Intellectual Property Rights


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Introduction to Intellectual Property Rights

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Intellectual Property Rights

  1. 1. Jamil Khatib Handasa Arabia Intellectual property rights I. Copyright The main aim of the copyright laws is to protect works of human intellect and thoughts' expressions. Copyright laws protect the expressions of literary and artistic works. This covers any written material, drawings, diagrams, photos, sculptures, music, songs and even computer software. Copyright laws prevent any one from using copyrighted work without the permission of its owner. The copyright protects the expressions of the ideas not the ideas themselves, that’s why different authors can right books or music about the same idea but in different ways and each one has his copyrighted work. The followings are some types of works that are protected by copyright laws: - Literary works - Musical works - Sound recordings and songs - Movies, plays and TV programs - Architectural works - Paintings, drawings and maps - Pictorial, and sculptural works All such works should be original works of authorship. Copyright lasts for 50 years according to the Berne convention from the date of the author's death, but the EU and USA extended it to be 70 years. Rights that a copyright holder may have The copyright holder has the full control over his/her work and can prevent others from using it without permission. The followings are some of the rights he/she may have: - Reproduction of the work right: this covers all forms of reproducing the work in any form such as printing, photocopying or converting books to other medium such as audio or digital format. This right also protects duplicating computer media such as disks, CDROMs and so on. This applies also to copying tapes and video tapes. - Performance right: This covers all rights related to performing the work such as playing music or orchestras, acting on stages, singing songs. This also covers all rights related to communication to the public like broadcasting and distribution over cables or Internet. In short it is the right of presenting the work to open public.
  2. 2. - Translation and adoption rights: It covers all activities or transferring the work into language other than its original one. The adoption right includes any modification of the work to create new one for example making movie based on novel II. Related rights Related rights protect those who involve with the copyrighted work to bring it to the public. These are: - Performers such as musicians, singers, actors etc. They are given the right because they can bring life to the work and to protect their interpretation of the work. Performers have the right to prevent broadcasting, recording or any way to reproduce their work without permission. - Producers such as recordings company who brings the work (specially sound and films) to the public in the form of CDs, tapes, and even in computer files forms (mp3s). They are given the right because of their investment to get the recordings or the organization of the work done in order to protect their losses if others copied or distributed non-authorized copies of the work. - Broadcasters such as broadcasting organization (radio, cable, TV, Internet and so on). They are granted the rights because they made the work available for the public. They also protected because of their investment of transmitting/re- transmitting the signals over air/cables Internet to the public. Broadcasters have the right of re-broadcasting or recording and distributing the work. They have the right on the broadcast activity and not on the material which belongs to the copyright holder. III. Trademarks Trademark is a sign (such as logos, words, letters, abbreviations, symbols, drawings or any combination) that distinguishes some one’s (companies, traders, service providers, manufacturers, etc.) goods or services from others (usually competitors) goods or services in the market place. Trademark is a property of a single person, company or even institute that registers it. The two main requirements of a Trademark to be registered under Madrid agreement terms are: - The mark must be Distinctive. This means that the mark should not be generic and not describing the good. Instead the mark should distinguish ones goods or services from another. For example the word computers can not be registered as a mark for computers shop since it describes the shop but it can be used for other kinds of shops. - The mark must not be Deceptive. This means the mark must not specify by the name that the product has certain quality or feature. An example of such deceptive marks is "Northern Olive Oil" which is not from the northern area. In order for some one to register a trademark he/she must file an application for registration. The registration office searches for existing marks and examines the distinctiveness and not deceptiveness of the mark before granting the trademark.
  3. 3. The registration is important because it prevents others from using the same trademark. As a result, customers can be protected from cheating caused by using the same mark but different quality and different origin. The trademark is held for indefinite time once it is registered, it will remain for the owner but he/she must keep renewing it. The company must register its trademark so it can protect its trademark by trademark laws. As a result this company can prohibit others from using it. Unregistered trademarks can be protected after it has acquired enough reputation in the market. Another form of less reliable protection is when the mark gets enough reputation in the market which gives it sufficient distinctiveness from others. In fact this occurs after some considerable time which makes this method not suitable for new products in the marketplace. IV. Industrial Design Industrial design means all ornamental or aesthetic features of a finished product such as shapes, configurations, patterns, colors, surface, or any other two or three- dimensional features which usually distinguished by human eye. Industrial design covers many kinds of products such as jewelry, electrical appliances, watches, textile designs, fashion, or luxury accessories, furniture, toys, cars and so on. In short industrial design cares about the appearance or visual features of products. Industrial