Info 442 chapter3


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Info 442 chapter3

  2. 2. Chapter Three: Introduction to Law and Intellectual Property • Law • Types of law • Statutes and Treaties • Case Law • Agency Regulations and Executive Orders • Local Laws • Intellectual Property • World Intellectual Property Organization 4/12/2014 2
  3. 3. What is Law? • Law is a body of rules and system of action or conduct prescribed by controlling authority, usually enforced through a set of institutions and must be obeyed and followed by citizens. • It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. • It can be seen as a body of rules or conduct; binding legal force and effect, prescribed, recognized, and enforced by controlling authority. • In ETH. Eg, law refers to any rule that if broken subjects a party to criminal punishment or civil liability.4/12/2014
  4. 4. What is Law? (Cont.) • Laws in the ETH are made by federal, state, and local legislatures, judges, the president, state governors, and administrative agencies. • It is a mosaic or pattern of statutes, treaties, case law, administrative agency regulations, executive orders, and local laws. • New laws are regularly introduced, old laws are repealed, and existing laws are modified, so the precise definition of a particular law may be different in the future from what it is today; even in other countries 4/12/2014 4
  5. 5. Types of law • When we look at the types of law from the perspective of how they are created or where they come from. Fundamentally, we can say there are three types of laws based on there sources: • i. Legislative process law • ii. Court-made law • iii. Agency-made law 4/12/2014 5
  6. 6. Types of law (Cont.) • Statutory Law or legislative process law • is derived from Congress debate on issues affecting citizens; then executive gives approval or Veto on such issues and pass as laws. • Court-Made Law (Common Law) • is the law made by courts. • Common law evolves narrowly, slowly, with occasional major decisions. • A court decides the specific issue before it and no more. 4/12/2014 6
  7. 7. Types of law (Cont.) • Agency-made law • Generally courts follow previous decisions made by the state and regarded as guide already set. • This is viewed as predictability. • Courts will also, however, depart when circumstances require, thereby providing flexibility. • While sister courts look upon a different court's decision with a more critical approach and relax its law. • A lower court must follow the guide from courts above it and the same court might even change its mind. 4/12/2014 7
  8. 8. Types of law (Cont.) • Categorization of laws as generated in countries of the world: • 1. Contract law, which regulates everything from buying a bus ticket to trading on derivatives markets. • 2. Property law defines rights and obligations related to the transfer and title of personal (often referred to as chattel) and real property. • 3. Trust law applies to assets held for investment and financial security. • 4. Tort law allows claims for compensation if a person's rights or property are harmed. 4/12/2014 8
  9. 9. Types of law (Cont.) • If the harm is criminalised in a statute, criminal offers means by which the state can prosecute the perpetrator. • 5. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. • 6. Administrative law is used to review the decisions of government agencies. • 7. International law governs affairs between Sovereign States in activities ranging from trade to environmental regulation or military action. 4/12/2014 9
  10. 10. Statutes and Treaties • After the federal Constitution, the highest laws are written laws, or statutes, passed by elected federal lawmakers. • States have their own constitution and statutes. • Federal laws generally involve matters that concern the entire country. • State laws generally do not reach beyond the borders of the state. 4/12/2014 10
  11. 11. Statutes and Treaties (Cont.) • Federal statutes are passed by Congress and signed into law by the president. • State statutes are passed by state legislatures and approved by the governor. • If a president or governor vetoes, or rejects, a proposed law, the legislature may override the veto if at least two- thirds of the members of each house of the legislature vote for the law. • Statutes are contained in statutory codes at the federal and state levels. • These statutory codes are available in many public libraries, in law libraries, and in some government buildings, such as courthouses.4/12/2014 11
  12. 12. Statutes and Treaties (Cont.) • On the federal level, the president has the power to enter into treaties, with the advice and consent of Congress. • Treaties are agreements with sovereign nations concerning a wide range of topics such as environmental protection and the manufacture of nuclear missiles. • Most treaties are concerned with the actions of government employees, but treaties also apply to private citizens. 4/12/2014 12
  13. 13. Case Law (Cont.) • Statutes are the primary source of law, and the power to enact statutes is reserved to elected lawmakers. • However, judicial decisions also have the force of law. • Statutes do not cover every conceivable case, and even when a statute does control a case, the courts may need to interpret it. • Judicial decisions are known collectively as case law. • A judicial decision legally binds the parties in the case, and also may serve as a law in the same prospective sense as does a statute. • In other words, a judicial decision determines the outcome of the particular case, and also may regulate future conduct of all persons within the jurisdiction of the court.4/12/2014 13
