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Introduction Intellectual Property is an idea or innovation that is created or discovered. This includes things that you write, design, invent, software, trade secrets, sing, speak, draw, learn, etc… Intellectual property can be created by you or you can pay someone to create it for you. Intellectual property is protected by trade secrets, patents, trademarks and copyright laws. Each of these laws covers a specific type of intellectual property.
History of Intellectual Property Law Intellectual property law dates at least as far back as medieval Europe. In those mimes, “guilds,” or associations of artisans in a particular industry, were granted authority by the governments to control the regulation and conduct of the various industries. These guilds exercised control over what items could be imported, marketed and produced and the manner in which new inventions, devices and procedures could be introduced to the stream of commerce.
Because the authorities for these guilds were given by the governments, and because they concentrated the power to regulate an industry in a select few, and were not earned by innovation, skill r creativity, these guilds did far more to stifle creativity and invention than to encourage it. Intellectual property law at that time was driven not by an interest in creation and innovation, but rather by political and religious motivations. For example, the 1556 establishment of the Stationers’ Company’s monopoly in England was largely intended to help limit the Protestant Reformation movement’s power.
By putting the entire printing industry in the control of this company, the government and church could prevent the dissemination of ideas. See Copyright for the Nineties, German and Ginsburg, 1, the Machine Company (1993). See also Intellectual Property: The Law of Copyrights, Patents and Trademarks, Stretcher and Thomas, 13, West Group (2003) (stating the monopoly was granted in 1557). Example: Jorge is a merchant who believes that the tax on the wool he sells is unfair.
After speaking with his wife, he decides to let the people know that the King is driving up the cost of the wool they buy. Jorge spends several months writing a lengthy manifesto, in which he discusses the natural right of man to shear sheep, and the inherent liberty to sell the sheared sheep stuff (I. . , wool) to others. Unfortunately, he is unable to find a printer willing to print the manifesto, as the King controls the printing press industry. Hence, few people today have ever heard of this brave man lost to history.
Intellectual Property under the WTFO The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most International Business Law By Abraham-AY-Amen *The three main features of the Agreement are: 1- Standards: In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be revived by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection.
The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPE, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions, must be complied with. With the exception of the provisions of the Berne Convention on moral rights, all the main substantive provisions of these conventions are incorporated by reference and thus become obligations under the TRIPS Agreement between TRIPS Member countries.
The relevant provisions are to be found in Articles 2. 1 and 9. 1 of the TRIPS Agreement, which relate, respectively, to the Paris Convention and to the Berne Convention. Secondly, the TRIPS Agreement adds a substantial number of additional obligations on matters where the pre-existing conventions are silent or were seen as being inadequate. The TRIPS Agreement is thus sometimes referred to as a Berne and Paris-plus agreement. 2- Enforcement: The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights.
The Agreement lays down certain general principles applicable to all PR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and middies that must be available so that right holders can effectively enforce their rights. 3-Dispute settlement: The Agreement makes disputes between WTFO Members about the respect of the TRIP obligations subject to the Wet’s dispute settlement procedures.
The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice. Certain general provisions: As in the main pre-existing intellectual property conventions, the basic obligation on intellectual property provided for under the Agreement to the persons of other Members. Article 1. Defines who these persons are. These persons are referred to as “nationals” but include persons, natural or legal, who have a close attachment to other Members without necessarily being nationals. The criteria for determining which persons must thus benefit from the treatment provided for under the Agreement are those laid down for this purpose in the main pre-existing intellectual reporter conventions of WIPE, applied of course with respect to all WTFO Members whether or not they are party to those conventions.
These conventions are the Paris Convention, the Berne Convention, International Convention for the Protection of Performers, Producers of Phonograph and Broadcasting Organizations (Rome Convention), and the Treaty on Intellectual Property in Respect of Integrated Circuits (EPIC Treaty). Articles 3, 4 and 5 include the fundamental rules on national and most- favored-nation treatment of foreign nationals, which are common to all categories of intellectual property covered by the Agreement.
These obligations cover not only the substantive standards of protection but also matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in the Agreement. While the national treatment clause forbids discrimination between a Member’s own nationals and the nationals of other Members, the most-favored-nation treatment clause forbids discrimination between he nationals of other Members.
