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Home , Geographical indication, Industrial property, Moral rights, Related rights

Document name: Session 6: what is intellectual ? Document date: 2016 information: © Propriety. Used under licence. OpenLearn course: Succeeding in postgraduate study. OpenLearn url: http://www.open.edu/openlearn/education/succeedingpostgraduate- study/content-section-overview

What is ? World Intellectual Property Organization

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What is Intellectual Property? 2

What is a ? 5

What is a ? 8

What is an ? 12

What is a ? 15

What are Copyright 18 and ?

What is the World Intellectual 22 Property Organization? What is Intellectual Property

Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce. Intellectual property is divided into two categories:

Industrial Property includes for inventions, , industrial designs and geographical indications.

Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to copyright include those of performing artists in their performances, producers of phonograms What is in their recordings, and broadcasters in their radio Intellectual and television programs. Property?

2 What are intellectual Why promote and protect property rights? intellectual property?

Intellectual property rights are There are several compelling like any other property right. reasons. First, the progress and They allow creators, or owners, of well-being of humanity rest on its patents, trademarks or copyrighted capacity to create and invent new works to benefit from their own works in the areas of work or investment in a creation. and culture. Second, the legal These rights are outlined in Article protection of new creations 27 of the Universal Declaration encourages the commitment of of Human Rights, which provides additional resources for further for the right to benefit from . Third, the promotion the protection of moral and and protection of intellectual material interests resulting from property spurs economic growth, authorship of scientific, literary creates new jobs and industries, or artistic productions. and enhances the quality and enjoyment of life. The importance of intellectual property was first recognized in An efficient and equitable the Paris Convention for the intellectual property system can help Protection of all countries to realize intellectual (1883) and the property’s potential as a catalyst for the Protection of Literary and for economic development and Artistic Works (1886). Both social and cultural well-being. treaties are administered by the The intellectual property system World Intellectual Property helps strike a balance between Organization (WIPO). the interests of innovators and the public interest, providing an environment in which and invention can flourish, for the benefit of all.

3 How does the average What is person benefit? a Patent? Intellectual property rights reward creativity and human endeavor, which fuel the progress of humankind. Some examples:

The multibillion dollar film, recording, publishing and software industries – which bring pleasure to millions of people worldwide – would not exist without copyright protection.

Without the rewards provided by the patent system, researchers and inventors would have little incentive to continue producing better and more efficient products for consumers.

Consumers would have no means to confidently buy products or services without reliable, international trademark protection and enforcement mechanisms to discourage counterfeiting and piracy.

4 What is a Patent? Why are patents necessary? A patent is an Patents provide incentives to granted for an invention – individuals by recognizing their a product or process that provides creativity and offering the possibility a new way of doing something, of material reward for their or that offers a new technical marketable inventions. These solution to a problem. incentives encourage innovation, which in turn enhances the quality A patent provides patent owners of human life. with protection for their inventions. Protection is granted for a limited period, generally 20 years. What kind of protection do patents offer?

Patent protection means an invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. Patent rights are usually enforced in courts that, in most systems, hold the authority to stop . Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.

What rights do patent owners have?

A patent owner has the right to decide who may – or may not – use the patented invention for the period during which it is protected. Patent owners may give

5 permission to, or license, other the total body of technical parties to use their inventions on knowledge in the world. This ever- mutually agreed terms. Owners increasing body of public may also sell their invention rights knowledge promotes further to someone else, who then creativity and innovation. Patents becomes the new owner of the therefore provide not only patent. Once a patent expires, protection for their owners but protection ends and the invention also valuable information and enters the . This is inspiration for future generations also known as becoming off of researchers and inventors. patent, meaning the owner no longer holds exclusive rights to the invention, and it becomes How is a patent granted? available for commercial exploitation by others. The first step in securing a patent is to file a patent application. The application generally contains the What role do patents play title of the invention, as well as an in everyday life? indication of its technical field. It must include the background and Patented inventions have pervaded a description of the invention, in every aspect of human life, from clear language and enough detail electric lighting (patents held by that an individual with an average Edison and Swan) and sewing understanding of the field could machines (patents held by Howe use or reproduce the invention. and Singer), to magnetic resonance Such descriptions are usually imaging (MRI) (patents held by accompanied by visual materials – Damadian) and the iPhone drawings, plans or diagrams – that (patents held by Apple). describe the invention in greater detail. The application also In return for patent protection, contains various “claims”, that is, all patent owners are obliged to information to help determine the publicly disclose information on extent of protection to be granted their inventions in order to enrich by the patent.

6 What kinds of inventions Who grants patents? can be protected? Patents are granted by national An invention must, in general, patent offices or by regional fulfill the following conditions to offices that carry out examination be protected by a patent. It must work for a group of countries – be of practical use; it must show for example, the European Patent an element of “novelty”, meaning Office (EPO) and the African some new characteristic that is Intellectual Property Organization not part of the body of existing (OAPI). Under such regional knowledge in its particular technical systems, an applicant requests field. That body of existing protection for an invention in one knowledge is called “prior art”. or more countries, and each The invention must show an country decides whether to offer “inventive step” that could not patent protection within its be deduced by a person with borders. The WIPO-administered average knowledge of the technical Patent Cooperation Treaty (PCT) field. Its subject matter must provides for the filing of a single be accepted as “patentable” international patent application under . In many countries, that has the same effect as national scientific theories, mathematical applications filed in the designated methods, plant or animal varieties, countries. An applicant seeking discoveries of natural substances, protection may file one application commercial methods or methods and request protection in as many of medical treatment (as opposed signatory states as needed. to medical products) are not generally patentable.

7 What is a trademark?

A trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company. Its origin dates back to ancient times when craftsmen reproduced their signatures, or “marks”, on their artistic works or products of a functional or practical nature. Over the years, these marks have evolved into today’s system of trademark registration and protection. The system helps consumers to identify and purchase a product or service based on whether its specific M characteristics and quality – as A indicated by its unique trademark – meet their needs.

What is a trademark? What do trademarks do? What kinds of trademarks can be registered? Trademark protection ensures that the owners of marks have the Trademarks may be one or a exclusive right to use them to combination of words, letters and identify goods or services, or to numerals. They may consist of authorize others to use them in drawings, symbols or three- return for payment. The period of dimensional signs, such as the protection varies, but a trademark shape and packaging of goods. can be renewed indefinitely upon In some countries, non-traditional payment of the corresponding marks may be registered for fees. Trademark protection is distinguishing features such as legally enforced by courts that, in holograms, motion, color and most systems, have the authority non-visible signs (sound, smell to stop . or taste).

In a larger sense, trademarks In addition to identifying the promote initiative and enterprise commercial source of goods or worldwide by rewarding their services, several other trademark owners with recognition and categories also exist. Collective financial profit. Trademark marks are owned by an association protection also hinders the efforts whose members use them to of unfair competitors, such as indicate products with a certain counterfeiters, to use similar level of quality and who agree distinctive signs to market inferior to adhere to specific requirements or different products or services. set by the association. Such The system enables people with associations might represent, for skill and enterprise to produce and example, accountants, engineers market goods and services in the or architects. Certification marks fairest possible conditions, thereby are given for compliance with facilitating international trade. defined standards but are not confined to any membership.

9 They may be granted to anyone of the goods or services to which who can certify that their products the sign would apply. The sign meet certain established standards. must fulfill certain conditions in Some examples of recognized order to be protected as a certification are the internationally trademark or other type of mark. accepted “ISO 9000” quality It must be distinctive, so that standards and Ecolabels consumers can distinguish it from for products with reduced trademarks identifying other environmental impact. products, as well as identify a particular product with it. It must neither mislead nor deceive How is a trademark customers nor violate public order registered? or morality.

First, an application for registration Finally, the rights applied for of a trademark must be filed with cannot be the same as, or similar the appropriate national or to, rights already granted to regional trademark office. The another trademark owner. This application must contain a clear may be determined through search reproduction of the sign filed for and examination by national registration, including any colors, offices, or by the opposition of forms or three-dimensional third parties who claim to have features. It must also contain a list similar or identical rights.

10 To avoid the need to register How extensive is trademark separate applications with each protection? national or regional office, WIPO administers an international Almost all countries in the world registration system for trademarks. register and protect trademarks. The system is governed by two Each national or regional office treaties: the Madrid Agreement maintains a Register of Concerning the International Trademarks containing full Registration of Marks and the application information on all Madrid Protocol. Persons with registrations and renewals, which a link (be it through nationality, facilitates examination, search and domicile or establishment) to a potential opposition by third country party to one or both of parties. The effects of the these treaties may, on the basis of registration are, however, limited a registration or application with to the country (or, in the case of the trademark office of that regional registration, countries) country (or related region), obtain concerned. an international registration having effect in some or all of the other countries of the Madrid Union.

11 What is an Industrial What is Design? an An industrial design refers to the ornamental or aesthetic aspects of Industrial an article. A design may consist of three-dimensional features, such as Design? the shape or surface of an article, or two-dimensional features, such as patterns, lines or color.

Industrial designs are applied to a wide variety of industrial products and handicrafts: from technical and medical instruments to watches, jewelry and other luxury items; from house wares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.

To be protected under most national , an industrial design must be new or original and non-

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: h c t a W Why protect industrial Industrial designs can be relatively designs? simple and inexpensive to develop and protect. They are Industrial designs are what make reasonably accessible to small an article attractive and appealing; and medium-sized enterprises as hence, they add to the commercial well as to individual artists and value of a product and increase craftsmakers, in both developed its marketability. and developing countries.

When an industrial design is protected, the owner – the person How can industrial designs or entity that has registered the be protected? design – is assured an exclusive right and protection against In most countries, an industrial unauthorized copying or imitation design must be registered in order of the design by third parties. to be protected under industrial This helps to ensure a fair return design law. As a rule, to be on investment. An effective registrable, the design must be system of protection also benefits “new” or “original”. Countries consumers and the public at large, have varying definitions of such by promoting fair competition and terms, as well as variations in the honest trade practices, encouraging registration process itself. creativity and promoting more Generally, “new” means that no aesthetically pleasing products. identical or very similar design is known to have previously existed. Protecting industrial designs helps Once a design is registered, a to promote economic development registration certificate is issued. by encouraging creativity in the Following that, the term of industrial and manufacturing protection granted is generally sectors, as well as in traditional five years, with the possibility of arts and crafts. Designs contribute further renewal, in most cases to the expansion of commercial for a period of up to 15 years. activity and the export of national products.

13 Hardly any other subject matter How extensive is industrial within the realm of intellectual design protection? property is as difficult to categorize as industrial designs. And this has Generally, industrial design significant implications for the protection is limited to the country means and terms of its protection. in which protection is granted. Depending on the particular The Hague Agreement Concerning national law and the kind of the International Registration design, an industrial design may of Industrial Designs, a WIPO- also be protected as a work of administered treaty, offers a applied art under copyright law, procedure for international with a much longer term of registration of designs. Applicants protection than the standard 10 or can file a single international 15 years under registered design application either with WIPO law. In some countries, industrial or the national or regional office design and copyright protection of a country party to the treaty. can exist concurrently. In other The design will then be protected in countries, they are mutually as many member countries of the exclusive: once owners choose one treaty as the applicant designates. kind of protection, they can no longer invoke the other.

Under certain circumstances an industrial design may also be protectable under unfair competition law, although the conditions of protection and the rights and remedies available can differ significantly.

14 What is a Geographical Indication?

A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to that place of origin. Most commonly, a geographical indication consists of the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local geographical factors, such as climate and soil. Whether a sign functions as a geographical indication is a matter of national law and consumer perception. Geographical indications may be used for a wide variety of agricultural products, such as, for example, “Tuscany” for olive oil produced in a specific area of , or “” for cheese produced in that region of .

The use of geographical indications What is a is not limited to agricultural products. They may also highlight Geographical specific qualities of a product that are due to human factors found in the product’s place of origin, such Indication? as specific manufacturing skills

15 and traditions. The place of origin Why do geographical may be a village or town, a region indications need protection? or a country. An example of the latter is “Switzerland” or “Swiss”, Geographical indications are perceived as a geographical understood by consumers to indication in many countries for denote the origin and quality of products made in Switzerland and, products. Many of them have in particular, for watches. acquired valuable reputations which, if not adequately protected, may be misrepresented What is an appellation by commercial operators. False of origin? use of geographical indications by unauthorized parties, for example An appellation of origin is a “Darjeeling” for tea that was not special kind of geographical grown in the tea gardens of indication used on products that Darjeeling, is detrimental to have a specific quality exclusively consumers and legitimate or essentially due to the producers. The former are geographical environment in deceived into believing they are which the products are produced. buying a genuine product with The term geographical indication specific qualities and characteristics, encompasses appellations of and the latter are deprived of origin. Examples of appellations valuable business and suffer of origin that are protected in damage to the established states party to the Lisbon reputation of their products. Agreement for the Protection of Appellations of Origin and their International Registration are What is the difference “Bordeaux” for wine produced in between a geographical the Bordeaux region of France, indication and a trademark? “Prosciutto di Parma” – or Parma ham – for ham produced in the A trademark is a sign used by a Parma province of Italy or company to distinguish its goods “Habana” for tobacco grown in and services from those produced the Havana region of Cuba. by others. It gives its owner the right to prevent others from using