  14. 14. Case Law (Cont.) • The opinions of courts, taken together, comprise the common law. • When there is no statute specifically addressing a legal dispute, courts look to prior cases for guidance. • The issues, reasoning, and holdings of prior cases guide courts in settling similar disputes. • A prior opinion or collection of opinions on a particular legal issue is known as precedent, and courts generally follow precedent, if any, when deciding cases. • Breaking with precedent may be justified when circumstances or attitudes have changed, but following precedent is the norm. 4/12/2014 14
  15. 15. Case Law (Cont.) • This gives the common law a certain predictability and consistency. • The common law often controls civil matters, such as contract disputes and personal injury cases (torts). • Almost all criminal laws are statutory, so common law principles are rarely applied in criminal cases. • Sometimes courts hear challenges to statutes or regulations based on constitutional grounds. • Courts can make law by striking down part or all of a particular piece of legislation. • The Supreme Court has the power to make law binding throughout the country on federal constitutional issues.4/12/2014 15
  16. 16. Case Law (Cont.) • The highest court in each state has the same power to interpret the state constitution and to issue holdings that have the force of law. • Occasionally courts create new law by departing from existing precedent or by issuing a decision in a case involving novel issues, called a case of first impression. • If legislators disagree with the decision, they may nullify the holding by passing a new statute. • However, if the court believes that the new statute violates a constitutional provision, it may strike down all or part of the new law.4/12/2014 16
  17. 17. Case Law (Cont.) • If courts and lawmakers are at odds, the precise law on a certain topic can change over and over. • When researching a legal issue, it is helpful to consult relevant case law. • The researcher first finds the relevant annotated statutes, and then reads the cases that are listed under the statutes. • Reading case law helps the researcher understand how the courts interpret statutes, and also how the courts analyze related issues that are not covered in the statutes. • Volumes of case law can be found in some public libraries, in law libraries, in courthouses, and in state government buildings such as statehouses and state libraries.4/12/2014 17
  18. 18. Agency Regulations and Executive Orders • Administrative agencies may also create laws. • The federal and state constitutions implicitly give the legislatures the power to create administrative agencies. • Administrative agencies are necessary because lawmakers often lack detailed knowledge about important issues, and they need experts to manage the regulation of complex subjects. • On the federal level, for example, the Department of the Interior is created by Congress to manage the nation's natural resources. • In creating the agency, Congress gave it power to promulgate regulations concerning the use and protection of natural resources. 4/12/2014 18
  19. 19. Agency Regulations… (Cont.) • Administrative agency regulations have the force of law if they have a binding effect on the rights and duties of persons. • For example, Interior Department regulations that prohibit mining or logging in certain areas of the country are considered law, even though they are not formulated by an elected official or judge. • Federal administrative agency rules are approved by Congress, so ultimately they are a product of the will of elected officials. • Similarly, on the state and local levels, an administrative agency may promulgate rules that have the force of law, but only at the pleasure of the elected lawmakers that created the agency. 4/12/2014 19
  20. 20. Agency Regulations… (Cont.) • If an agency seeks to change a regulation, it must, in most cases, inform the public of its intentions and provide the public with an opportunity to voice concerns at a public meeting. • Not all agency regulations have the force of law. • Agency rules that merely interpret other rules, state policy, or govern organization, procedure, and practice need not be obeyed by parties outside the agency. • Some administrative agencies have quasi-judicial powers. • That is, they have limited authority to hear disputes and make binding decisions on matters relevant to the agency.4/12/2014 20
  21. 21. Agency Regulations… (Cont.) • Executive orders are issued to interpret, implement, or administer laws. • On the federal level, executive orders are issued by the president or by another executive branch official under the president's direction. • Executive orders range from commands for detailed changes in federal administrative agency procedures to commands for military action. • To have the force of law, a federal executive order must be published in the Federal Register, the official government publication of executive orders and federal administrative agency regulations. • On the state level, governors have similar authority to make laws concerning state administrative agencies and state military personnel.4/12/2014 21
