Challenges Posed On Intellectual Rights Due To Globalisation - Case Study Example

Intellectual property rights as a global issue has drawn a lot of attention to many scholars and businessmen. This study is set out to discuss this issue in detail and more particularly focus on the UK and US. To this, there will be a comprehensive answer provided to the question, “What are the similarities and differences of intellectual property rights in the US and the UK? And which are the difficulties faced in the increasingly globalised world?” The expression intellectual property refers to a product in the concerned mind. This is different from the usual idea of property like buildings, land, vehicles among others which are tangible in nature. The property, other than intellectual property, can be felt as well as seen. Ownership of the tangible properties can be transferred to another person either temporarily or forever, they can also be lent. By a simple look at these intangible properties one cannot put a judgment upon their commercial value; one can also not measure them. Price comparison can only be done on tangible properties with other tangible properties that are similar. On the other hand intellectual property, up to the point in time it is presented in the form that is tangible, it cannot be sensed by another individual other than the one who created it. Thus, this property is only present in the mind of the creator. For a long time intellectual property was not recognised and it was not protected by law. Among courts and law makers there was a debate on whether to offer legal protection on these types of property. As enlightenment came in, the European and the American economies were infested with authors, inventors, entertainers, publishers and composers. Due to this the economic and political fields in the region of the west recognised the need for protection of intellectual property by way of law. There were such rights on property such as the right of ownership, distribution, publishing, exchanging, selling and even blending to be recognised in order such property could have marketable value. The enforcement of such rights has, however, become a very huge problem due to the view against intangible property rights recognition. (Shippey, 2001 p1) Copyrights Generally, in the US, there are four major intellectual property rights protection. These may include; copyrights, patents, trademarks as well as trade secrets. Copyright law in the USA is based upon the convention of Berne. The law of copyright in this nation serves in property the original works relating to authorship in an expression medium that is tangible. Thus, this right applies to products that have some level of originality and authorship such as music, books and programs of a computer. It is a protection against the actual copying. The derivation of interpretation of work that has been copyrighted is also likely to break the copyright law. That is, if such is not different from the original work of the author. The law of copyrights’ aim is to ensure a balance between public interests that are likely to conflict. Firstly, it encourages creativity as concerns the private sector through exclusivity and secondly, it encourages a market place that is competitive since the public has free access to the work of the creator. A copyright in US lasts for the author’s life plus another 50 years if the work that is copyrighted was made by a single person. If it is a corporation, employee’s works that have been copyrighted last for 100 years following their creation or a period of 75 years subsequent to the first publication. (Altvater, et al 1998 pp2, 3) On the other hand, in the UK there are four main intellectual rights protection. These are; trademarks, patents, copyrights and designs. These categories are dependent upon what has been made by an individual and the usage. Some kinds of products require the four categories protection. In the case of UK copyrights, as an intellectual property rights law type protects many kinds of work. These may be with the inclusion of lyrics, music, patterns of knitting and photographs. This law applies to all mediums in which a copyright protected piece of work has been protected can be copied without the owner’s consent. Any copyrighted work in UK cannot be copied without the owner’s consent. Any copyrighted work in UK can have more than a single copyright as well as other intellectual property right. The duration for which a copyright lasts is dependent upon the type or category of work and it is computed from the point in time when the creator dies. For example, any theatrical, written, artistic, musical and film work copyright for the whole life of the creator plus another 70 years following his/her demise. (ipo.gov.uk, 2008) Patents A patent in USA is usually granted courtesy of the government to the person making an invention, through the office of Trademark and Patents. Its term is 20 years following a successful application for such a patent in the US. This is subject to the maintainance fees’ payment. It prevents the others or excludes persons who are not