General Principles of Intellectual Property
- The Concept of Intellectual Property (IP)
- What are the key IP rights?
- How does the law protect IP
1. The Concept of Intellectual Property (IP)
IP broadly refers to the legal rights which result from intellectual creation in the industrial, scientific, literary and artistic fields.
Countries have their own IP laws and consequently, there is no standardized definition of IP. However, The World Intellectual Property Organization (WIPO), which is a United Nations agency dedicated to the use of IP as a means of stimulating innovation and creativity, attempted to define what it considered to be IP. This definition was incorporated as part of the convention establishing WIPO and included the following works:
- Literary, artistic and scientific works
- Performances of performing artists, phonograms and broadcasts
- Inventions in all fields of human endeavor
- Scientific discoveries
- Industrial designs
- Trademarks, 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 law helps to protect creators and innovators by giving them the legal right to control (or stop) the use made by other people of their creation. These rights are usually limited by time and in some cases are subject to examination and registration by the state in which the IP right is sought. IP rights do not apply to the physical object but to the intellectual creativity behind that object.
IP laws are usually implemented for two main reasons. Firstly, to protect the moral and economic rights of creators in their creations and the rights of the people to access (and benefit from) those creations. The second is to promote creativity and its distribution amongst the people to encourage, promote and contribute to economic and social development.
2. What are the key IP rights?
There are four, key legal rights that protect different types of IP.
These are set out below and show the key types of innovation that they are designed to protect:
- Patents - technical inventions
- Copyright - creative, aesthetic works and software
- Trade Marks - brands and reputation
- Design Rights - appearance and design
A patent protects a new invention. It is a written, legal document that explains what the invention is. A patent must be registered. A patent can cover how the invention works, what it does, how it does it, what it is made of and how it is made. The owner of the patent is given a total monopoly over what is described in the patent and is given the right to stop others from making or exploiting the invention without permission.
Copyright protects creative and aesthetic works such as books, songs and artistic works. Importantly, software is also primarily protected by copyright. Copyright arises automatically as soon as something is fixed or recorded and therefore there is no need to register copyright. Copyright stops a third party from copying what has been fixed or recorded. A copyright protected work must not be reproduced in any other medium so, for example, the copyright owner can stop a third party turning a book into a film or a CD to an online file.
Trade marks protect the brand and reputation of their owner. A trade mark is a sign which distinguishes goods and services of competitors. A trade mark can be registered or unregistered. It is harder to enforce unregistered rights against third parties as the scope of the right is less certain.
Design rights protect the overall visual appearance of a product or a part of a product. Design rights can be registered or unregistered but are not recognized in every country. The same problems apply for unregistered design rights as for unregistered trade mark rights.
3. How does the law protect IP?
Importantly, all IP rights are territorial i.e. the laws of each country are only effective in that country.
Countries around the world have their own intellectual property laws. However, the importance of intellectual property rights has prompted many countries to ratify international treaties in an attempt to harmonize the scope of such rights.
The first and historically most important agreement is the Paris Convention. This was initially signed in 1883. It has been amended and modified on a number of occasions. It was formulated because of the difficulty in obtaining protection for intellectual property rights in the various countries of the world because of the diversity of their laws. The Paris Convention entered into force in the UAE on 19 September 1996.
There are three, important key principles set out in the Paris Convention which must be upheld by each of its 174 member countries and which are still relevant today:
- Each member must grant the same protection to nationals of the other members countries as it grants to its own nationals;
- An applicant for a registered intellectual property right in one member country may (within a period of time) apply for the same protection in all the other member countries; and
- Each member country will contain a certain number of common laws which each member country will follow or enact.
As intellectual property laws have become more complex, many more treaties have been agreed which deal with each of the different intellectual property rights.
WIPO Intellectual Property Handbook: Policy, Law and Use (Chapter 1) http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf)