EML - (Law pt.1)

105 flashcards · Law · by Meg b

1. Most countries have established laws, which are often referred to as a constitution

2. An uncodified constitution may be changed relatively easily. However, flexibility can also mean uncertainty

3. In a democracy Parliamentary law is recognised as the highest form of governing law because Members of Parliament are elected by the citizens of the state

4. If there is a contradiction between Statute law made by Parliament and Common Law made by judges, the Statute law will take precedence

5. Common Features of constitution: Rule of law - everyone is equal in the eyes of law

6. Common Features of constitution: The separation of powers - holds executive, legislature and judiciary branches separate

   protection against abuse of power

7. Common Features of Constitution: No retrospective laws - citizens have right to know what laws affect them before criminal sanctions

8. Sources of Law: National Law - Statutory Legislation - UK Parliament

9. Sources of Law: Case Law - Interpretation of law - in UK recognised as Common Law

10. Sources of Law: International treaty law - negotiated between nations, bi-laterally

11. Sources of Law: EU Law - EU generates legislative law and can law from EUCJ in Brussels

12. Sources of Law: Conventions/ Customs - considered 'soft' law while not enforceable in same way as legislation, are respected and followed by state

13. Law consists of body of recognised rules and regulations that governs the activities of persons within a country

14. Law includes rules that C - command R - regulate F - facilitate G - guide

15. What is the classification of Law?

16. Public law is concerted with the Sate and its interaction with individuals and public bodies

17. Private law generally is for disputes between private parties

18. Criminal law regulates actions that are contrary to established laws and can lead to imprisonment

    For protecting the public and act as a deterrent

19. What does IP refer to?

    Things that are creations of the mind

20. IP provides ownership rights to the creators of works, and inventions

21. IP gives the creators the right to control the use of their work/mark/invention/design and use it to gain financial reward

22. Copyright is an automatic right and need not be applied for

23. Patents must be registered

24. What may unregistered trade marks be protected by?

    Tort of passing-off

25. What are original materials including literary, dramatic, musical, artistic works and typographical arrangements protected by?

    Copyright Designs and Patents Act (CDPA) 1988

26. What are books, computer software programmes etc classed as?

    Literary works

27. When is work entitled to protection?

    type protected by CDPA 1988 produced in tangible form satisfies originality creator British citizen or published in UK

28. Infringement of copyright exists where a, qualitatively, substantial part of the work is copied

29. Design rights can be registered and unregistered

30. Importing an article to the UK, processing an article in business, selling or hiring and exhibiting to the public all without the owner's permission is also known as?

    Secondary infringement of copyright

31. What are the owner's legal rights?

    copy and distribute work perform or show to public broadcast work make adaptation of work resale royalty

32. When goods are imported into the UK who must be given notice?

    Commissioners of Customs and Excise

33. Literary, dramatic, musical and artistic works last for life plus 70 years

34. What cannot be patented?

    Inventions relating to new methods of surgery, therapy or diagnosis on humans or animals

35. Typographical editions last: 25 years from first publication

36. What is a patent?

    An exclusive right given to an owner of an invention to make use of and exploit their invention for a maximum of 20 years

37. What are the essential elements for a patent to be granted?

    ?be capable of industrial application involved inventive step be new

38. Injunction, damages, surrender of infringing products and the surrender of profits are the result of what?

    Infringing a patent

39. What can trade marks consist of?

    Words, designs, numerals or the shape of goods, packaging

40. What does the registration of a patent prevent?

    Others from using or selling the product without permission

41. Sound recordings and broadcasts last: 50 years from first broadcast

42. How long does a patent last?

    Protection lasts for four-years then can be renewed annually to a maximum of 20 years

43. Primary infringement of copyright does not condor the perpetrators's motive or knowledge of the copyright's existence

44. Owner can put the ® symbol next to the brand once a Trade Mark has been registered

45. How long is a trademark valid for?

    10 years and then additional periods of 10 years indefinitely

46. How to get trade mark protection through the EU?

    Make registration to the Community Trade Mark

47. A design right protects the visual look appearance and shape of products

    Covers entire outward appearance of product, including decoration, lines, contours, colours, shape, texture and materials and registered ones can include 2D or 3D designs

