Intellectual Property Rights - Essay Example

1. ‘IP rights have, throughout history, increased in scope and shifted towards greater protection for their owners’. Critically assess the main factors responsible for such expansion. A universal characteristic of all Intellectual Property rights is expansion. Intellectual Property (IP) rights have throughout time developed at the pace of the modern world. As people become more literate through reading, listening, performing and being able to distinguish between different types of creative efforts, IP rights have annexed to the extent that they have today. ‘Intellectual property law is the area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill. The subject matter of intellectual property is very wide and includes literary and artistic works, films, computer programs, inventions, designs and marks used by traders for their goods or services.’1 The law makes sure that the owners of Intellectual Property creations are protected. However, the law in regards to IP rights is never stable since IP rights are many different types of rights developed at its own pace at a national and international level. IP rights are protected at a national level, but at the end of the 19th century International Intellectual Property started to develop at a more international level. Copyright means the right to make copies2. A work will not be protected unless it is original3, fixated.4 Copyright has developed extensively from the time before the printing machine to the modern luxuries of the modern world. The first copyright case dated back to 567 AD. The case of Finnian v Columba where Columba made a copy of his teachers Psalter. Following this the Statutes of the University of Paris in 1223 legalized the duplication of texts for the use within the university.5 Following this the first printer was developed, creating the first ‘bestseller’.6 The printing press brought on a period of piracy and chaos. The factor that brought everything to a comprehensive balance was when the statute of Anne was passed in 1709. If the author was alive when their right expired after 14 years, another 14 years was granted. A dispute arose on whether or not the author had a perpetual common law right to print or publish his work by assigning a perpetual publisher to do so. This dispute was settled in Donaldson v Beckett.7 The author died and his copyright was sold by his executors to Beckett. Who in return sued Donaldson for infringement of copyright. It was stated in this case that ‘the author did have a common law rights that were potentially perpetual (that is, the right of first printing and publishing), but once the work was published, this common law right was extinguished and the author’s rights were to be determined solely from the Statute on Anne 1709.’8 This Statute of Anne was incorporated by the US Congress in Article 1 Section 8 of the US convention 1787. Also the Donaldson v Beckett case was the corner stone of the Supreme Court in the Wheaton v Peter’s case in 1834, showing that copyright law was expanding internationally like the UK. The Berne Copyright Convention formed in 1886 achieved protection for copyright owners in all contracting states, this was ‘initiated by a number of European countries and copyright holders, that came up with one solution: national treatment.’9 Since all the countries that where members of the Berne convention could not agree on a standardized global protection rule, they came to the agreement that ‘work’ that came from one of the signatory countries of the Berne Convention would be protected in all other countries that are members of this convention. This was known as the ‘principal of national treatment’. In 1908 the Berlin Revision occurred to encourage greater uniformity in copyright law. Article 7 of the act now states that ‘the term of protection granted by this Convention shall be the life of the author and fifty years after his death.’10 Article 7 of the Act prohibits countries to exclude certain types of expressions from protection in there domestic copyright law. Following this the Rome Act 1928 also added in the Berne Convention ‘Moral rights’11, where right to claim authorship was introduced and also the right was given to object to any modification or derogations to the authors work irrespective of the ownership of copyright. These rights where important because the author was given some control for his rights in the future12. The United States still did not join the international arena until 1952, when the Universal Copyright Convention13 succeeded in bringing the ‘United States into the international network of copyright relations.’14 The United States signed the Berne Convention in 1988. Following the United States, the USSR also joined and the People’s Republic of China. The purpose of the Universal Convention was to bring countries together (especially the U.S.) to join the Berne Convention. IP rights had grown past just printed materials, in 1961 the Rome Convention15 was formed that responded to the new and modern developments. The Rome Convention was accepted by the World Intellectual Property Organization (WIPO). ‘The agreement extended copyright protection for the first time from the author of a work to the creators and owners of particular, physical manifestations of IP, such as audiocassettes or DVDs.’16 In 1967 the Berne Convention was revised at Stockholm, introducing a ‘Protocol’ where countries not as developed would profit from. For example: the copyright term could be reduced, translation rights would end after a set time unless used………17 However the Protocol failed to launch, because it was not favored by national countries. The Berne Convention was further revised in 1971 at Paris. The Protocol was replaced