KWAME NKRUMAH UNIVERSITY OF SCIENCE AND TECHNOLOGY

FACULTY OF LAW

COURSE : INTELLECTUAL PROPERTY LAW

TIME:

PERIOD(S) :

LECTURERS: CHRIS ADOMAKO KWAKYE AND DOREEN ADOMA

AGYEI MRS

OFFICE LOCATION:

OFFICE DAYS/HOURS: MONDAYS AND THURSDAYS

E-MAIL(S): doreen_antwi@ yahoo.com

COURSE DESCRIPTION

Intellectual property law generally concerns legal rights associated with creative
efforts (mostly mental) a commercial reputation and goodwill.

This makes the subject matter or works protected by intellectual property law very
wide and they include literary and artistic works, films, computer programs,
inventions, designs and marks used by traders for their goods and services.

This course therefore delves into a detailed analysis of legal protection given to
owners of Intellectual Properties, remedies available should thereby a breach and a
critique of these and other concepts within the Intellectual Property law.

AIMS AND OBJECTIVES

 Introduce Students to the nature and scope of Intellectual Property law.

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  Engage in an indept discussions on the various branches of Intellectual
Property law.
 Enhance their understanding of Intellectual Property law and intellectual
skills.

LEARNING OUTCOMES

Successful students will be able to:

 Have a fairly broad understanding of Intellectual Property law concepts and
will be able to practically apply the knowledge acquainted to everyday
situations.
 Demonstrate critical analysis of Intellectual Property issues and appreciate
and emulate originality in problem solving.
 Work effectively within a group context.

COURSE CONTENT

 Introduction.
 Copyright and Neighbouring Rights
 Patent
 Confidential Information and Trade Secret
 Trademarks and unfair competition
 Industrial Design.
 Geographical Indications
 Plant Breeders Rights
 Layout Designs/ Integrated Circuits Protection.

ASSESSMENT

Attendance (5%)
Team/Group work (10%)

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Individual Assignment (5%)
Mid- Semester Examination (10%)
End of Semester Examination (70%)

KEY READINGS
STATUTES
 Constitution of the Republic of Ghana,
 CopyRight Act,2005 (Act 690)
 CopyRight (Amendment) Act, 2009
 CopyRight Regulations, 2010 LI 1962
 The Trademarks Act, 2004 (Act 664)
 The Industrial Designs Act, 2003 (Act 660)
 Protection Against Unfair Competition Act, 2000 (Act 589)
 Patents Act 2003 (Act 657)
 Layout-Designs (topographies) of Integrated Circuits Act, 2004 (Act 667)
 Geographical Indications Act, 2003 (Act 659)

BOOKS

 David I. Bainbridge, Intellectual Property, 6th Edition (2007).

 Adelman, Rader, Thomas & Wegner, Cases and Materials on Patent law
(1998).
 William Cornish, Cases and Materials on Intellectual Property (4th edition
2003).
 Professor David Vaver, Principles of copyright cases and materials (2002).
 Intellectual Property Reading Material, WIPO (2nd Edition 1998).

SUPPLEMENTARY READINGS

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 The Paris Convention for the Protection of Industrial Property (September
1976)
 The Berne Convention for the Protection of Literary and Artistic Works
(October 1991)
 The Universal Declaration of Human Rights (UDHR)
 The International Convention on Economic, Social and Cultural Rights
(ICESCR)
 Patent Law Treaty
 WIPO Copyright Treaty (2006)
 TRIPS

COURSE CONTENT
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 COPYRIGHT AND NEIGHBOURING RIGHTS

a. INTRODUCTION TO COPYRIGHT

i. WHAT IS COPYRIGHT?
Section 76 Act 690

ii. IDEAS V EXPRESSION

Section 2 Act 690
Art. 9.2 Bern’s Convention
Nichols v Universal Pictures Corporation (1930) 45 F 2d 119
Designers Guild Ltd v Russel Williams (Textiles) ltd 2000 1
WLR/2001 1All ER 700
Bauman v Fussell 1978 RPC 485
Plix Products ltd v Frank M. Winstone ltd 1986 FSR 608

