INTEECTUAL PROPERTY RIGHTS
MODULE 01 : UNDERSTANING INTELLECTUAL
PROPERTY
Topic
- Meaning and theories for justification of
intellectual property.
- History and origins of intellectual property.
- Internationalization of IP protection : paris
convention for industrial property, berne
convention for protection of literary and
artistic works, TRIPS Agreement
- International Agencies for Coordination of
IP Protection : WIPO & WTO
+ MEANING OF Intellectual property
- Intellectual property (IP) refers to creations of the mind, such
as inventions, literary and artistic works, designs, names,
images and symbols used in commerce.
- It's essentially a category of intangible assets that are
protected by law, allowing creators to benefit financially or get
recognition for their work.
- IP rights, like patents, copyrights, and trademarks, ensure that
creators have exclusive rights to their creations, encouraging
innovation and creativity.
- Intellectual property is essentially any product of human
intellect that has commercial value and is protected by law. It's
intangible, meaning you can't physically touch it, but it
represents a valuable asset.
Here are the main types of Intellectual Property Rights:
Patents:
Protect inventions and give the inventor exclusive rights to their
creation for a limited period.
Copyrights:
Protect the rights of original creators of literary, artistic, and
musical works, preventing unauthorized use or distribution.
Trademarks:
Protect brands, logos, symbols, and words used to distinguish
products or services from those of others.
Trade Secrets:
Protect confidential information, such as formulas or processes,
that provides a business with a competitive advantage and is
not public knowledge.
Industrial Designs:
Protect the aesthetic aspect of a product, such as its shape or
ornamentation.
Geographical Indications:
Identify goods that originate from a specific geographical
location and possess qualities or a reputation that are due to
that place of origin.
Examples:
A song, a novel, a new invention, a company logo, or a unique
design are all examples of intellectual property.
In essence, intellectual property is a crucial aspect of modern
economies and societies, encouraging innovation, protecting
creators, and fostering a vibrant environment for creativity and
economic development.
+ HISTORY AND ORIGINS OF INTELLECTUAL PROPERTY +
The origins of intellectual property (IP) date to ancient times,
with early examples of patents in ancient Greece and
trademarks in the Harappa civilization.
Ancient Origins (Pre-1500s)
Ancient Greece (500 BCE):In the Greek city-state of Sybaris, a
patent was granted to citizens for new luxury refinements,
establishing a concept of exclusive rights for innovation.
Roman Empire: Authors in the Roman Empire were granted
exclusive rights to publish their works for a period of 50 years, a
precursor to modern copyright.
Harappa Civilization :Marks on pottery from the Harappa
civilization suggest the use of early forms of trademarks to
identify goods.
However, modern IP systems developed in Europe during the
Renaissance, with early forms of patent and copyright laws like
the Statute of Monopolies in Britain and the Statute of Anne.
Early European Development (14th - 17th Centuries)
Venice, Italy:
Venice is considered the birthplace of modern IP systems, with
the first recorded patent for an industrial invention granted in
the early 15th century.
Statute of Monopolies (1623):
The first recognized formal patent law was enacted in Britain,
granting inventors exclusive rights for their inventions for a set
period.
Statute of Anne (1710):
Also a British law, this statute established the first copyright law
by granting authors the exclusive right to reproduce and
distribute their works.
Modern IP and Internationalization (18th Century
Onward)
The Industrial Revolution further spurred comprehensive IP
laws to address new technologies and increased international
trade, culminating in organizations like the World Intellectual
Property Organization (WIPO) today.
Modern IP and Internationalization (18th Century Onward)
Industrial Revolution:
The rapid advancements of the Industrial Revolution created a
need for more sophisticated and standardized IP laws to protect
new inventions and creative works.
World Intellectual Property Organization (WIPO):
Established in 1970, WIPO is the leading global body for
intellectual property, becoming a specialized UN agency in
1974.
PCT System:
The Patent Cooperation Treaty (PCT) was launched in 1978,
becoming WIPO's largest international patent filing system and
further facilitating global IP protection.
+ THEORIES FOR JUSTIFICATION OF INTELLECTUAL
PROPERTY +
What is theory -Theories provide systematic, logical
explanations and understandings of phenomena, events, and
behaviors,
What is justification- A justification provides a good reason,
explanation, or defense to show that something is right, valid,
or reasonable.
John Locks Labour Theory: Theory of Natural Rights.
The term "natural right" signifies a fundamental right that
person has in his possession.
The natural rights theory takes into consideration that
everyone has a natural & creativity of the person putting it into
effect.
Drawing its roots from John Locke's philosophy that says an
author has natural right over the output of his or her
intellectual endeavour’s, the natural rights theory is applicable
to both tangible & intangible properties.
The extension theory incorporates the right to use or to
exclude others from it use & the right to transfer the object
owned.
As ownership right of over a creation becomes a natural rights
of owner. infringement or unauthorized use of the same will be
considered as an offence.
