Is418 Lab8

IS 418 LAB 8 1. Explain the following command: rpm –qf/bin/ls -RPM command is used for installing, uninstalling, upgrading, querying, listing, and checking RPM packages on your Linux system. 2. Discuss the purpose of a software repository as it relates to YUM. -The yum system does not require any routine maintenance. It is useful to disable or remove repository definitions that are no longer required, as each repository that is defined and enabled is checked for every operation. You may also wish to periodically remove files relating to unwanted packages, in order to save disk space 3.How can one ensure a download tar ball is legitimate and hasn’t been tampered with? -Run a checksum test 4. List and explain at least 3 switches available with the tar command that can be useful in extracting and installing a tarball -ark 5. List and explain at least 3 switches associated with the rpm command that can be leveraged to verify, list and install rpm packages? tar zxvf makefile . tar. gz cd make file ./install/ 6. What security countermeasure can you enable to verify the integrity of download application or tar balls before you perform the installation? -used Ark to extract the tar ball . Explain what hashing is and how does this differ from encryption? -Hashing is just line of code and it not encrypted 8. If you wanted to know which package a certain program belonged to, what command would you run? -tar xvzf PACKAGENAME. tar. gz 9. Once you have downloaded an RPM package, what command would you run if you want to extract the files to a directory of your choice -tar xzvf file. tar. gz 10. Where would you find checksum hashes for all install program in a Fedora Core Linux Server? -Verification code called a hash computed from the original ISO files.

Role of Ethics and Compliance in Pepsi-Cola

Role of Ethics and Compliance in Pepsi-Cola PepsiCo has a deep commitment to bring forth sustainability in growth by the empowering of its people (PepsiCo Inc. ,  2011). PepsiCo employees embrace a culture that promotes responsibility and provides the building blocks to trust (PepsiCo Inc. ,  2011). The company prides itself on being both environmentally responsible and socially conscious this pride is garnered by six guiding principles (PepsiCo Inc. ,  2011).PepsiCo set forth principles that encompass total care of both consumers and customers, offering the highest quality products, conducting business truthfully, creating an equal balance of short-term and long-term goals, being victorious through inclusion and diversity, and being respectful of others and succeeding as a team (PepsiCo Inc. ,  2011). PepsiCo has in place a compliance committee that oversees the compliance program at PepsiCo (PepsiCo Inc. ,  2011).The compliance committee makes recommendations that are uph eld by the utilization of issue resolution strategies (PepsiCo Inc. ,  2011). Four sub-committees make up the compliance committee, they are Anti-trust- whose emphasis is on sales; Safety and Environment- this committee gives oversight to fleets, plants, and the personnel that staffs them; Human Resources- they cover labor issues and employment; Finance- their umbrella covers all financial integrity, Sarbanes-Oxley, and the requirements that has been placed on the company. Ensuring Ethical BehaviorLaws and regulations are imposed by the various state, local, and federal governmental bodies within the United States and beyond its borders. As with any laws and regulations the way that they are interpreted are subject to dramatic change (PepsiCo Inc. ,  2011). Changes that are brought about are more often than not, political, economic, and social implications (PepsiCo Inc. ,  2011). The affect of food and drug laws; how the products are labeled; practices used in marketing and ad vertising; the importation and exportation of the various ingredients used to create the product (PepsiCo Inc.   2011).Many laws are geared toward the reduction of certain ingredients including but not limited to sugars, fats, and sodium (PepsiCo Inc. ,  2011). PepsiCo has many policies and procedures in line to ensure regulatory and legal compliance, however, suppliers or an occasional employee may commit serious violations that could institute enforcement of civil and criminal actions this could adversely affect business at PepsiCo (PepsiCo Inc. ,  2011). In terms of accounting, strict policies are in place and are necessary to gain a understanding of financial results (PepsiCo Inc.   2011). The policies at PepsiCo call for management to make sometimes difficult decisions in regards to uncertainties that may have an impact on the financial results of the company (PepsiCo Inc. ,  2011). PepsiCo does not involve themselves in any alternative accounting methods, other than in terms of pension plans (PepsiCo Inc. ,  2011). Estimation methods and critical accounting policies are applied on a consistent basis and are reviewed upon by the Audit Committee at PepsiCo (PepsiCo Inc. ,  2011).Critical accounting policies are upheld in conjunction with pension and retiree medical plans, intangible assets including goodwill and other assets, accruals and income tax expense, and revenue recognition (PepsiCo Inc. ,  2011). SEC Compliance at PepsiCo Corporate accountability plays a big role at PepsiCo and all steps have been taken to promote that (PepsiCo Inc. ,  2011). PepsiCo uses a formal process for approval as outlined in the Political Contributions Policy (PepsiCo Inc. ,  2011). Contributions made by PepsiCo are a reflection of business and strategic interest at PepsiCo (PepsiCo Inc.   2011).Contributions are not made in the areas of the company’s individual officers or directors; There are no reimbursements to employees for contributions m ade on their own behalf; an official act with not promote anticipation or the recognition of a contribution; and there is full disclosure of all contributions on the corporate website (PepsiCo Inc. ,  2011). Periodic reviews of practices and policies dealing with expenditures and political contributions and are conducted by the Board of Directors at PepsiCo (PepsiCo Inc.   2011). Activities concerning lobbying can be found at http://disclosures. house. gov/ld/pdfform. aspx? id=300437081 (PepsiCo Inc. ,  2011). References PepsiCo Inc. (2010). PepsiCo. Retrieved from http://www. pepsico. com/Company/Corporate-Governance. html    PepsiCo Inc†¦ (2010). Pepsico. Retrieved from http://www. pepsico. com/Investors/SEC-Filings. html PepsiCo Inc. (2010). PepsiCo. Retrieved from http://www. pepsico. com/Company/PepsiCo-Values-and-Philosophy. aspx

Business Feasibility Study†Seventh Heaven Café Essay

Seventh Heaven Cafe is not only a coffee shop, or rather a place for relaxation. It sells different kinds of coffee, desserts, books and flowers. Customers bring them back or just enjoy them in my shop. Besides, I am good at dealing with problems of Organizational Behavior. I also have great expertise in human psychology and marketing. Therefore, I have the abilities to operate this shop. Seventh Heaven Cafe targets at white collar community and some companies which need flowers to decorate the site of activities. Therefore, it is located at the street corner with elegant environment near transnational commercial corporations in Suzhou. Seventh Heaven has to confront or avoid a number of threats, especially some strong competitors, such as Starbucks, UBC Coffee and DIO Cafe. However my shop has powerful competitive advantages to face the challenges. Additionally, our market-oriented mission is â€Å"make people happy and relaxed in the Seventh Heaven Cafe by provide delicious coffee, warm fragrant memories and dreams from books. † The primary finance objectives are to get first-year sales revenue of 1 million yuan, and break even early at least achieve 3 million RMB in second year. After on track, shop scale and economic benefits will increase year by year. To achieve this goal, we should make sustaining efforts on marketing strategies, such as promotion strategy and price strategy. This new combination coffee shop will be successful and this business idea is worth pursuing. Section 1: Personal Skills, Qualities and Experience I have obtained an MBA degree from the Liverpool University five years ago. After that, I have worked in a local company for four years. Then I came back to my country and planned to do pioneering work. So I have some basic abilities and work experience to operate this coffee shop. I have learned many useful skills and valuable knowledge from university. Firstly, the Organizational Behavior Study covers three levels of analysis, but intertwined, such as individual, group formation and decisions making. So it is practical for me to do the business. Secondly, I was interested in the course of Marketing when I am a student. It has huge effect on my occupational career. However, these courses just are foundation. My work experience background is a critical element for later entrepreneurial career. Nevertheless, I still need some other outside help. About initial capital, it comes from my personal savings (1. 5 million RMB) and my parents’ investment (0. 5 million RMB). In addition, recruitment and selection of good employees is vital part of success. My mother was a senior accountant before, so she could help me manage finance matters. Besides, I also need a first-class barista and a pastry cook, a waitress and a waiter with good looking, as well as a professional purchaser. Section 2: The Business Idea and Market Assessment Product and service Before making decision to start business, I used questionnaire to get and analysis customers’ demand. So Seventh Heaven Cafe is not only a coffee shop, or rather a place for relaxation. It sells different kinds of coffee, desserts, books and flowers. Customers bring them back or just enjoy them in my shop. My coffee shop called Seventh Heaven, this name represents happy, pleasure and relaxed. I want to my customers get out of the pressure and tiredness, enjoy the release of soul and physical relaxation in Seventh Heaven. Relaxation can bring comfortable feeling to you and have benefits to your health. When you come in the Seventh Heaven, you will feel the music in the air washing your spirit and smile of waiters warming your heart. The flowers tinged the air with their light fragrance. At spare time, you could read a good book alone and drink a cup of delicious coffee, or talk with your good friends with some scrumptious snacks. Owning good books, intimate friends and a serene heart, that is a perfect lifestyle. This is something I want to provide to people, enjoy life, and live in the moment. Target market and customers One of our target markets is white collar employees with middle or high income. These people pay more attention on quality of life and have a good consumption level. Another is business customers, which need flowers to decorate the site of activities, parties, events or meetings. Competition However, there are some strong competitors in this market, especially Starbucks. It is the world’s largest coffee shop chain from America. Starbucks enjoyed a higher reputation and strong brand effect in China. There are about 31 Starbucks in Suzhou alone, but some problems are observed in the course of rapid extension. For instance, single and boring of the unchangeable products and service is a big weakness. To the contrary, Seventh Heaven Cafe provides a combination service and products to customers. It is a novel and creative form to attract people. Besides, high quality service and elegant environment are our powerful points of attraction. Sales and marketing strategy To gain more customers, the price of our products is slightly below the Starbucks. Internet advertising and posters are effective for publicity. Furthermore, we use push money and allowance to motivate my employee to increase sales. Critical risk factors Despite of these, some risks still exist, for example some people are reluctant to try something new, or we make losses at early stage. All of budgets are based on the business feasibility study, but there are so many unpredictable changes in the reality, the cash flow may be not enough. Moreover, the shortage and outflow of talent in related field are hidden trouble for the business.

