Intellectual Property Rights
Intangible assets, such as inventions, designs or songs, and which have some perceived value, are often referred to as Intellectual Property (IP). The main difference between IP and other forms or property, such as a house or car, are that the asset for which an individual or company holds IPR, cannot be defined or identified by its own physical parameters. The rights given to creators of IP over those creations are thus referred to as Intellectual Property Rights (IPR). These give the creator an exclusive right over the use of his or her IP for a certain period of time for a specific geographical location; the right to prevent others from using that IP and the ability to use that right to negotiate payment in return for others using the IP. These exclusive rights are generally subject to a number of limitations and exceptions aimed at securing a good balance between the legitimate interests of right holders and those of consumers.
IPR legislation and regulation is set at a national level and rules differ between countries. Importantly, the extent to which national laws are implemented varies significantly amongst countries. IPR plays a critical role in national innovation policies, along side a range of other R&D incentives to encourage research to take place in specific countries. Innovation is widely regarded as a driver of national economic competitiveness.
IPR is a complex, fast-changing and increasingly contentious area of global trade and commerce.
There are two main types of IP
- industrial property: inventions, trade marks, industrial designs, and protected designations of origin
- copyright: literary, musical, artistic, photographic, and audio-visual works.
There are two main forms of IP protection applied to industrial property.
Those primarily designed to stimulate innovation, design and the creation of technology, such as inventions (protected by patents) and industrial designs. Protection is usually given for a finite term.
The purpose of this is to provide protection for investment in the development of new technology, thus giving incentives for research and development.
- The protection of distinctive signs, whether trademarks and logos (such as ‘Disney’ or ‘GE’), which distinguish the goods or services of one company from those of others; and geographical indications, (such as ‘Champagne’), which identify a good as originating in a place where a given characteristic of the product is in large part attributable to its geographical origin.
The purpose of this is to stimulate and ensure fair competition and to enable consumers to make informed choices between various goods and services. This type of protection may last indefinitely, provided the sign in question continues to be distinctive.
Development of copyright
Copyright was not really required until the invention of the printing press which for the first time allowed for the mass dissemination, and by implication the unauthorized copying or piracy, of creative works. The English Statute of Anne of 1710 is generally regarded as the first modern copyright law. It introduced two key concepts, that of an author being the owner of copyright and the principle of a fixed term of protection for published works.
The US Constitution of 1787 was the first legal document to define an author’s work as an economically saleable property right. In 1791 the French National Assembly passed the first law on the author’s right (droit d’auteur). This difference in definition created a division between the English and American (common law) view of copyright as property, and France’s droit d’auteur which states that a work of creation is intimately linked with its creator and cannot therefore be separated from its author. This in turn has led to there being two key elements to IPR: economic rights, which hold that creators must be rewarded for their unique creative abilities; and moral rights, which hold that authors/creators should have a right to limit the alteration and display of their works, even after they have transferred their economic rights to a third party such as a publisher.
The need for international IP protection became clear when some foreign exhibitors refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid their ideas would be stolen and exploited in other countries. This led in 1883 to the Paris Convention for the Protection of Industrial Property, the first major international treaty designed to help people from one country obtain protection for their IP in other countries. The Paris Convention covered inventions (patents), trade marks and industrial designs. Fourteen countries signed the Convention and then set up an administrative office or bureau to manage its business.
The Berne Convention for the Protection of Literary and Artistic Works was agreed in 1886. The Convention gave nationals of signatory states the right to control, and receive payment for, the use of their creative works. The Berne Convention covered literary and musical works as well as drawings, paintings, sculptures, and architectural works. The Berne Convention also set up an office to carry out administrative tasks.
In 1893, the Paris and Berne offices merged to form the United International Bureaux for the Protection of Intellectual Property. This was the predecessor of the World Intellectual Property Organization (WIPO), a United Nations agency that now has 180 member states, and administers 22 international IP treaties, 15 on industrial property and seven on copyright, plus the convention creating the WIPO.
In 1996 WIPO’s members agreed the most recent international copyright treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. These updated international protection of copyright and related rights for the Internet and came into force in 2002, having been ratified and passed into national law by the required minimum of 30 member states.
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which was agreed as part of the establishment of the World Trade Organization (WTO) in 1994, came into force in 1995. This was the first time that aspects of IP were governed at the international level, rather than by individual countries. Increasingly, IPR is being negotiated as part of bilateral and regional trade agreements amongst countries. The US is the key demandeur of these provisions.
The TRIPs agreement sets minimum levels of protection that all WTO member countries must provide for the main categories of intellectual property rights and is intended to harmonize IPR in WTO member states. It also established a dispute settlement procedure. Poorer countries were given longer than rich countries to implement their TRIPs obligations. The WTO’s least-developed members were required to meet their TRIPs obligations by 2006 under the negotiated WTO agreement (extended to 2016 for pharmaceutical products in the case of developing countries).
As a result of the 1996 WIPO treaties most IP laws in the developed world now offer copyright protection for the life of the author, plus 70 years. The rights of performers (such as actors, singers and musicians), producers of sound recordings (i.e. record companies) and broadcasting organizations are also protected through copyright and related rights, sometimes referred to as neighboring rights.
A new view on IPR
Not all countries are members of the WTO. Some developing country WTO members have resisted pressure to implement their TRIPs obligations. Many have more pressing economic development priorities than copyright legislation or enforcement. This has led to disputes between WTO members concerning IPR, most notably regarding medicines, music, movies and software. Many countries are concerned that the TRIPs agreement may limit developing countries’ access to technologies that are patented, such as medicines and seeds, which are important for public health and food security.
