Past management of intellectual property rights - Essay Example

?PAST MANAGEMENT OF INTELLECTUAL PROPERTY RIGHTS By Introduction Intellectually property rights refer to legal creations of the mind in which case there are exclusive rights. Under these laws, the owners of these rights are given exclusive rights to a variety of assets that are intangible such as musical, works of literature and art. Other intangible assets take the form of inventions, phrases, symbols as well as designs. The common types of intellectual property rights include patents, trademarks, copyrights and trade secrets. Intellectual property issues have not come from the recent past. It has taken centuries and these rights have faced drastic rates of dynamism and were until the 20th century that it became fully operational. The way they were managed therefore ion the past is not the way they are being managed in the current economic times. This paper seeks to assess the way intellectual property rights have been managed in the past. In light of the same, it will highlight the types of intellectual property rights and their management in the past as well as justified improvements that can be done for the future. This will create the difference between the past, present and expected future improvements. Past Management of Intellectual Property Rights Management of intellectual is a term that is holistic and is used to describe the process in which tracking the rights creation, licencing as well as their usage. According to the World international property organization, the treatment of each intellectual property is dependent on the efforts being made to preserve the cultural heritage of the specific nations that the rights are being applied (Elster, 2010, p. 24). Though they may have an international backing as far as application to the market is concerned, there is always the need to establish a unilateral management policy on all so that the basics of their maintenance in the market v are maintained. The flow of ideas is also never restricted to any international boundaries and therefore there is a very consistent view of the fact that there are very complex legal systems internationally to try and harmonize all the intellectual property rights from the different nations to suite the world market. Therefore, the past, management in general was based on the fact that each country had to satisfy its own interests, its requirements, limitations and the legal time in which the intellectual property (IP) is going to be applicably necessary and valid. Patents Nicholas Luchi (2007) makes the traditional link between a patent and its registration with the government. He states that the registration takes more than one year to go through depending on the complexity of its making. A patent therefore is a grant under the issue of the government and bound by the law which allows its holder to exclude any other person or organization from commercial exploitation of the invention made (Lucchi, 2007, p. 18). The initial management is based on the application of the patent within territorial boundaries specific to the place where the invention was made and for a specific period of time. The management period originally according to the World Trade Organization (WTO) is 20 years. This shows that although there are specific regional laws concerning the property rights management, there are also universal laws set by the WTO to manage the patents since the application of these is supposed to have a universal bearing. Under the current and past management laws, the patents are applicable to new industrially applicable inventions that take the form of machines, processes that are innovative and chemical composition. The management laws state that integration to the public is made through the subsequent conditions of patentability in existence at that moment and in line with the WTO guidelines. For instance, to safeguard the public domain, the applicant must always make application to make disclosure of the invention to the public so that there is mutual benefit and understanding of how the operations are managed. For management to be effective, the protection criteria require that the invention must consist of the initial threshold. This is where the regional laws apply because the definition differs from region to region as well as country to country. There is also a trend to the effect that the patent management does not include theories, discoveries, and acts of the mental system by persons or any act or state of the mind that would make a contravention to the public order (Elster, 2010, p. 27). Management systems are supposed to be tangible systems or systems that are close to tangibility with non-obvious facts. For consideration to be protected, the patent must also be in line with the industrial applications, practical as opposed to being purely theoretical. How is the situation managed therefore if the patented invention is by way of application copied, incorporated or included into other inventions without knowledge of the owner of the management company? At this point, infringement will be said to have been made. This will give rise to a right to act against the incorporation. The judgement will be based on the level of breach that is reached but the particular remedy will be recovery of the damage caused as well as a reiterated declaration about the future use of the patent to avoid repetition of the same mistake. The WTO has indications on how patents are supposed to be applied as per the world requirements. However, the application is based on the specific country that one is applying in. in the UK for instance, the application is unilaterally managed by the Intellectual Property Office where all the regulation are clearly designed according to the UK trade laws and restrictions (Adam, 2004, p. 12). Trademarks and Names Trademarks refer to words, phrases and logos that are used to identify the products of a company. To understand how these are managed, we have to know the specific identity that they bear. Trade names are also part of trademarks and bear the specific name associated with the company as well as the specific product. A service mark also indicates the particular service that the company under a given trade name provides. Trademarks do not need to be registered according to the marketing laws and regulations but bear the impact of carrying the brand name of the product in the market. According to WTO laws and regulations on IP, trademarks have a validity protection right of up to ten years. They can be renewed ‘in perpetuity’ (Elster, 2010, p. 40). The trademark requires to be managed by the company itself but on invention, it is marked the letters TM after which they are identified by the IP governing policies. Use by any other company is an offense according to trade laws. The