owners from using, making, selling or making an importation of an invention. Persons that can obtain a patent include those who discover or invent any new and utilisable machine, process, composition of matter or manufacture. These terms have various definitions. The classes in total include things which are created by men as well as the processes for the product making in entirety. (U.S. department of commerce, 2000 pp7-10) Similarly, in the UK a patent is granted to a person and it gives an inventor a limited period to enjoy the right of stopping other individuals from using, making or disposing his/her invention. In this region patents relate to technical and functional aspects of a process and product. Most of patents relate to incremental improvements in a technology that is known. Such a technology does not have to be complex. However, in UK patent rights usually last for 20 years. However, there are some products which are eligible for an additional five years, on top of the 20 years, protection. They have a protection certificate that is supplementary. A patent can be sold, bought, licensed or mortgaged to other people. (Potter, 2006 p 196) Trademarks Trademarks include such names as “Coke” for the coca cola company and they are a way of knowing who makes what persons are consuming. They are usually registered by the US patent and trademark office. It is a way of manufacturers or business to publicly brand their products as being different from what others are offering. Thus, a trademark in US distinguishes and identifies the products’ source of one party as compared to others’. (Commissioner for trademarks, 2009) As applies to patents, trademarks call for considerable investment in both advertisement and also high quality standards mainatinance for them to be strong in the USA. While making a transfer one is called upon to insist on the preservation of the quality standard. By the encouragement and protection of trademarks the related technology’s transfer is usually encouraged. In the US trademarks exist so long as the trademark owner controls or provides the products that are identified by the trademark. (Altvater, et al 1998 p3) In the US, once a person has claims on a trademark he/she can use the letters ‘TM’ so that the public becomes aware of the claim. This is without regard to whether one has filed an application with the relevant authorities (in the context of USPTO). The symbol “R” can only be applied when USPTO has registered the mark in focus but not while its application is pending. Trademarks are also used only in connection with the products that have been registered or listed in the trademark registration in the federal government. (Wilson, 2004 p193) In UK trademarks are such symbols like brand names and logos which serve in the distinguishing of the commodities in the place where they are sold. This type of intellectual property right helps in differentiating the commodities of a business from those of rivals. Businesses use their trademarks to market their products since through them the customers will have an easier time while recognising their products. Trademarks in the UK need to be renewed after every decade so that they would remain in force. Usually, there are symbols used to distinguish a registered trademark from that one that is not. A symbol of capital “R” in a small circle is used next to the trademark so that other persons are warned against using the trademark just like in US. In the nation of UK, though, if the symbol “R” was applied in a situation where the trademark is not registered, it translates in to an offence. However, in UK, if a mark is not yet a registered trademark, one can still take legal action to offenders by the action known as passing off. To gain success in the action of passing off, a person must prove ownership of the mark. He/she must also have a built up reputation concerning the mark and prove that by the use of the mark by the other person one has been harmed in some way. This may be very hard and expensive, though. (ipo.gov.uk, 2009) Designs There are usually two types of designs. That is, aesthetic and functional designs. The law of designs in the UK has the two types of design protected. A design right that is not registered protects the products functionality. The term functionality design refers to the aspects of configuration or shape of a part of the whole article. This lasts up to ten years. The 1949 Act of Registered designs as well as the Community design registration that registration of a design ensures the protection of a product’s appearance for a period of up to five periods that are renewable of five years each. A design right that is not registered may be applied in the protection of functional and ornamental features of a given article. Also a car body which is new and has an individual character is also efficient functionally. There is also another side that ensures interface between technology and design. Here, a design that is not registered right can be applied in the protection of electrical circuitry and mechanical arrangements. (Reid and Myddelton, 2005 p45) There is