design protects its owner from establishing products that looks the same, which lead to distinctive product appearance. So extra value will be added to the product, which is its appearance. It also protects the consumer since the product that has specific look (appearance) it must has specific features or quality based on a single manufacturer or industrial design owner. The industrial design protection lasts for 5 years with renewal possibility for 15 to 25 years maximum. TRIPS agreement requires minimum 10 years of protection. Here are the main conditions that are needed for protection under industrial design: - The design must be registered. - It must be new or original - Examination may be needed to determine its originality. - It must be published before the registration, during the process or within defined time after the registration process. - It must be reproducible by industrial methods. These conditions may vary from country to country in specially if the design must be registered and how to define its originality. Industrial design vs. patent
  4. 4. Industrial design is related to how the object looks like and not its functionality while patent protects new inventions or processes of innovative and useful functions so it cares about how the object works. Patents protect new technical designs while industrial design protects new appearance of the design. In short Patent covers the functionality of the design while Industrial design covers the appearance of the product. V. Patents The main aim of patents is to encourage technology innovation, protect inventors and investments made to get the invention by rewarding for the intellectual activity. Patents award both the invention and its further developments and refinements where it becomes feasible for industry and market. Such reward given to the inventor (either person or company) is a good incentive to other inventors to promote their development of new technologies. Moreover the patent requires that the invention must be disclosed to the public which may help others to do further development or refinement of the technology. Patents protect inventions in all technological fields as long as they have industrial applicability. Such as machines, chemical compounds and electronics systems. In short patents encourage technological economic and intellectual work creativity by protecting inventors and their inventions. Here is list of main benefits of a patent holder: - Patent holder can prevent others from selling, importing, making, selling, marketing or using the invention. - These rights remain for the patent holder for 20 years from the date in which the application is filed. - Since the patent holder has this right for certain years, full disclosure to the public of using and making the patent occurs after the protection period expires. The patent holder is responsible for taking the initiative to enforce a patent. Things that are discovered in the nature and not invented are not patentable, such as the astrological discoveries and natural laws. Human genes can not be patented also. Moreover, inventions that violate laws of nature such as a perpetual motion machine. TRIPS agreement does not allow patents to be granted to scientific theories, business or playing games schemes, and medical treatment and diagnostics methods. The followings are the characteristics that an invention must have in order to be patent protected: - New: The invention must be new or original, which means inventions that have been made or used before, will not get patent. - Non-obvious: It must have an inventive step, which means that the invention should have significant advance in the invention area. The term non-obvious means when one with fair experience in that invention field would notice the
  5. 5. progress made by the new invention. If the invention consists of obvious idea of the field, it will not grant the patent. - Useful: It means that the invention must be applicable by industry can capable for production. VII. Unfair Competition Unfair competition is all acts of dishonest competitions in industrial or commercial matters and breaking rewards of intellectual properties. It has been mentioned in the Brussels revision of the Paris Convention in the early 1900. It has been specified in three main prohibited acts: - Confusion: All acts that may cause confusion with competitors’ products or activities. - False allegations: All acts that discredit the competitors’ products or activities. - Misleading indications: All acts that mislead the public about the competitors’ products quality or usability. National laws are set to assure honest competition in commercial and industrial environments. The main purpose of unfair competition laws is to protect the competitors and the customers and the competition in the interest of the public. Such laws encourage the competition and the production of new products and intellectual properties, which advances the technology. Unfair competition major categories are: - Causing confusion: to confuse the customer who looks for certain product. Like using names or colors similar to others products or marks so as not to let the customer distinguish the original product easily. An example of that is the use of KFC, which stands for King Fired Chicken instead of the famous Kentucky Fried Chicken. - Misleading: To make a false impression of the competitor's product of having false characteristics or features. An example of this is the claim that certain washing machine soap cleans dirty cloths, which implies that other soaps do not clean them. - Discrediting competitors: to give customers incorrect information about the competitors' products by giving aspersions on others products. An example of this that competitors toys contains sharp edges that are harmful for kids, while the competitors toys do not really have sharp edges. - Disclosure of secret information: to reveal secret information about competitors’ product. Such as revealing the internal design of electronics chips to the public. - Taking advantage of another's achievements: to confuse the customer by taking advantage of competitors’ products' quality. Like using a mark similar to famous brand name on a product like using kK instead of cK on Celvin Klien shirts. - Comparative advertising: to claim one's product is better than the other. Such as the comparison between the same kind of beverages.