Denicola Test/Doctrine

The Denicola test was discussed during our class today. Is it important. Yes, it is. If it is not, it would not have appeared in the 2009 bar exam.

So how is it applied?

As mentioned in the Brandir v. Cascade case, "to state the Denicola test in the language of conceptual separability, if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists.

As an illustration:

Is this cup copyrightable? Since the flower (aesthetic aspect) cannot be separated from the cup (functional aspect), the answer is no.

How about this cup? 

Is this copyrightable? By applying the same test, the answer is obviously, yes.

* This concept will be further discussed next meeting.

General Principles of I.P.

NATURAL RIGHTS PERSPECTIVE (Labor Theory) 

According to this theory, the fruit of one's labor are one's own. Locke also believes that ownership is necessary for production. 

PERSONHOOD PERSPECTIVE 

The theory claims that private property is necessary to achieve self -development. 

ECONOMIC INCENTIVE THEORY

 The theory suggests that every creator should be given some form of incentive to produce more of its work. This encourages innovation. 

Easy to remember...

This is Mine

What should I do if I have a property? 

Answer. I should ALIENATE my property from the others. 

In case of a real property, I can do the alienation by having it fenced. Barbed wire will do. Proof of my title is also necessary. I should have an OCT or TCT. 

What does "possession is nine-tenths of  the law" mean? Ownership is easier to maintain if one has the possession of the thing or difficult if one does not.Thus, in case of doubt, the one in possession is presumed to be the real owner. 

So there...