In respect of the national treatment obligation, the exceptions allowed under the pre-existing intellectual property conventions of WIPE are also allowed under TRIPS. Where these exceptions allow material reciprocity, a consequential exception to MFC treatment is also permitted (e. G. Comparison of terms for copyright protection in excess of the minimum term required by the TRIPS Agreement as provided under Article 7(8) of the Berne Convention as incorporated into the TRIPS Agreement). Certain other limited exceptions to the MFC obligation are also provided for.
The general goals of the TRIPS Agreement are contained in the Preamble of the Agreement, which reproduces the basic Uruguay Round negotiating objectives established in the TRIPS area by the 1986 Punt del Est. Declaration and the 1988/89 Mid-Term Review. These objectives include the reduction of distortions and impediments to international trade, promotion of effective and adequate protection of intellectual property rights, and ensuring that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.
These objectives should be read in conjunction with Article 7, entitled “Objectives”, according to which the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Article 8, entitled “Principles”, recognizes the rights of Members to adopt measures for public health and other public interest reasons and to prevent the abuse of intellectual property rights, provided that such measures are consistent with the provisions of the TRIPS Agreement. Copyright: During the Uruguay Round negotiations, it was recognized that the Berne Convention already, for the most part, provided adequate basic standards of copyright protection.
Thus it was agreed that the point of departure should be the existing level of protection under the latest Act, the Paris Act of 1971, of that Convention. The point of departure is expressed in Article 9. 1 under which Members are obliged to comply with the substantive provisions of the Paris Act of 1971 of the Berne Convention, I. E. Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members do not have rights or obligations under the TRIPS Agreement in respect of the rights conferred under Article ibis of that Convention, I. E. He moral rights (the right to claim authorship and to object to any derogatory action in relation to a work, which would be prejudicial to the author’s honor or reputation), or of the rights derived therefore. The provisions of the Berne Convention referred to deal with questions such as subject-matter to be protected, minimum term of protection, and rights to be conferred and permissible limitations to those rights. The Appendix allows developing countries, under certain conditions, to make some limitations to the right of translation and the right of reproduction.
In addition to requiring compliance with the basic standards of the Berne Convention, the TRIPS Agreement clarifies and adds certain specific points Related rights The provisions on protection of performers, producers of phonograph and broadcasting organizations are included in Article 14. According to Article 14. 1, reformers shall have the possibility of preventing the unauthorized fixation of their performance on a phonograph (e. G. The recording of a live musical performance).
The fixation right covers only aural, not audiovisual fixations. Performers must also be in position to prevent the reproduction of such fixations. They shall also have the possibility of preventing the unauthorized broadcasting by wireless means and the communication to the public of their live performance. In accordance with Article 14. 2, Members have to grant producers of phonograph an exclusive reproduction eight. In addition to this, they have to grant, in accordance with Article 14. , an exclusive rental right at least to producers of phonograph. The provisions on rental rights apply also to any other right holders in phonograph as determined in national law. This right has the same scope as the rental right in respect of computer programs. Therefore it is not subject to the impairment test as in respect of cinematographic works. However, it is limited by a so-called grand-fathering clause, according to which a Member, which on 15 April 1994, I. E. He date of the signature of he Marshes Agreement, had in force a system of equitable remuneration of right holders in respect of the rental of phonograph, may maintain such system provided that the commercial rental of phonograph is not giving rise to the material impairment of the exclusive rights of reproduction of right holders The basic rule contained in Article 15 is that any sign, or any combination of signs, capable of distinguishing the goods and services of one undertaking from those of other undertakings, must be eligible for registration as a trademark, provided that it is visually perceptible.
Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colors as well as any combination of such signs, must be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Member countries are allowed to require, as an additional condition for eligibility for registration as a trademark, that distinctiveness has been acquired through use.
Members are free to determine whether to allow the registration of signs that are not visually perceptible (e. G. Sound or smell marks). Members may make restorability depend on use. However, actual use of a trademark shall not be permitted as a condition for filing an application for registration, and at least three years must have passed after that filing date before failure to realize an intent to use is allowed as the ground for refusing the application (Article 14. 3).
The Agreement requires service marks to be protected in the same way as marks distinguishing goods (see e. G. Articles 15. 1, 16. 2 and 62. 3). The owner of a registered trademark must be granted the exclusive right to prevent all third parties not having the owner’s consent from sing in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion.
In case of the use of an identical sign for identical goods or services, a likelihood of confusion must be presumed Geographical indications Geographical indications are defined, for the purposes of the Agreement, as indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other harmonistic of the good is essentially attributable to its geographical origin (Article 22. 1).