by an Appendix and offered provisions for the translation and reproduction under controlled circumstances. The Appendix was not hit with the developing countries; only 8 out of the148 members have benefited from it, due to extensive drafted limitations. In the 1980s, the U.S struggled to bring IP rights within the GATT (The General Agreement on Tariffs and Trade) which resolves trade disputes. The U.S government even threatened that it would use trade sanctions to all the countries that did not comply to the provisions set in the Berne Convention. As a result in 1994 the TRIPS agreement was signed.18 ‘It is arguably, the most important international initiative in the field of intellectual property since the Paris Convention of 1883.19 The TRIPS provided trade sanctions so developing countries would not shadow away from the provisions set in the Article. The main goal of the TRIPS agreement was two things: ‘(a) broad and strong minimum standard of protection across a wide range of IPRs; (b) direct legal responsibilities for enforcement to fall on all the signatories.’20 Developing countries started to take charge and finally a vast majority signed up. These developing countries were not afraid of trade sanctions, but because developed countries such as the U.S. and the EU declared: ‘the immediate prospect of concessions on agricultural products and textiles; and the future prospect of greater foreign direct investment (FDI) by virtue if possession of ‘suitable’ IP regimes. The World Intellectual Property Organisation (WIPO) ‘a specialized agency of the United Nations was formed. It is dedicated to developing balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest.’21 It adopted two international treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. It established protection for technology and the digital rights management system22. The WIPO Performers and Phonograms Treaty 1996 provides for moral rights. This was something that was not favored by the U.S. The WPPT granted to performers the right to be identified as a performer (public performances, broadcasting live, sound recording) plus the protection from ‘distortion or mutilation of the work or is otherwise prejudicial to the honor or reputation of the author or director.’23 Another aspect of IP rights that has risen and extended internationally is trademarks. Trademarks are associated with business image, good will and reputation.24 Trademarks have to do with goods and services. Trademarks date back 4000 years ago. Symbols where found on products, in China, India, Egypt and many other countries to distinguish between goods. The Madrid Agreement concerning the International Registration of Marks was formed in 1891, the purpose for the Agreement was to ‘ease the acquisition of trademark rights in various countries.’25 Article 1 (2) of the Agreement states: ‘Nationals of any of the contracting countries may, in all the other countries party to this Agreement, secure protection for their marks applicable to goods or services, registered in the country of origin, by filing the said marks at the International Bureau of Intellectual Property26 referred to in the Convention establishing the WIPO, through the intermediary of the Office of the said country of origin.27 The IB makes the registration, passes to all countries of the Madrid Agreement in one language and paying one set of fees. The Madrid Agreement helps, because the system is less time consuming, troublesome and cheaper. Renewal is a fee every ten years. Trademarks have expanded globally. The TRIPS Agreement of 1994 is the main source of their growth establishing protection for trademarks at an International level. Part II section 2 of the TRIPS agreement describes what constitutes a trademark28. The Agreement also goes on to state the conferring rights29 of the owner. The TRIPS Agreement is the expansion of the rights that the owner has on the trademark. It states what the owner can and cannot do. Patent rights were first seen in England for the first time, because England was one of the evolutionary industrial societies. A patent is a new invention capable of industrial application and can give a monopoly right that can last up to a fixed number of years30 it is a set of exclusive rights granted by a state to a patentee in exchange for the regulated, public disclosure of certain details of a device, method, process or composition.31 A patentee may obtain a patent for a invention of some sort, but can not market the invention without regulatory approval. The first patent was granted in 1311 to John Kempe, he was granted a Letter patent by the King’s Great Seal to practice trade and overcome guild regulations. Following this letter patents were granted to inventors. In 1449 John Utyman was granted a letter patent for his new invention for making stained glass. Many letter patents were granted in the reign of Elizabeth’s I causing a monopoly system to develop. The Paris convention of 1883 was the first international system that sought to protect patents rights internationally, as all other industrial property. Article 4 of the Paris Convention states: ‘Any person who has duly filed an application for a patent………in one countries of the Union, or his successor in the title, shall enjoy for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.’32 The Patent Cooperation Treaty (PCT) came into effect in 1970 , applying with the PCT means sending one file patent application containing all the countries in which the applicant requests patent protection, then the International Bureau (a division of the WIPO) check to see if the application meets the necessary requirements by conducting a single search. The definition of a patent was construed under section 5 Article 27 of the Agreement