The Unique Aspects of Bristol University Essay Example | Topics and Well Written Essays - 500 words

The Unique Aspects of Bristol University - Essay Example A prerequisite to attend a business school with a programme as rigorous as Bristol’s is to be driven and motivated at an early age. Since my early teenage years, my uncle Marmon Aspadi, a graduate of the Bristol University, has encouraged me to apply. He must have seen in me the attributes necessary to succeed at the university. Through my study of A Level Mathematics and Further Mathematics, I am extremely competent in the fields of mathematics and statistics, which are the core theoretical frameworks of an economics degree. Being an Indian citizen who has resided in the Middle East my entire life and witnessed firsthand the boom and bust of my hometown Dubai, my personal and academic backgrounds would be instrumental in contributing to the school’s immense cultural diversity. Furthermore, my living experiences abroad have only strengthened my understanding of the interconnectedness of the global economy and the role it plays in businesses throughout the world. Bristol provides the human landscape of internationalism that offers multidimensional perspectives needed to understand global trends and local realities. I believe that my broad international perspective would contribute to this environment. My interest in the field of business is genuinely innate and extremely strong. I concurrently believe in the importance of a well-rounded education. Bristol would provide the opportunity to challenge me through the interdisciplinary study offered at the College of Arts & Sciences. A dual degree across the two undergraduate schools is certainly what I would want to achieve if admitted to Bristol.  Ã‚  

Conceptual Theoretical Frameworks Dissertation Example | Topics and Well Written Essays - 750 words

Conceptual Theoretical Frameworks - Dissertation Example These factors can be broadly classified as curricular, institutional, political as well as economic, and social ones. Besides these listed factors, some of the factors that led to the increase in the number of nontraditional students are the existence of evening and weekend programs and even the existence of various courses that were taught in central locations and shopping malls. The political forces that emerged from the victory during the era of the World War II further facilitated the enrollment growth. The term nontraditional students refer to any learner in an institution of higher learning that hails from any part of the country that is from either urban or rural areas and the learner can be of any race and can be of any social state. According to Stewart and Rue (1983), nontraditional student can be defined as any learner who happens to be 25 years old or even more. However, this definition has been disputed by other authors and the reason for the dispute is the fact that the use of age is not satisfactory for the determination of the term nontraditional. Traditional students, on the other hand, can be referred to as learners that fall within an age bracket of 18 and 24 years and are attending college full time as well as residing in colleges. The difference between nontraditional and traditional students can, therefore, lie in the age, college attendance, and their residence. Structure of the Conceptual Model The conceptual model proposed by Bean and Metzner (1985) indicates that decisions involving dropouts basically rely on four variables, and these variables are background and defining variables, academic variables, environmental variables, and an intention to persist variable. Background and defining variables primarily concern various educational goals and the performance from high schools. Academic variables concern the performance, and the students with a low performance are expected to drop out of school at a higher rate compared to the student s with a higher performance. The third variable is environmental, and these variables are concerned with direct effects on the various decisions of dropping out of school (Tinto, 1975). Finally, the fourth variable is the intent to persist variable; and this variable is primarily affected by various psychological outcomes as well as various academic variables. The various variables are related through direct and indirect effects though the indirect effects can be easily calculated and testing of the resultant statistical significance brought about by these effects can be carried out. In the model, the various paths can be estimated using common convention that is capable of calculating both indirect and direct effects for each variable, which is independent, and the result is the greatest effect that is the sum of indirect and direct effects. A larger proportion of undergraduate student population is composed of commuter students, and the trends in the enrollment of these commuter s tudents are expected to increase because of the decrease in the number of the traditional age. The rate of attrition of nontraditional students is high, and commuter students generally take up the gaps left by these students. Community Retention Model According to Stahl and Pavel (1992), the community retention model had a lot of emphasis on two-year college nontraditional students, and the aspects of social integration were eliminated, and this elimination was due to the construct for two-year college nontraditional student decision persistence. The model has four variables, a

Week 8 DQ 2 Essay Example | Topics and Well Written Essays - 250 words

Week 8 DQ 2 - Essay Example Federal Court judges are appointed for life. This poses a problem for majority rule, for American democracy. However, perhaps, they actually protect the rights of minorities and thus have the kind of open system that causes democracy to flourish (Edwards, et al, 2008). The federal courts are also quite powerful and have a large scope of judicial power in American society. Many argue that they should not be involved in policy making but in settling disputes. The United States judicial system is basically adversarial in that opposing civil law cases are presented to an arbiter. It consists of statutes and common law, the latter an accumulation of judicial decisions (ibid.) In the Judiciary Act of 1789, Congress established constitutional courts and subsequently legislative courts for specialized purposes. Courts with original jurisdiction are those where a case is first heard whereas appellate courts can review the legal issues in cases brought to

Financial part of the new project Essay Example | Topics and Well Written Essays - 500 words

Financial part of the new project - Essay Example An individual can retail companies like Wal-Mart or a financial organization. Wal-Mart is the leading retailing company. It has been rated as no.1 retailing company in United States. An individual or a firm planning to setup a store can acquire the services of Wal-Mart for the products offered by the Wal-Mart to exhibit the popular brands that comes under Wal-Mart. Instead of approaching the financial institutions like banks for funding loans the dependent can approach Wal-Mart. It can sponsor the person or firm to open store. Storeowner can get commission from Wal-Mart after the selling of the products that were displayed in the store. The commission varies depending on the store. In the current market scenario the sales of fast moving consumer goods (FMCG) and computer hardware and software sales touch saturate point. Unlike stores established for artifacts whose sales move at snails pace than the products like FMCG. In addition, capital required for establishing events that are outdated in the market like antiques and art related is unassumingly high. Moreover the cash involved in such a store will be at stake for a longer period and fetch very less margin or commission from Wal-Mart. The fixed assets required in establishing a store should be on par with the status of the Wal-Mart.

Food laws Essay Example | Topics and Well Written Essays - 1000 words

Food laws - Essay Example Being a worker in the food service department I have the obligation to ensure that the menus prepared to suit the needs of the patients. This is because it would be an offense for the hospital to compel the patients to eat foods that are not in line with their dietary laws. In the contemporary society, the aspect of diversity management is of great significance within the health sector. Diversity management seeks to satisfy the needs of different people irrespective of their differences. It requires that all citizens be treated with respect despite their differences in terms of religion, color, race, beliefs or even physical abilities. Since our hospital pays attention diversity management strategies, it is crucial to consider the diet preferences of our clients(Curtis, 2013). Secondly, since a hospital is a business just like any other, satisfying the customers is a matter of priority. Customers prefer to acquire services from businesses that satisfy their needs efficiently. On this note, it is crucial for our organization to design menus that satisfy the needs of the people to ensure that the Kosher and Halal laws are respected especially during relevant holidays. Satisfying the needs of these laws is a complex process due to the great variation of the diet requirements. The food director is also concerned with the economic aspect of satisfying the needs of the patients. Often, it is possible that introducing new meals other than the regular meals will add cost to the meals.

Dq 8-Sheila Essay Example | Topics and Well Written Essays - 1250 words

Dq 8-Sheila - Essay Example Thus, a knowledge worker information system is the combination of data, computer hardware and software and processes that the knowledge worker uses to arrive at decisions in the course of their worker. The purpose of this paper is to illustrate the importance of the knowledge worker information system, together with its relevant aspects, in the work of the knowledge worker and to the organization that employs the knowledge worker as a whole. In todays competitive business environment, information is a major success factor for an organization(Brinkley, Fauth, Mahdon, & Theodoropoulou, 2013). For instance, the marketing manager needs information on the plans and actions of their competitors. These have an effect on whether or not a company succeeds. At the same time, the manager must ensure that their information system is secure and cannot be hacked into by rivals. Thus, a good knowledge worker information system must take into consideration the security of the system. Privacy is an important element of a good information system(Petter, DeLone, & McLean, 2013). The users of an information system should not worry about their personal and secret information getting into the wrong hands. This is especially important in the so-called Information Age in which cybercrime is rampant. For instance, a professor who uses Skype to deliver their lectures does not wish to have their personal information leak to their students. A proper information system can deliver useful information when it is needed(Hsu, Chu, Lin, & Lo, 2014). This is crucial because some of the decisions that the knowledge worker makes are urgent yet they far-reaching implications for the organization. For example, a production manager whose organization uses just-in-time delivery of raw materials risks losing a customer if the information system fails to inform the supplier of the need to deliver raw

The History of Advertising Essay Example | Topics and Well Written Essays - 3000 words

The History of Advertising - Essay Example This discussion stresses that there are many reasons for this like, culture, wealth, availability of credit and of course product promotion. This paper looks at these habits on the basis of an important chapter in the history of advertising. The advertising industry was shaken up by a man called William Bernbach. His most notable achievements were the ads produced by his company for the German automaker Volkswagen, soon after their introduction in the US. The work here will study some of the features of the module and its relation to the advertisements of Bernbach for Volkswagen.   From this paper it is clear that William Bernbach and his colleague Ned Doyle and Maxwell Dane formed the advertising agency named Doyle Dane Bernbach (DDB) in 1949. This agency created the revolutionary ad campaigns for the 1950s and 1960s.The Volkswagen campaign was regarded as one of the best campaign because it increased the sales of the Volkswagen car. â€Å"This ad campaign established the Volkswagen brand as a marker for nonconformity.† Bernbach’s advertising strategy was to trey to keep customers rather than attracting the attention of those who were not interested in the product. Bernbach understood that an advertisement didn’t sell a product and he formulated innovative styles in printing the advertisements. Their idea was to give simplicity in print advertisements. These advertisements were entirely different from the familiar advertisements which gave importance to the American automobile’s powerful engines, and large size etc. The Volkswagen a dvertisements urged people to buy a car which they could drive cheaply.  