iii. WHAT IS WORK

Ladbroke (Football) Ltd v William Hill (Football ) Ltd 1964 1 WLR
273
Macmillan & Co Ltd v K&J Cooper& Co Ltd 1923 93 LJPC
British Leyland Motors Corp v Vamstrong Patents Co. Ltd (1986) 2
WLR 400
Fiest Publications Inc v Rural Telephone Service Co. Inc (1991) iiiS
Ct 1282
Advertising & Publishing Corp v Donnelly Information Publishing
Inc 999 F 1436

b. ORIGINALITY
i. University of London Press v University tutorial Press [1916 2 ch 601
ii. Ladbroke (football) Ltd v William Hill [1964] 1All E. R. 465
iii. Interlego v Tyco [1988]3 All E. R 949
iv. LA Gear v Hi Tec sports [1992] FSR 121
v. Express Newspapers v Liverpool Daily Post [1985] FSR 306
vi. Baigent v Random House Group Ltd [2007] FSR 579

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 vii. Fiest publications Inc. v Rural Telephone Service Co.499 US 340
(1991) US SC
viii. Ellis v Donkor&Anor [1993-94] 2 GLR 17
ix. Pearson Education Limited v Morgan Adzei [2011] 2 SCGLR 864
x. Christopher v Poseidon Field Distributors ltd. (2000) ECDR 487 Uk.

AUTHORSHIP AND OWNERSHIP

i. Kenrick v Lawrence (1890)25 QBD 99

ii. Walter v Lane [1900]A.C.539
iii. Cummins v Bond [1927] 1 Ch 167
iv. Wiseman v Wiedenfeld&Nicholson [1985] FSR 525 Ch D
v. Mail Newspapers V Express Newspapers [1987]FSR 90,Ch
vi. Noah v Shuba[1991] FSR 14 Ch D.
vii. ROBIN RAY V. CLASSIC FM PLC (1998) FSR 622
viii. MUSICIANS UNION OF GHANA VRS ABRAHAM AND
ANOTHER (1982-1983) GLR 337

ix. RANSOME – KUTI V PHONOGRAM LTD [1978] GLR 316

a. WORKS PRODUCED IN THE COURSE OF EMPLOYMENT

i. Noah v Shuba[1991] FSR 14 Ch D
ii. Stevenson Jordan v Macdonald & Evans (1951) 69 RPC 10
iii. Byrne v Statist Co [1914] 1 KB 622
iv. Beloff v Pressdram [ 1973] 1 All ER 241
v.

b. TYPES OF PROTECTED WORK

LITERARY WORKS
i. University of London Press v University Tutorial Press [1916] 2 Ch.
601
ii. Byrne v Statist Co [1914]A.C. 329

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 iii. Cramp vSmythson [1944] AC 329
iv. La Gear v Hi-Tech Sports [1992] FSR 121
v. Exxon Corporation v Exxon Insurance Consultants, [1982] RPC 69
vi. Express Newspapers v Liverpool Daily Post [1985] FSR
vii. Noah v Shuba [1991]FSR 14 Ch. D.

COMPUTER PROGRAMMES

i. IBCOS COMPUTERS LTD V BARCLAYS MERCATILE

HIGHLAND FINANCE LTD [1994] FSR 275

DRAMATIC WORKS

ii. Tate v Thomas [1921] 1 Ch 503, Ch. D

iii. Wiseman v Wiedenfield& Nicholson [1985] FSR 525

MUSICAL WORKS

i. Wood v Boosey (1868) LR 3 QB

ARTISTIC WORK

ii. Kenrick v Lawrence (1980) LR 25 QBD

iii. Wham – O MFG Co v Lincoln Industries [1985] RPC 127

SOUND RECORDINGS

i. A&M Records Ltd v Video Collection International Ltd [1995] EMLR

25 Ch D

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LECTURE 1 : Introduction To Intellectual Property Law:

What Is Intellectual Property Law? (IP)

IP broadly means the legal rights which arise from Intellectual activity in the
industrial, scientific, literary and artistic creations. The subject matter of IP
is very wide and includes literary and artistic works, films, computer
programmes, inventions, designs and marks used by traders for their goods
and services.
Laws globally and nationally, deter others from copying or taking advantage
of the works or reputation of another. Thus, IP laws play two vital roles in
society:

First of all, it gives statutory expression and recognition to the moral and
economic rights of creators in their creations and also rights of the public in
access to those creations.

