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LAW384H1F Intellectual Property

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LAW384H1F Intellectual Property

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Course Code: LAW384H1F
University: University Of Toronto

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Country: Canada

Facts: You own a publishing company Write Right Wrights with a partner, Tom, who is a journalist. Tom found a Cookbook in his attic on vegetarian cuisine written in 1917 by a married couple (the Wheat- Krinklers) who were citizens of the UK, then living in France. The recipes appear to be a mixture of some old traditional recipes from various regions in France and a number of recipes which appear to be new recipes created by one or both of the authors.
There are illustrations throughout the book which appear to have been created for the Cookbook There is a copy notice on the cover indicating “Copyright 1918: Kitchen Klassics.” The husband died in May 1937 and the wife died in September 1965. Their only child, and sole beneficiary of their estates is a daughter, Wendy, who is a well-known author in her own right. Tom thinks the book is great and wants to write either:
1) a new vegetarian cookbook to be published by Write Right Wrights, which will include a large number of the recipes and illustrations from the Cookbook, without mentioning the Wheat-Krinklers or
2) an in depth article for a magazine including substantial excerpts from the Cookbook.
3a) Describe in detail:i) The background information concerning the relevant copyright issues that you would give to Tom in order to help him understand the potential legal ramifications if he publishes the book or article.ii) The specific issues, the potential legal ramifications and, depending on what Tom decides to publish, the defenses that may be available to him if legal action is brought against him.iii) The advice you would give to Tom (who refuses to seek legal advice) based on i) and ii).

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                                                             
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 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 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.
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.
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 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.
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.

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