Hog case study Essay Example for Free

Hog case study Essay Product Life Cycle: Late Growth / Early Maturity I. Uncertainties that may affect industry structure II. The plausible assumptions about each important causal factor The uncertainties that exist for the Motorcycle Industry are fluctuations in the following categories: government regulations, price of supplies, Fuel Cost, Global Demand for motorcycles, Product innovation, customer loyalty value (CLV), target market, and market share. The casual factors that drive these uncertainties are an important factor when forecasting the future of the Motorcycle Industry. The most likely scenario for government regulations will push the industry towards going â€Å"Green† and becoming more environmentally friendly by requiring lower emissions. They will require the industry to improve these emissions standards. Currently the average motorcycle averages 40 MPG (miles per gallon) in the city and 50 MPG on highway but they still emit smog into the environment. The industry will most likely use the fuel consumption statistics to their advantage by relating to the current price of gasoline and the fact that the average car gets 20 MPG and SUV’s get even less at about 16 MPG. Price will be a major uncertainty for the industry. The industry relies on other companies to provide them with materials so that they could assemble the bike. The increasing cost of transporting these materials from the manufacturers to the motorcycle assembly plants are going to increase and therefore lead to increase in the operating cost for the industry and lead to higher price for the finished product resulting in no value added. The price of the finished product is a very important factor for the industry because all the players in the industry are trying to attract the younger target market and are competing on price. The Japanese manufacturers have a mindset that they are willing to incur short-term loss so that they could gain market share. This strategy is bad for the industry because every company will try to reduce its prices and will eventually not be able to make significant profit. This fact needs to be carefully monitored so that no one player tries to influence the overall industry. Economic conditions in the U. S. significantly affect the firm’s performance from year to year. During an economic recession, Harley-Davidson will feel its effects since consumers tend to tighten up discretionary spending during rough times resulting in no value added to the company. This is what is currently happening in the economy. Global demand fluctuation also is an important factor to the overall success of the industry. The global demand for the heavy weight motorcycles grows at an average core rate of 7% to 9% per year and has averaged 8. 6% since 1991 for Harley Davidson. This trend will most likely continue because of the Baby-Boomers who previously purchased these bikes will continue to do so as they live more active and adventurous lives then previous generations. The baby boomers are more affluent then previous generations. The global demand will rise because of this fact. It will also rise because they are not only catering to the older consumers but also towards the younger generation and women. The industry is creating bikes that are cheaper and faster that appeal to the younger consumer. This trend will spread globally because of the Blue Ocean created by Harley Davidson because of the Rental Programs, and the Riders Edge programs that will be emulated by the other players in the industry. This will lead to the Red Ocean scenario again and companies will compete at the same level within the industry. We also believe that players in the industry will make strategic alliances with other industries to cross sell their products such as Harley currently produces clothing and accessories to increase and diversify its revenue sources. The industry will continue to compete on all aspects such as price, quality, and functionality. This intense competition will lead to a Red Ocean until a new innovator can emerge. The industry will most likely continue to invest in Research Development to improve the quality of their products, to try to innovate, to get a better product out to the market and even innovate the way they assemble and market their product to the consumer. Also, personalization and customization of motorcycles will increase as television programs such as American Choppers, and West Coast Choppers are glorifying them. All these factors will lead to an expansion of the Target market and more intense competition. Customer Loyalty Value will most likely rise for the industry because many of the individual producers have a wide variety of products that they can offer to their customers. The industry will most likely target previous customers more to get them to purchase a secondary bike. This trend will continue since the largest buyer group numbers are steady for the next several years, currently there are 41 million US men in the age group of 35 to 54 and that number increases to a little over 41 million in 2020. Also currently there are 80 million baby boomers of those the oldest ones are entering their late 50’s and the youngest boomers are just entering earlier part of their 40’s. These groups will be heavily targeted by the industry to either purchase their first motorcycle or 2nd motorcycle. III. Plausible assumptions about each important casual factor The most important casual factors are the level of quality of the motorcycles, product innovation and marketing. These three factors are predetermined meaning that change is likely to happen  nd is largely predictable and they are constant meaning that these areas in the industry are unlikely to change. However, product innovation is uncertain meaning that product innovation depends on other irresolvable uncertainties in the industry. To begin with the first important casual factor the level of quality, we know that if the level of quality for motorcycles increase, it is likely to lead to an increase in other areas as well such as price, sales, market share and customer retention. (Cash flow, interrelationship, linkages and value added). The next important casual factor is product innovation. Similar to quality, if product innovation increases it is likely to lead to increases in other areas such as price, sales, market share, customer retention and gaining new customers. Lastly, marketing is another important casual factor. We know that if marketing is increased and if it becomes more innovative in ways there will be increases in other areas such as sales, market share, customer retention, new customers, advertising and promotion, branding and in relationship marketing resulting in value added. IV. Assumptions about individual factors into internally consistent scenarios. Scenario 1: If quality increases it is likely that performances in other areas are likely to increase as well. Improving quality is always beneficial and important to execute any strategic sequence successfully. The value curve, which is the basic component of the strategy canvas, depicts relative performance across the industry’s factors of competition. Creating a new value curve involves identifying which factors of the industry should be eliminated, reduced, raised well above and created or offered in regards to the industry. So let’s use Harley-Davidson as an example. Eliminate-Reduce-Raise-Create Grid: Harley-Davidson Eliminate Company staff positions Raise Tariff protection against global competitors Reduce Inventory levels Create JIT inventory practice Employee involvement Materials-As-Needed program When it came to improving the quality of the business Harley-Davidson eliminated the positions of senior vice president in marketing and operations because there was no value added. The style of leadership at the company was very effective because they were able to identify weak links in their operations and cut out the extra manpower that was muda. The company reduced inventory levels with the hope that it would make quality problems more apparent and force employees to take action. The tariff protection the company sought to gain time and protect itself from the Japanese inroads in the heavyweight segment was a leading factor that raised them above the industry standards. The company’s OWC that was created was the use of JIT inventory practices, employee involvement and the SOC (statistical operator control). Workers were required to participate in the newly formed circles that were made directly responsible for improving motorcycle quality. A Materials-As-Needed (MAN) program was implemented to free up, as much needed cash by reducing WIP inventory, which led to economies of scale and LC. These changes also led to increased quality. Productivity improvement went up by over 50%, WIP inventory was reduced by 75%, scrap and rework went down by 68%, U. S. revenues increased by over 80%, international revenues by 1. 7 times, operating profits increased by $59 million and market share in the heavyweight segment increased by 97%. Harley-Davidson’s net revenue increased from $1,350,466 in 1995 to $5,015,190 in 2004 in millions. Scenario 2: If product innovation increases it is likely that performances in other areas will increase as well. Product innovation is the new business imperative. It drives growth and future success for companies. Most companies are trapped competing in red oceans because they define their industry similarly, focus on the same buyer group, define the scope of the products and services offered by their industry similarly and they focus on the same point in time and often on current competitive threats in formulating strategies. However, Harley-Davidson has not followed these same guidelines, so they are not currently trapped in the red oceans. Harley-Davidson was selected as an outstanding corporate innovator by PDMA in 2003 (Product Development Management Association) because of its established brand, its strong connection with customers, and because of its continued commitment to product innovation. The company focuses on optimizing the â€Å"customer experience,† and as a company has grown from 40,000 units/year in 1998 to 264,000 units/year in 2002. Their use of multiple and novel venues to gather customer needs and preferences information to guide their new product efforts, while employing a formal Concurrent Product Process Delivery Methodology (CPPDM), has kept their new product engine running at peak efficiency. Several unique elements and concepts in their process such as â€Å"swirl,† â€Å"bins,† and â€Å"cadence,† ensure the degree of innovation, speed to market, match of development resources, and financial viability of individual projects as well as the entire new product portfolio. Scenario 3: If marketing increases performances in other areas is likely to increase as well. Marketing for any company in any industry is extremely important. How well a product/company is marketed leads to the success of that product/company. Blue oceans are defined by untapped market space, demand creation and the opportunity for highly profitable growth. In order to execute a blue ocean strategy market boundaries must be reconstructed and must reach beyond existing demand. This is in fact what Harley-Davidson did to create a blue ocean for itself and increase the brand name and company revenues simultaneously. The company’s three strategic constants: passion, sense of purpose and operational excellence are the cornerstone of their blue ocean strategy. There is no competition, as seen by being the only U. S. manufacturer for 46 years, and petition to end protective tariffs. All bikes are customizable, and some say that they are made to be tinkered with (not as hands-off as can be, therefore redefining premium brand). The company has a huge fan club and a phenomenally powerful brand and its quintessential strong emotional connection keeps them in the leadership position. Undoubtedly, Harley-Davidsons greatest marketing asset is the Harley Owners Group, with one million member’s world wide making it the largest motorcycle-sponsored club in the world. Harley-Davidson is continuing to improve value innovation by still focusing on beating the competition, making it irrelevant by creating a leap in value for buyers and their company by opening up a new and uncontested market space. They have done this with the implementation of their Rider’s Edge and Rental Programs. The rental program was implemented to hook customers and entice them to buy a Harley. This program is offered by 250 dealers and is available in 52 countries. Survey shows that 32% bought a bike or placed an order and another 37% planed to buy within one year. The Rider’s Edge Program offers riding lessons that last for four days and cost students $350. Approximately 70% of students in the program purchase a motorcycle within 18 months and about 40% of the students are women and 30% are under the age of 35. This buyer learning relationship created by Harley-Davidson has increased sales, new customers and targets the untapped market of women highly. This value innovation has led to LC for people who have learned to ride the motorcycles through the program and also to the instructors teaching the students. It has led to increased sales and revenues from the 70% of students that buy within 18 of completing the lessons. This continues to be a huge win for Harley-Davidson. V. Analyzing the industry structure that would prevail under each scenario McKinsey Model INDUSTRY ATTRACTIVENESS Competitor Profile WeightRateTotal Market Growth Rate. 102. 20 Marketing Size. 103. 30 Competitive Structure. 203. 60 Seasonal/Cyclical. 103. 30 Industry Profit. 102. 30 Tech Demand. 204. 80 Eco of Scale. 102. 20 Unique Social. 102. 20 TOTAL12. 90 Competitor Profile WeightRateTotal Market Share. 204. 80 Tech Strength. 203. 60 Marketing Skill. 203. 60 Company Profit. 102. 20 Management Skill. 102. 20 Ability to compete on price quality. 203. 60 TOTAL13. 00 9 Cell Matrix for Motorcycle Industry 2004 Competitor Profile Strong Average Weak HiIIE MedIE HOGD LowEDD HiMedLow I= Invest E= Evaluate D= Disinvest The next step in scenario planning is to analyze the implications of each scenario for competition. We will determine the future industry structure, implications for industry structural attractiveness and the sources of competitive advantage. The future growth is largely dependent upon its ability to develop and successfully introduce new, innovative and compliant products. In addition, it must comply with governmental laws and regulations that are subject to change and involve significant costs. Worldwide demand for motorcycles is forecasted to advance to 5. 