Law of Property Flashcards
(38 cards)
Property
anything which is owned or able to be owned.
Ownership
regardless of type of property, it comprises of
- title
- use and possession
- right to sell it or dispose of it
Transfer of ownership can be by sale, gift, by will or by operation of law. If bankrupt, vests in Official Assignee.
Legal status giving greatest range of rights over property. Contrast with possession which is right to control property.
Possession
Physical concept. Right of control over property and usually right of use. Part of ownership but can be separate.
Real Property
It is land and all things to do with land to an extent (air space to an extent). Can include interests in land or rights over land (created by contract, statute, will or trusts).
Dealt with Torrens System under Land Transfer Act of 1952.
i.e Land ownership - immoveable property
Easement or leasehold estates
Personal property
consists of all other kinds of property that are not real property.
Consists of
- choses in possession (tangible so can be possessed or controlled physically). Delivery can be actual (hand it) or construction (hand means of control over)
- choses in action (intangible). They are rights and transferred through writing both informal or formal. Can enforce rights by Court action. i.e. shares, debt, IP.
- chattels real (lease of land where tenant gets possession for #years in return for rent and made personal property in UK but really real property)
Intellectual Property
intangible.
Creation of new ideas, products and processes. Can include reputation as well.
Protected by Confidentiality principle (tort) and patent law, Copyrights laws and Act, Designs Act 1953, Trade Marks Act, FTA 1986, Companies Act 1993.
Patents Act 2013
Patent is a monopoly right giving the exclusive use of an invention for up to 20 years. It can be bought, sold, transferred or licensed. Need to file patent in other places for it to work.
New product, process or improvement to either can be patented. New chemical compounds, etc. New method or process relating to testing or control of an existing manufacturing process. Biotechnical matter. Electrical devices and circuits. A new pharmaceutical use for compound. Improvement in computer technology.
Not everything can be patented. Has to meet criteria for novelty inventiveness and utility. Has to be industrially applicable. Contain an inventive step that is not obvious. New or novel (confidentiality).
Has to be worldwide applicable (new change), can refuse if not useful, in line with international patent law. Need to consider Maori (is it something that is traditional or will be contrary to Maori values).
Exclusions from Act
- computer program
- human beings and processes for generation
- method of treatment of humans
- diagnosis practices
- plant variety
- public order or morality exclusion (cloning, etc).
Assignment and licences
Assigned - ownership rights handed over through deed of assignment and filed in IPONZ.
Licenced - in whole or in part
has to be formalised
Penalties for patent infringement
Injunction
Damages - account for profits
Court costs and legal fees
Surrender of infringing articles and machinery used for making the infringing articles.
Trade marks
A sign which is capable of being represented graphically and capable of distinguishing the goods or services of one person from those of another. Can include words, logos, colours, shapes, sounds, smells or any combination of these.
Governed by Trademarks Act 2002. Goodwill of product is tied with trademark. Can be licensed or assigned (personal property).
Can only take action if use trademark and provides similar goods or services. In terms of classification of G&S, can’t use mark in relation to g& s it is registered under and can’t use similar mark either.
Why register a trademark?
- exclusive rights
- use system to show registered
- legal protection - sue for infringement
There is no legal requirement to register. Have to rely on tort of ‘passing off’ (misrepresentation causing damages to goodwill even unintentionally), FTA (misleading and deceptive conduct). More costly and lengthy and difficult to prove.
Consider domain names.
What does not qualify as a TM
- surnames or names
- likely to mislead or confuse
- overly generic
- descriptive terms
- geographical location
- those that are similar to others
- Maori sign (has to be approved by Maori Trade Marks Advisory Committee)
copyright
an automatic unregistered right that comes into existence every time an original work is created, published and performed.
Protected by Copyright Act 1994 s14
- literary works (emails, manuals …)
- dramatic works
- musical works
- artistic works
- sound recordings
- films
- communication works (radio)
- typographical arrangements of published works (layout of edition, etc).
Consequently, there are layers of copyright.
ownership of copyright
the person who is the author of work is owner of copyright.
Those that commission work are owners.
when is copyright infringed
when a person uses a work in a way that is reserved to the copyright owner without permission. Can be whole of work or substantial part of it (distinctive part of work). Can depend on quality rather than quantity.
rights of owners
Exclusive rights
- copy, reproduce, etc
- issue copies to the public
- perform or show work
- communicate work to public
- adapt work
duration of copyright
50 years from end of year in which author dies or if computer generated, from end of year work is made.
Typographical arrangement - 25 years.
Copyright (New Technologies) Amendment Act 2008
Bring law into step with tech advances.
Neutral framework which introduces new concepts.
Says
- copying extends to digital works
- owners can broadcast material on websites
- limited exception from infringement for copying with no economic significance
- allows copies by educational bodies
- personal use (see next flashcard)
Came into force on 31 October 2008 (except S92a)
Personal use
Format shifting so can allow copying if made legitimately (not stolen or pirated), own recording, etc. of something else (record in different format)
Copy has to be for personal use or for member of household. Can make one copy for each device you own. Can’t copy communication works.
Allowed back up copy if you own program. Can’t do if infringing copy or against copyright owner.
Does not include copying for friends or on-line file-sharing.
it is possible to enter a contract that can override terms of format shifting exception. Can’t format shift other works even if you own item.
Can do time shifting - view at more convenient time.
Section 92
Anti piracy clause.
ISP could suspend accounts of repeat offenders.
Resistance
Copyright (Infringing File Sharing) Amendment Act 2011
S92A is repealed (see earlier).
Changed to a graduated response. Owners notify fixed line ISPS that they believe a internet subscriber is infringing their copyright through peer to peer file sharing.
ISP send warning notices. After 3 notices (detection, warning and enforcement), can then take it to Copyright Tribunal.
DC can order IP address provider to suspend account.
Power to terminate has been frozen. GG and Cabinet decide.
Personal Property Securities Act 1999
provides for creation and enforceability of security interests in personal property.
determination of priority between security interests in the same personal property.
established a personal property securities register. Can register your stuff
registration
business can register security interests in personal property.
If buying personal property that already has a secured registered interest on it, it may be seized. Check register.
