02 April 2012 Written by  Balew Mersha G/Hiwot Hadush

Concept, Scope and Nature of Intellectual Property Rights

Intellectual Property in General

The division of property as movable and immovable, if it is tangible, was known in Roman law and has been adopted by modern Civil Codes. This kind of classification is also provided under art.1226 of the Civil Code. However, “as a result of the industrial revolution and the rapid development made in the fields of science, technology and culture, new kinds of property came into existence”. New rights and properties like patents, copyright and industrial designs, which came to be known as intellectual property rights (IPRs) received attention due to their unique characteristics.

Intellectual property is so broad that it has many aspects. It stands for groupings of rights which individually constitute distinct rights. However, its conception differs from time and it to time. It is subject to various influences. The change in information technology, market reality (globalization) and generality have affected the contents of intellectual property. For instance, in olden days-because of religion creation of life, say plants or animals were not protected. Thus, defining IP is difficult as its conception changes. It is diverse, challenging and has application in own day today life.

IP is a section of law which protects creations of the mind, and deals with intellectual creations. Is it a workable definition? It is also commonly said that one cannot patent or copyright ideas.

Intellectual property, as a concept, “was originally designed to cover ownership of literary and artistic works, inventions (patents) and trademarks”. What is protected in intellectual property is the form of the work, the invention, the relationship between a symbol and a business. However, the concept of intellectual property now covers patents, trademarks, literary and artistic works, designs and models, trade names, neighboring rights, plant production rights, topographies of semi conductor products, databases, when protected by a sui generis right, unfair competition, geographical indications, trade secrets, etc.

Those types of intellectual property have been characterized as “pieces of information which can be incorporated in tangible objects at the same time in an unlimited number of copies at different time and at different locations anywhere in the world”. In other words, intellectual property rights are intangible in nature, different from the objects they are embodied in. The property right is not in those copies but in the information which creates in them.

In today’s world, the international dimension of intellectual property is of ever increasing importance for three compelling reasons. First, the composition of world trade is changing. Currently, commerce in intellectual property has become an even greater component of trade     between nations. The value of information products has been enhanced greatly by the new technologies of the semi-conductor chip, computer   software and biotechnology. Second, the world commerce has become even more interdependent, establishing a need for international cooperation. No longer can a single country impose its economic will on the rest of the world. Accordingly, countries have recognized this interdependence and have called for a broadening of international agreements/arrangements involving intellectual property. Third, new reprographic and information storage technologies permit unauthorized copying to take place faster and more efficiently than  ever, undermining the creator’s work. There is a general feeling in the developed countries that much of this sort of copying takes place in the third world due to the relaxation of legal standards. All these factors have prompted the international community as a whole to accord due recognition to intellectual property and intellectual property regime.

Thus, the above reasons widen the scope of intellectual property rights. Among the bundles of intellectual property rights, copyright that deals with the protection of literary, artistic and scientific works is one.


The Concept of Intellectual Property

Intellectual property, very broadly, means the legal property which results from intellectual activity in the industrial, scientific and artistic fields. Countries 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 such rights of the public in access to those creations. The second is to promote, as a deliberate act of government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.

Generally speaking, IP law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time- limited rights to control the use made of those productions. These rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such. IP is traditionally divided into two branches: “industrial property and copyright”. The convention establishing the World Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967 (Art. 2(viii) provides that

“intellectual property shall include rights relating to:

1) literary, artistic and scientific works:

2) performances of performing artists, phonograms and broadcasts;

3) inventions in all fields of human behaviour;

4) scientific discoveries;

5) industrial designs;

6) trademarks, service marks, and commercial names and designations;

7) protection against unfair competition and all other rights resulting from intellectual activity in industrial scientific, literary or artistic fields”.

The areas mentioned under (1) belong to the copyright branch of intellectual property. The areas mentioned in (2) are usually called “neighboring rights”, that is, rights neighboring on copyright. The areas mentioned under 3, 5 and 6 constitute the industrial property branch of IP. The areas mentioned may also be considered as belonging to that branch.

The expression industrial property covers inventions and industrial designs. Simply stated, inventions are new solutions to technical problems, and industrial designs are aesthetic creations determining the appearance of industrial products. In addition, industrial property includes trademarks, service marks, commercial names and designations, including indications of source and appellations of origin, and protection against unfair competition. Hence the aspect of intellectual creations -although existent -is less prominent, but what counts here is that the object of industrial property typically consists of signs transmitting information to consumers, in particular, as regards products and services offered on the market, and that the protection is directed against unauthorized use of such signs which is likely to mislead consumers and misleading practices in general.