The Utilitarian Theory (Jeremy Bentham)
Jeremy Bentham, an English philosopher, jurist & social
reformer propounded the Utilitarian Theory.
This theory is based on the ideal of "the greatest good for the
greatest number" Thus according to this theory, law should
guarantee maximum benefit for the maximum members of the
society.
Applying this theory to intellectual property rights, it is stated
that by allowing a creator to profit from his work, monetary
incentives are afforded for technological invention & artistic
creation which typically benefit society & humankind at large.
The Ethics & Reward Theory
It is to be noted that the question as to whether the reward
given to creators & inventors for benefitting the entire society,
truly deserves the same or not, remains associated with the
ethic & reward theory.
While on one hand, the theory presumes that inventors
deserve to be rewarded, on the other the theory makes it
obvious that the inventors do not deserve it twice.
Many consider that the creators are already remunerated
taking into account the exclusive right he/ she possesses over
his/her work. That will be further used as a source of profit for
the creator as well.
Social planning Theory
This theory is known as the Social Planning theory by Prof.
William Fisher of Harvard Law School.
Social Planning theory views intellectual property as a good
that can be used to build a just & attractive culture.
This approach is similar to utilitarianism in its teleological
orientation, but dissimilar in its willingness to deploy visions of
desirable society richer than the conceptions of "social welfare"
deployed by utilitarians..
This theory has been articulated by a Conglomeration of
different voices but their Conceptual alignments are closely
related.
Deterrence Theory
Deterrence theory is a theory in intellectual Property rights
(IPR) that discourages the misappropriation of information &
creations by focusing on secrecy.
The theory is rooted in the idea that trade secret laws can
prevent unfair marketing.
Deterrence theory promotes morality, virtue, & illicit
commercial behavior.
It opposes the utilitarian theory, which doesn't accept
deterrence as a way to benefit society from innovation.
Labour Theory
The labor theory of intellectual property rights ( IPR) is based on
the idea that a person deserves that the fruits of their labour, &
that intellectual property can be considered the fruits of an
individual's mental labour.
This theory is rooted in John Locke's labour theory of property.
which states that people are entitled to the results of their own
labour
For example ; Locke believed that when someone works on a
field, their labour becomes part of the object and the object the
person's property.
+ INTERNATIONALISATION OF IP PROTECTION +
- process of developing and applying international treaties
convections and organizations to create global framework for
protecting in the actual work creations across National border.
# PARIS CONVECTION FOR PROTECTION OF INDUSTRIAL
PROPERTY
- The Paris Convention was the first major international
agreement to address the protection of industrial property
rights, paving the way for further cooperation and
harmonization in this field.
Harmonization of Laws:
It helps create a more consistent and predictable international
framework for intellectual property protection.
- The Paris Convention for the Protection of Industrial Property,
adopted in 1883, is a foundational international treaty that
establishes principles for protecting intellectual property rights,
including patents, trademarks, industrial designs, and trade
names, in multiple countries.
-
- It ensures that creators and innovators receive a baseline
level of protection for their intellectual creations across
different member countries.
+ The convention promotes the principles of national
treatment, right of priority, and independence of patents +
National Treatment:
Member countries are obligated to provide the same level of
protection to nationals of other member countries as they do to
their own citizens for industrial property rights.
Eg. if a country offers a special tax incentive for its own
pharmaceutical companies, a foreign pharmaceutical company
operating in that same country would also be eligible for that
same incentive, just as if it were a domestic company
Right of Priority:
An applicant for a patent, trademark, or industrial design in a
member country can claim priority based on their first filing in
another member country, provided they file within a specific
timeframe (12 months for patents, 6 months for trademarks
and designs).
For eg. a designer who first files an application for the unique
look of a new water bottle design in India and then, within the
next six months, files a similar application in the US
By invoking the priority right, the U.S. application is treated as if
it were filed on the same day as the Indian filing, giving the
designer an earlier claim to their design and preventing
competitors from getting protection for similar designs in the
U.S. during that six-month window.
Common Rules
: The convention also sets forth rules for specific aspects, such
as the protection of trade names and the prevention of unfair
business practices.
Eg. company that invents a new, more efficient battery
technology for electric cars would seek a patent to prevent
competitors from making, using, or selling that specific battery
for 20 years.
# BERNE CONVENTION FOR PROTECTION OF LITERARY
AND ARTISTIC WORKs
- The Berne Convention is an international copyright treaty, was
adopted in Berne, Switzerland, on September 9 in 1886, that
establishes minimum standards for copyright protection for
literary and artistic works across member countries.
-.
- What it Protects:
The Convention protects the rights of authors over their literary
and artistic works, including books, music, paintings, and other
original expressions.
- It ensures that authors of literary and artistic works are
afforded certain minimum rights and protections in all member
countries.
Core Principles:
National Treatment: Works originating in one member country
must be protected by the other member countries in the same
way they protect works of their own nationals.
