Intellectual property (IP) rights are the rights given to individuals over the creation of their minds. These rights are afforded legal protection for a specified period of time during which the creator of the intellectual property has exclusive rights to this property. Intellectual property has three principal categories: copyrights, which govern the IP of authors of literary and artistic works (books, writings, and musical compositions), as well as the rights of performers (singers and actors) and those responsible for the dissemination of these works (film and record producers); trademarks, which are the indicia (signs, words, or symbols) used by manufacturers to distinguish their products from those of others. These marks may consist of the same mark applied to a number of different products or they may involve the application of different marks to unrelated products. Owners of registered trademarks are entitled to their exclusive use. Finally, there are patents, which govern the IP of those creating industrial property (for example, new technology, processes, and designs) and may be held by individuals or the corporations which employ them.
Protection of IP, in all its forms, is important for a variety of reasons. As far as the creators of IP are concerned, exclusive rights reward creative work in the arts (copyright); they allow trademark owners to enjoy the goodwill associated exclusively with their marks; and patents encourage research and development into new products and processes. Properly enforced, the rights associated with IP ensure that not only do the creators of IP benefit but so does society as a whole; when not properly enforced, misuse of IP affects both the private benefits that accrue to its creators and society at large. Consider, for example, the following potential consequences for society when IP is misused: Research and development are discouraged and therefore economic growth is reduced; new cures for life-threatening diseases are delayed because of the greater uncertainty surrounding future returns; misuse of trademarks on pharmaceutical products can cause serious injury or death; organized counterfeiting exacerbates the problems associated with organized crime.
At the international level protection of copyright was enshrined by the Berne Convention for the Protection of Literary and Artistic Works, 1886 (and subsequently revised, for example, in Paris, 1896; Berlin, 1908; Rome, 1928; and, most recently, by the TRIPS Agreement, 1994). The Berne Convention and its successors established a series of guidelines and the minimum level of protection to be afforded to copyright. For example, works originating in one of the contracting states were to be given the same protection in each of the other contracting states as the former gave to its own subjects. The Convention provided for “moral rights”—the right to claim authorship of the work and the right to object to any modification of the work that was prejudicial to the author’s reputation. The Convention stipulated that the duration of copyright protection was to be 50 years after the author’s death.
During the Uruguay Round negotiations preceding the TRIPS agreement, it was accepted that the Berne Convention generally provided adequate standards of copyright protection and so the focus was on extending the provisions laid down in the last Convention (Paris, 1971). However, signatories do not have rights or obligations under the TRIPS Agreement in respect to “moral rights.” Among the key extensions that TRIPS made to the Berne Convention were that copyright would be extended to expressions; the provisions of the Berne Convention that apply to literary works would be extended to computer programs; and databases would be protected even where the data contained on them was not subject to copyright protection. In the case of computer programs, authors would have the right to authorize or prohibit commercial rental to the public of originals or copies of their copyright work. The duration of copyright protection was retained at 50 years (but 20 years for broadcasting organizations).
In the case of trademarks, international agreements covering their registration and protection date back to the Paris Convention for the Protection of Industrial Property, 1883 (and its subsequent extensions, for example, the Hague, 1925; London, 1934; Lisbon, 1958; and the TRIPS Agreement, 1994). The basic guidelines and rights to protection set out in these Conventions were as follows: First, nationals of each of the countries of the Union shall enjoy in all other countries of the Union the advantages that their respective laws now grant; the countries of the Union agree to refuse or to cancel the registration of or to prohibit the use of, any trademark that constitutes a reproduction or imitation of a mark already used by a person entitled to the protection of the Convention, and used for identical or similar goods; restrictions were placed on the use of state emblems, armorial bearings, and hallmarks, as trademarks.
The TRIPS Agreement continued these basic provisions and made a number of extensions. For example, in deciding whether a mark proposed for registration would undermine the exclusive rights of the owner of a registered trademark, the likelihood of consumer confusion was assumed. Additionally, service marks were specifically included in the definition of trademark (the Paris Convention only contained a general obligation to recognize the rights of owners of these marks). TRIPS introduced the first international requirement to provide for cancellation and opposition procedures when a trademark was published prior to registration.
In the case of patents, these, too, were the subject of international protection under the Paris Convention and its successors. The fundamental rights of patent holders established by these Conventions were similar to those of trademark owners (for example, rights to reciprocal protection within the Union), but differed to the extent that they are an intrinsically different form of IP. Among the key rights accorded to patent holders under the Paris Convention were that patents applied for in the various countries of the Union by persons entitled to the benefits of the Union would be independent of patents obtained for the same invention in other countries irrespective of whether they were members of the Union; if examination indicates that an application contains many inventions, the applicant may divide the application into a number of separate applications, and no country of the Union may refuse an application for a patent on the grounds that it contains multiple priority claims.
The TRIPS Agreement extended the Paris Convention in a number of directions. For example, restrictions were imposed on eligibility: inventions may be excluded from patentability if there was a danger that their commercial exploitation would endanger public order/morality (for example, pornography). Additionally, signatories were permitted to exclude from patentability diagnostic and surgical methods for the treatment of animals (to facilitate the free dissemination of new medical techniques). Finally, patent applications would be subject to a precise test governing the description of the invention. Specifically full disclosure was required to ensure that the invention can be exploited without undue difficulty by others after the expiry of the exclusive right (which is nonrenewable).
Misuse of IP continues to be a booming, if illegal, industry, as demonstrated by Nicole Piquero: In the United States, it has been estimated that the motion picture industry lost $1.25 billion between 1998 and 2002 due to piracy; worldwide estimates of the annual amount of pirated software range between $7.5 and $17 billion. One problem is that rapid advances in technology have increased the opportunities for IP theft. For example, the proliferation of photocopying machines has increased concerns about the effectiveness of rights given to copyright holders; these concerns have been exacerbated by the even more rapid proliferation of personal computers and access to the World Wide Web.
Greater international efforts to combat protection of IP rights, as demonstrated by the TRIPS Agreement, have also been matched by reinvigorated efforts at the national level to solve this problem. For example, in the United States, the Department of Justice created a Task Force on Intellectual Property in 2004, to examine how methods for civil and criminal enforcement of IP could be improved. In the United Kingdom, the Alliance Against IP Theft was formed, comprising, for example, British Brands Group; British Phonographic Industry, British Video Association, and the Institute of Trademark Attorneys. These national initiatives are important to combat indigenous IP theft; however, because globalization has increased trade in semi processed and finished products, all of which contain IP to varying degrees, greater international coordination of these initiatives will become more important if international IP theft is to be eradicated.
- Jay S. Albanese, ed., Combating Piracy: Intellectual Property Theft and Fraud (Transaction Publishers, 2007);
- Blakeney, Trade-Related Aspects of Intellectual Property Rights (Sweet and Maxwell, 1996);
- Christopher Burgess and Richard Power, Secrets Stolen, Fortunes Lost: Preventing Intellectual Property Theft and Economic Espionage in the 21st Century (Syngress, 2008);
- Geraldine Szott Moohr, The Criminal Law of Intellectual Property and Information: Cases and Materials (Thomson/West, 2008);
- World Trade Organization, www.wto.org (cited March 2009).
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