Thus, this definition specifies that the quality, reputation or other characteristics of a good can each be a sufficient basis for eligibility as a geographical indication, where they are essentially attributable to the geographical origin of the good. In respect of all geographical indications, interested parties must have legal means to prevent use of indications which mislead the public as to the geographical origin of the good, and use which constitutes an act of unfair competition within the meaning of Article ibis of the Paris Convention (Article 22. ). Industrial designs Article 25. 1 of the TRIPS Agreement obliges Members to provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide functional considerations. Article 25. Contains a special provision aimed at taking into account the short life cycle and sheer number of new designs in the textile sector: requirements for securing protection of such designs, in particular in regard to any cost, examination or publication, must not unreasonably impair the opportunity to seek and obtain such protection. Members are free to meet this obligation through industrial design law or through copyright law. Article 26. Requires Members to grant the owner off protected industrial design the right to prevent third parties not having the owner’s consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial reposes. Patents The TRIPS Agreement requires Member countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability.
It is also required that patents be available and patent rights enjoyable without discrimination as to the place of invention and whether products are imported or locally produced (Article 27. 1). There are three permissible exceptions to the basic rule on potentiality. One is for inventions contrary to order (intellectual reporter right, n. D. ) (education Illinois, n. D. ) (Intellectual property, n. D. ) public or morality; this explicitly includes inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment.
The use of this exception is subject to the condition that the commercial exploitation of the invention must also be prevented and this prevention must be necessary for the protection order public or morality (Article 27. 2). The second exception is that Members may exclude from potentiality diagnostic, therapeutic and surgical methods for the treatment of unmans or animals (Article 27. 3(a)). The third is that Members may exclude plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.
However, any country excluding plant varieties from patent protection must provide an effective sue genesis system of protection. Moreover, the whole provision is subject to review four years after entry into force of the Agreement Layout-designs of integrated circuits Article 35 of the TRIPS Agreement requires Member countries to protect the layout- signs of integrated circuits in accordance with the provisions of the EPIC Treaty (the Treaty on Intellectual Property in Respect of Integrated Circuits), negotiated under the auspices of WIPE in 1989.
These provisions deal with, inter alai, the definitions of “integrated circuit” and “layout-design (topography)”, requirements for protection, An “integrated circuit” means a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function.
A “layout-design (topography)” is defined as the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture. The obligation to protect layout-designs applies to such layout-designs that are original in the sense that they are the result of their creators’ own intellectual effort and are not commonplace among creators of layout- signs and manufacturers of integrated circuits at the time of their creation.
The exclusive rights include the right of reproduction and the right of importation, sale and other distribution for commercial purposes. Certain limitations to these rights are provided for. Protection of undisclosed information The TRIPS Agreement requires undisclosed information trade secrets or know-how to benefit from protection. According to Article 39. 2, the protection must apply to information that is secret that has commercial value because it is secret and that has been subject to reasonable steps to keep it secret.
The Agreement does not require undisclosed information to be treated as a form of property, but it does require that a person lawfully in control of such information must have the possibility of preventing it from being disclosed to, acquired by, or used by others without his or her consent in a manner contrary to honest commercial practices. “Manner contrary to honest commercial practices” includes breach of contract, breach of confidence and inducement to breach, as well as the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such raciest were involved in the acquisition.
The Agreement also contains provisions on undisclosed test data and other data whose submission is required by governments as a condition of approving the marketing of pharmaceutical or agricultural chemical products which use new chemical entities. In such a situation the Member government concerned must protect the data against unfair commercial use. In addition, Members must protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.
Control of anti-competitive practices in contractual licenses Article 40 of the TRIPS Agreement recognizes that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology (paragraph 1). Member countries may adopt, consistently with the other provisions of the Agreement, appropriate measures to prevent or control practices in the licensing of intellectual property rights which are abusive and anti-competitive (paragraph 2).
The Agreement provides for a mechanism whereby a country seeking to take action against such practices involving the companies of another Member country can enter confidential information of relevance to the matter in question and of other information available to that Member, subject to domestic law and to the conclusion of mutually satisfactory agreements concerning the safeguarding of its confidentiality by the requesting Member (paragraph 3). Similarly, a country whose companies are subject to such action in another Member can enter into consultations with that Member (paragraph 4).