,
they limits and censor the texts that will harmful for the church and crown. Therefore, in this
way Printer and Binders Act 1534 ban the imports of foreign books and enable the Lord
Chancellor to reduce the books prices. Then more censorship incoporated by Henry VIII who

12
Paramita Choudhury and Yadav Seema, 'Online Piracy and Intellectual Property Rights' [2022] 5(2022) A
Synthesis: Issue 1 Int'l JL Mgmt & Human 2284
13
MatthewNO Sadiku and others, 'Digital piracy' [2021] 2(5) International Journal of Scientific Advances 797-
800

14
Petrică Tertereanu and others, 'COUNTERFEITING AND INFRINGEMENTS UPON INTELLECTUAL
PROPERTY RIGHTS' [2021] 20(2) Review of Management & Economic Engineering

15
Ot Van daalen, 'In defense of offense: information security research under the right to
science' [2022] 46(2022) Computer Law & Security Review 105706
wanted that all book approved firstly by the author before its publications. In this context,
copyright internet infringement revealed that there are 6.5 million people in the United
Kingdom (UK) who unlawfully share files under the copyright holder, and the illegal costs of
downloading the industries are about $400 million per year. The internet piracy acts
introduced in the UK are the Copyright, Designs and Patents Act 1988 16, as well as
the Digital Economy Act 2010 amended and also breakthrough by sharing files activities.
Generally, the Act of Copyright, Designs and Patents 1988 intends to safeguard
the intellectual possessions and constitutional rights of the inventor or patent owner17. Sharing
of files infringes the act when the patent holder did not agree on permission for material
sharing. The most debated clauses of the Digital Economy Bill survived wash-up, it utilises
to handle virtual copyright infringement, this issue was debated and amended in the UK
House of Lords, and that leads to published in the statute Book. The Digital Economy Act is
established and amended in 2010, it consists of two stages, which describe the two ways of
attack on virtual pirating such as firstly issuing warning letters, to instigate, and if this
warning letter does not work to limit the technical measures, then bounds or suspend the
access of the internet. Nevertheless, for the suspension of the internet, there is no need to
provide a notice letter, supported by the action of the court and provide fortuitous effort 18.
Last year, the Secretary stated that allow to incorporate the secondary legislations that help to
measure the technical issues, and is subject to supper affirmative at the parliamentary security
level, but there is still not enough match to pass the primary legislation. The parliament
house voted to approve these regulations and there are chances of inspection and amendment
in advance. In 2017, the Digital Economy Act was modified and penalties are introduced
associated with intellectual copyright violation, it is directly concerned with the copyright
from the internet as compared to preceding legislations that are only focused on the
commercial abuse of copyright19. In the main, various codes are in practice to protect the
users, as hidden features of the website are confidential data of the company that not be
disclosed to other companies which leads to cause the secrecy violation of the organisation
16
Copyright, Designs and Patents Act 1988 [1988] Paragraph 7 Copyright, Designs and Patents Act
1988 1517 (Defined by s. 304; Part 1 extends (partially) to Bermuda by S.I. 2003/1517)
17
Digital Economy Act 2010 [2010] CHAPTER 24 S17 and 18 repealed 2011 C 24 (The National Archives, UK
Government ) ( Lord Mandelson)

18
Wenrong Pan and others, 'Digital economy: An innovation driver for total factor
productivity' [2022] 139(2022) Journal of Business Research 303-311

19
Digital Economy Act 2017 [2017] CHAPTER 30 Digital Economy Act 2017 c 30 (4th Baron Ashton of Hyde
(Lords)) (John Whittingdale and Henry Ashton)
that is protected under the Uniform Trade Secret Law. The software design of the website
comprises Text-based HTML codes that act as the shield under the Patent laws to secure the
functioning of the websites20. Hence, in this case, the UK government provided the proper
acts and legislation to facilitate online copyright infringements, so in the virtual businesses
sectors, these laws must be implemented carefully to safeguard the company websites, logos,
and graphic designs from online piracy.

Legal Reasoning

Copyright is the process in which the work is infringed by the individual, without the
copyright holder owner's permission. The infringement can directly and indirectly and
usually occur in many forms such as infringement of entire work, or any substantial portion 21.
Different cases happened in copyright litigation, which shows the verdict of the judges
according to the laws of intellectual property. In the case between Lan Nordrhein-Westfalen
and Renckhoff (C-161/17) based on the copyright-protected photographs on the website of
the school, it acts as the communication channel for the public but this material is freely
accessible online so anyone can assess it. Under Article 3(1) of Directive 2001/29/EC of the
European Parliament and of the Council of 22 May 2001, the verdict of the judges is that the
publication of material online without the consent of its rightful owner leads to penalties 22.
Another case is the judgement of the second chamber court on 26 April 2017 between
Stiching Brein and Jack Frederik Wullems about the sales of the pre-installed multimedia
players that work on the add-ons hyperlinks, and the website is used by the unauthorised
copyrighted material. The court give the verdict according to Article 5(1) and (5) right of
reproduction and Article 3(1) communication of public mention that there must be
communicated to the community since the players were sold the full information that the
hyperlinks offered access to illegitimately published works, and this ultimately gain the
profits23. In June 2020, another case of copyright product in the fifth chamber of the Lord's
20
Scott Guernsey and others, 'Actively keeping secrets from creditors: evidence from the uniform trade secrets
act' [2022] 57(7) Journal of Financial and Quantitative Analysis 2516-2558
21
IfeanyiE Okonkwo, 'NFT, copyright and intellectual property commercialization' [2021] 29(4) International
Journal of Law and Information Technology 296-304

