Introduction to intellectual property concepts

There are various definitions of intellectual property (IP). The name itself gives a clue as to its nature, at the very basic breaking down of its co-joined concepts it could be defined as those property rights held over the products of the human intellect. The use of the word “property” is evocative of tangible property held over land or movable items. However, nothing could be further from the truth and more misleading, when we talk about intellectual property, we refer to very dissimilar concepts, not only because the subject of both systems is entirely different, but also because there are many other differences between the legal rights to ideas and to things.

This can be concluded because ideas (or the expressions of ideas, which can be seen as the basic product of the human intellect) are intangible, inexhaustible, non-excludable and non-rivalrous. Intellectual properties are a kind of property in some sense, although a sui generis one, mostly because it is a proprietary-like interest that entitles the owner to almost the same rights as those awarded to the owner of ‘real’ property.

The main difference between both systems is the limitation of terms. Tangible property exists in a physical object or land indefinitely; even ancient artefacts are prone to be owned by whoever finds them, unless the government appropriates them. The same happens with land, where property rights are passed on from one owner to the other. Intellectual property is different in the sense that it has a limited duration; it lasts for a fixed number of years. In the case of patents, it is generally 20 years; in copyright, lifetime of the author plus 50 years or more, depending on the jurisdiction. After that period of time the expression passes into the public domain and can be used by anyone.

The other main difference between tangible property and intellectual property is the existence of a moral element in intellectual property, in particular in copyright law: Most national copyright regimes (especially in the Continental European context) protect moral rights of authors, such as the right to be identified as the owner of a work and the right to the integrity of the work. These moral aspects are not to be found anywhere in real property rights.

In essence, intellectual property may be regarded as ‘knowledge and its creative application’. Examples of intellectual property rights include patents, copyright, trademarks, geographic indications, and design rights, amongst others.

A brief history of intellectual property

While the use of the term “intellectual property” dates to 1967 with the founding of the World Intellectual Property Organization, patent, copyrights and trademarks originated in the late Middle Ages and early Renaissance.

During the Middle Ages, it was assumed that authors possessed certain moral rights, but the implementation of laws protecting them was not a viable option because most intellectual creations were of a religious nature and the population was largely illiterate, which allowed the Church to maintain a monopoly on information. It was not until the increased commercialisation experienced during the Renaissance and the Enlightenment that the concept of protecting ideas become more prevalent, as the real motivation behind this legal institution can be attributed to the desire of authors and inventors to obtain an economic remuneration from their work.

The birthplace of modern intellectual property is England, both in patents and copyright. The first recognisable modern form of intellectual property was a Letter Patent, a document bearing the King’s seal granting the bearer the right to practise their craft or art in England, the first one granted to a Flemish weaver in 1311. The first Letter Patent granted for an invention took place in 1449. The birth of patents as an exploitation monopolies for inventors took place during the reign of Elizabeth I, as it was felt that there was a need for the enactment of a method by which an inventor could stop others from copying and unfairly profiting from their work. Although monopolies were frowned upon by common law, the existence of patents as an exception to the general rule against monopolies was granted in section six of the Statute of Monopolies of 1623.

The development of copyright was rather more complicated. It is widely accepted that the invention of the printing press and an increase in the number of colleges and universities created the necessary environment for the development of copyright laws. The first country where legislation was developed was also England. In the early sixteenth century, Henry VIII gave a printing monopoly to the Stationer’s Company, which lasted well into the next century. In 1709, the English parliament passed the Statute of Anne, the first law to provide authors with a property right over their works, which they could exercise against the printers who had previously claimed monopoly over their works. It receives its name from Queen Anne of England, who was the Monarch at the time of its enactment. The Statute was enacted after a series of failed attempts to regulate licensing of literary works by means of a limited property right held by printers. Many literary celebrities of the time, like John Locke and Jonathan Swift, had a say in its creation after they had suffered from the piracy of their works.

The modern proprietary version of copyright was exported to the United States very easily. While it was still a colony the copyright appeared in colonial legislation. After independence, the United States Constitution recognised the power of Congress to give rights as economic rewards to authors, thus empowering Congress to pass copyright and patent statutes.