Secondly, promotes as a deliberate act of government policy, creativity and

the dissemination and application of its results and encourages trading which
would contribute to economic and social development.

In the view of these, the laws provide adequate remedies should there be any
breach. The Convention Establishing the World Intellectual Property
Organization (WIPO) concluded in Stockholm on July 14, 1967 (Article 2
(VIII) provides that IP shall include rights relating to:

1) Literary, artistic and scientific works (Copy Right).

2) Performances of performing artists, phonograms and broad costs (Rights

in Performance).

3) Inventions in all fields of human endeavour (law of confidence).

4) Scientific discovering (Patent).

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 5) Industrial Designs (Design Rights).

6) Trademarks, service marks and commercial names and designations

(Trademarks).

7) Protection against unfair competition and passing off.

These various rights can be classified into different categories as the rights that
accrue to each varies depending on the makeup of the IP law and the Nature of the
Intellectual Property.

The various rights are however not necessarily mutually exclusive as two or more
of the rights can co-exist in relation to a certain “thing”.

 One distinction of the deferent categories of rights is whether there is a

requirement for registration, that is whether the right is dependent upon the
completion of formalities or whether it automatically springs into life at a
specified time.
 Another distinguishing feature is the nature of the right, whether it applies to
something which is primarily creative or has to do with goodwill in a wide
commercial sense.

Creative “Things” can also be subdivided into those that are creative in
anartistic or aesthetic sense, such as an oil painting, music or literature, or
those that are inventive in an industrial context such as a new type ofmachine
or engine, or a new way of making a particular product.
Some IP rights in respect of particular ideas, works or things are also secured
by the successful completion of a formal application and registration
procedure. When that is done or completed, it puts the owner of the right in a
privileged position whereby he can restrain others from doing certain things
while exploringthe right for his personal gains. Under such rights, the
applicant will succeed in obtaining such registration only if certain rigorous
standards are achieved. The rational being that the rights subject to such
formalities are generally monopolistic in nature and therefore needs adequate
scrutiny before a person (s) is granted such monopoly. Under such

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 circumstances, the owner has a form of “property” which he can use as he
likes to his benefit subject to some constraints. And he can take legal action to
deter would be trespassers or to obtain damages against those who have
trespassed just as the owner of real property can do.

Another distinction is between those rights that are provided for and governed
by statute and those that are derived from the common law or equity.
The major common law rights for IP relates to:

 Breach of confidence
 Passing off
 Trade libel

All the remaining is primarily covered (or protected) statutorily.

The traditional description for the protection of Patents, Trademarks and Designs
(1883) is industrial property, according to the Paris Convention for Protection of
Industrial property (1883). Industrial in this term (Industrial Property) by
Implication of law are the law of Confidence and Passing Off. When other rights
such as copyright are added to Industrial property, the entire rights became known
as intellectual property and this has become the phrase used to describe the entirety
of Intellectual rights now is Intellectual Property.

Copyright:

Copyright is a property right which exists in various “works” for example, literary
works, musical works, sound recordings, artistic works, films and broadcast, maps
and technical drawings, photographic works, cinematographic works, among
others.

The author of a copyright work is the person who creates it and he (or his
employer) is normally the first owner of the copyright. The right normally last until
70 years after the authors death or 50 years after it was created depending on the
type of work.

Copyright gives the owner the right to do certain things in relation to the work.
This includes making a copy, broadcasting or giving a public performance.

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Anyone else who does any of these things without the permission of the owner,
infringes copyright and may be subject to legal action taken by the owner for the
infringement.

Note: ownership of a copyright is alienable and it can be transferred to another or a

license may be granted by the owner to another, permitting him to do one or more
specified acts with the work in question.

Copyright protects tangibles. It therefore does not protect ideas but only the
expression of an IDEA.

It does not however create monopoly in a particular work thus, it is free for others
to create similar, or even identical works as long as they do so independently and
by their own efforts, for example Dyson’s (Vacuum Cleaner) and many more.

It is worth noting however that certain things may be done in relation to a work of
copyright owner such as making a copy of a work, for example for purposes of
research, private study, criticisms or review, such acts are known as the “permitted
acts” and limit the score of copyright protection.