22
Land Nordrhein-Westfalen v Dirk Renckhoff [7 August 2018] Article 3(1) Case C-161/17 (Paragraphs 29 to
35) (European Parliament and Council Directive 2001/29) (Advocate General: M Campos Sánchez-Bordona, M
Ilešič (Rapporteur), President of the Chamber, A Rosas, C Toader, A Prechal and E Jarašiūna)

23
Stichting Brein v Jack Frederik Wullems [2017] Article 3(1) and Article 5(1) and (5) Case C-527/15 (OJ 2001
L 167, p 10) (European Parliament and Council Directive 2001/29) (Advocate General: M Campos Sánchez-
Bordona, M Ilešič (Rapporteur), K Lenaerts, A Prechal, C Toader and E Jarašiūnas)
Court, between Brompton Bicycle and Chedech, the preliminary ruling of the intellectual
property and copyright rules and rights with reference to Directive 2001/29/EC and Article 2
to 5 revealed that serviceable objects and protection of copyright materials such as the shape
of the product such as Folding cycle. For instance, copyright protects the product’s shape
which is, at least in part, compulsory to

gain a technical outcome, providing its original form and if the shape is solely dictated by
purpose, copyright cannot safeguard the situation24.

Case Analysis

Virtual piracy adversely affects the business organisation and various brands, because all the
material related to their products, designs and logos is freely accessible through online
websites, so the companies would implement the starter strategies to protect their intellectual
assets. These strategies are to make sure that the company must meet the legal requirements,
then collect the evidence related to the infringement and also take necessary actions with
manual removals. There are different types of IP which widely infringed virtually such as
trademarks, utility patents, design patents and copyright 25. Mostly trademarks provide the
authenticity stamp to the organisation, they shelter words, forenames, symbols, resonances
and colours and are differentially unique to every organisation's goods and products. Infringe
upon trademarks on counterfeited goods, utilises these indicators mislead and confuse the
consumers and they think about are these products are original or sponsored or affiliated to
the specific brand or organisation. The company website and logos are protected by
trademarks, watermarks, and time stamps and also disable the option of copying from the
website helps to safeguard the company designs and logos 26. Moreover, utility patents
provide shelter by developing novel inventions or practices and machines and prohibits other
people and organisation from manufacturing, utilising and marketing the new invention

24
SI and Brompton Bicycle Ltd v Chedech / Get2Get [2020] Articles 2 to 5 Case C-833/18 (OJ 2001 L 167, p
10) (European Parliament and Council Directive 2001/29) (Advocate General: M Campos Sánchez-Bordona, E
Regan, I Jarukaitis, E Juhász (Rapporteur), M Ilešič and C Lycourgo)

25
YakubovaIroda Bakhramovna, 'Problems Of Copyright Protection: Plagiary And Piracy On The
Internet' [2021] 12(4) Turkish Journal of Computer and Mathematics Education (TURCOMAT) 1132-1135

26
Matteo Montecchi and others, 'It’s real, trust me! Establishing supply chain provenance using
blockchain' [2019] 62(3) Business Horizons 283-293
without authorisation or consent27. The design patents refer to the illegal protection of novel
decorative or fantastic appealing features of products and packaging, enchanting their shape,
quality, material, and other features that ultimately contribute to the visuals of the products to
make them unique and sheltered28. Further, copyright is a right that allowed owners or
creators to safeguard their work, it is presented in the form of printed work for example
books and rhymes, artwork for example portraits and sketches, songs, movies and many more
things. Hence, piracy is the illegal photocopying plus spreading of copyrighted material that
leads to affect the reputation of the organisation and also decreases its sales and production 29.

Conclusion
Generally, the secure global protection to limit the manufacturing and use of products without
permission, it is necessary to secure patents by using copyright rules and trademarks and also
register counterfeit products in other countries. Counterfeits are referred to as copies, replicas
or carbon copies, copycats and knock-offs and it is impossible to protect and monitor
counterfeiting activities without the advancement of technology. Similarly, the business
organisation utilises various technological operations to recognise and stop the attack of
counterfeiters30. In addition, unique patterns or packing are utilised for the detection against
the special devices or else build nano-optic imageries to enhance products and abundant
sophisticated technological solutions that allow validation of products and expose
counterfeits products and goods31. Hence, the E-commerce emerging industry and the owners
of these websites face issues where the creator and inventor of one other website are
effortlessly accessible to original websites and they are deprived of any sort of credit or
acknowledgement provided to the original creator. Moreover, the websites commonly attack
by virtual pirates for infringement litigations. If the original creator is not aware of the proper
precautionary measures, the IP address and rights can be misplaced and the company is liable
for infringement of the IP rights of others. To evade such situations the concept of intellectual
27
Zhiyuan Chen and Zhang Jie, 'Types of patents and driving forces behind the patent growth in
China' [2019] 80(2019) Economic Modelling 294-302

28
Kenta Ikeuchi and Motohashi kazuyuki, 'Linkage of patent and design right data: analysis of industrial design
activities in companies at the creator level' [2022] 70(2022) World Patent Information 102114
29
Richard Stim, Patent, copyright & trademark (An intellectual property desk reference edn, Nolo 2022)

30
Joseph Amankwah-amoah and others, 'Institutionalization of protection for intangible assets: Insights from the
counterfeit and pirated goods trade in sub-Saharan Africa' [2022] 57(2) Journal of World Business 101307

31
SotirisP Gayialis and others, 'A Review and Classification Framework of Traceability Approaches for
Identifying Product Supply Chain Counterfeiting' [2022] 14(11) Sustainability 6666
property shows a significant role to provide safeguards to websites, logos designs and
products and correspondingly makes virtual transactions convenient and safer32.

32
BrianA Mckenzie, 'Establishing Personal Jurisdiction over Illegal Online Sports Streaming Websites in
Copyright Infringement Litigation' [2021] 61(2021) Home Field Advantage 611