Monday, August 11, 2008

Intellectual Property Rights (IPR) Issues

© Moreniche

Intellectual Property Rights (IPR), very broadly, are rights granted to creators and owners of works that are results of human intellectual creativity. These works can be in the industrial, scientific, literary and artistic domain.

For example, we could publish a book based on someone else's, or pirate software. Things such as software and a story in the book are intangible - they can't be physically stolen - and are called intellectual property.

Such creative works and inventions may be valuable because their creators may benefit from selling them or licensing others to use them. Society, therefore, gives the creator intellectual property rights

Industrial property legislation is part of the wider body of law known as intellectual property. The term intellectual property refers broadly to the creations of the human mind. Intellectual property rights protect the interests of creators by giving them property rights over their creations.

The Convention Establishing the World Intellectual Property Organization (1967) does not seek to define intellectual property, but gives the following list of the subject matter protected by intellectual property rights:

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.”

Intellectual property 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.

Intellectual Property Law (IP)

In general, the objective of IPR is to protect the right of a copyright author in his work and at the same time allow the general public to access his creativity. IPR maintains this balance by putting in place time-limits on the author’s means of controlling a particular work. The law that regulates the creation, use and control of the protected work is popularly known as Intellectual Property Law (IP).

Types of Intellectual Property Rights

1. What is a Copyright?

Copyright protects artistic (pictures, sound recordings, films) and literary (books, software, design drawings) works from being copied or adapted without permission. The rights exist automatically on the creation of the work. It does not have to be registered. However, the work itself must be original (i.e. the creator's own work). Others can create similar works, providing they do so independently.

2. Copyright law gives exclusive rights to the owner of copyright

Copyright grants certain rights that are exclusive to its owner. Based on these rights, the copyright owner

(a) can copy the work

(b) issue copies of the work to the public

(c) rent or lend the work to the public

(d) perform, show or play the work in public

(e) communicate the work to the public – this includes broadcasting of a work and also electronic transmission and

(f) make an adaptation of the work or do any of the above in relation to an adaptation

Industrial Property

industrial property - protection through patent, trademarks, design and other law for industrial processes, manufactured objects, names/symbols and breeding.

“Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.” I

Industrial property takes a range of forms, the main types of which will be outlined in this booklet. These include patents to protect inventions; and industrial designs, which are aesthetic creations determining the appearance of industrial products. Industrial property also covers trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, as well as geographical indications, and protection against unfair competition. In some of these, the aspect of intellectual creation, although existent, is less clearly defined. What counts here is that the object of industrial property typically consists of signs transmitting information, in particular to consumers, as regards products and services offered on the market. Protection is directed against unauthorized use of such signs likely to mislead consumers, and against misleading practices in general.

Trade Marks and laws relating to designs

A trademark is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. Its origin dates back to ancient times, when craftsmen reproduced their signatures, or "marks" on their artistic or utilitarian products. Over the years these marks evolved into today's system of trademark registration and protection. The system helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets their needs.

Industrial Designs

What is an industrial design?

An industrial design is the ornamental or aesthetic (artistic, visual) aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.

Industrial designs are applied to a wide variety of products of industry and handicraft: from technical and medical instruments to watches, jewelry, and other luxury items; from housewares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.

To be protected under most national laws, an industrial design must appeal to the eye. This means that an industrial design is primarily of an aesthetic nature, and does not protect any technical features of the article to which it is applied.

Why protect industrial designs?

Industrial designs are what make an article attractive and appealing; hence, they add to the commercial value of a product and increase its marketability.

When an industrial design is protected, the owner - the person or entity that has registered the design - is assured an exclusive right against unauthorized copying or imitation of the design by third parties. This helps to ensure a fair return on investment. An effective system of protection also benefits consumers and the public at large, by promoting fair competition and honest trade practices, encouraging creativity, and promoting more aesthetically attractive products.

Protecting industrial designs helps economic development, by encouraging creativity in the industrial and manufacturing sectors, as well as in traditional arts and crafts. They contribute to the expansion of commercial activities and the export of national products.

Industrial designs can be relatively simple and inexpensive to develop and protect. They are reasonably accessible to small and medium-sized enterprises as well as to individual artists and craftsmen, in both industrialized and developing countries.

How can industrial designs be protected?

In most countries, an industrial design must be registered in order to be protected under industrial design law. As a general rule, to be registryable, the design must be "new" or "original". Different countries have varying definitions of such terms, as well as variations in the registration process itself. Generally, "new" means that no identical or very similar design is known to have existed before. Once a design is registered, a registration certificate is issued. Following that, the term of protection is generally five years, with the possibility of further periods of renewal up to, in most cases, 15 years.

