Intellectual Property - Essay Example

Intellectual Property Introduction In today’s world, the United Arab Emirates economy has been among the highest developing countries in the world. This has been facilitated by the growing levels of foreign direct investments which have led to introduction of Intellectual Property (IP) laws that are consistent with the international standards. Notably United Arab Emirates (UAE) has been making efforts of protecting intellectual property rights in recent times. The increased efforts to fight computer software piracy have made UAE be recognized as a leader in fighting piracy crime. As a growing nation, the Intellectual property system in UAE is still undergoing development with the government aiming to achieve compliance with the international treaties and agreements such as TRIPS (Cave, 1999). In June 2011, the government established an independent office headed by undersecretary in the ministry of Economy. Notably, the UAE local laws and practices in regard to customs and patents are usually circumvented by other laws established by the cooperation Council for Arab States of the Gulf (GCC). Nonetheless, despite all these efforts, various stakeholders still feel that much needs to be done. For instance, the recording industry has been criticizing the government for failure to establish royalty collecting mechanisms denying them remuneration as other people continue using their rights. As observed, the United States IP rights compliance representatives have also raised concerns due to lack of efficient laws that could guarantee transparency and information exchanges with UAE officials to ensure protection of individual’s property rights. Discussion of the potential problem Many countries around the globe do not adequately protect intellectual property rights. Surprisingly, most countries have laws that can offer comprehensive protection only on paper with the authorities lacking the will to enforce them. This in part, reflects a strategic plan by some governments to facilitate cheap access to patented drugs that could assist their local firms to copy technology from other firms without paying for it. As such, this trend has raised serious concerns that require the establishment, and enactment of effective Intellectual Property laws that could spur development (Blyde & Acea, 2002). Regrettably, weak IPR policies have proven to encourage trading in counterfeits that are unsafe and could result to health related problems. According to previous researches, the most recent WHO report indicated sharp rise in trade of counterfeit medicines amounting to approximately $ 32 billion across the world. In addition, weak IPR policies limit growth of artists’ who forms a significant percentage of domestic entrepreneurs since their business is hurt when their original music is pirated; leading to loss of millions in terms of revenue. Disappointingly, the evidence shows that the problem of infringement of IPR has contributed to about 4-5% poverty levels across the world. Discussion of U.A.E. intellectual property law Intellectual property rights applies to any original artistic, literally or scientific creation of any type. This includes written works, computer application software, dramatic works, music compositions, speeches; audio-visual works among many others. However, as provided by Article 7 of UAE intellectual property law, the author holds the exclusive right to prevent any kind of exploitation of his original work by an unauthorized person particularly through piracy. In addition, the article gives the author moral rights such as making the work available to the public, right to prevent any modification whatsoever by an unauthorized person, right to claim authorship and also right to quit the vocation in the event of serious legitimate reasons brought forward by a third party. Article 16 to 19 of the Intellectual Property law provides the performing artists with exclusive rights to prohibit or authorize communication or broadcasting of their production to the public. Article 16 gives the right to the author to prohibit any recording of his work without any prior written consent. However, Articles 22 and 23 provides exceptions to the exclusive rights on condition that the reasons to which the Articles are not observed do not prejudice the moral rights of the author or exploited for commercial purpose (Commission on Intellectual Property Rights, 2002). As such the reasons to which the exceptions could be allowed includes; making copies for personal use, adaptation of a computer program for the purpose of replacing a lost one; provided the lost program is under the property title, for use in judicial or administrative procedures, for research, criticism or education related purpose. Nonetheless, such use of other people’s original work is not allowed without the authorization of the author. Also, excluded from intellectual property protection are mere procedures, ideas, systems, mathematical concepts and other scientific facts which are not expressed in their original form? However, Section 3 of IP laws provide that the aforementioned can only be protected only if the creation is by virtue of personal efforts that deserve protection. After three years of publication, Article 21 provides that compulsory license for translation can be granted to any interested party to copy the work protected under IP Laws against fair compensation to the author provided the license is requested by any relevant Ministry for the purpose of education or for archiving at the