Legal Aspects of Managing Technology
1) How might the protections presently afforded by patents be changed to better serve the public policy underlying patents? Should there be different treatments for industrial patents versus medical and biological ones? What are the benefits and detriments of maintaining the current system as opposed to making some sort of modification? Explain. Are there moral or ethical arguments for or against making a change? Explain. (10 points.)
The rapid advancement in technology enables various competitors to steal technological breakthroughs and information or data processes from each other. This greatly harms the economy primarily because technologies are easily replicated and the weak patents cannot completely protect inventions and innovations across the world. The present protection provided by patents need to be strengthened and be made more comprehensive and adoptive to suit present requirements. For instance, the advanced technology competition from China harms small and large entities in the United States even when they hold patents or legal authority for their inventions.
Definitely, there must be a distinction between industrial and medical and/or biological patents. Legally, however, the internationally accepted and well established principle for the patentability of inventions rules. This is because it ensures the differentiation between patentable inventions. In this case, biotechnological inventions are subject to the same standards as any other invention. Indeed, there is no pertinent reason for a different legal treatment. (Herdegen, 2008)
The benefits and detriments in maintaining the current system of patenting are rooted in the general purpose for which the protection applies. For instance, medical and biotechnological innovations are more likely aimed at improving the human conditions more than the commercial gains as secured by industrial patents. Thus, patent system must strongly protect the commercial exploitation of biotechnological advances. Ethical issues may also hinder medical and biotechnological innovations more than industrial ones. The moral dimensions of inventions are always considered and it is an automatic concern in revising patent systems and other legal provisions. For example, the area of genetic engineering is a class of argument regarding new measures in patents protection. One view may see it as a manipulation of the sacred human body while others may see it as a mere medical advancement. Hence, the benefits and disadvantages can be seen differently. (Burgunder, 2007)
2). In 1998, Congress added 20 years to the duration of copyright protection in the Sonny Bono Copyright Term Extention Act. How does extending the term of protection, for an individual copyright holder to life plus 70 with similar extentions for other holders, serve the purposes of copyright? What are the benefits and detriments, for holders and for the public at large of having prolonged the protection? (10 pts).
According to the US Copyright Office (2008), copyright is the exclusive right given to the creator of an original work for a limited period of time. It gives the copyright holder the proper acknowledgment for his work, the right to determine adaptations of his work, its performers, its gains, and other related rights. Copyright applies to various creative, intellectual, or artistic forms, or “works” which include poems, theses, plays, other literary works, movies, dances, musical compositions, audio recordings, paintings, drawings, sculptures, photographs, software, radio and television broadcasts, and industrial designs. As intellectual properties, copyright secures that the rightful creators are perpetually protected for their geniuses. It also serves the purpose of stimulating intellectual innovations and creativity as it inspires authors and creators to make original works.
However, the advent of information technology makes the context of copyright difficult to evaluate. For instance, new media and computer technologies introduced a difficulty in enforcing copyrights and challenged copyright’s principles. The advantages for copyright holders are evidently their authorship and the material benefits of their copyrights. They can also transfer their rights to their heirs and benefactors. Hence, their moral and economic interests are widely protected.
For others, copyrights delimit and stifle their intellectual and creative resources because the monopoly of the other copyrighted works put their works in a disadvantaged position. Having federal protection for unpublished works is one example of a major stumbling block for new authors. (Reese, 2007) One may not have seen the unpublished work have created a similar copy and could be subjected to copyright claims. The doctrine of fair use is also troublesome. According to National Judicial Academy (2004), there is no guidance provided for determining whether a particular use is fair and no fixed criteria has emerged from the precedents. Fair use doctrine “must strike a balance between the need in incentive to create and granting creators a complete monopoly which will inhibit the creative ability of others.” (2004) Copyright’s extensive protection also limits the public’s need for access to creative works. They are only allowed the access to the products of the authors’ creative genius after the expiry of the period of their exclusive control.
Burgunder, L. (2007). Legal Aspects of Managing Technology. 4th ed. South-Western Publishing Company, 482 pp.
Herdegen, M. (2008). Patenting Human Genes and other Parts of the Human Body under EC Biotechnology Directive. Bio Science Law Review. Retrieved on June 7, 2008 from, http://pharmalicensing.com/public/articles/view/1008262393_3c18dcf915ce1.
National Judicial Academy. (2004). Judicial Round Table on IPR Development and Adjudication. Retrieved on June 7, 2008 from, http://220.127.116.11/search?q=cache:PJzO9rR9iHYJ:cestat.gov.in/Articles%2520by%2520President/Controversial%2520Copyright%2520Issues.doc+What+are+the+benefits+and+detrimental,+for+copyright+holders+and+for+the+public+at+large+of+having+prolonged+the+copyright+protection%3F;hl=tl;ct=clnk;cd=16;gl=ph.
Reese, A. (2007). Public but Private: Copyright’s New Unpublished Public Domain. Texas Law Review. Retrieved on June 7, 2008 from, http://www.utexas.edu/law/faculty/treese/publicbutprivate.pdf.
United States Copyright Office. (2008). Retrieved on June 7, 2008 from, http://www.copyright.gov.