Nmaist lecture notes intellectual property rights

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IP law

IP law

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  • 1. NMAIST TOPIC 5: IP RIGHTSTo be covered under this topic:• introduction, history and definition of concepts• Copyright, patents, trade and service marks, industrial design and trade secrets• the existing legal framework on protection of IP• international aspects of IP 1
  • 2. Intellectuall propertyand intellectual property law definedIntellectual property (IP) refers to creations of the mind for which a set of exclusive rights are recognized. For each set of exclusive rights there is a corresponding field of law – intellectual property law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs.Common types of intellectual property rights and respective laws include: • Copyrights – Copyright and Neighbouring Rights Act, • Trademarks – Trade and Service Marks Act, • Patents – Patents Registration Act, • Industrial design rights and • Trade secrets. 2
  • 3. Copyright defined• the sole legal right to print, publish, perform, film or record a literary or artistic or musical work• A copyright is an intangible right granted by law to an author or originator of certain literary or artistic productions. The author or originator is granted, for a limited period, the exclusive privilege to make copies of the same for publication and sale. Such exclusive right may also be transferred to another person.• A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work.• Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. Authors of original literary and artistic works shall be entitled to copyright protection for their works under the Copyright law, by the sole fact of the creation of such works• An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called an infringement. 3
  • 4. Copyright defined (contd)Copyright is distinct from other forms of creator protection such as patents, which give inventors exclusive rights over use of their inventions, and trademarks, which are legally protected words or symbols or certain other distinguishing features that represent products or services. Similarly, whereas a patent protects the application of an idea, and a trademark protects a device that indicates the provider of particular services or goods, copyright protects the expression of an idea. Whereas the operative notion in patents is novelty, so that a patent represents some invention that is new and has never been made before, the basic concept behind copyright is originality, so that a copyright represents something that has originated from a particular author and not from another. Copyrights, patents, and trademarks are all examples of what is known in the law as intellectual property. 4
  • 5. Patent definedThe term patent usually refers to an exclusive right granted to anyone who invents any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof, and claims that right in a formal patent application.A patent is not a right to practice or use the invention. Rather, a patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, which, in Tanzania is ten (10) years from the filing date subject to the payment of maintenance fees. This term may be extended by five (5) years upon application for extension. A patent is, in effect, a limited property right that the government offers to inventors in exchange for their agreement to share the details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned. 5
  • 6. Trademark or service mark definedA trademark or service-mark is• A distinctive name, symbol, motto, or design that legally identifies a company or its products and services, and usually prevents others from using identical or similar marks.• symbol, word, phrase, logo, or combination of these that legally distinguishes one companys product from any others. Any infringement on a trademark is illegal and therefore grounds for the company owning the trademark to sue the infringing party.• According to the Trade and Service Marks Act, Cap. ….."trade or service mark" means any visible sign used or proposed to be used upon, in connection with or in relation to goods or services for the purpose of distinguishing in the course of trade or business the goods or services of a person from those of another;• Coca cola and Pepsi cola each has a trade mark. 6
  • 7. Salient features in copyright, patent and trade/service mark Copyrigh Patent Trade/ser t vice markBasic notion Originality Novelty (a Distinguishi (something new ng feature that has invention (visible sign originated never made that from a before) distinguishes particular one product author and from not another) another)What is The The Visible signprotected expression application or symbol or of an idea of an idea certain distinguishin g featureRights given Gives author Gives Gives owner a right to investor of 7 publish exclusive distinguishin his/her work rights over g feature a
  • 8. Industrial design defined• To design means to make a drawing or plan of something that will be made or built• Creation and development of concepts and specifications aimed at optimizing the functions, value, and appearance of products, structures, and systems.• Industrial design (ID) is the professional service of creating and developing concepts and specifications that optimize the function, value and appearance of products and systems for the mutual benefit of both user and manufacturer.• Industrial designers develop these concepts and specifications through collection, analysis and synthesis of data guided by the special requirements of the client or manufacturer. They are trained to prepare clear and concise recommendations through drawings, models and verbal descriptions. 8
  • 9. Industrial design defined (contd)• Industrial designers, as professionals, are guided by their awareness of obligations to fulfill contractual responsibilities to clients, to protect the public safety and well-being, to respect the environment and to observe ethical business practice.• The Tanzania Engineering and Manufacturing Design Organisation Act Cap. 176 establishes the Tanzania Engineering and Manufacturing Design Organisation and provides for the functions and powers of the Organisation in relation to the promotion of engineering, designing, manufacturing and machinery adaptation. 9
  • 10. Industrial design (contd)4. Functions of the Organisation (1) The functions of the Organisation shall be– (a) to design and promote the designing of products and processes for Tanzanian industry in accordance with national industrial development policy; (b) to adapt foreign designs of machinery and equipment to suit local conditions of manufacture, use and maintenance; (c) to manufacture and develop prototypes and spares based on designs produced by the Organisation as well as those which may be brought to the Organisation; (d) to design tools, dies, jigs and fixtures required by the industrial sector; (e) to provide technical extension services including training aimed at increasing the skills of technical manpower at all levels and establishment in the country and enabling industry to produce the products or processes for mass marketing; (f) either alone or in co-operation with other bodies, to assist the industrial sector in solving production bottlenecks for the purposes of increasing productivity, capacity utilisation and quality of products; 10
  • 11. Industrial design (contd)Functions of the organization (contd)(g) to provide relevant information and advice to the industrial sector relating to production, purchase and supply, quality control, marketing and other related areas;(h) to identify and conduct short courses in so far as it is within the competence and capacity of the Organisation, and to co- operate with other institutions in the conduct of such courses;(iv)to give on the job training to engineers in designing, production engineering, foundry technology, metrology and metallurgy;(j) to conduct a systematic on the job training, in tools, dies, presswork, specialised welding, design, draughtsmanship, mechanical and structural machinery maintenance and, for industrial electricians and electronic technicians;(k) to offer consultancy services on material testing, met design and other technical undertakings;(l) to act as the national link with other international institutions engaged in activities related to the functions of the Organisation; 11
  • 12. Industrial design (contd)(a) to do such things incidental or conducive to the fulfilment of the objectives of the Organisation as the Board may decide.(2) In particular, but without prejudice to the generality of subsection (1), the Organisation shall– (a) undertake or assist the establishment, equipment and management of any centre or design office within Tanzania for the performance of any of its functions; (b) promote the national capability for, and carry out engineering designing manufacturing and machinery adaptation; (c) provide to the industrial sector practical technical services by equipping itself with the necessary skilled manpower and physical facilities in the form of workshops, laboratories, design offices, and ancillary services. 12
  • 13. Trade secret defined• Trade secrets are information that companies keep secret to give them an advantage over their competitors. The formula for Coca-Cola is the most famous trade secret. Trade secrets are not protected by intellectual property law the same way that trademarks or patents are. Protection for trade secrets is done by non-disclosure, the information must be kept confidential.• Companies often use non-disclosure agreements (NDA) to keep their trade secrets safe. Employees often have to sign a non-disclosure agreement as part of their employment commitments. 13
  • 14. Legal framework forprotection of intellectual property• Copyright is protected under the Copyright and Neighbouring Rights Act• Patents are protected under the Patents Act• Trade and service marks are protected under the Trade and Service Marks Act• Industrial design – No specific• Trade secrets – contract lawThere are also international legal instruments that protect intellectual property rights. These include: The Berne Convention Paris Convention The Rome Convention Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 14