public libraries. Copyright Article 1 of UAE IP laws provides that the person whose name is attributed to any published work is the author unless there is verification to the contrary. However, in case of joint work that if difficult to distinguish, the contribution of every participant, should be considered in the development of the art unless there is an agreement in writing to the contrary. In UAE, trademarks registration is done by filling an application form together with payment of five hundred Dirhams as the processing fee. As provided by Article 44 of IP laws, copyright protection is provided for the lifetime of the author and additional fifty years from first January following the death of the author; fifty years from the death of the last surviving author for joint work or fifty years following the first authorized publication whichever comes first for the case of collective work. Notably for the performing artists, Articles 5 and 20 of the IP laws provide that the rights should last for 50 years from the end of the first year after initial recording and performance. On the other hand, there are no legal formalities on registration of copyrights. Article 4 provides that, failure by the author to register the work does not prejudice the author’s rights under UAE IP laws. Nevertheless, individuals who wish to register for copyright should submit to the respective Ministry a duly completed application form that provides details of the registered work and any intended disposal thereof. Trademarks Trademark refers to a brand name. It includes either a symbol, word name or a combination that distinguishes or identifies a good or service from one seller to those of others. Although in UAE, the registration of a trademark is not mandatory, it has a number of benefits such as notifying the customers of the manufacturer’s ownership of a particular brand. The manufacture also carries legal presumption of brand ownership across the country and more importantly holds exclusive rights of brand ownership national wide. In UAE, the first trademark was registered in 1993 under the ministry of Economy and Industry. Overtime, the ministry has developed a number of codes that are now followed on application for trademark registration and subsequent renewals. As such, application for registration is submitted on an original application form prepared by the trade mark owner if the applicant is a domicile of UAE or by a law firm if the applicant has not domiciled in UAE. However, this requirement of non- nationals to register through law firms has been highly criticized as a barrier for registration of foreign trademarks. This is due to the cost involved in hiring UAE registered law firms which is prohibitive as compared to other countries. According to World Bank (2008), the cost of processing trademark application that lasts for ten years including other related government application fees are estimated to be around seven thousand Dirhams thereby limiting the total registered trademarks to about 50,000 by year 2011. Other requirements for trademark registration include; 14 pictures of the trademark measuring 5x6 inches, legal translation of the trademark, copy of the license, copy of the power of attorney attested from the original reference, all which should be submitted in a closed folder. Many critics of the fore mentioned registration requirements argue such long registration procedures are meant to hinder acquisition of trademarks. Patents Patents refer to the rights given for any novel idea that can lead to new invention and has the potential for industrial exploitation. In UAE, the initial step to register a patent is to fill an application form and make a payment of seven thousand Dirhams as processing fee after which the application is reviewed by the respective authorities for compliance with the formalities provided under the UAE IP laws such as inventiveness, novelty and its industrial applicability. After the application passes the applicability test, it is then published in the official Gazette, and any interested party has the right to appeal within sixty days from the date of publication. If no opposition is lodged within the allowed time limit, then a certificate valid for twenty years is issued. Discussion of Apple-Samsung litigation After Samsung Electronics had launched its Galaxy smart phone in August 2010, legal representatives of Apple visited South Korea to lodge a formal complain. Previously, the late Apple founder, the late Steve Jobs was quoted in an earlier meeting complaining of Samsung Electronics use of Android operating system as piracy of their own invention, the iPhone. Later, due to the close ties enjoyed by the two firms, the negotiated solution to the problem seemed almost achievable. However, the hard line taken by Apple attorneys led to the collapse of search for a possible solution, and Samsung officials were angered by the accusation of pirating Apple’s invention. The fundamental dispute between the two rivals set a stage for a bitter patent dispute that led to United States (U.S) jury to give a verdict that Samsung had violated Apple’s patent. Apple was awarded $ 1.05 as damages with the potential of being tripled if Samsung would be found to have acted willfully. The most devastating effect on Samsung following the Jury’s decision was the possibility of a total ban on sale of its tablet and smart phones products. Discussion of World Intellectual Property Organization and whether the U.A.E. is a member of the organization The World Trade Organization (WTO) formerly General Agreement on Tariffs and Trade (GATT) was formed on January 1995 with the objective of unifying and facilitating trade. As such, the body has developed a number of multilateral agreements that binds all the WTO members trading in goods and services. This has seen the development of agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Recently, Middle East nations have begun to appreciate the need of obtaining membership in the WTO. This is after recognizing the numerous advantages to nations on attainment of membership and subsequent adherence to the laid rules and regulations. Some of the benefits enjoyed by WTO members include; entitlement to most favored nation treatment, representation of nation’s interest in national forums, development of private sector, increased global confidence due to frequent interaction with foreign players and more importantly the advantage of leverage in brokering future negotiations with other member countries (World Intellectual Property Organization (WIPO) ,2009). UAE joined WTO in April 1996 and has been working hard to achieve compliance with WTO standards and rules. As such, UAE has developed laws that meet the TRIPS standards in a bid to instill effective laws that can check the problem of endemic piracy to encourage increased foreign investments in its economy. Moreover, the UAE government, through the ministry of Local government and Economy is enhancing protection of IP rights by encouraging traders as well as consumers to purchase only licensed and original products. The local authorities are also working hard as can be witnessed by its trained personnel who occasionally raid warehouses and shops to seize products that are counterfeits while at the same time enacting stiff penalties to the offending parties. References Blyde, J.S. and C. Acea (2002). The Effects of Intellectual Property Rights on Trade and FDI. Washington, DC: Inter-American Development Bank. Cave, B. (1999). Business laws of the United Arab Emirates. The Middle East Journal, 2, 7-15. Commission on Intellectual Property Rights (2002). Integrating Intellectual Property Rights and Development Policy. London: Commission on Intellectual Property Rights. World Intellectual Property Organization (WIPO) (2009). The Economics of Intellectual Property: Suggestions for Further Research in Developing Countries and Countries with Economies in Transition. Geneva: WIPO. World Bank (2008). World Development Indicators. Washington DC: World Bank. Appendix DRAFT INTELLECTUAL PROPERTY LICENSE AGREEMENT The following is an intellectual property agreement between xxxx Ltd, and UAE Corporation transacting as yyy Ltd addressed as (the “licensee” while the inventor referred to as (the “licensor”). In this contract, the licensor permits the licensee to manufacture, sell and distribute the product referred in Schedule- A using the licensor knows- how. The licensee shall pay 5% of the items sales price as the consideration. A further condition is payment of $ 1.00 for in excess of the royalties for contract renewal per quarter. Payment of Royalties: The licensee shall pay a consideration for licensed goods before the expiry of 31 days. As per the agreement, a list of accounts that purchased the licensed item in every quarter shall accompany every loyalty payment. However, if the licensee delays in royalties’ payment, the royalties’ amount shall attract an interest of 20% per annum. Nonetheless, the accounts, which are filed for bankruptcy or those that are considered as doubtful debts, will not be liable for royalties’ payment. However, in case then the payments for such accounts are made in a future date, then the loyalties shall be made together with other subsequent payments. Termination: For this matter, if the licensee ceases to transact the licensed goods, then all the rights given to the company shall revert to the owner. Moreover, if the company ceases to manufacture the licensed item, enters into liquidation or terminate the product line, similarly all the rights enjoyed shall revert back to the owner. Warranties: The licensee shall ensure that the licensed item is of superior quality, workmanship and designed appropriately. In addition, the product shall be distributed and sold in line with the applicable regulations and the law. The warrant also stipulates that the agreement is legal, binding, and a valid obligation enforceable against the licensee in accordance with the terms agreed. The licensor warrants that the licensed work is wholly owned idea invented by the licensor and shall indemnify the licensee in the event of any claims for ownership of the intellectual property by any other firm. Indemnity: The licensor shall indemnify the licensee for any action, claim, judgment or proceeding and shall cater for all costs associated with same. This agreement have been executed on (date) between (the licensee- yyy ltd) and (the licensor- xxx ltd) SCHEDULE A. Schedule A-: Annexed hereto are the details of the licensed product 1. Territory: The agreement stipulates that the item shall be traded worldwide. 2. Term: The agreement states that the royalty will last for Five (5) years with the licensor having an option of renewing after the end of the 5 year agreement. 3. Payments made by the licensee to the licensor shall be determined by the number of items of the licensed item sold. The agreement states that the royalty payment shall be five percent of the total sales. 4. Product name: xxx, Product description: The invention, product and Licensed item is xxxxxxxx. Read More