2% annually to more than 35% million units in 2007, valued at $46 billion. Driven by increased income levels in emerging markets such as India, China, and Southeast Asia, demand for scooters, mopeds and light motorcycles will remain relatively strong, providing continued growth opportunities for motorcycle OEMs and suppliers. The market for large motorcycles will also remain strong, although some concerns regarding future demand have emerged due to the aging customer base and rising insurance costs, especially in the US and Europe. While growth prospects remain solid, especially when compared to the 2% annual growth experienced by the light vehicle industry, the industry will likely go through a restructuring phase in the future. Many of the small competitors will begin to exit the market. The intense focus on price in the Asia/Pacific region has caused Japanese OEMs to begin to abandon Japan as a production base in favor of lower cost hubs like China or Thailand. In China, for example, the largest motorcycle market and producer in unit terms, is rapidly transitioning away from motorcycle toward cars, and in the process overflowing the world market with motorcycle exports. In contrast, rising fuel prices and increasing restrictions on car uses are favoring motorcycles in developed markets. Two separate motorcycle markets exist. The first is centered in the industrialized Triad (US, Japan, Europe), where consumers who already have one or more vehicles see motorcycles as pleasure vehicles. These motorcycles tend to be larger, more powerful machines, which cost on average about $5,000 to $6,500. The other much larger market in unit terms is found in the emerging economies of the Asia/Pacific, where motorcycles are seen as primary family and work vehicles. These vehicles are cheaper, smaller and less powerful than Triad motorcycles. Motorcycles everywhere is being fractured down from, stricter emissions controls to noise limits, from land closures to exclusions from HOV lanes. The motorcycle industry has spent the last 10 years of convincing the public that motorcycles are a form of entertainment and not a form of transportation. The world has been changing with new issues and now advertising is geared toward qualities like dependability, practicality, technology, safety and environmental friendliness. Women control 85% of all the discretionary dollars spent in the US. Ten years ago women represented about 3% of the motorcycle owners. In 2004, they ramped up to 12% in motorcycles. Utilizing learning curve, dealers are beginning to understand their sales people can no longer talk down to a woman. Some have started to hire women as salespeople. Once only men staffed dealerships, women are showing up as techs, service writers, parts counter, and unit salespeople. The behavior has changed. The Motorcycle Safety Foundation conducts training for new motorcyclists. In 2003, they reported that 40% of those signing up for new classes are women. In the case of Harley-Davidson, the Harley rider is now 45 (10 years ago it was 37) and 20% of Harley riders are over 55. Despite the company’s success in the past 18 years, it has difficult time attracting younger consumers, who tend, to go for sporty, fast, technologically-savvy racing bikes produced by its competitors. Harley has been investing in its product to attract a younger buyer. It continues to revamp its affordable Sportster line and its higher-tech V-Rod family with liquid-cooled revolution engines continues to appeal to more youthful market. In addition, its sports bike subsidiary, Buell, is to lure in the Generation Y market. Growth in year-to-year sales was slow, but with the economic downturn in the market, sales in this market segment may increase due to the lower price point. These marketing challenges will force the company to examine their manufacturing, marketing, pricing and every other part of the business. For consumers, this will means better pricing, more value and greater service to attract their more discerning and selective purchase. The industries never stand still. Operations improve, markets expand and players enter and exit. VI. Determining the sources of competitive advantage under the most likely scenario The driving force behind Harley-Davidson’s competitive advantage is its quality, marketing and product innovation so we will determine the sources of competitive advantage in these forms. Quality Harley Davidson’s source of competitive advantage in regards to quality will most likely be its continued use of the productivity triad. Harley’s productivity triad involves employee involvement, use of JIT inventory practices (which Harley renamed MAN – Materials As Needed) and statistical operation control. Quality drives productivity and increased productivity is a source of greater revenue. This can be seen as under Harley’s new system inventory turn increased to 17 and productivity improvement went up by over 50%. This new system allowed Harley to free up cash by reducing its work in process inventory by 75%. This system proves that improved quality does not always mean increased cost because its costs decreased while its U.S. revenues increased by over 80%, international revenues by 1. 7 times, and operating profits increased by $59 million. Their market share under this new system had also increased by 97%. Quality is defined entirely by the customer and end user and based upon that person(s) evaluation of his or her entire customer experience. Through the use of the productivity triad, customer retention will increase as Harley Davidson continues to improve its entire customer experience from how their bikes are sold (utilizing women sales people to make women customers more comfortable), to how the bikes perform. The increased customer retention and productivity triad will result in a differentiation advantage over its competitors thus creating superior value to its customers and superior profits for itself. Harley was able to create a blue ocean by driving costs down while simultaneously driving value up for its consumers. Marketing Harley Davidson’s source of competitive advantage in regards to marketing will most likely be the continued use of its programs such as the Ladies of Harley, the Riders Edge and Rental Program. The Ladies of Harley group cultivates and will most likely continue to cultivate the interest of women riders. This group was sponsored by HOG to support women motorcycle enthusiasts, and to encourage women to become more active within the group. The Riders Edge program offers motorcycle-riding lessons that last for four days and cost students $350. Surveys show that 70% of Rider’s Edge participants purchase a motorcycle within 18 months. This program helps to target the women market (who makes up 40% of participants) and younger riders (30% of participants who were under 35). The future strategy of Harley is to gain market share in the younger rider segment, so it is likely to continue this program. Harley will most likely continue the use of its rental program, which is used to â€Å"hook† customers and entice them to buy a motorcycle. It is said that 32% of participants bought a bike or placed an order and another 37% planned to buy one within a year after renting a Harley. The company will most likely increase the number of dealerships the program is offered in, as it has demonstrated great success. This is a value added to the consumer who gets to experience the feel of a Harley before making an actual purchase, and a value added to the company because it almost guarantees future earnings. These programs will result in a differentiation advantage over its competitors. Product Innovation In regards to production innovation, Harley-Davidson will most likely continue with new product development and upgraded manufacturing technology. With many concerns with environmental health issues, Harley will most likely manufacture a Hybrid or economically friendly motorcycle to entice sales of future consumers who are concerned with environmental conservation and to appeal to current eco friendly consumers. Harley-Davidson’s resources and capabilities together form its distinctive competencies. These competencies enable innovation, efficiency, quality and customer retention, all of which could be leveraged to create a cost or differentiation advantage for the firm and thus creating value for its customers and profits for itself. Harley-Davidson has created a strong differentiation strategy setting itself apart from the crowd and making its brand identity legendary. On the next page, you will find a competitive analysis of Harley-Davidson to one of its existing competitors, Honda. Competitive Analysis HARLEY DAVIDSON HONDA Future Goals? Produce and sale high quality motorcycles. ?Maintain market share. ?Replace some of aging boomer customers by tapping into the youth market. ?Address shifting demographics. ?To make cycles more popular. ?Strengthen themselves as a manufacturing company. ?Strengthen focus on initiatives, quality and technology. Current Strategy? Maintain current growth in traditional segments while taking measures to reach younger customers. ?Keep up with trends and customer needs. ?Increase product line of accessory and apparel. ?Provide motorcycles accessories and services to selected niches? Maintain global viewpoint. ?Supplying products with high quality at a reasonable price. ?To create new technology that offers new possibilities in mobility. Assumptions ?Harley would not be able to maintain ?Market for Harley-Davidson products may be maturing. ?Baby-boomers were aging and may not want to ride motorcycles anymore. ?Boomers will ride into their late 60 and 70’s. ?Manufacturers are more skilled at mass-producing motorcycles efficiently. ?Will continue to be more technically advanced in the industry. CapabilitiesStrengths ?Renewed RD expenditure.? Strong brand identity and loyalty. ?Boomers are living more of an active lifestyle. ?Productivity triad. Weakness ?Some bikes are too expensive for younger consumers. ?Close association with baby boomers. Strengths ?Strong technical advances. ?Have a stronger brand with the younger generation. ?Caters to younger buyers with smaller budgets. Weakness ?Does not have an association with baby boomers who are expected to ride longer. Market Share Harley Davidson maintains a large margin in its dominance in the U. S. Heavyweight Motorcycle market as compared to its major competitors. 2003 2007 US Heavyweight Market ShareUS Market Share 2007 2006 2005 2004 2003 Harley-Davidson 49. 4% 50% 49. 6% 50. 2% 50. 3% Honda 14. 2 15. 1 16. 6 18. 7 18. 4 Suzuki 12. 5 12. 9 12. 4 10. 2 9. 8 Yamaha 9. 2 8. 6 8. 9 8. 7 8. 5 Kawasaki 7. 2 6. 8 6. 5 6. 4 6. 7 However, Harley’s international market share is slightly smaller. For instance, the company has a 38. 4% Canadian market share and a 10. 2% market share in Europe as of 2006. Notably, both of those markets are substantially smaller than the US market. Nonetheless, Harley has a dominant worldwide market share of 33% in what is a growing industry. Operating Metrics Several operating metrics are useful in understanding the company’s position vis-a-vis its largest competitor. Honda’s figures are for its motorcycle business only. Please see chart on next page. 2006 Operating MetricsOperating Metrics Harley-Davidson Honda Units Sold 361 103 Units Sold per Employee 35. 4 3. 6 Revenue per Employee (USD) 637,881 356,746 Operating Margin(%) 27. 5 9. 2 CapEx as % of Sales 3. 8% 4. 2% While the company’s competitors, notably Honda Motor Company (HMC) and Suzuki, do not have as dominant a market position, they often have greater financial resources. This is largely because companies like Honda have more diverse product lines (like cars), and are greater in size than Harley-Davidson, a far more specialized company. For example, motorcycle sales at the company’s largest competitor, Honda, hover around 12% of total revenue. Revenue by Region While around 80% of the Harley Davidson’s sales still occur in the United States, its international segments are growing quickly, and the company is pursuing opportunities for gaining market share abroad resulting in value added. This can prove important to the company, as market share has begun to stabilize in the US due to saturation of this market. 12 Month Harley-Davidson Stock Analysis The chart above shows that it has definitely been a tough 12 months for Harley-Davidson stock and it is undoubtedly being affected by the economy. VII. Predicting competitor behavior under each scenario Introduction of competitor behavior In 2007, Sales in the motorcycle industry failed to increase after 14 consecutive years of gains and were lower than in 2006. For Harley-Davidson, revenues declined 1. 3% and earnings declined 4. 3% 2007. In preparation for the affects of a slowing American economy, the firms largest market, Harley cut production and shipment of its motorcycles in the 3rd and 4th quarters of 2007. However, on the up side, the motorcycle industry sales in 2007 were over the 1 million mark for the 5th straight year. Battery and tire sales indicate that ridership and enthusiasm for the sport remain high. Quality The competition will continue to manufacturer new models and invest in quality improvement; however, they will focus on supplying products with high quality at a reasonable price. In addition, they will strive to further improve JIT inventory practices and statistical operation control. Quality drives productivity and increased productivity is a source of greater revenue. Marketing The competition will market their brand with the younger generation. It will cater to younger buyers with smaller budgets. The aim to attract the younger target market and compete on price. Furthermore, create bikes that are cheaper and faster that appeal to this market. In addition, the current success that Harley has had with the rental’s, and the rider’s edge program will most likely be emulated by the players in the industry. Product Innovation The competition will continue to invest in product innovation that will appeal to the younger generation in design and price points. They will continue to create new technology that will offer new possibilities in mobility. Conclusion: Harley-Davidson has developed a blue ocean strategy by fulfilling dreams through the experience of motorcycling. All bikes are customizable and have developed a huge fan club and a phenomenally powerful brand with emotional connection and loyalty. This loyalty will be crucial to the company’s success going forward, and Harley will depend upon duplicating this success  internationally to fuel growth. Despite the fact that due to economic issues, in the motorcycle industry sales have been down and cost up, we expect that Harley-Davidson will continue to invest in quality improvement, marketing strategy and product innovation in order to remain competitive in the industry and achieve economies of scale. Harley-Davidson will continue to manufacturer new models and invest in quality improvement however; they will do it with increasing cost pressures. The dollar has lost 26% of its value against the euro and 11% of its value against the yen since March 2003. Escalating cost for the metals, plastics and other commodities used to manufacture motorcycles and the fuel needed to transport foreign models to the U. S. market, has resulted in price pressures for the European and Japanese manufacturers in particular. Harley will need to look to further cut manufacturing costs, (lean manufacturing) rather than raise retail prices for consumers who, in the U. S. , are continuing to tighten their belts. Harley-Davidson will continue to invest in marketing. Through marketing efforts the company will look to increase its current loyalty program but also duplicate this success internationally to fuel growth. The company’s customers tend to be fiercely loyal to the brand, which has helped to drive consistent growth over the past 20 years while making the company the premier name in its industry. In addition, since the company’s core consumer group is aging, it will target women and the younger generation of motorcycle enthusiasts. In order to appeal to this group, the company will continue to use the HOG and riders edge program. Furthermore, the company will continue to revamp its affordable Sportster line and its higher-tech V-Rod family with liquid-cooled revolution engines and its subsidiary, Buell, in order to lure in the Generation Y market. However, it should be noted that in marketing to this new segment, it will lead to the red ocean scenario again and companies will compete at the same level within the industry. The company will also have an opportunity to increase marketing in the international markets. While around 80% of the Harley Davidson’s sales still occur in the United States, its international segments are growing quickly, and the company will have an opportunity to market to these segments in order to gain market share abroad resulting in value added. This can prove important to the company, as market share has begun to stabilize in the US due to saturation of this market. Harley-Davidson will also continue to invest in product innovation. In order to increase its customer base, the company will focus more on fuel efficiency transportation oriented models in the coming years. With many concerns with environmental health issues, the company will most likely manufacture a Hybrid or an economically friendly motorcycle to entice sales of future consumers who are concerned with environmental conservation and to appeal to current eco friendly consumers.