48. What is the duration of unregistered design rights?

    15 years

49. What does a registered trade mark provide?

    Owner the exclusive use of the mark

50. Since when has it been possible to register a mark that is similar or the same as an existing mark?

    1st October 2007

51. Which Act covers design rights?

    The Registered Designs Act 1949

52. Exclusively registered designs last for 5 years and can be renewed up to a maximum period of 25 years

53. How to claim for design right infringement?

    Owner has to show transgressor's design is similar

54. Registration may be made to the Office of Harmonization in the Internal Market to give protection to the design right throughout the EU

    The protection only lasts for three years

55. Diagram on Acquisition of Intellectual Property Rights:

56. Diagram on Durations of Protections:

57. What is passing-off?

    Business attempts to pass themselves or a product off as another business as an aim to mislead the public

58. Trade or technological secrets, recipes, processes, procedures and politically sensitive information are examples of?

    Confidential Information

59. Where can designs be registered?

    At the Patent Office (Designs Registry)

60. How does IP created by an independent contractor work?

    Employer should establish an agreement with the contractor to the ownership and exploitation of the IP

61. IP created by an employee in the course of employment will belong to the employer

    (though employee may process moral rights)

62. Trademarks must be registered to gain protection under Trade Marks Act 1994

63. ECHR generates case law from the European Court of Human Rights in Strasbourg

64. A civil cases right a civil wrong on the balance of probabilities

    claimant has to show he has greater right than defendant

65. In the Smith v Adams case: Smith = Claimant Adams = Defendant

66. What are the features of English Law?

67. Primary Legislation: Acts of Parliament are also called statutes

68. Delegated Legislation: Made by bodies other than Parliament

69. Parliament includes House of Commons, House of Lords and the monarch

70. 1st type of delegated legislation is: Statutory Instruments

71. 2nd type of delegated legislation is: Orders in Council

72. 3rd type of delegated legislation is By-Laws

73. A judge may have to: interpret primary or secondary legislation as Act of Parliament or Statutory Instrument - Regulation

74. A judge may have to: develop common law set down in previous cases

75. A judge may have to: provide remedy to uphold rule of law

76. Common Law created by judiciary before united system of government was formed

77. Judicial precedent is hierarchical

78. Judiciary's method of interpreting Statures: L - literal approach

79. Judiciary's method of interpreting Statures: G - golden approach

80. Judiciary's method of interpreting Statures: M - mischief approach

81. Judiciary's method of interpreting Statures: P - purposive approach

82. In judicial Reasoning: Standing by previous decisions is stare decisis

83. In Hierarchy of Courts: a binding precedent is - ratio decidendi

    ground rules

84. In Hierarchy of Courts: a persuasive precedent is - obiter dicta

85. A judge may: R - reverse the decision of the lower court which hear the case

86. A judge may: O - overrule a principle of law laid down in an earlier case

87. A judge may: D - distinguish from the facts in an earlier case

88. Give an outline of the English court system:

89. ADR - alternative dispute resolution

90. ADR - used to avoids courts having to resolve disputes the could be dispensed in another way

91. ADR disadvantage: duplication of fees if process doesn't resolve dispute

    legal protection afforded by court process may be lost

92. ADR forms include: A - arbitration

93. ADR forms include: M - mediation

94. ADR form include: C - conciliation

95. Arbitration - a voluntary system were parties rely on services of independent, fair third party

96. Arbitration proceedings private - sensitive business details not disclosed to public

97. Mediation - third party acts as a messenger through with two disputing parties communicate

    parties appoint mediator hence they are not seen as 'independent'

98. Conciliation - conciliator adopts a more proactive approach

    however concern due to unequal bargaining powers of parties

99. Tribunals - specialise in many areas of law including immigration, employment, data protection ect.

100. Advantage of tribunal over traditional court: speed at which cases are heard and resolved