Depending on the particular national law and the kind of design, an industrial design may also be protected as a work of art under copyright law. In some countries, industrial design and copyright protection can exist concurrently. In other countries, they are mutually exclusive: once the owner chooses one kind of protection, he can no longer invoke the other.

Under certain circumstances an industrial design may also be protectable under unfair competition law, although the conditions of protection and the rights and remedies ensured can be significantly different.

How extensive is industrial design protection?

Generally, industrial design protection is limited to the country in which protection is granted. Under the Hague Agreement Concerning the International Deposit of Industrial Designs

Dealing with copyright and originality

Laws on Copyright

Currently, copyright law in the UK is governed by the Copyright, Designs and Patents Act 1988 (the Act). Part I of the Act deals with copyright law. It has been subject to various amendments and the latest amendments of October 2003 were aimed at bringing the Act in line with the EU Directive on Copyright and Related Rights in the Information Society (EU Copyright Directive) 2001 and the challenges posed by the Internet. The UK being a member of various international conventions and treaties on copyright law, the Act was also amended at various occasions to harmonize it with the provisions of international treaties.

Works protected by Copyright

The types of copyright works are broadly categorized into:

1. original literary, dramatic, artistic or musical works,

2. sound recordings, films or broadcasts and

3. the typographical arrangement of published editions.

Literary work also includes

(a) a table or compilation other than a database,

(b) a computer program,

(c) preparatory design material for a computer program and

(d) a database.

Dramatic work includes a work of dance or mime. Musical work means any work consisting of music but excludes the words and music of songs.

Infringement of Copyright

When is a work infringed? Copyright is said to be infringed when one of the exclusive rights of an author is performed by a party without the consent or authorization of the author. This infringement is called primary infringement. Providing accessories for infringing the exclusive rights or assisting in the making or distribution of infringing copies is also treated as an infringement and is referred to as secondary infringement.

Making temporary copies: Browsing of the Internet creates temporary copies of web pages on the cache of a computer. Until 2003, such temporary copies were considered as infringing copies. The new law has however changed the position. It clearly states that the making of temporary copies is not an infringement so long as it is a transient copy, has no economic significance and is done solely for the transmission of a work or for its lawful use. The same rule applies in the case of sending copyright work by means of fax.

Exceptions to Copyright Infringement

Copyright law provides a catalogue of basic exceptions and defenses. It permits the use of copyright works for situations considered as ‘fair’, if permitted by a license, or if permitted under a right holders guidance or notice.

Fair dealing with a copyright work constitutes one of the significant of these permitted acts. The scope of fair dealing in some specific situations of importance to FE and HE is detailed below:

Research or private study: Research or private study is not collective but are individual acts. The current UK copyright law permits copying of works for research or private study only if it is aimed at a non-commercial purpose. The law also requires that sufficient acknowledgment be given to the copied source when used in research or private study. For academic staff and research students in FE and HE, this creates an obligation of using proper citations during publications. The only exception is situations where acknowledgement would be impossible for practical reasons.

Educational purposes: Fair dealing with copyright works in the educational environment is permitted if the source is acknowledged, not done through reprographic means (e.g. multiple photocopying, faxing, scanning) and not aimed at a commercial purpose. Thus, a teacher instructing students in a commercial FE or HE institute (e.g. profit oriented ones) or imparting training courses to external company staff should be aware that hand outs and materials for such events observe these guidelines. For teachers involved in setting examination papers, the law requires them to include sufficient acknowledgement of the copied matter where practicable. Students answering these questions in exams are luckily exempt from the requirement. The law also covers the recording of web broadcasts by educational establishments. Primarily, to record a transmitted broadcast FE or HE institutes would need an ERA licence. In the absence of such a licence, the FE or HE can make use of the broadcast only if it acknowledges recording of the data or uses it for non-commercial purposes and transmits it only to persons within the premises of the educational establishment. In practice, this can prevent the commercial FE or HE institutes (without ERA) from recording and re-broadcasting content through e-transmissions for distance learning purposes on internet or an intranet.

Library uses: The making of copies from books in libraries by its users (staff or students) is fair dealing only if it is made for research or private study for non-commercial purposes. This would require the user to sign a copyright declaration form confirming that the use is purely non-commercial prior to making a request.

Criticism and review: Fair dealing for criticism and review is permitted under the new law only if it is accompanied by sufficient acknowledgement and the work is made available to the public.

Visually impaired people: The new law has created special exceptions for visually impaired people. A visually impaired person or FE or HE institute may make copies for a visually impaired person if it is for his/her personal use. But this is subject to the condition that the visually impaired person or the institute already has legitimate master copy (bought or borrowed) and that a copy of the work is not commercially available. An additional exception that caters to visually impaired persons allows the making of multiple copies if the author of the work is acknowledged and if the making of the copy does not interfere with the legitimate exploitation of the work.

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