Copyright Law and Industrial Design Essay Example for Free

Copyright Law and Industrial Design Essay Introduction The history of intellectual property law represents, in its essence a bargain between the interests of society from being able to utilize and copy innovations, and literary and artistic works, and the interest in protecting the benefit to the creator so as to stimulate further such work. Enactment of copyright legislation was not based upon any natural right that the author has upon his writings but upon the ground that the welfare of the public will be better served by securing to authors for limited periods the exclusive rights to their writings. Property rights represent the principal vehicle for enabling creators and producers to appropriate the value of their efforts. Preserving a delicate balance therefore, is of paramount importance. However, intellectual property rights have, in certain circumstances, begun to overlap and provide simultaneous or sequential protection for some inventive and creative works mainly by accretion rather than design. The traditional channeling doctrines used to determine which area protects a certain interest have had their boundaries blurred, and overlapping areas has become a phenomenon, its most prominent manifestation being the overlap of protection afforded to designs under the design laws and the copyright laws. This paper, by tracing the source and genesis of the rights afforded to industrial designs, the varying nature of the protection afforded and the rationale behind it, will attempt to argue that the conceptual separation between the protectability of copyrightable works and designs necessitates a very strict exclusion of all designs or applied art to be removed from the ambit of copyright protection. By clearing up the confusion surrounding the law of development of designs and the ambiguous nature of the protection afforded which has led to the current status of overlapping protection, the paper will present an overview of its implications and defend status quo. The Origin of Design and Copyright Stemming from the age old understanding of property rights and the entitlements carved thereto, the very basis of copyright law is to allow the creator of a work the right to enjoy the fruits of his labour and derive benefit from it. The concept of limitation, however is inherent in it, and it has been universally held that the author / artist of a work cannot enjoy the monopoly forever. This concept of a limited right is of grave importance in this paper, since the development of various strands of law is crucially linked to its limitation. Copyright law then, evolved to bestow upon the creator the right to distribute, to perform, display and to prepare derivative works based upon the copyrighted work and prohibit all unauthorized, economically significant uses of copyrighted works. Copyright law has traditionally had a ‘useful article’ exception. According to the legislative history of the 1976 Copyright Act, the purpose of excluding useful articles from copyright protection was â€Å"to draw as clear a line as possible between copyrightable works of applied art and uncopyrightable works of industrial design.† The objective of excluding useful articles was fundamentally linked to the nature of copyright itself, which protected art for art’s sake, the mere expression. The distinctive philosophy of copyright law protection applied only to art, where the sole purpose of the art was its aesthetic value and was extended only gradually, and against considerable opposition, to ‘works of art applied to industry.’ The separation of ‘beauty’ from ‘utility’ was opposed on the ground that art remained art even when applied to useful objects. But the fundamental object of the design being economic aims, it only came into its own when the industrial revolution had made it possible to reproduce useful articles in series and which then assumed the eminently practical task of increasing sales of goods on the general products market. Industrial design, made for a commercial purpose, did not qualify and were always disqualified from the wide ambit of copyright protection. It was considered appropriate to treat artistic works applied to products produced in certain industries separately from other works which enjoyed full copyright protection. For the simple reason of being applied art, being embodied in a useful article and necessitating a different approach, design law evolved from copyright as an exception for artistic designs applied to specific classes of industrial goods, or goods within particular industries. In obtaining protection, the design had to satisfy the requirements of novelty, non obviousness and creativity. Essentially given as a right to protect fabric designs, the extent of protection grew until was no requirement for registration. Now, according to the Industrial Design Act, a â€Å"design† or an ‘industrial design’ means features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye. A registered design is a statutory monopoly, of up to 25 years duration, which is intended to give protection to the aesthetic appearance, but not the function, of the whole or parts of a manufactured article. The visual impact or impression counts. The design may be applied to any of the surfaces of the article and hence, it may be the shape or surface decoration. It is the design, not the article itself which is protected by registration. Surface designs were two dimensional designs and were mostly just achieved by ornamentation and the like, and when the design involved shape and structure changes in the article, they were shape designs. To be qualified for registration, a representation of the design, a statement of novelty identifying its unique features, and the set of articles in respect of which monopoly is claimed was required to be submitted. The required level of originality for a design to qualify is disputed. While in some cases, it is only required that the design not be in existence, in other cases, creativity and aesthetic appeal was required. It would seem, however, that the latter requirement more truly reflects the incidents of the law, since the separability analysis requires that decorative features be identifiable. Design Protection: Its Rationale and Incidents Design protection law, from its very inception, attempted to provide a monopoly status to the design only with respect to a specified category of articles, and not to every object which might utilize the design. This deviation is highly significant for the purpose of this analysis, since it exemplifies one of the most fundamental distinctions between the law of design protection and copyright. From affording protection only to ornamentation of designs, the Act started to cover a new and original design for an article of manufacture having reference to some purpose of utility. The reference to ‘utiltity’ whether as an exclusionary or determinative factor in deciding legal protection for the design, play a pivotal role in the development of design law and thus, its relation and dependence upon the functional aspect of the article could not be divorced. The result of design protection to manufactured articles therefore, may be to secure important advantages in reference to a mechanical object, if these advantages should be the result directly or indirectly of the shape adopted. It is in this context that the separability analysis acquires significance. Doctrine of Separability: Unity of Art and Theory of Disocciation The mere expression of the design as an artistic work would receive protection under copyright, but where the article embodying the design did not have the sole purpose of being of aesthetic appeal alone, it became a design. Thus, only that aspect of a design which could be separated from the utilitarian aspect of the article would receive protection, otherwise the aesthetic appeal of a useful article would go unnoticed since the functionality doctrine negates the aims of copyright law. Design law protected any feature of the design which was dictated entirely by the dictates of functionality would not receive protection, since it was the creative nature of the design which was sought to be protected, and not the entire article. The unity of art theory asserts that industrial art is art; the theory of dissociation starts from the premise that industrial art is inextricably bound up with industrial products. The unity of art doctrine glossed over the affinity of ornamental designs of useful articles to industrial property, an affinity recognized by the Paris Union at the International Convention for the Protection of Industrial Property in 1883. The doctrine of separability, as developed in the context of copyright law is of great significance in this analysis. According to this, protection is afforded only to that part of the design which is separable from the utilitarian aspects of the article. When the shape of an article is dictated by, or is necessarily responsive to, the requirements of its utilitarian function, or if the sole intrinsic function of an article is its utility, the fact that it is unique and attractively shaped will not qualify it as a work of art, but if the same functionality is capable of being obtained from a different design, the design is eligible for protection. The notion that the shape of an article dictated by the requirements of its utilitarian function, should not be protectible in copyright law is accepted nearly everywhere because such protection would circumvent the strict requirements of the patent law. If there is no physical separability, the examination then moves on to whether the utilitarian and aesthetic features can be imagined separately and independently from the useful article without destroying the basic shape of the useful article. Of course, all industrial designs are â€Å"functional† in the sense that they are embodied in products that perform a function. As a matter of practical reality the design will be inexorably and intimately related to the product. The separable analysis, while useful to distinguish the actual design sought to be ornamented, cannot denigrate from the fact that the design, is meant for a specified article, and hence the protection affordable to it is intricately connected to the factum of it being embodied in an article. The Overlap Its genesis and treatment The Indian Copyright Act provides for exclusion of designs which are registrable under the Designs Act. S. 15 excludes the application of the Act to all designs registered under the Designs Act and S 15(2) states that: (2) Copyright in any design, which is capable of being registered under the Designs Act, 1911, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person. The overlap between copyright and design protection which has caused so much confusion is intricately connected to the very nature of the rights afforded under each. The 1911 Act in the UK provided that all designs capable of being registered would be deprived of copyright. A design capable of registration, continued to have copyright protection, until the article using the design had been reproduced more than fifty times by an industrial purpose, at which point, only the protection affordable under the Registered Designs Act was applicable. However, this did include prints, which could not, rationally be said to not constitute an artistic work and hence, case law had to specify that the exclusionary clause did not include artistic works and prints. S. 52 of the CDPA, reproducing this notion is indicative of the tendency of the law to determine extent of protection based on whether or not the design was to be mass produced in a class of articles. It has also caused considerable confusion, especially with respect to whether, if an artistic design, meant solely as such, and hence eligible for copyright protection, but later reproduced in an article, would suffer the exclusions, or whether, its objective elements rendering it capable of being used in an article would bring it under the rubric of the exclusion. The scope of the design to be mass produced thus, played a great role in determining what protection it become eligible for, whether copyright or design, the latter more alike to patent protection. The point at which an object became ‘commercialised’, and part of industry, the terms and nature of intellectual property accorded to it changes. The main rationale of this exclusion was to limit the protection afforded under the copyrights subsisting in the design to the exact period of time design registration would have subsisted, and only those rights. A comparison of this development of the law with the law of patent reveals a similarity. While copyright subsisting in literary or artistic works, where the form of expression is sought to be protected for a term of life plus 50 years, articles which have utility attached to them, such as patentable innovations, receive protection for a shorter time limit, since the functional aspect of the article requires that monopolistic privileges be removed as soon as possible. In the development of design law therefore, a trend can be noticed. As long as a design was just that, an expression, copyright protection existed. Its materialization in a functional article created by an industrial process, reduced the term of monopolistic privileges granted to its creator. Thus, even if the protection was to the artistic design, its relation to the product cannot be divorced. A compromise The controversy surrounding the overlap between copyright and design protection and the issues within it stem from a basic confusion of the objectives behind both types of laws. Copyright law seeks to achieve the double objective of widest possible production and dissemination of original creative works and at the same time, allow others to draw on these works in their own creative and educational activities, through a scheme of carefully balanced property rights that still manages to give the authors and producers sufficient inducements to produce such work. The balance that copyright law seeks to achieve is based on a judgment about social benefit. To give greater property rights than are needed to obtain the desired quantity and quality of works would impose costs on users without any countervailing benefit to society. Concurrently, allowing one form of protection to expire, only for the article to claim protection under another regime would be a colourable devise to achieve the same object, a roundabout way to receive more protection that intended. It is for that reason that designs have to be clearly excluded from copyright law and the utilitarian theory seeks a middle ground between absolute ownership of intellectual property and none whatsoever. Over Protection or Under Protection? The duality of art hypothesis that ornamental designs were normally ineligible for copyright protection because their dependence on useful articles made them primarily objects of commerce and deprived them of the independent existence deemed a basic attribute of true works of art. The distinctive philosophy of protection that characterizes copyright traditionally protected only art, where the sole purpose of the art was its aesthetic value and was extended only gradually, and against considerable opposition, to ‘works of art applied to industry.’ The separation of ‘beauty’ from ‘utility’ was opposed on the ground that art remained art even when applied to useful objects. But the fundamental object of the design being economic aims, it only came into its own when the industrial revolution had made it possible to reproduce useful articles in series and which then assumed the eminently practical task of increasing sales of goods on the general prod ucts market. The industrial design is often seen as an analogue of the utility patent owing to its effects on commerce, and its legal status has been influenced to a certain degree by the characteristic principles of industrial property law. The very insistence on the seperability doctrine to afford protection to the design, reveals the importance of the utilitarian aspects in the paradigm of design law despite the repeated attempts to focus on the separable, aesthetic aspects of it. The consequence of this ‘functional’ aspect of industrial articles qualifying for industrial design protection is the limited term of protection afforded to it. No modern designer ignores the function of the article he shapes. Since the chief objective of those designs is industrial and commercial exploitation, the chief characteristic of designs and models, makes the Copyright Law hard to apply. The parallel tracks of design law and patent law cannot be avoided. The Copyright office of the U.S, until 1949, refused to give copyright protection to three dimensional shapes because it would come within the category of multiple commercial productions of applied arts, which, they held was only eligible for patent protection and resorting to the less stringent requirements of copyright went against that. The flexible treatment to improvements under patent law is not afforded to designs, and hence, the scope of innovation is restricted. Narrow scope of protection is necessary to avoid protecting style trends of which the protected design is a part. The indefinable relation between the art and its application means that copyright protection will end up removing much more than the expression, and also some forms of its application, which upsets the traditional bargain in intellectual property law. The Economic Ripple Traditionally, the right to copyright protection is premised on a claim that certain industrial designs are entitled to legal recognition as art in the historical sense. The economic repercussions of such recognition flow principally from the industrial character of the material support in which ornamental designs are embodied. The incidence of these repercussions upon any given system varies with the extent to which the claim to recognition as art is itself given effect. As copyright protection for designs of useful articles expands, the economic effects of this expansion on the general products market are counterproductive. This is just one of the effects. In general, overprotection results from the progressive monopolization of ever smaller aggregates of inventive activity, which elevate social costs in return for no clearly equilibrated social benefits. But the rescue of artistic of designs from the exigencies of patent law, were now converting copyright law into a de facto industrial property law without the characteristic safeguards of the industrial property paradigm. A significant effect of awarding copyright protection thus is the economic effect. An analogy from the law of patent proves this point. Patent doctrines such as the rule of blocking patents and the reverse doctrine of equivalents offer some protection to the developers of significant or radical improvements who can thereby allocate gains from their invention. Copyright doctrine however, extends to cover any â€Å"copy† or adaptation or alteration of the original that is nonetheless â€Å"substantially similar† to the original work. An important difference between copyright and registered designs is that the latter can be enforced against a third party who has not copied the proprietors design. The exclusive right conferred for designs was in the nature of a monopoly right, which means that it was infringed by another party who employed that design or one not substantially different from it, regardless of whether that other party copied from the owner or created his own registered design independently. The right is thus fundamentally different from unregistered design right and copyright for both of which copying is an essential ingredient for infringement. The fair use exception which arises when a person uses copyrighted expression in a way that the law deems to be fair is indeterminate, and this characteristic of design law makes it even more difficult to apply it. Dynamic societies need small improvements and massive breakthroughs in art and technology to prosper. Yet it is difficult to develop incentives that can spur the less dramatic type of creativity without imposing crippling costs. For instance, subtle innovations usually generate small benefits that are exceeded even by the mere cost of administering a property rule. In addition, the margin of error for protecting these improvements is slim because their life span is so short. Esthetic designs and other marginal improvements, by contrast, have an optimal term of only a matter of months and a mistake that gives an additional six months of protection to designs creates a much greater distortion in the incentives for developing commercial art which is not the case in copyright. Conclusion The availability of overlapping intellectual property protection in all of its forms presents a serious threat to the goals and purposes of federal intellectual property policy and must be addressed as a single issue. The 1842 act, instead of re defining designs to prevent overlap, the definition was left broad but was subject to an express exclusion of all designs covered by the other Acts thereby necessitating interpretation of two acts, set a pattern carried through to the present day. The true scope and effectiveness of design law will depend on the extent to which the scope of protection it affords which is undermined by the concurrent availability of copyright protection for industrial art. If a country makes it easy for industrial art to qualify for copyright protection as applied art, designers will have less incentive to make use of a special design law and design protection will increasingly be characterized by the copyright approach, the harmful effects of which have been proved. Design laws, therefore, have to be structured so that obtaining copyright protection is difficult and most designs fall within their jurisdictional sweep. The legal history of industrial art in the twentieth century is an effort to establish special regimes of design protection without unduly derogating from the general principles of copyright law and laws should be structured that way. One should not forget that this theory was spawned by a false conflict between art and industry. By fighting for the artistic value of a shape, one has supposedly justified drawing into the orbit of copyright law a body of intellectual products that bear only an apparent resemblance to the creations covered by this regime. The evidence is persuasive that the costs of a property right outweigh the benefits. That judgment is reinforced by the observation that, notwithstanding the lack of protection afforded to commercial art, consumers already have an incredibly diverse selection of product designs from which to choose. The difficulties of interpretation caused by exclusions to exclusions to exclusion seem to be endemic to industrial design law, and the problem of overlap therefore has to be treated differently. Bibliography Books: P. Goldstein, Copyright (2nd edn., Vol 1.New York: Aspen Law and Business 2002). S. P. Ladas, Patents, Trademarks and Related Rights: National and International Protection (Harvard: Harvard University Press 1975). Laddie, Prescott, Vitoria, The Modern Law of Copyrights and Designs (3rd ed., Vol. 2, London: Butterworths 2000). B. L. Wadhera, Law Relating to Patents, Trademarks, Copyright, Designs and Geographical Indications (New Delhi: Universal Publishing Co. Pvt. Ltd 2004) M. Howe, Q.C, Russell, Clarke and Howe on Industrial Designs (7th edn., London: Sweet and Maxwell 2005). Articles: V.R. Moffat, â€Å"Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Protection† 19 Berkeley Technology Law Journal 1473 (2004). The article deals in great detail about the problems of overlapping intellectual property right protection. Beginning with an analysis of the process involved in affording protection to any intellectual property, the article describes the bargain that is struck between the society and the inventor / creator, for the better good of all, since providing protection incentivizes and after a certain period of time, the invention / creation is required to be relegated to public use in return for the subsisting monopoly. The article then describes how the problem of overlapping protection, how it is more be accretion rather than by design, helped along by the judiciary, the insidious influence of ever increasing demands, and goes on to characterize the problem of overlap, and suggests ways to stop it. P.K Schalestock, â€Å"Forms of Redress for Design Piracy: How Victims can use existing Copyright Law† 21 Seattle University Law Review 113 (1997). The article looks at the various forms of protection available to the designers of clothes, since the current framework of copyright laws in the U.S, outlaws all forms of protection for useful articles. The design of clothes could only be protectable so far as that design was seperable from the functional aspect of clothes, which, as the author proceeds to argue is an impossible task since clothese were inherently meant to be useful but the cut, shape and colour greatly contributed to its value as well. The author, reviewing design piracy in the clothing industry, explains how the advancement of technology has made this all the more worse. He points out how the existing framework fails to provide a remedy, and then provides suggestions and remedies whereby this lacunae in the law could be remedied. M.C. Broaddus, â€Å"Designers Should Strive to Create ‘Useless’ Products: Using the Useful Article Doctrine to Avoid Separability Analysis† 51 South Texas Law Review 493 (2009). The article deals in detail with the irony of the inability of intellectual property law to afford protection to useful articles. It deals in detail with the evolution of the separability doctrine, its variants, and the judicial treatment of the same. It starts with a brief description of the history of the development of the law of industrial designs, the lacunae that existed previously due to the refusal of copyright law to recognize the applied art in industrial articles, and the need for protection of the art in those articles nevertheless. It discusses cases in which the separability has been in question and shows how, judicial discretion in having to make this distinction is actually leading to the judiciary making decisions about what constitutes art and what does not. Hence, the article suggests some differential means of analysis to avoid this confusion. A. Muhlstein, M.A. Wilkinson. â€Å"Whither Industrial Design† 14 Intellectual Property Journal 1 (2000). A seminal article on the development of the law of industrial designs, it provides a thorough overview of the genesis of the law, problems faced in its historical development and its current status. It situates the problem of overlap in the historical context and demonstrates linkages. The article does a comprehensive study of the current legal systems in place to protect industrial designs, identifies the elements within them and situates them in the larger paradigm of intellectual property law to understand the origin of the rights better. It also briefly survey the international framework in place to deal with industrial designs, the compromises sought to be reached and the harmonizing measures so far undertaken to afford protection to industrial designs. Dr. Ramesh, â€Å"Registration of Designs: Need a Fresh Look† 32(12) Indian Bar Review, 83 (2005). The article does a brief review of the need to protect industrial designs, about the intrinsic value of a useful good which also looks attractive and appealing and the economic benefits to be derived from it. It gives a historical perspective of the development of design law and the requirements of the law as it currently stands. It gives a short description of the application procedure, and then, by drawing a linkage between the objective of the law and the rights given it reviews the remedies for infringement and analyses whether they are adequate or not. It also points out some flaws in the existing design protection framework in India and makes a very good argument for such flaws to be corrected. S.H.S. Leong, â€Å"Protection of Industrial Designs as Intellectual Property Rights† Journal of Business Law 239,243 (2003). The article essentially deals with the development of the law of industrial designs in Singapore, and it does this by comparison with the English Law. It gives a short description of the transitory changes from the 1842 Act to the 1911 Act, then from the 1956 Act to the 1976 Act in Copyright, and demonstrates how needs of the particular time resulted in the changes embodied in these different laws. It also talks about the necessity of laws like the Unregistered Designs Act, Community Designs Act etc, as available in Europe, so that designs which are not judged to be ‘aesthetically appealing’ but which nevertheless contribute to the value of the product, are protected. It discusses the possibility of shapes being protected under trademark law and patent law, and concludes that a separate law to deal with designs is very necessary. E. Setliff, â€Å"Copyright and