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Homework answers / question archive / Questions from the ownership realm are included
Questions from the ownership realm are included.
1. Why is the title to real property permanent whereas some intellectual property is limited in the time that it is protected?
2. Owning real property does not mean that all rights are protected. Show two examples
of where rights are limited in the ownership of land or personal property.
3. What is the difference between copyrights, trademarks, and patents?
4. How do servitudes and easements get put into place?
5. How can they be protected?
6. Why are they important?
1. Why is the title to real property permanent whereas some intellectual property is limited in the time that it is protected?
1) The public policy rationale for protecting intellectual property in a different way than real property is that IP laws facilitate and encourage the pursuit and disclosure of innovation into the public domain for the common good. An incentive is created by granting authors and inventors exclusive rights to exploit their works and invention for a limited period. The period is limited so that a monopoly is not created and a free exchange and pursuit of ideas can still exist. Real property is typically private property and does not benefit the common good, and so its protections are different. However, do note that title to real property is not necessarily permanent: private property can be seized in certain instances by the government under eminent domain. Property owners can also sell or devise the title to their real property.
Look at this web site and see what it has to say about personal property.
http://www.orps.state.ny.us/legal/opinions/v7/59.htm As you can see it even says that personal property can be on a case by case basis so be careful of the wording and presumptions it makes.
It's best NOT to use Wikipedia for any graduate or undergraduate level work. However, Wikipedia did have this to say and I thought you would find it useful.
http://en.wikipedia.org/wiki/Property
Even Wikipedia says it themselves here http://en.wikipedia.org/wiki/Why_Wikipedia_is_not_so_great
Lets also define Intellectual Property - In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. The holder of this legal entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter of the IP. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that IP rights may be protected at law in the same way as any other form of property. However, the use of the term and the concepts it is said to embody are the subject of some controversy. Intellectual property laws vary from jurisdiction to jurisdiction, such that the acquisition, registration or enforcement of IP rights must be pursued or obtained separately in each territory of interest. However, these laws are becoming increasingly harmonized through the effects of international treaties such as the 1994 World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), while other treaties may facilitate registration in more than one jurisdiction at a time. Certain forms of IP rights do not require registration in order to be enforced. wikipedia.org/wiki/Intellectual_property
Let's also define Real Property - Real property is a legal term encompassing real estate and ownership interests in real estate (immovable property). It is a type of property differentiated from personal property. This article discusses the ownership of land using the interpretation of real property as a legal term used in Anglo-American common law jurisdictions. Other legal geopolitical systems of government have different legal interpretations concerning the ownership of land. Terminology varies in these systems, as well: for instance, heritable property in Scotland; immovable property in Canada, United States, India, Malta, Cyprus, most of Europe including Russia, also South America, Malaysia, South Africa, Pakistan, Bangladesh, and many other countries and continents; and immobilizer in France. wikipedia.org/wiki/Real_property
I also thought you would benefit greatly from this article I found for you. http://www.nd.edu/~ipls/IPLSStandard/IPLSStandardVol1Iss2.pdf#search='real%20and%20intellectual%20property'
2. Owning real property does not mean that all rights are protected. Show two examples
of where rights are limited in the ownership of land or personal property.
2) There are several ways in which property ownership rights are limited. One way is through zoning: It is now well established that states and municipalities have the police power to zone land for designated uses, even though this affects the use of property and subjects the owner to the expense of compliance. "Planning and the regulation of land use stem from the tenth amendment of the U.S. Constitution which gives police power to the states. The courts have held that this police power may be used to regulate a wide variety of activities as long as it is exercised in a manner that is related to the protection of the publics health, safety and welfare, and does not contradict constitutional principles, including the concepts of due process, equal protection and the unlawful taking of property without compensation. State and community planning, zoning, subdivision regulations, sign controls, growth management regulations and environmental regulations are all examples of police power."
http://www.silcom.com/~sbcplan/author.html
Examples include a maximum height for buildings, mandatory preservation of open space, and the amount of feet between houses. Another way rights can be limited is through eminent domain. The most common use of the power of eminent domain is when the acquisition of real property is necessary to complete a public project such as a road, and the owner of the required property does not want to sell. In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that the property be taken for "public use".
3. What is the difference between copyrights, trademarks, and patents?
3) I'm sure you already know what these are but let's get a definition anyway just to clarify so that a description and a proper analysis can be given to report on your assignment.
Copyright - The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.
Trademarks - Abbr. TM A name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer. A distinctive characteristic by which a person or thing comes to be known: the shuffle and snicker that became the comedian's trademark.
Patents - The exclusive right to an invention, and the control of its manufacture; the right, granted by the sovereign, of exclusive control of some business of manufacture, or of the sale of certain articles, or of certain offices or prerogatives.
Intellectual property laws are designed to protect different forms of intangible subject matter, although in some cases there is a degree of overlap. You mention copyrights, trademarks, and patents. A copyright may be used for creative and artistic works (e.g. books, movies, music, paintings, photographs and software), giving a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time. A trademark is a distinctive sign which is used to distinguish the products or services of one business from those of another business. A patent may be granted for an invention that is new, useful and not simply an obvious advancement over what existed when the application was filed. A patent gives the holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application). A trademark is a distinctive sign which is used to distinguish the products or services of one business from those of another business. Keep in mind that the owner of a registered trademark has an exclusive right to use their mark in relation to certain products or services, but generally no right to exclude others from using that mark in relation to unrelated products or services.