Automatic Protection: Protection for literary and artistic works
is guaranteed from the moment they are created, without
requiring formal registration or other procedures.
Independence of Protection: The existence of protection in the
country where the work originated does not depend on
protection in other member countries.
Key provisions
Minimum Rights:
It outlines specific rights for authors, such as the right to
translate, adapt, perform, and reproduce their works.
Moral Rights:
It includes provisions for the moral rights of authors, such as
the right to be attributed as the author.
Duration of Protection:
The Convention specifies the minimum term for which
copyright protection must last, often extending for the author's
lifetime plus a certain number of years.
Special Provisions for Developing Countries:
The Convention includes special provisions to assist developing
countries in providing copyright protection.
# TRIPS AGREEMENT
The TRIPS (Trade-Related Aspects of Intellectual Property
Rights) Agreement is a core component of the World Trade
Organization (WTO) and represents a significant step towards
the internationalization of intellectual property (IP) protection.
It establishes minimum standards for IP protection and
enforcement across WTO member countries, aiming to
harmonize IP rules and facilitate international trade.
Key aspects of TRIPS.
+ Minimum Standards:- TRIPS sets minimum standards for the
protection of various forms of intellectual property, including
copyrights, trademarks, patents, industrial designs, and
geographical indications.
+ National Treatment and Most-Favored-Nation Treatment:-
The agreement incorporates the principles of national
treatment (treating foreign nationals no less favorably than
domestic nationals) and most-favored-nation treatment
(extending any favorable treatment given to one trading partner
to all other trading partners).
+ Enforcement Provisions:- TRIPS includes provisions for the
enforcement of IP rights, requiring WTO members to establish
domestic procedures and remedies for addressing infringement.
+ Dispute Settlement:- It subjects disputes between WTO
members concerning TRIPS obligations to the WTO's dispute
settlement mechanism.
Integration with the Multilateral Trading System:- TRIPS is one
of the three pillars of the WTO (along with trade in goods and
trade in services), making IP protection an integral part of the
multilateral trading system.
+ Technology Transfer and Cooperation:- The agreement also
includes provisions on technology transfer and technical
cooperation, aiming to facilitate the sharing of knowledge and
technology between countries.
+ Addressing Trade Disputes:- TRIPS plays a vital role in
resolving trade disputes related to IP rights and ensuring a more
predictable and transparent environment for international
trade.
+ INTERNATIONAL AGENCIES FOR COORDINATION OF IP
PROTECTION +
Several international agencies play a crucial role in coordinating
and promoting intellectual property (IP) protection globally.
WORLD INTELLECTUAL PROPERTY ORANISATION
- The World Intellectual Property Organization (WIPO), a UN
agency, is the primary body for international cooperation on IP,
offering services, policy guidance, and information exchange.
- WIPO plays a vital role in facilitating cooperation among its
member states on IP-related matters, ensuring that the
international IP system keeps pace with the changing world.
- WIPO helps creators, innovators, and businesses protect
their IP rights across borders, facilitates the international
registration of trademarks and designs, and supports the
development of IP law and policy.
- WIPO provides a global forum for IP policy discussions, offers
services to protect and promote IP rights internationally, and
acts as a hub for IP information and data.
- WIPO's core objective is to foster a balanced and effective
international IP system that encourages innovation and
creativity for the benefit of all.
- WIPO manages and administers numerous international
treaties related to patents, trademarks, industrial designs,
copyright, and other forms of intellectual property.
Providing Services: WIPO offers various services to support IP
rights holders, including registration services for international
trademarks and patents, as well as dispute resolution
mechanisms.
- Data and Information: WIPO collects and disseminates data
and information related to intellectual property, providing
valuable insights for policymakers and stakeholders.
- Capacity Building: WIPO conducts training programs and
provides technical assistance to help countries strengthen their
IP systems and infrastructure.
-WIPO serves as a platform for discussions, negotiations, and
the development of international IP norms and standards.
In essence, WIPO plays a vital role in shaping the global
landscape of intellectual property, facilitating innovation, and
promoting economic development while safeguarding the
public interest.
WORLD TRADE ORGANIZATION
The World Trade Organization (WTO) plays a significant role in
coordinating the international protection of intellectual
property (IP) through the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS).
+ Dispute Settlement: The WTO's dispute settlement system
can be used to address trade-related IP disputes between
member countries.
+ Cooperation: The WTO also works with other international
organizations, such as the World Intellectual Property
Organization (WIPO), to promote IP protection globally.
+ Transparency and Monitoring: The WTO's TRIPS Council
monitors the implementation of the agreement, ensuring
transparency and predictability in IP laws and policies among
members.
+ Addressing Trade in Infringing Goods:.The WTO also focuses
on eliminating international trade in counterfeit and pirated
goods.
In essence, the WTO's TRIPS agreement is a crucial mechanism
for regulating IP in the context of international trade, promoting
both the protection of intellectual creations and the smooth
functioning of the global trading system.