Scientific discoveries are not the same as inventions. The general treaty on the international recording of scientific discoveries /1978/ defines a scientific discovery as ‘the recognition of phenomena, properties or laws of the material universe not hitherto recognized and capable of verification. “(Art. 1(1)(i)). Inventions are new solutions to specific technical problems. Such solutions must, naturally rely on the properties or laws of the materials universe /otherwise they could not be materially or ‘technically’ applied/, but those properties or laws need not be properties or laws’ not hitherto recognized’. An invention puts to new use, to new technical use, the said properties or laws, whether they are recognized (“discovered”) simultaneously with making the invention or whether they were already recognized (“discovered”) before and independently from the invention.

Industrial and cultural development may be favored by stimulating creative activity and facilitating the transfer of technology and the dissemination of literary and artistic works. In the Ethiopian legal system too the protection of intellectual property rights is afforded at constitutional level. The FDRE Constitution recognizes that every Ethiopian citizen has the right to ownership of private property with certain restrictions. Article 40(2) defines private property as any tangible or intangible product which has value and is produced by the labor, creativity, enterprise or capital of an individual citizen, associations which enjoy juridical personality under the law. Thus, the constitution declares protection for every property whether it is tangible or intangible. That means protection is afforded equally for intellectual property rights as any other property since they are intangible products.

It is difficult to determine what types of ownership we should allow for non corporeal, intellectual objects, such as writings, inventions and secret business information. There are intellectual properties which are not products of the mind. For instance, all trademarks are not products of the mind. Trademarks creation does not necessarily require intellectual activity. The same holds true for geographic indication. They don’t require the work of the mind like patent and copyright.

IP is a bundle of legal rights resulting from intellectual creativity in industrial, scientific, artistic and literary fields. This definition is from the point of view of rights. IP is legal protection accorded to works of the mind in distinction from manual work (result of physical labour). It is a legal protection accorded to incorporeal ownership.

Regarding protection of IP rights, there were historical, philosophical and epistemological problems. Historically, reservation exists as to the protection of such rights as they don’t exhibit essential characteristics of property, i.e. material existence. They consider corporeal chattels only as propriety. For them property should be subject to appropriation/occupancy/.

The other problem is related to problems of philosophy. They believed that human beings cannot be regarded as a creator of something. They say human beings cannot create something. Which is also reflected in religions? The problems also relate with epistemology. What we reflect is what we observe from the world (our experience, life experience). The then contemporary writers wrote that IP lacks essential characters to be considered property.

Through time the laws of various countries started to incorporate protection to intellectual creativity, though they are independent. There are two factors in lumping intellectual property rights together. These are: Conceptual Basis and Historical Basis

Historical

The convention establishing the WIPO was signed in Stockholm in 1967 and entered into force in 1970. However, the origin of WIPO goes back to 1883- the Paris Convention on industrial property and 1886- the Berne Convention on copyright. Both were placed under the supervision of the Swiss Federal Government. Initially there were two secretaries (one for industrial property, and other for copyright). However, in 1893 the two secretaries united. United International Bureaux for the Protection of IP (BIRPI) became WIPO.

Conceptual

IP rights objects (enterprises) are inherently inappropriable. They are intangible by nature. Use by others cannot be denied by using the possession of a property first created. Once you have written a book and published it then the public may make use of that property.


Scope of Intellectual Property Rights

Intellectual property rights include copyright, patent, trademark, geographic indication of origin, industrial design, trade secrets, database protection laws, publicity rights laws, laws for the protection of plant varieties, laws for the protection of semi-conductor chips (which store information for later retrieval), etc.

There is a conventional mode of classification of intellectual property as industrial property and copyrights. Industrial properties include inventions (patent), property interest on minor invention (Utility model certificate) and commercial interests (Trade Marks, trade names, geographical indications, and industrial design), plant breeder rights, biodiversity, etc.

Patents

A patent is a type of intellectual property right which allows the holder of the right to exclusively make use of and sale an invention when one develops an invention. Invention is a new process, machine, manufacture, composition of matter. It is not an obvious derivation of the prior art (It should involve an inventive step). A person who has got a patent right has an exclusive right. The exclusive right is a true monopoly but its grant involves an administrative process.

Copyright

It is an intellectual property which does not essentially grant an exclusive right over an idea but the expressions of ideas which makes if different from patent law. Patent is related with invention - technical solution to technical problems. Copyright is a field which has gone with artistic, literary creativity- creativity in scientific works, audio-visual works, musical works, software and others. There are neighboring rights. These are different from copyright but related with it – performers in a theatre, dancers, actors, broadcasters, producers of sound recorders, etc. It protects not ideas but expressions of ideas as opposed to patent.