4. How do servitudes and easements get put into place?
4) An easement is the right to use another person's land for a stated purpose. The person who enjoys the easement over the other person's property is called the "dominant owner", and that person's land is called the "dominant tenement". The land subject to the easement is called the "servient tenement", and the owner of that land is referred to as the "servient owner". It can involve a general or specific portion of the property. For example, an easement may give a utility company the right to erect power lines or bury a gas pipeline across a tract of land. The easement would probably be included in a deed description and remain in place if the land is sold. A conservation easement is a restriction placed on a piece of property to protect the resources (natural or man-made) associated with the parcel. The easement is either voluntarily sold or donated by the landowner, and constitutes a legally binding agreement that prohibits certain types of development (residential or commercial) from taking place on the land. An equitable servitude is a non-possessors interest in land that requires the landowner to maintain certain practices with respect to the land (e.g., building a fence), or prohibiting certain practices (e.g., using heavy machinery). Equitable servitudes must be created by writing, unless it is a negative equitable servitude (one that prohibits certain behavior) which may be implied from a common scheme for the development of a residential subdivision if the landowners have notice of the agreement. Both easements and servitudes are typically put into the deed and recorded. Prescription is one way, but such things are commonly put into place by the use of a deed. Deeds come in several varieties, but if you were to, for instance, sell a city an easement across your property for a pipeline, you'd probably use a deed. There have been a number of definitions of servitudes made by academics, and a good concise example is to be found in the book 'Servitudes and Rights of Way' by Cusine and Paisley, who define servitudes as:
'a class of legally enforceable and real rights of varying content, held by one person in his/her capacity as owner of one piece of ground (the dominant tenement) over another piece of ground (the servient tenement) in the vicinity, but in separate ownership by which some benefit is conferred on the dominant tenement'. A servitude is, therefore, a burden on heritable property in favour of the dominant tenement. Because it is a burden, the servitude will bind singular successors of the current proprietor of the servient tenement. Similarly, the benefit granted to the owner of the dominant tenement derives from ownership of the dominant tenement; it is not a benefit that she or he has personally, rather it is a benefit that derives from his or her ownership. In practice this means that the benefit of the servitude right may not be transferred to someone other than the owner or occupier (i.e. tenant) of the dominant tenement. While servitudes are generally continuing in nature, notwithstanding changes in ownership of the dominant and servient tenements, not all servitudes need to be perpetual.
The word servient means - Servient Serv"i*ent, a. [L. serviens, -entis, p. pr. See Serve.] Subordinate. [Obs. except in law.] --Dyer. Servient tenement or estate (Law), that on which the burden of servitude or an easement is imposed. Cf. Dominant estate, under Dominant. --Gale & Whately. Source: Webster's Revised Unabridged Dictionary (1913)
5. How can they be protected?
5) Because they are in writing and recorded (and often appear in the deed to the property), easements and servitudes can be enforced like a contract. Remedies for wrongful interference of an easement include an injunction (where the court makes an order prohibiting the servient owner from interfering with your rights), a declaration (where the court makes a binding statement of the parties' rights and obligations), or monetary damages. "An easement may be terminated through various methods including: express release of holder to owner of servient tenement; express time limits in the creating instrument; by implication, when the easement can no longer serve its intended purpose; abandonment (cessation of use and intent to relinquish); adverse possession by owner of servient tenement or third party; and misuse. Unlike restrictive covenants, easements generally cannot be terminated by a "changed conditions" challenge. The changed conditions doctrine has traditionally been applied only in cases involving real covenants and equitable servitudes. Easements, on the other hand are viewed as distinct property rights, rather than promises concerning land and are resistant to this equitable doctrine[ As one commentator has noted, "[c]ourts have viewed easements as valuable and protected property rights, while treating real covenants with suspicion and subjecting them to greater barriers against enforcement."
www.pace.edu/lawschool/landuse/lndtrs.html
6. Why are they important?
6) Easements and servitudes are important because they affect ownership of land and in some cases, the wellbeing of the surrounding public. They can preserve conservation land, save wildlife habitats, and protect the public from nuisances. Preservation easements help to save privately-owned historic properties. A positive servitude allows the owner of the dominant tenement to do a positive act, e.g. to walk or drive over land owned by the servient tenement. In short, it allows the dominant proprietor to enter upon the servient proprietor's land to do something positive.
"The common law precursors to conservation easements include easements, restrictive covenants and equitable servitudes. Together these devices are commonly referred to as servitudes. Servitudes "are used extensively to secure a wide variety of economic, aesthetic, and personal advantages to the owners and occupiers of land." Typically easements and de-feasible estates are created by language of transfer - of grant, reservation or conveyance, while covenants, leading to equitable servitudes, are created by language of promise - of contract. While a conveyance or grant purports to change the relationship not just between the parties, but as to other persons as well, a contract typically purports to change the legal relationships of the parties only. Though differences, as described above and below do exist between servitudes, they generally serve the same purpose--"they create rights, obligations and restrictions affecting ownership, occupancy and use of land. Negative easements, like affirmative easements "impose a burden or servitude upon the grantor's land," but differ in that "[they] give [the] holder a right to require the owner of the burdened land to do or not do specified things with respect to that land but not go upon or to use it."