management requirements are that the trademark must have a particular measure of distinctive features. This is to differentiate the entire trademark that exists in trade. The second requirement is that the trademark should be specific to the product in that it should not create confusion with other trademarks. The management laws do not prohibit others from copying the commodities associated with this trademark. The only possible restriction is that there is prevention to duplication of the mark so that there is no confusion in the market. Benefits however result from the integrity and goodwill that is created by the original owner of the trademark. Imperatively, this means that there are restrictions to use of the trademark to a given level. However, other companies in the same industry are able to benefit from the creation of the trademark especially if the company bearing the mark is more famous than others. Just like copyrights, there are regional and territorial laws bind the use of the trademarks to the extent that a trademark applicable to the UK would not be recognised in the neighbouring France or Germany (Elster, 2010, p. 33). Management therefore required that the trademark be registered in one country only. This is so because there might be the same trademark in another country by a different identity and therefore there are Confusions that are bound to come up if the other trademark is added to the same economy. In the subsequent times, the management of trademarks was based on legislated protection laws. It was also established that renewal of the trademark is possible on the basis that if the owner can verify the continued use, there will be a provision for continued use in the market. Management of trademarks was purely based on the owner’s strength in the market. If the owner is stronger, then there can be infringement and this may be due to the fact that the protection initiative was not done by the owner. Trademarks are therefore given common law benefits in common law countries. For instance, if two companies register a trademark that is the same, then there will be assignment of the trademark to the first individual company in what is called the “Passing Off”. The actions taken against infringement of the laws are dependent on the intensity of the offence. When marks, without prior consent are diverted to use by other companies for a profitable benefit, then there will a right of action since the products being released will be considered counterfeit. In case of similarity in trademark in the market, there is confusion in the market and therefore the infringement will amount to right of action for infringement of the trademark. The management of trademark is therefore very important in that they create a differently trademarked market without confusions (Lucchi, 2007, p. 21). Copyrights and other related rights According to Adam Jolly (2004), management of the IP assets refer to protection, development and exploitation of the IP assets in the effective was so as to ethically keep the market balanced. Copyrights are statutory rights that are conferred to someone or an organization so that their original expression of ideas is protected. There are no applications or registrations for copyrights but the general idea is that they are put under the statutory protection from the time they are created. This protection is done on how the ideas are expressed as and not the ideas themselves. This is because there are so many ideas in the offing and protecting all these would not be economical enough. They have both economic and moral rights as well. The description of these copyrights production constitutes the way they will be managed in the market. To maintain originality, the communication rights which constitute economic rights are given to the owners for economic purposes. When the time of protection expires, the copyrights are put into the public domain and are available to all the people who are able to reproduce, to adapt or put it to any form of use as long as the use does not infringe the rights as per the original owner is concerned. Copyrights are not so prohibitive in that they tend to develop the society as a whole but their management restricts the use to recognising the originality of the ideas and the creations. Copyrights take the form of literary works, musical works, artistic, maps and other designed drawings as well as photographs. In the past therefore, these were not allowed on the internet as far as whole use is concerned but were applicable if the original owner of the creation was concerned (Jolly, 2004, p10). To create protection to copyrights, there are rights and privileges there are rights and laws that protect the use of these creations. There is the right to copy which, in the management of the creation makes sure that it is protected. The other rights are; the right to make a public performance, the right to record, the right to broadcast and the right to adapt. All these are put into practice and therefore the management has the inept reason to create laws and legislations that prohibit unauthorised provision of these in any way without recognition of the original inventor of the creation. All these constitute economic rights under the management acts. There are also moral rights that are recognised. These are created by the international treaty organization on trade as well as the world trade organization. The integrity of the work is created and is supposed to be maintained as such. By jurisdiction, the rights can vary as well depending on where the originality is made. This is to say that there are those creations that are applicable in one place and not applicable to the other places. Moreover, each country has its own management jurisdictions on the management of the copyrights. All management laws required recognition of the owner as the creator of the invention though there are exceptions to this. This exception may take the form of the creation having been made on behalf of someone else of another company. There are also laws that exist in specific nations about the production and management of the copyrights. Infringement of the laws presents a very fundamental principle in their management. If for instance someone exercises the right to use of the copyrights without the consent of the owner, then that creates an infringement (Elster, 2010, p. 25). Trade secrets These are formulas, patterns and data that gives a certain company due advantage over other companies in the same industry. These secrets are fully protected by state laws other than the federal laws. The trade secret is also applicable only if there is proof that there is addition of value to the company. Otherwise it would be unnecessary to have it protected. This is a proprietary secrecy is an information that is managed by the