Industrial Design: An â€Å"Alternative Designs Alternative† 30 Columbia Journal of Law and the Arts 49 (2006). The article, by a brief review of the historical development, points out how crucial the separability doctrine has become, due to the traditional reluctance of Court to recignise applied art as having artistic value. The article argues vehemently at such an assumption. It argues that industrial design actually embodies aesthetic expression to a much greater extent than function. Although its primary purpose might have been to make the products of industry more commercially successful by changing, and even disguising, their aesthetic appearance, its artistic value cannot be denigrated from. It critics some of the literature thus far which celebrates the lower quality of the work in designs, and explains why the separability of the design has become problematic specially because it depends on the court’s subjective notion of what constitutes â€Å"art† who go by traditional choices and the author demonstrates the dangers of this approach. G. Scanlan, S. Gale, â€Å"Industrial Design and the Design Directive: Continuing and Future Problems in Design† Journal of Business Law 91 (2005). This article examines the impact of the overhaul of EC industrial design law on English intellectual property law. It starts out by considering the policy behind the Council Directive. It traces all laws relating to protection of industrial designs in the European context and reviews as to how the directive changes it. It reviews changes to the definition of design, the requirements for novelty and individual character, the relationship between copyright, registered and unregistered designs, the differing treatment of works of artistic craftsmanship and artistic works per se, the treatment of applied designs and the abolition of the compulsory licence regime. On the whole, although the directive, in achieving its stated purpose of harmonizing laws, was forced to be selective in its changes, it nevertheless has a much desired effect. J.H. Reichman, â€Å"Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976† Duke Law Journal 1143 (1983). This article attempts to study the complex interactions of the different branches of intellectual property law that seek to regulate the degree of protection to be accorded ornamental designs of useful articles. A circular pattern, the article argues, can be discerned in the treatment of these designs in both foreign and domestic law. The tendency of industrial property law to breed still further instances of underprotection or overprotection then fosters renewed pressures for the regulation of industrial art within the framework of the laws governing literary and artistic property. It uses an extremely detailed analysis of the law in the U.S.A to explain the disjunct. The article also compares the tradition of protection of industrial designs in France, German, the Beneleux countries, and provides a thorough overview of the variety of doctrines that have had a role to play in the current state of law relating to designs. It also, looks at policy objectives, the commercial features of the current legal status, some amendments proposed and the effect of those amendments as well. Umbreit, â€Å"A Consideration of Copyright† 87 University of Pennsylvania Law Review 932 (1939) A foundational work on the development of copyright law, the article gives a very detailed analysis of the components of the protection afforded by copyright, and what works would necessarily qualify for the protection. It focuses extensively on the idea / expression dichotomy in the law of copyright and demonstrates how this demarcates the boundary of copyright protection. The elements of copyright, as described in this article, is highly demanding of the qualities of originality and creativity, and it traces the link from the policy objectives of affording any kind of protection to such artistic work at all, to the categories of creative work considered generally to be within its scope. C. Thompson, â€Å"Not such a Crafty Corkscrew? Sheldon v. Metrokane and the Status of ‘Industrial Designs’ as Works of Artistic Craftsmanship Under Australian law† 26(12) European Intellectual Property Rights Review 548 (2004). A case comment on Sheldon v Metrokane, the article gives a definitive analysis of the exact link between the utilitarian aspects and the design aspects of an article. While the protection is sought to be afforded to the design aspects alone, how this conceptual separability was treated in Sheldon was reviewed. The article also cited some interpretations of the case, which, it viewed as misplaces and suggested a differing analysis of the opinion. S.W. Ackerman, â€Å"Protection of the Design of Useful Articles: Current Inadequacies and Proposes Solutions† 11 Hofstra Lew Review 1043 (1983). It illuminates the policies underlying copyright law, and argues that protection should be extended to the design of useful articles. It contrasts the extent of protection provided by the copyright system with that of the patent system and by a comparison of the amount of effort required on the part of the inventor / author to trigger the protection, conludes that such protection is hardly sufficient. The design of useful articles seems to fall in between these systems, and hence is left largely unprotected.It surveys case law, the danger of judicial discretion and suggests a hybrid theory of patent and copyright to protect designs sufficiently and justifiably which encourage the creation of designs by providing rights to protect against commercial exploitation but not extending those rights to the utilitarian features of the protected article. J.C. Kromer, â€Å"Claiming Intellectual Property† 76 University of Chicago Law Review 719 (2009). The article explores the claiming systems of patent and copyright law with a view to how they affect innovation. The object of this article is to trace the law relating to improvements, in juxtaposition with the stated objective of law of intellectual property rights to achieve the maximum social good. The article approaches the subject from the inventor’s perspective and examines whether the current system of protection of improvements in speech is fair. While patent requires patentees to articulate by the time of the patent grant their invention’s bounds, thus effectively allowing all improvements not within such bounds, copyright law only requires the articulation of a prototypical member of the set of protected works. The law relating to improvements in designs also, follows a similar pattern. All substantially similar works, therefore, could be held as infringement. Copyright therefore, allows far less improvement and deviation from the protected product as allowable than patent, where, anything outside the specified bounds was allowable. J.P. Mikkus, â€Å"Of Industrious Authors and Artful Inventors: Industrial Works and Software at the Frontier of Copyright and Patent Law† 18 Intellectual Property Journal 174 (2004). The article first examines the protection granted by copyright law for functional works typically found in an industrial environment. The article then explores the challenges of copyright protection for the non literal aspects of computer software and problems faced by inventors and software developers when obtaining patent protection in relation to software. The article criticizes current status of law relating to copyright and patents, in that creative work related to industrial purposes does not get adequate protection in either of the regimes since they show limited openness to intangible products of industry. The critique thus, necessarily involves analysis of the level of originality that an invention / work is required to possess to qualify for protection and exposes anomalies in that regard. W. M. Landes, R. A. Posner, â€Å"Indefinitely Renewable Copyright† 70 University of Chicago Law Review 471 (2003). The article examines the economic rationale of limiting copyright and patents. While the nature of patents is such that the expiration of the rights is a necessary evil to increase the social good, copyright, the article argues, should be afforded for an even longer period of time in the absence of any strong reason not to. In this context the article makes a difference between perpetual copyright and indefinitely renewable copyright. Although the latter concept could turn into the former under very specialized conditions, the article argues that the resulting benefit accruing to the author / artist is much greater than societal loss, and attempts to prove this hypothesis by some statistical evaluations. It points out that works in the ‘public domain’ do not always get negatively affected when copyright protection is expanded, since the greater incentive would spur further creativity. T. Scassa, â€Å"Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition† 1 University of Ottawa Technology Law Journal 51 (2004). This article deals with the problem of protection afforded to utilitarian, creative works from a competition perspective. It examines the concept of â€Å"originality† in light of the shifting purposes of copyright law and of the historical relationship of utilitarian works to copyright law. It emphasizes on the overwhelming role that then judiciary in Canada has played in allowing copyright protection for utilitarian works, and this has resulted in a constant swing in the status of the law. It argues that, protecting utilitarian works by copyright has reusled in a loweing of the originality creativity threshold in copyright, which in turn has changed the character of copyright law in some instances and hence creates competition distortions. The problem the article argues, lies in the tension between copyright and unfair competition, primarily in relation to utilitarian works and this results in counterproductive pressures. P. Borderland, â€Å"Where Copyright and Design Patent Meet† 52 Michigan Law Review 33, 43 (1953). This article deals with the fundamental conflict that the protection of industrial artistic design embodies in the paradigm of the law of intellectual property rights. It points out that copyright and patent are basically supposed to protect very different things.The concept of industrial designs, thus, creates an overlap leading to a borderland issue between copyright and patent areas. The paper explores the issues within this boundary confusion, giving attention to the policy considerations involved and attempts to give suggestions towards drawing a sharper boundary between the two. The article theorises that in such a hypothesis, designs would fall more into the realm of patent than copyright, although having unmistakable copyright features. J.H. Reichman, â€Å"Legal Hybrids between the Copyright and Patent Paradigms† 94 Columbia Law Review 2432 (1994) A detailed and comprehensive review of the development of law of intellectual property, the article describes the bargain that is truck in both patent and copyright paradigms and the delicate balancing of interests sought to be achieved. It uses the Paris and Berne Conventions as a starting point, and, working backwards from there demarcates the area of copyright and patent laws. The most prevalent of the hybrids between the two is the existence of commercial designs, and by a thorough analysis of the objectives of law of intellectual property rights, the rights that can be afforded to be protected, concludes that design protection does not fall seamlessly into the copyright paradigm. In this context, it also talks about the law relating to improvements, the necessity of the law, problems facing it and possible solutions. P.J. Saidman, â€Å"The Crisis in the Law of Designs† 89 Journal of the Patent and Trademark Office Society 301 (2007). The article does a very thorough analysis of the functionality doctrine which has led to so much confusion. Firstly, it attempts to dispel some misconceptions, such as the allegation that artistry must necessarily be useless to qualify for copyright protection. Commenting on the lacunae in the current structure of design laws, the article states that the judicial trends in determining whether or not the functionality and separability test are fulfilled has resulted in the meager forms of protection available to industrial designs weaker than ever. The article suggests that the judicial principle currently in existence in the U.S are flawed, operating upon a narrow understanding of copyright law, and by a comparison with the European system, advocates that the system be employed in the U.S as well. M.A. Lemley â€Å"The Economics of Improvement in Intellectual Property Law† 79 Texas Law Review 989 (1997). This article deals with the crisis in intellectual property law of attempting to protect improvements while discouraging imitation. The law must distinguish between improvement, a necessary part of innovation, and generally to be encouraged, and imitation, which is generally considered both illegal and even immoral. This distinction, the article points out, is not easy to make, but it is critical to achieving the proper balance of intellectual property rights. Allowing too much imitation will stifle the incentives for development and commercialization of new products. Discouraging improvements on the other hand will freeze development at the first generation of products. The article carries out a thorough economic analysis of the issues involved, and proposes alternative models to make the boundary between imitation and improvement clearer and leave less to the discretion of the courts. N. Snow, â€Å"Proving Fair Use as a Burden of Speech† 31 Cardozo Law Review 1781 (2010). The article deals with the fair use exception in copyright law. It traces the origin of the exception in copyright law, and explains the problems that the flexible doctrine is fraught with. Through a detailed analysis of case law, the article points out the extent of judicial discretion that the doctrine allows. The article evaluates the fair use exception in the context of free speech, and argues that the current judicial trend of requiring defendants to prove that they had used material which were not protected in their expres sion is chilling free speech. G.N. Magliocca, â€Å"Ornamental Design and Incremental Innovation† 86 Marquette Law Review 845 (2003). This article makes an interesting study of the origin and development of design protection law, it analyses the reasons for its slow advancement, the initial reluctance, the controversies and borderline issues that has surrounded the law. Commercial artistry, thus, was