on Trade-related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement). Article 27 (1) states: Subject to the provisions of paragraph 2 and 3, patents shall be available for any inventions whether products or processes, in all fields of technology……..patents be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology.33 Article 27 has been construed by many to mean that patent claim can apply to computer programming i.e. software. Lichtenberger and Frassoni stated that the principles laid out in Article 27 should apply to computer-assisted inventions, the field of software is not considered to be a field of technology.34 Lichtenberger and Frassoni also state, "Though all political groups claim that they want to exclude pure software patents from the directive, the pro-big-business majority in the committee succeeded in creating dangerous loopholes." and "give big business the opportunity--with the help of well-paid patent lawyers-to sew up the European market."35 Gary Lea stated: ‘it is likely that the EU will remove the bars to patentability of software-related inventions under member state law as part of a ‘harmonization’ measure.36 The Internet posses both opportunities and complex challenges for the IP communities. In 2000 the Patent Law Treaty was concluded. Member States of the WIPO finalized the treaty. The Treaty (PLT) deals with international agreements to harmonize, on a world basis, formal patent procedures relating to national and regional patent applications and maintenance of patents.37 The PLT offers a simplified system which makes the life of the applicants easier. It consist of provisions covering the filing date, extensions on time limits, further processing and re-establishment, particularly when priority periods have not been met. Design law is another area of IP rights that has developed in scope for better protection for their owners. A novel or an invention that can not satisfy the requirements for the grant of a patent may be protected by design law.38 Design law applies to designs that are new and that have a ‘individual character’. They necessary regard design of products that are seen by the naked eye. Industrial Designs started to develop in the 18th century. The first international expansion of Industrial signs was brought by the Hague Agreement.39 The Hague Agreement offers owners of the design protection in all national countries of the agreement. This procedure is made by a single application with the WIPO to all countries who are party to the agreement in one language. Countries like the U.S., the UK and Japan have not become part of the Agreement for fear that a grant of unexamined rights might have unpleasant consequences on their industries. Two draft legislative instruments surfaced for Industrial Designs, one was a Regulation suggesting, a Community wide registered and unregistered design right, the second was a Directive that would harmonize the national registered design system. However it was no secret that the differences in national IP law brought barriers to the free movement of goods between Member States. In 1998 the Design Directive40 came into force to unify national design laws; however the implementation for the Member States did not come until 2001. A strong means of protection in the EU is the Office of Harmonization in the Internal Market which deals with the applications of Community Trademarks and Community Designs within the EU. To apply for a Community Trademark or Community Design within the EU one first has to apply to the OHIM. The OHIM was created under the European Community law. The Court of First Instance and the European Court of Justice are responsible for decisions made by OHIM. Every two years the OHIM organizes a Symposium. The point is to promote harmonization in the application of the Community Trademark and the Community Design, at the level of Community trade mark and design courts (national courts of the EU Member States) which concerns disputes arising from the infringement and the validity of Community Trademarks and Community Designs.41 Article 3 of the EC Treaty has its fair share in the expansion of IP rights. Article 3 of the EC Treaty aims at 4 things (1) the prohibition of quantitative restrictions on import and export, (2) the abolition of obstacles to free movement of goods, persons and services and capital, (3) ensuring competition is not distorted and; (4) the approximation of laws to th extent required for the functioning of the common market.42 However it can be said that Intellectual Property rights can contradict those laws and it is true there is a lot of controversy of IP rights in relation to competition law and the free movement of goods. Although this controversy exists it has managed to provide a balance between the monopoly rights that Intellectual Property law provides to its registers. Artcle 28 and 29 of the EC Treaty probit quantitive restrictions on imports and exports. Article 30 goes on to state that prohibitions and restrictions can be justified on a number of grounds such as public morality, public policy and public safety. Exhaustion rights arose from the principal that the proprietor can not exhaust his rights. Article 295 of the EC Treaty states that ‘the Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.43 Furthermore exhaustion rights do not prejudice property rights they exist only for the purpose of when these rights restrict the free movement of goods.44 IP rights have been advancing with the modern world. As technology and inventions advance, the need for IP law modification will be necessary. Not just in the UK or U.S., but all over the world. Laws need to be ever changing to accommodate societal needs. This is especially true when concerning IP rights. Read More