company that uses it and is not in any way applicable to use by the general publics or competitors. This is also important only if it keeps the competition healthy. Obtaining of the secret can therefore only be done by those who are authorized. However, sanctions have to be involved so as to retrieve them. To this end, there seems to no change to the traditional laws governing their management. They are secrets that are not legislated and therefore a property of the company. In most cases, the trade secrets are kept by the owners of the companies. This is because the competitors may decide to hire a top manager from the original company and reveal the secret to some competitor. For instance, the Coca-Cola Company has managed to successfully keep the trade secrets for more than 117 years in the operation and this has kept it in operation for all this time. Stern measures to maintain confidentiality of the trade secret information is therefore very important. To manage these better, each company has come up with non-disclosure policies that give way to effective management of the company. The non-disclosure policies state the idea of all employees not using in any way the trade secrets that were being attained during their time at work in the given company. It is also against labour laws of many countries to give trade secrets to the competitors as well as share it with the competitors (Adam, 2004, p. 12). Therefore, companies over the years have come up with confidentiality clauses which state that: There will be consequences on revelation of the secrets The kind of business obligation that is being protected and why there is need to do the protection The restrictions as well as obligations imposed Obligations in application after retirement from the organization. These are important aspects of the secret management policy and each company has its own way of protecting the rights. Justified improvements for the future Increase Rates of Employee Compliance The rates of compliance to inclusion of the property rights are not in line with the required standards. Therefore, there are some of the IP laws that need amendment so that there is a high rate of compliance with the law. In developing countries for instance, breaking the laws along IP lines is the order of the day and is done like it is normal business. The management of the IP rights is essential in trying to evaluate a more plausible response to complying with the laws. This can only be done if the involved parties; the government securities as well as company management take up the responsibility of controlling provision and production of these creations of the mind. This can be made possible through increment of the penalties on the IP prosecution terms. If the terms are made stricter, then there will be fear of victimisation and this will make the levels of compliance to improve (Elster, 2010, p. 20). Increase volumes of comprehensive documentations per claim Comprehensive documentation is a creation that makes ton it that there are clear protocols to be followed (Adam, 2004, p. 18). The WTO has its general laws concerning the development of the IP. However, regional differences have made it impossible for some of the IP holders to advance past initial stages. If an IP holder is an individual especially on issues like trademarks, the same trademark can be taken away by a much stronger firm that makes it possible for the company to use it instead of the owner. This is to say that there is a lot of exploitation to these property rights. If there would be a good documentation, then there would be an initial protection from the start of the invention to protect such low level entrepreneurs by law. Reduced average response time There is a very high response time in most of the applications. For instance, application for the patents takes at least one year and this would deter all forms of inventions due to the inventor of the creation giving up along the way is recognised that legal variations in the different parts of the world. There are all the processes that go on in the development of the property right and if the invention is supposed to be timely depending on the changing market demands on the same product. A more timely invention disclosure will be created and therefore more creative designs realized within a given period of time especially if there are market demands in the development of the given property (Elster, 2010, p. 21). Reduced Time To Respond To Patent Queries In the patent case, it is not just a matter of the patents taking more than a year to be initiated. Responses to the questions about the development of the patents at the development stage are very long. This can be improved by the management changing to modern dynamic ways especially use of technology to try and regulate the commissioning of all the patent question processing. Patent’s also last for 20 years and are eligible for renewal at that time of which another period of one year will be enacted to take care of the validity required (Elster, 2010, p. 33). Implement Single Repository policy This is applicable especially in case where there is application of trade secrets. Records captured on paper as well as those records kept electronically are supposed to be kept in the safety of a single repository centre free from any prospective interference. This will keep the management responsible especially the records department in trying to maintain the safety of the records. Most of the company trade secrets are lost due to poor storage. This will also be a key performance indicator in trying to create an effective and long term management protection policies (Elster, 2010, p. 22). Conclusion Past management of the intellectual property rights is very critical in creating a very feasible future development. There are vast differences in the way the IP rights are viewed in different parts of the word. However, if there is a future in their development going by the general rules of the past in practice to date, then changes have to be made. This paper has elaborated on the past management of the intellectual property (IP) rights. In light of the same, it has elaborated on the four IP rights; patents, trademarks, copyright and trade secrets. A renovation of the whole IP system would be necessary to elevate the management to be friendly to the holders of these rights. References Adam, J. ( 2004). A Handbook Of Intellectual Property Management: Protecting, Developing and Exploiting Your IP Assets. New York: Kogan Page Publishers. Elster, P. R. (2010, 12 12). WIPO Guide on Managing Intellectual Property for Museums. Retrieved 03 20, 2013, from WIPO: http://www.wipo.int/freepublications/en/copyright/1001/wipo_pub_1001.pdf Lucchi, N. (2007). Digital Media & Intellectual Property. 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