more of a problem than it was worth, leading to its neglect for nearly 200 years. The article provides an overview of the political scenario which also created difficulties, deeming designs to be part of the public domain. This Article concludes that there are sound public policy reasons against extending a property right to most commercial art and explores other ways to promote design innovation and since commercial designs occupy a unique position in the law sitting at the confluence of patent, copyright, and trademark doctrine, the article suggests that an ideal solution would require a revamping of the entire existing structure going towards a unified picture of intellectual property law. It also concludes that the economic costs with giving more protection to designs far outweighed the benefits. Table of Cases English Cases Dastar Corp. v. Twentieth Century Fox Film Corp The plaintiff sought trademark protection for its World War II video series that had been, but was no longer, protected by a copyright. The Court denied the trademark claim, in part because allowing trademark protection in this case would conflict with copyright law, creating a species of perpetual copyright. The Court termed this perpetual protection a â€Å"mutant† copyright and held that to permit trademark protection following the expiration of a copyright would infringe upon the publics â€Å"right to copy† an expired copyright. The Court made an analysis of the bargain that is involved in the protection of any intellectual property right and held that allowing such mutation from one form of intellectual property protection to another would completely defeat the very purpose of the bargain and become counterproductive. Millar v. Taylor 98 Eng, Rep. 201, 4 Burr. 2303 (K.B. 1769). This was one of the first judgments concerning copyright in the history of English law. It concerned infringement of the copyright on James Thomson’s poem, â€Å"The Seasons† by Robert Taylor, and the booksellers won a favorable judgment. The judgment is significant for its recognition of property rights in a literary work for the first time. Sheldon and Hammond Pty Ltd v. Metrokane Inc [2004] F.C.A. 19. After the expiry of Le Creuset’s patent for a lever-action corkscrew, Metrokane engaged a designer to design a new corkscrew with the mechanics of le creuset but with greater aesthetic appeal, and beauty resulting in the rabbit corkscrew. The case involved a challenge of copyright infringement of Metrokane’s modified model,which they alleges was artistic craftsmanship for which drawings existed. The case is significant for its ruling that, even though some beauty was added to the corkscrew by fashioning a new encasement, the primary purpose remained commercial and hence protection could not be obtained. Only the encasement was attractive, and although conceptually separable, the good relied on the mechanism which was in the public domain. Copyright protection to the entire corkscrew, was therefore, denied, since the encasement alone did not qualify for protection due to the design copyright overlap. Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2d Cir. 1980). A jewelry designer obtained copyright registrations for a line of decorative belt buckles inspired by artistic works. The designs became successful and were eventually copied by another company.The designer sued for copyright infringement and the company countered with the argument that the belt buckles were not appropriate copyrightable subject matter because they were useful articles. The Court used the separability doctrine to award in favour of the plaintiff. It came up with the novel concept of focusing its analysis on the â€Å"primary† and â€Å"subsidiary† portions of the useful articles and held that since they were conceptually separable, in that the primary ornamental aspect of the buckles is conceptually separable from their subsidiary utilitarian function, it was entitled to protection. PHG Technologies, LLC, v. St. John Companies 459 F.Supp.2d 640 (2006). At issue in this case were design patents claiming an ornamental design for a label pattern for a medical label sheet. The Court replaced its own prior test for functionality with a new one which requires a court to assess the utility of the proffered alternative designs and determine whether the chosen design best achieves the functional aspects of the article. If it does, then presumably the design choice was made for functional reasons, and any resulting design patent is invalid. In other words, the designer is penalized in the event that their best design choice also happens to lend itself to even marginally increased utility over the design alternatives. The final verdict went againt the plaintiffs in this analysis. Indian cases Samsonite Corporation v. Vijay Sales 73 (1998) DLT 732. The case concerned the alleged infringement of the plaintiff’s design rights in suitcases. The plaintiff alleged that one series of suitcases had been specially designed and surface embellishment chosen for the System 4 Range. The plaintiff’s claimed copyright in the drawings and said that the defendant, stocking a similar type of suitcase from VIP, had infringed upon the copyright and had indulged in the tort of passing off. The court however, first ruled that if any intellectual property subsisted in the cases, it was in the nature of a design right, taking note of S. 15 of the Copyright Act. Secondly, the Court held, enough identifying factors had been used with the series for a normal public acquainted with two famous brands to be impressed by the difference, and hence passing off could not also be claimed. Microfirms Inc. v. Girdhar and and Co and Ors 128 (2006) DLT 238 The plaintiff in this case claimed copyright infringement in respect of designs on the upholstery manufactured and marketed by the plaintiff. An allegation of copying and of passing off was also made. The court rules that, a requirement of registration under the deigns act did not preclude the protection of copyright. If design law was not applicable, civil remedies through copyright would still be available normally. But in this case, since the design’s attractiveness derives from the article in which it is embodied, copyright protection could not be afforded, and S 15 of the Copyright Act expressly delegated designs capable of registration to the area of the design act. Hence, the claims could not stand, since no copyright subsisted. AGA Medical Corporation v. Mr. Faisal Kapadi and Anr 103 (2003) DLT 321. The plaintiff in this case was a pioneer in trans cathartic technologies. Several drawings made for the manufacture of some cathartic devices were registered under copyright in the U.S. The defendant here was alleged to have attempted passing off, and releasing brochures depicting the exact same product using the exact same shape. The Court ruled against the plaintiffs, finding that even if copyright did subsist in the drawings, the minute they were converted into three dimensional products they lost that right by virtue of S. 15 of the copyright Act. The difference between two dimensional and three dimensional reproduction was elaborated on, and the Court gave a very definitive analysis of S. 15(2) and rules that the plaintiff did not have copyright in the drawings, and since the three dimensional objects could not be said to completely copy the plaintiff’s production, no right was infringed. [ 2 ]. P. Goldstein, Copyright 1:35 (2nd edn., Vol 1.New York: Aspen Law and Business 2002). [ 3 ]. Ibid at 1:44. [ 4 ]. V.R. Moffat, â€Å"Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Protection† 19 Berkeley Technology Law Journal 1473, 1474 (2004). [ 5 ]. Millar v. Taylor 98 Eng, Rep. 201, 4 Burr. 2303 (K.B. 1769). [ 6 ]. Supra note 1 at 1:10. [ 7 ]. P.K. Schalestock, â€Å"Forms of Redress for Design Piracy: How Victims can Use Existing Copyright Law† 21 Seattle University Law Review 113, 117 (1997). [ 8 ]. M.C. Broaddus, â€Å"Designers Should Strive to Create ‘Useless’ Products: Using the Useful Article Doctrine to Avoid Separability Analysis† 51 South Texas Law Review 493, 494 (2009). [ 9 ]. S. P. Ladas, Patents, Trademarks and Related Rights: National and International Protection 828 35 (Harvard: Harvard University Press 1975). [ 10 ]. A. Muhlstein, M.A. Wilkinson. â€Å"Whither Industrial Design† 14 Intellectual Property Journal 1, 10 (2000). [ 11 ]. Ibid at 11. [ 12 ]. 35 U.S.C.  § 171 (1976). [ 13 ]. First copyright act passed in 1709, and in 1787, the first designs act which was passed aimed to give very little copyright protection to those engaged in the arts of designing clothes and those who designed or procured new and original designs for these types of goods obtained the sole right of reprinting them for two months. The protection of designs was considered to be a part of copyright. [ 14 ]. Dr. Ramesh, â€Å"Registration of Designs: Need a Fresh Look† 32(12) Indian Bar Review, 83, 85 (2005). [ 15 ]. The designs covered during the historical development of the law of designs were of three types: Pattern or print to be worked on or worked into a tissue or textile fabric, modeling, casting, embossment, chasing, engraving or any other kind of impression or ornament, shape or configuration of any article of manufacture. Design law therefore, sought to protect both shapes and surface decoration. [ 16 ]. E. Setliff, â€Å"Copyright and Industrial Design: An  "Alternative Designs Alternative† 30 Columbia Journal of Law and the Arts 49, 61 (2006). [ 17 ]. S.W. Ackerman, â€Å"Protection of the Design of Useful Articles: Current Inadequacies and Proposes Solutions† 11 Hofstra Lew Review 1043, 1061 (1983). [ 18 ]. S.H.S. Leong, â€Å"Protection of Industrial Designs as Intellectual Property Rights† Journal of Business Law 239,243 (2003). [ 19 ]. Supra note 16 at 1053. [ 20 ]. Supra note 9 at 18 [ 21 ]. Supra note 15 at 52. [ 22 ]. There were many who had vested interests in the system which would afford some protection for industrial designs against copyists. The result was that when the Copyright, Designs and Patents Act was passed in 1988, an attempt was made to draw a boundary between copyright and registered designs and to exclude functional designs from copyright protection, but also a new type of monopoly, design right was created. It covers functional designs and was reminiscent of the design protection for articles having some purpose of utility. [ 23 ]. Laddie, Prescott, Vitoria, The Modern Law of Copyrights and Designs 1891 (3rd ed., Vol. 2, London: Butterworths 2000). [ 24 ]. Mazer v. Stein, 347 U.S. 201 (1954) [ 25 ]. Supra note 6 at 117. [ 26 ]. G. Scanlan, S. Gale, â€Å"Industrial Design and the Design Directive: Continuing and Future Problems in Design† Journal of Business Law 91,97 (2005). [ 27 ]. J.H. Reichman, â€Å"Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976† Duke Law Journal 1143, 1181 (1983) [ 28 ]. K.B. Umbreit, â€Å"A Consideration of Copyright† 87 University of Pennsylvania Law Review 932, 933 (1939); [ 29 ]. Supra note 26 at 1177. [ 30 ]. PHG Technologies, LLC, v. St. John Companies 459 F.Supp.2d 640 (2006). [ 31 ]. 21 Fed. Reg. 6024 (1956) repealed, 43 Fed. Reg. 966 (1978), 37 C.F.R. 966 (1978) [ 32 ]. C. Thompson, â€Å"Not such a Crafty Corkscrew? Sheldon v. Metrokane and the Status of ‘Industrial Designs’ as Works of Artistic Craftsmanship Under Australian law† 26(12) European Intellectual Property Rights Review 548, 554 (2004). [ 33 ]. Sheldon and Hammond Pty Ltd v. Metrokane Inc [2004] F.C.A. 19. [ 34 ]. Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2d Cir. 1980). [ 35 ]. Supra note 25 at 94. [ 36 ]. S 22(1) provided that when a design was registered, it would not be an infringement of the corresponding copyright to do anything which was an infringement of the design registration, or, after it expired, would have been if it had not expired. [ 37 ]. B. L. Wadhera, Law Relating to Patents, Trademarks, Copyright, Designs and Geographical Indications 491 (New Delhi: Universal Publishing Co. Pvt. Ltd 2004). [ 38 ]. Supra note 22 at 1910. [ 39 ]. M. Howe, Q.C, Russell, Clarke and Howe on Industrial Designs 238 (7th edn., London: Sweet and Maxwell 2005). AGA Medical Corporation v. Mr. Faisal Kapadi and Anr 103 (2003) DLT 321. [ 40 ]. Supra note 16 at 1044: Microfirms Inc. v. Girdhar and and Co and Ors 128 (2006) DLT238 [ 41 ]. Supra note 38 at 259. [ 42 ]. J.C. Kromer, â€Å"Claiming Intellectual Property† 76 University of Chicago Law Review 719, 731 (2009). [ 43 ]. J.P. Mikkus, â€Å"Of Industrious Authors and Artful Inventors: Industrial Works and Software at the Frontier of Copyright and Patent Law† 18 Intellectual Property Journal 174, 194 (2004). [ 44 ]. Copyright law presupposes that, absent subsidies, creators will invest time and resources only if assured of property rights that will enable them to control and profit from it, but it also recognizes that creative efforts necessarily build on the creative efforts which precede them, and hence must be allowed to draw on copyrighted works for inspiration and education. [ 45 ]. Supra note 1 at 1:40. [ 46 ]. Dastar Corp. v. Twentieth Century Fox Film Corp 539 U.S. 23 (2003). [ 47 ]. W. M. Landes, R. A. Posner, â€Å"Indefinitely Renewable Copyright† 70 University of Chicago Law Review 471, 475-76 (2003). [ 48 ]. T. Scassa, â€Å"Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition† 1 University of Ottawa Technology Law Journal 51, 60 (2004). [ 49 ]. Supra note 8 at 37. [ 50 ]. Supra note 27 at 935. [ 51 ]. Supra note 26 at 1178 [ 52 ]. Supra note 7 at 493. [ 53 ]. P. Borderland, â€Å"Where Copyright and Design Patent Meet† 52 Michigan Law Review 33, 43 (1953). [ 54 ]. J.H. Reichman, â€Å"Legal Hybrids between the Copyright and Patent Paradigms† 94 Columbia Law Review 2432, 2463 (1994): Samsonite Corporation v. Vijay Sales 73 (1998) DLT 732. [ 55 ]. Supra note 26 at 1143. [ 56 ]. Supra note 53 at 2504. [ 57 ]. Supra note 26 at 1160. [ 58 ]. Supra note 42 at 193. [ 59 ]. M.A. Lemley â€Å"The Economics of Improvement in Intellectual Property Law† 79 Texas Law Review 989,996 (1997). [ 60 ]. P.J. Saidman, â€Å"The Crisis in the Law of Designs† 89 Journal of the Patent and Trademark Office Society 301, 310 (2007). [ 61 ]. Supra note 38 at 73. [ 62 ]. N. Snow, â€Å"Proving Fair Use as a Burden of Speech† 31 Cardozo Law Review 1781, 1786 (2010). [ 63 ]. G.N. Magliocca, â€Å"Ornamental Design and Incremental Innovation† 86 Marquette Law Review 845, 848 (2003). [ 64 ]. Supra note 3 at 1476. [ 65 ]. Supra note 15 at 53. [ 66 ]. Supra note 59 at 313. [ 67 ]. Supra note 26 at 1160. [ 68 ]. Supra note 62 at 847. [ 69 ]. Supra note 38 at 270.