International protection of copyright works is effected mainly through the Berne

Convention for the Protection of Literary and Artistic Works (Pan Act of July 24,
1971 as amended on September 28, 1979 and the Universal Copyright...Both of
which lay minimum standards of protection to be attained and for reciprocity of
protection between those countries that are signatories to the conventions. The
primary and main source of legal protection of copyright in Ghana is the Copyright
Act, 2005 (Act 690).

Patent law:

A Patent right gives its owner a monopoly over the patented product. It may be
granted in respect of a new invention capable of industrial application and gives a
monopoly right that can last up to 20 years (and 25 years) for certain medicinal and
plant products. This very strong from of protection is reserved for inventions that
satisfy rigorous standards (Novelty and inventiveness).

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An application for a patent has to be drawn up precisely and accurately stating the
scope of the invention and the claims made in respect of it for which protection is
sought.

The owner of an assigned patent is the person who is registered as the proprietor.
By their nature, patent usually protect ideas, as expressed in the description and
claims. Note however that there are several controls on the monopoly status they
confer upon proprietors (for example, compulsory licenses may be available after
the first three years from the grant of a patent).

Trademarks:

Trademarks are associated with business image, goodwill and reputation. Goods
and services are often requested by reference to a trademark and public rely on
many marks as indicating quality, value for money or origin of goods and services.

In addition to marks applied to or used with goods or services to indicate a

connection in the course of trade, there are also a certification marks indicating the
origin or quality of the goods and collective marks typically used by members of
the association.

All registered marks must be used and if they are not used for five or more years,
they can be revoked. A basic principle is that a trade mark should be capable of
distinguishing goods or services of one “undertaking from those of other
undertakings. In other words, trademarks operate as ‘badges of origin’.

Passing off:

This is basically a common-law version of trademark law. Passing off appears

more flexible than trademark and is not distinctive for registration as a trademark.
Passing off protects the goodwill a trader has developed and which is associated
with his business.

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Passing off in essence protect trader’s “get-up”. As with trademark law, such
protection has the secondary effect of protecting the buying public from trade
deception.

Law of breach of confidence:

The law of breach of confidence developed in equity as a way of protecting

confidential information by preventing its use by persons to whom the information
has been divulged in confidence or the further disclosure of the information by
such persons.

In IP, the type of information protected is with trade and industrial secrets. The
rational of the law of confidence is that it stops people from making wrongful use
of information beyond the purposes for which it was disclosed to him.

The law of confidence protects ideas and is a useful ally to other intellectual
property rights, often being the only from of protection when the subject is still in
an embryonic state.

Geographical Indications:

A geographical indication refers to a word, phrase or sign which identifies a

product as originating from a particular geographical area and possesses a certain
quality or reputation which is necessarily attributable to the said geographical area.
Examples include ‘Champagne’ or ‘Tequila’. Such an indication identifies a good
as originating in the territory of a country, or a region or locality in that territory,
where a given quality, reputation or other characteristics of the good is essentially
attributable to its geographical origin.Article 22.1 of TRIPS

Ghana has the geographical indications Act, 2003 (Act 659) and section 22 defines
a geographical indication as “ an indication which identifies a good as originating
in the territory of a country, or a region or locality in that territory, where a given
quality, reputation or other characteristics of the goods is essentially attributable to
its geographical origin”.

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Plant Breeders Rights

A plant breeders right is a patent-like system that allows the plant variety owner to
prohibit specific unauthorized uses of the variety. Plant breeders rights are
sometimes referred to as new plant variety rights. This right applies only to plants.

Layout designs /Integrated Circuits Protection.

The layout – designs law simply protects designs relating to electronic components
of integrated circuit (often called chip).

They are essential components in any digital equipment, and have been
incorporated into a great variety of other industrial articles, ranging from machine
tools to all kinds of household and consumer devices. This consist of an electronic
circuitry developed on the basis of a tri-dimensional design, incorporated into a
substrate, generally a solid sheet of semiconductor material and less commonly
germanium. The protection in Ghana is regulated by the Layout – Designs
(Topograhies) of integrated Circuits Act, 2004 (Act 667)

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