Introduction to intellectual property concepts

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 19^th 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 20^th 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 20^th 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.