  22. 22. Local Laws • Local government areas or Counties, cities, and towns also have the authority to make laws. • Local laws are issued by elected lawmakers and local administrative agencies. • Local laws cannot conflict with state or federal laws. • Decisions by local courts generally operate as law insofar as they apply to the participants in the case. • To a lesser extent, local court decisions may have a prospective effect. • That is, a local court decision can operate as precedent, but only in cases brought within the same jurisdiction. • For example, a decision by a court in Jimma woreda may affect future court cases in Jimma woreda, but it has no bearing on the law in any other woreda. • Local laws can be found in local courthouses, in local libraries, and in state government libraries. 4/12/2014 22
  23. 23. Intellectual Property • Intellectual property (IP) could be defined as any work of authorship, invention, discovery, or other original creation that may be protected by copyright, patent, trademark, or other category of law. • However, not all intellectual property law are handled in the same way. • Scholarly works are handled differently from inventions, discoveries and ideas because the concerns about protecting them are different. • IP is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source;4/12/2014 23
  24. 24. Intellectual Property (Cont.) • and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. • Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. • The term intellectual property refers broadly to the creations of the human mind. • Intellectual property rights protect the interests of creators by giving them property rights over their creations.4/12/2014 24
  25. 25. Intellectual Property (Cont.) • The Convention Establishing the World Intellectual Property Organization (1967) gives the following list of subject matter protected by intellectual property rights: • i. literary, artistic and scientific works; • ii. performances of performing artists, phonograms, and broadcasts; • iii. inventions in all fields of human endeavor; • iv. scientific discoveries; • v. industrial designs; • vi. trademarks, service marks, and commercial names and designations;4/12/2014 25
  26. 26. Intellectual Property (Cont.) • vii. protection against unfair competition; and • viii. all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. • The importance of protecting intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property in 1883 and the Berne Convention for the Protection of Literary and Artistic Works in 1886. • Both treaties are administered by the World Intellectual Property Organization (WIPO). 4/12/2014 26
  27. 27. Intellectual Property (Cont.) Countries generally have laws to protect intellectual property for two main reasons. • One is to give statutory expression to the moral and economic rights of creators in their creations and to the rights of the public in accessing those creations. • The second is to promote creativity, and the dissemination and application of its results, and to encourage fair trade, which would contribute to economic and social development. 4/12/2014 27
  28. 28. The Role of WIPO • The World Intellectual Property Organization (WIPO) is an international organization dedicated to ensuring that the rights of creators and owners of intellectual property are protected worldwide, and that inventors and authors are thus recognized and rewarded for their ingenuity. • As a specialized agency of the United Nations, WIPO exists as a forum for its Member States to create and harmonize rules and practices to protect intellectual property rights. • Most industrialized nations have protection systems that are centuries old. • Many new and developing countries, however, are now building up their patent, trademark and copyright laws and systems.4/12/2014 28
  29. 29. The Role of WIPO (Cont.) • With the rapid globalization of trade during the last decade, WIPO plays a key role in helping these new systems to evolve through treaty negotiation, legal and technical assistance, and training in various forms, including in the area of enforcement of intellectual property rights. • The field of copyright and related rights has expanded dramatically as technological developments have brought new ways of disseminating creations worldwide through such forms of communication as satellite broadcasting, compact discs, DVDs and the Internet. • WIPO is closely involved in the on-going international debate to shape new standards for copyright protection in cyberspace. 4/12/2014 29
  30. 30. The Role of WIPO (Cont.) • WIPO administers the following international treaties on copyright and related rights: • i. Berne Convention for the Protection of Literary and Artistic Works • ii. Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite • iii. Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms • iv. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations4/12/2014 30
  31. 31. The Role of WIPO (Cont.) • v. WIPO Copyright Treaty (WCT) • vi. WIPO Performances and Phonograms Treaty (WPPT) • vii. WIPO also provides an Arbitration and Mediation Center, which offers services for the resolution of international commercial disputes between private parties involving intellectual property. 4/12/2014 31
  32. 32. The Role of WIPO (Cont.) • The subject matter of these proceedings includes both contractual disputes (such as patent and software licenses, trademark coexistence agreements, and research and development agreements) and non-contractual disputes (such as patent infringement). • viii.The Center is also now recognized as the leading dispute resolution service provider for disputes arising out of the abusive registration and use of Internet domain names.4/12/2014 32