IP in More Detail - Academic Discussion

Introduction2018-12-12T14:02:50+00:00

Introduction

This note is intended to provide an introduction for non-specialists or new-comers to the subject of intellectual property, and the associated rights. It explains in layman’s terms the fundamentals underpinning intellectual property law and practice. It describes the different types of rights which protect the various types of intellectual property, as well as the limitations on those rights. Finally it briefly covers the transfer of intellectual property rights and provisions for enforcement.

Detailed legal or administrative guidance on how, for example, to deal with infringement of copyright, is not covered in this note, but can be obtained from ip4all. The further information section at the end of this note also lists some useful websites and publications for readers requiring more detail.

Intellectual Property

The term intellectual property (IP) refers to creations of the human mind. Intellectual property rights (IPRs) protect the interests of creators by giving them property rights over their creations.

The Convention Establishing the World Intellectual Property Organization (1967) gives the following list of subject matter protected by IPRs:

  • literary, artistic and scientific works;
  • performances of performing artists, phonograms, and broadcasts;
  • inventions in all fields of human endeavour;
  • scientific discoveries;
  • industrial designs;
  • trade marks, service marks, and commercial names and designations;
  • protection against unfair competition; and
  • all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

IP relates to items of information or knowledge, which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information or knowledge reflected in them. Intellectual property rights are also characterized by certain limitations, such as limited duration in the case of copyright and patents.

The importance of protecting intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property in 1883 and the Berne Convention for the Protection of Literary and Artistic Works in 1886. Both treaties are administered by the World Intellectual Property Organization (WIPO).

Countries generally have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and to the rights of the public in accessing those creations. The second is to promote creativity, and the dissemination and application of its results, and to encourage fair trade, which would contribute to economic and social development.

The Two Branches of Intellectual Property:

Industrial Property and Copyright

Intellectual property is usually divided into two branches, namely industrial property, which broadly speaking protects inventions, and copyright, which protects literary and artistic works.

  • Industrial Property takes a range of forms. These include patents to protect inventions, and industrial designs, which are aesthetic creations determining the appearance of industrial products. Industrial property also covers trade marks, service marks, layout-designs of integrated circuits, commercial names and designations, as well as geographical indications, and protection against unfair competition.
  • Copyright relates to artistic creations, such as books, music, paintings and sculptures, films and technology-based works such as computer programs and electronic databases. In most European languages other than English, copyright is known as author’s rights. The expression copyright refers to the main act which, in respect of literary and artistic creations, may be made only by the author or with his authorisation. That act is the making of copies of the work. The expression author’s rights refers to the creator of the artistic work, its author. It thus underlines the fact, recognised in most laws, that the author has certain specific rights in his creation which only he can exercise (such as the right to prevent a distorted reproduction). Other rights (such as the right to make copies) can be exercised by other persons, for example, a publisher who has obtained a license from the author.

While other types of intellectual property also exist, it is helpful for present purposes to explore the distinction between industrial property and copyright in terms of the basic difference between inventions, and literary and artistic works.

Inventions may be defined in a non-legal sense, as new solutions to technical problems. These new solutions are ideas, and are protected as such; protection of inventions under patent law does not require that the invention be represented in a physical embodiment. The protection accorded to inventors is, therefore, protection against any use of the invention without the authorisation of the owner. Even a person, who later makes the same invention independently, without copying or even being aware of the first inventor’s work, must obtain authorization before he can exploit it.

Unlike protection of inventions, copyright law protects only the form of expression of ideas, not the ideas themselves. The creativity protected by copyright law is creativity in the choice and arrangement of words, musical notes, colours and shapes. So copyright law protects the owner of property rights against those who copy or otherwise take and use the form in which the original work was expressed by the author.

From this basic difference between inventions and literary and artistic works, it follows that the legal protection provided to each also differs. Since protection for inventions gives a monopoly right to exploit an idea, such protection is short in duration- usually about 20 years. The fact that the invention is protected must also be made known to the public. There must be an official notification that a specific, fully described invention is the property of a specific owner for a fixed number of years, in other words, the protected invention must be disclosed publicly in an official register.

Since the legal protection of literary and artistic works under copyright, by contrast, prevents only unauthorised use of the expressions of ideas, the duration of protection can be much longer than in the case of the protection of ideas themselves, without damage to the public interest. Also, the law can be – and in most countries is – simply declaratory, i.e., the law may state that the author of an original work has the right to prevent other persons from copying or otherwise using his work. So a created work is considered protected as soon as it exists, and a public register of copyright protected works is not necessary.

Copyright © WIPO