Despite its Anglo-Saxon origins, intellectual property took a different emphasis in France. French intellectual property law took a less commercial approach to the system favoured in England, which was slanted towards publishers’ rights. France placed more emphasis on the moral rights of authors and inventors. After the French Revolution, several laws where enacted to implement a system of copyrights and patents based on these moral rights. For example, section 1 of the patent law of 1791 states that “All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years.” The 1793 copyright legislation follows the same philosophical background by establishing a droit d’auteur (literally, author’s rights); with the added peculiarity that it recognised the existence of copyrights outside of France. Up to date, many Continental European jurisdictions have followed the French understanding of copyright.

International protection

Intellectual protection law is a national right. This usually means that the right subsists and can be enforced only in the country where it was created and/or registered. However, a system of international protection has been enacted with time to respond to the need to protect works at an international level. The way in which this works is by the signing of treaties by which States recognise works created by citizens of a signatory country as if nationals created them.

The international treaty system has its origin in French civil law system. It had been an increasing concern of authors and inventors that their works were being copied and pirated in other nations because national legislations, with the exception of France, did not recognise the rights of foreign authors or inventors. This situation came to a boiling point when many inventors refused to attend the International Exhibition of Inventions in Vienna in 1873 because they feared that their works would be copied and exploited in other countries.

A few nations entered into reciprocal agreements for the mutual protection of artistic and industrial works, but it was not until the Paris Convention for the Protection of Industrial Property in 1883 that these efforts for internationalisation of intellectual property protection were solidified into the first international treaty relating to the ownership of ideas. This treaty allowed the nationals of one country to obtain protection of their works in the other signatory nations, and it covered inventions (patents), trademarks and industrial designs.

Authors had experienced a similar problem, and during the 19th century there was rampant piracy of foreign works throughout the industrialised world. The Association Littaeraire et Artistique International was formed in Paris in 1880 in an attempt to implement some sort of international copyright protection. They produced a working document that would later become the Berne Convention for the Protection of Literary and Artistic Works 1886. One of the most notable points of this international instrument is that it provided protection for economic factors, much in the spirit of British legislation, as well as protection for moral rights, in the spirit of the Continental legal tradition. One of the main features of the treaty is that it allows for the automatic copyright protection of any original work without requiring registration.

It is interesting to note the marked absence of the United States from the Berne Convention. Publishers in the United States greatly benefited from not having to pay royalties to foreign authors, thus enhancing their profits and making cheap European books available in the United States. This reticence by the United States continued throughout most of the 20th century, although this isolationism meant that other countries could pirate American works. After the Second World War, it was felt that it would be in the best economic interest of the United States to implement some sort of international protection. That is why the US sponsored the Universal Copyright Convention (UCC) of 1952, which, unlike the Berne Convention, worked only as a means of allowing foreign nationals access to the existing copyright legislation in foreign countries. This was clearly beneficial for the United States, as most countries had provisions that allowed protection of foreign works because of the Berne Convention, but the US did not. This allowed American authors to claim their copyrights abroad, but it still did not allow foreign nationals to be able to claim royalties from American publishers. Eventually the US ratified the Berne Convention in 1987.

Both the Paris (on patents and trademarks) and Berne (on copyright) Conventions prompted a new era in international intellectual property cooperation, being administered by a joint international organization called the Bureaux Internationaux réunis pour la protection de la propriété intellectuelle (BIRPI), which was based in Berne and lasted well into the 20th Century. The two treaties were not based on a system of reciprocity, but rather on a common minimum requirement of rights that should exist in the national legislation of the signatory countries. The other main requirement is that local legislations should warrant foreign authors and inventors the same rights awarded to nationals. These rules would allow for more independence from each country when determining the adequate levels of protection that will be awarded in that territory.

Several other treaties were established to address and to add to the existing agreements, but they remained for many years the main source of international protection, and the basis for the existing system. Amongst these other treaties it is important to mention the Madrid Agreement Concerning the International Registration of Marks in 1891, the Hague Agreement Concerning the International Deposit of Industrial Designs of 1925, and the Patent Cooperation Treaty of 1970.