Copyright protects original expression of ideas, the ways the works are done; the language used, etc. It applies for all copyrightable works. Copyright lasts for a longer period of time. The practice is life of author plus 50 years after his/her life. Administrative procedures are not required, unlike patent laws, in most laws but in America depositing the work was necessary and was certified thereon but now it is abolished.

Industrial Design Law

Some call this design right (European) and some call it patentable design, industrial design (WIPO and other international organization). A design is a kind of intellectual property which gives an exclusive right to a person who has created a novel appearance of a product. It deals with appearance: how they look like. Appearance is important because consumers are interested in the outer appearance of a product. It is exclusively concerned with appearance, not quality.

The principles which have been utilized in developing industrial design law are from experiences of patent and copyright laws. It shares copyright laws because the design is artistic. It shares patent law because there are scientific considerations. Design law subsists in a work upon registration and communication. It makes them close to patent law since they are also founded in patent law. Duration is most of the time 20 years like the patent law trademark Rights law.

Trademarks Rights Law

It is a regime of the law giving protection to graphic representation to words or logos or depending on the jurisdiction question such as sound or smells which are distinctive in nature and serve as source identification. There is also a recent phenomenon which is representing goods in their smell and sound. It is to be found on the goods associated with them. It enables the customer to identify the goods from others. They serve as a source identifier. Trademarks perform communication function. Once there is a valid representation, it gives the mark owner an exclusive right. It begins with registration and publication of the mark. But there are exceptions which serve what trademarks registered serve which are not registered. It means they deserve protection even though they are not registered. They exist forever so long as the good with which they are associated continue to be sold. But they require renewal.

Right of Publicity

It protects the right to use one’s own name or likeness for commercial purposes.

Geographic Indication

It is indications on products of the geographic origin of the goods. It indicates the general source. The indication relates to the quality or reputation or other characteristics of the good. For example, “made in Ethiopia” is not influenced by the geographical Indication. Geographical indications are sometimes called appellations of origin. For example, “Sheno lega”, “Shampagne” (name of a region in France) are geographical indications.

Trade Secrets

It gives the owner of commercial information that provides a competitive edge the right to keep others from using such information if the information was improperly disclosed to or acquired by a competitor and the owner of the information took reasonable precautions to keep it secret. It protects confidential secrets of some commercial value. The holder of the secret wants this information to be protected; some protect the holder from an unauthorized disclosure of the information. A tort law, unfair competition or contract law can protect such information which is secret /confidential information/. The holder (owner) has to do his/her best to keep the information secret. Trade secrets exist without registration as it is to make the information public, for example, the formula of Coca Cola.  Information that are protected in trade secrets can be patentable if they are novel and non obvious. But it is, most of the time, not to make the secret public. However, their full-fledged IP rights are contestable.

Nature of Intellectual Property

Intellectual properties have their own peculiar features. These features of intellectual properties may serve to identify intellectual properties from other types of properties. Thus, we will discuss them in brief.

1. Territorial

Any intellectual property issued should be resolved by national laws. Why is it an issue? Because intellectual property rights have one characteristic which other national rights do not have. In ownership of intellectual property of immovable properties, issues of cross borders are not probable. But in intellectual properties, it is common. A film made in Hollywood can be seen in other countries. The market is not only the local one but also international. If a design in China is imitated by another person in France which law would be applicable?

2. Giving an exclusive right to the owner

It means others, who are not owners, are prohibited from using the right. Most intellectual property rights cannot be implemented in practice as soon as the owner got exclusive rights. Most of them need to be tested by some public laws. The creator or author of an intellectual property enjoys rights inherent in his work to the exclusion of anybody else.

3. Assignable

Since they are rights, they can obviously be assigned (licensed). It is possible to put a dichotomy between intellectual property rights and the material object in which the work is embodied. Intellectual property can be bought, sold, or licensed or hired or attached.

4. Independence

Different intellectual property rights subsist in the same kind of object. Most intellectual property rights are likely to be embodied in objects.

5. Subject to Public Policy

They are vulnerable to the deep embodiment of public policy. Intellectual property attempts to preserve and find adequate reconciliation between two competing interests. On the one hand, the intellectual property rights holders require adequate remuneration and on the other hand, consumers try to consume works without much inconvenience. Is limitation unique for intellectual property?

6. Divisible (Fragmentation)

Several persons may have legally protected interests evolved from a single original work without affecting the interest of other right holders on that same item. Because of the nature of indivisibility, intellectual property is an inexhaustible resource. This nature of intellectual property derives from intellectual property’s territorial nature. For example, an inventor who registered his invention in Ethiopia can use the patent himself in Ethiopia and License it in Germany and assign it in France. Also, copyright is made up of different rights. Those rights may be divided into different persons: publishers, adaptors, translators, etc.

Last modified on Wednesday, 02 May 2012 13:05