also a rule regarding any infringement in an innocent manner of an unregistered design right. This innocent infringement cannot afford either the defence to liability or a defence that is limited to damages, though. It contracts the discretionary remedies of profit’s account. Given this unregistered design right, it is useful in application so as to protect, in the short run, against competitors’ copying. (Fitzgerald, 2008) In the US design rights are not a major intellectual property right but rather they fall under patent rights. Design patents apply to the aesthetic aspects of the manufactured articles like furniture, jewelry, instruments and musical aspects. They serve as a larger scope of offensive rights with the inclusion of the equivalents doctrine, and they are good against all creators that are independent. These are usually recommended for the aesthetic shape of utilitarian articles. (Pressman, 2008 p24) Trade Secret Right A unique intellectual property right in the US is the trade secret right. A trade secret right relates to a specialised piece of knowledge gained by a company through innovation, ingenuity or even hard work. A trade secret may possess many definitions but the most common characteristics to all trade secrets are; the value, the secrecy and the effort. The value of a trade secret comes in since the information has some economic value to the business of the company since the company has the knowledge of it but rivals don’t. It gives the company in context a competitive advantage. The secrecy of a trade secret means that there is no general knowledge of the information and it is also not easy to find out. Therefore, if some rivals have already known the piece of information then such is not a trade secret. Lastly, effort comes in where the company has to take considerable measures in order to make the information a secret as much as possible. Thus, if information is posted in a place where customers, employees and vendors can see it such information does not probably fit as a trade secret. (Guerin and Delpo, 2007 pp343, 344) Even though they are not put as major intellectual property rights, trade secrets also exist in the UK. They cover a vast area of information that is confidential from technical secrets. However, the law upon trade secrets in this nation is almost made by the judge in entirety since there is no statute governing it. For information to qualify as a trade secret it must not be in the public domain. However, it is not a possible to protect a trade secret from a third party’s independent discovery just like patents. Trade secrets depend upon imposition by the law of contract or confidentiality law. (Zack, 1999 pp185, 186) Challenges Posed On Intellectual Rights Due To Globalisation In the 20th and 21st centuries, globalisation has risen in a very fast pace. A major dramatic change is the international economic law development. Its introduction was due to the presence of the WTO- World Trade Organisation. This new regulatory and legal framework has caused many questions and uncertainity on intellectual property rights. The impact of the developments needs some investigation. They pose challenges due to the costs of transfer of innovation and technology to developing nations from developed ones. Reference list: Altvater, Elmar. et al. (1998). Intellectual property rights in Central and Eastern Europe: the creation of favourable legal and market preconditions. IOS Press. Edition illustrated. p 2, 3. Commissioner for trademarks. (2009). Intellectual Property. Retrieved August 29, 2009 http://usgovinfo.about.com/bltrademarks.htm. Fitzgerald, John. (2008). Innocent Infringement’ And The Community Unregistered Design Right: The Position In The UK And Ireland. Retrieved August 29, 2009 http://jiplp.oxfordjournals.org/cgi/content/abstract/3/4/236 Guerin, Lisa and DelPo , Amy. (2007). The Managers Legal Handbook. Nolo. Edition 4, illustrated. pp 343-344. Ipo.gov.uk. (2008).Intellectual Property Rights. Retrieved August 29, 2009 http://www.ipo.gov.uk/types/copy.htm Pressman, David. (2008). Patent It Yourself. Nolo. Edition13, illustrated, revised. p 24. Potter, Stephen. (2006). Doing Postgraduate Research. SAGE. Edition 2, illustrated. p 196. Reid, Walter and Myddelton, David Roderic. (2005). The Meaning Of Company Accounts. Gower Publishing, Ltd. Edition 8, illustrated. p 45. Shippey, Karla C. (2001). A Short Course in International Intellectual Property Rights: Protecting Your Brands, Marks, Copyrights, Patents, Designs, and Related Rights Worldwide. World Trade Press. p 1. U. S. Department of Commerce. (2000). Patents and How to Get One: A Practical Handbook. Courier Dover Publications. pp 7-10. Wilson, Lee. (2004). The Trademark Guide: A Friendly Handbook To Protecting And Profiting From Trademarks. Allworth Communications, Inc. Edition 2, revised, illustrated. p 193. Yueh, Linda Y. (2007). Global Intellectual Property Rights and Economic Growth. Retrieved August 29, 2009 http://www.law.northwestern.edu/journals/njtip/v5/n3/3/ Zack, Michael H. (1999). Knowledge And Strategy. Butterworth-Heinemann. pp 185- 186. Read More