One of the most important modern developments in international intellectual property protection is the establishment in 1967 of the World Intellectual Property Organisation (WIPO), a direct descendant of BIRPI. The original function of WIPO is to administer the existing and future international treaties regarding intellectual property protection, and to promote harmonization of national legislation. WIPO administers twenty-three different treaties relating to intellectual property subjects, of which the most important are the 1996 WIPO Copyright Treaty, the 1996 WIPO Performances and Phonograms Treaty and the 2000 Patent Law Treaty.

Other than WIPO, there are several other organisms that are involved in the area of international trade aspects of intellectual property. The most important of these is the WTO, which manages the 1995 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which is the most important treaty dealing with developing countries. The administration of TRIPS is done through an administrative body known as the Council for Trade-Related Aspects of Intellectual Property Rights, which consists of the member states of the WTO.

Another organisation involved in trade aspects of intellectual property is the United Nations Educational, Scientific and Cultural Organization (UNESCO), which administers the aforementioned UCC. The role of UNESCO is mostly to encourage the wider exploitation of intellectual works attempting to ensure the widest dissemination of science and technology. In that respect, it varies largely from the proprietary preoccupations of the WIPO and WTO.

Types of intellectual property

There are several types of intellectual property rights, each distinct from the other in formalities, term of existence and levels of protection. These legal tools are:

a) Copyright is a limited property right that exists in several types of works. There are two separate groups of intellectual products subject to copyright protection. The first group is made of original literary, dramatic, musical or artistic works. Sound recordings, films, broadcasts, cable programmes and published editions of an existing work compose the other category of works, referred often as derivative works. In general, the requisite for the existence of copyright is that the creation must be an original work. Copyright does not protect ideas; it protects expressions of ideas, that is, ideas that have been made accessible in an external form. In summary, copyright arises automatically when an original work is reduced to material form in a jurisdiction that grants copyright.

The owner of the copyright is in most circumstances the author of the work, but it can be transferred or licensed, that is why nowadays it seems more accurate to talk about copyright owners instead of copyright authors. Copyright provides this owner with several rights over the work, which can be divided broadly in two categories: economic rights, such as publication and broadcast of the work; and on the other hand there are moral rights, which remain in the domain of the author, such as the right to be recognised as the author of the work, and the right to keep the integrity of the work.

b) Patents are a type of intellectual property in which the creator of a novel invention is awarded with a monopolistic ownership of the product of his effort for a given period of time, after which the invention goes into the public domain. The purpose of a patent is to provide a reward for the skill and labour taken by the inventor. It is also widely held that patents are a way to encourage invention by providing the exclusive ownership and the exploitation rights of a creation. According to the European Patent Convention, to be patentable the invention must be new, must involve an inventive step, and must be industrially applicable. In general, patents can be categorized into three different types: product patents, use patents and process patents.

c) Industrial Design protection has been implemented by many different treaties. In particular, the greatest protection comes from the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which came into effect in 1995. Art. 25.1 encourages member states to provide for the protection of independently created industrial designs that are new or original. In many countries, this type of protection is provided via patents, but TRIPS allows it to receive independent protection when necessary.

d) Trademarks do not protect the technology itself; they protect the information to the consumer that a brand possesses. In most legislation a trademark has to be a sign capable of being graphically represented, and it has to be capable of distinguishing the goods, services or the technology behind it from competing products or services. 

e) Breach of Confidence or Non-disclosure agreements are an obligation taken by a party, most of the time contractors or employees of a company, not to disclose any information that is generally not available to the public. Technological “know how” or trade secrets are well covered within this category. These types of agreements are also covered by TRIPS, which does not require undisclosed information to be treated as a form of property, but it does require that a person lawfully in control of such information must have the legal option of preventing it from being disclosed to others without his consent in a manner contrary to honest commercial practices.

d) Passing off is the common law form of trademark law, which originally originated from this type of intellectual property. Just as trademarks, passing off deals with the good name of a business, but because it is common law it has less requirements than trademark, and can be more easily applied to commercial names that do not have enough distinctiveness to be subject to a trademark.

e) Geographical indications are another type of intellectual property that is specific to a place of origin. The World Intellectual Property Organization (WIPO) describes them as “a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin. Most commonly, a geographical indication consists of the name of the place of origin of the goods.”