This has gained particular prominence in the case of anti-retro viral (ARV) drugs used to treat HIV AIDS patients. Developing countries, and producers of generic drugs, would like to use IP to produce cheaper versions of medicines. There are legitimate concerns around access to health, but this argument has been complicated a number of factors. In some cases, there is no local capacity to produce generic products locally. Nonetheless demand leads to piracy. Pirate copies of drugs, CDs and videos are invariably cheaper than legitimate products, but may of course be faulty or sub-standard. With some products, such as medicines, this can have potentially disastrous effects on disease management in poor countries.
In addition there is a growing argument that IPR has at best a limited role in non-industrial societies where many of the products and services, such as music or seeds, considered as IP in the West, are instead felt to belong to everyone in the community, and are not regarded as commercial in nature.
Responding to this, in late 2000, the WIPO set up the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This will discuss IP issues that arise in the context of access to genetic resources and benefit-sharing; protection of traditional knowledge, whether or not associated with those resources; and the protection of expressions of folklore.
Hot topics in IPR
Opposition to the granting of patents for seeds is growing in poor countries. Activists argue that patenting high yield seeds is immoral and unfair. Farmers have traditionally saved some seeds from their harvest but many of the patented genetically-modified (GM) seeds are sterile, and so farmers have to buy expensive seeds from western companies, or from the black market.
The Internet, which by nature crosses national borders, has led to conflicting court rulings and difficulties in framing IPR legislation. Critics of legislation that followed the expansion of the Internet, notably the 1998 Digital Millennium Copyright Act (DMCA) in the US, argue that the Internet was set up as a service for people to exchange information. As such they oppose attempts to legislate against, sue or pressure companies and individuals that supply or disseminate information via the Internet. For example in 2002 the Church of Scientology used certain clauses in the DMCA to send a letter of ‘notice and take down’ to the Internet search engine Google, asking it to block links to a website that was critical of the cult. As a result of the emergence of Internet-based services that allowed users to swap and download music and audio-visual files without the authorization of rights holders, there has been much litigation in the USA, some of it contradictory or confusing. Thus while Napster, which operated a central server, was found to be infringing copyright, the newer service Grokster, which does not have a central server, has been found not to be guilty of copyright infringement, even though most users of the service used it for illegal swapping of copyright material. In their ruling the judges compared the use of such file swapping services to the use of video recorders to make unauthorized copies of films, and noted that Congress, not the courts, should make law in such matters. Unable successfully to sue either file swapping services or internet service providers, the Record Industry Association of America started suing individual file swappers in 2003. It finally abandoned this strategy after some high-profile cases, including one against a single mother, and instead alerts internet service providers of any large-scale abuse it detects and asks the ISPs to act against the pirates.
Other concerns regarding IP and the digital environment center on legislation concerning anti-copying and circumvention technologies. In the US consumer groups and politicians have argued that this runs counter to the doctrine of Fair Use. This doctrine, codified in Section 107 of US copyright law, lists various purposes for which the reproduction of a particular work may be considered ‘fair’, such as criticism, comment, news reporting, teaching, scholarship, and research.
Term of protection
In 1998 the Sonny Bono Copyright Extension Act was passed into law in the USA. The bill extended the term of copyright protection for copyright holders, for the eleventh time since 1962, in part to comply with the WIPO’s 1996 copyright treaties. An online publisher of out of copyright literary works, Eric Eldred, contested the bill on various grounds, arguing mainly that it was not what the framers of the US constitution sought when they granted authors an exclusive right in the Copyright Clause for ‘limited times’. In 2003 the Supreme Court ruled, by a majority of 7 to 2, that the extension was constitutional.
Opponents of lengthy copyright terms argue that they do not encourage and reward creativity, as originally intended, and do nothing to benefit society at large. In effect they argue that when copyright protection is too long there is no longer a good balance between the legitimate interests of right holders and those of consumers.
The developing world and indigenous peoples
There is growing pressure for poorer countries to opt out of current IPR regimes or set up alternatives. Initiatives suggested in this regard include:
- The adoption of community-based IPR and resource rights regimes
- The revival of traditional farming and medicinal systems
- The adoption of Certificates that can be used to reject financial compensation in favour of non-monetary awards and non-exclusive licensing arrangements
- Giving indigenous communities other ways to protect their biological products and processes.
Tips for writing about IPR
Find out what IPR regime applies to the issue you are writing about. Is this a matter of national law? International law? An international treaty? A combination of these?
Get expert advice. IPR is a minefield. An expert in the field and/or an IP lawyer should be able to explain what issue is at stake.
Use the resources available. There are many pressure groups, trade associations and NGOs in the IPR field.
Don’t be afraid to ask basic questions. There is a lot of terminology specific to this field. Check and double check you understand the terms being used.
What to look for
IPR stories tend to be about two or more parties (usually companies and/or individuals) that have a dispute; or about parties with IPR trying to secure payment or access to markets or trying to prevent unauthorized copies being made and sold.
Also international and national initiatives by governments, trade associations and other NGOs aimed at changing the IPR status quo. These could include: lobbying initiatives, new treaty negotiations, new or amended national legislation, education and training campaigns, the establishment or appointment of specific IPR courts and magistrates/judges, the establishment of intra-ministerial departments and committees etc.
The ‘alternative’ viewpoint. There is growing opposition to the IPR status quo as created by the developed world. This opposition to patents and copyright can lead to boycotts, demonstrations and other actions.
There are (at least) two sides to every story: remember that it may be that a company trying to enforce its trademark is abusing a dominant position or that a person or company using IP law to stop publication of a book, song or piece of art is in fact attempting to censor free speech, criticism, parody or satire.