16 the trademark. A geographical national laws and under a wide indication guarantees to consumers range of concepts, such as laws that a product was produced in against unfair competition, a certain place and has certain consumer protection laws, laws for characteristics that are due to that the protection of certification place of production. It may be marks or special laws for the used by all producers who make protection of geographical products that share certain qualities indications or appellations of in the place designated by a origin. In essence, unauthorized geographical indication. parties may not use geographical indications if such use is likely to mislead the public as to the true What is a “generic” origin of the product. Applicable geographical indication? sanctions range from court injunctions preventing If the name of a place is used unauthorized use to the payment to designate a particular type of of damages and fines or, in serious product, rather than to indicate its cases, imprisonment. place of origin, the term no longer functions as a geographical indication. For example, “Dijon What is WIPO’s role in the mustard”, a kind of mustard that protection of geographical originated many years ago in the indications? French town of Dijon, has, over time, come to denote mustard of WIPO administers a number of that kind made in many places. international agreements that Hence, “Dijon mustard” is now a deal partly or entirely with the generic indication and refers to a protection of geographical type of product, rather than a place. indications (in particular, the Paris Convention and the Lisbon Agreement). WIPO meetings How are geographical offer Member States and other indications protected? interested parties the opportunity to explore new ways of enhancing Geographical indications are the international protection of protected in accordance with geographical indications.

17 What are Copyright What are and Related Rights? Copyright and Copyright laws grant authors, artists and other creators protection Related Rights? for their literary and artistic creations, generally referred to as “works”. A closely associated field is “related rights” or rights related to copyright that encompass rights similar or identical to those of copyright, although sometimes more limited and of shorter duration. The beneficiaries of related rights are:

performers (such as actors and musicians) in their performances; producers of phonograms (for example, compact discs) in their sound recordings; and broadcasting organizations in their radio and television programs.

Works covered by copyright include, but are not limited to: novels, poems, plays, reference works, newspapers, advertisements, computer programs, databases, films, musical compositions, choreography, paintings, drawings, photographs, sculpture, architecture, maps and technical drawings. What rights do copyright and successful dissemination (for related rights provide? example, publications, sound recordings and films). Hence, The creators of works protected creators often transfer these rights by copyright, and their heirs and to companies better able to successors (generally referred to as develop and market the works, “right holders”), have certain basic in return for compensation in the rights under copyright law. They form of payments and/or royalties hold the exclusive right to use or (compensation based on a authorize others to use the work percentage of revenues generated on agreed terms. The right by the work). holder(s) of a work can authorize or prohibit: The economic rights relating to copyright are of limited duration – its reproduction in all forms, as provided for in the relevant including print form and WIPO treaties – beginning with sound recording; the creation and fixation of the its public performance and work, and lasting for not less than communication to the public; 50 years after the creator’s death. its broadcasting; National laws may establish longer its translation into other terms of protection. This term of languages; and protection enables both creators its adaptation, such as from and their heirs and successors to a novel to a screenplay for benefit financially for a reasonable a film. period of time. Related rights enjoy shorter terms, normally Similar rights of, among others, 50 years after the performance, fixation (recording) and reproduction recording or broadcast has taken are granted under related rights. place. Copyright and the protection of performers also include , meaning the Many types of works protected right to claim authorship of a under the laws of copyright and work, and the right to oppose related rights require mass changes to the work that could distribution, communication and harm the creator’s reputation. financial investment for their

19 Rights provided for under and also stimulates economic and copyright and related rights laws social development. can be enforced by right holders through a variety of methods and fora, including civil action suits, How have copyright and administrative remedies and related rights kept up with criminal prosecution. Injunctions, advances in technology? orders requiring destruction of infringing items, inspection orders, The field of copyright and related among others, are used to enforce rights has expanded enormously these rights. during the last several decades with the spectacular progress of technological development that What are the benefits of has, in turn, yielded new ways of protecting copyright and disseminating creations by such related rights? forms of communication as satellite broadcasting, compact discs and Copyright and related rights DVDs. Widespread dissemination of protection is an essential component works via the Internet raises in fostering human creativity and difficult questions concerning innovation. Giving authors, artists copyright and related rights in and creators incentives in the form this global medium. WIPO is of recognition and fair economic fully involved in the ongoing reward increases their activity and international debate to shape new output and can also enhance the standards for copyright protection results. By ensuring the existence in cyberspace. In that regard, and enforceability of rights, the Organization administers the individuals and companies can WIPO Copyright Treaty (WCT) more easily invest in the creation, and the WIPO Performances and development and global Phonograms Treaty (WPPT), known dissemination of their works. as the “Internet Treaties”. These This, in turn, helps to increase treaties clarify international norms access to and enhance the aimed at preventing unauthorized enjoyment of culture, knowledge access to and use of creative works and entertainment the world over, on the Internet.

20 How are copyright and royalties gained from the national related rights regulated? and international use of a work or performance. Certain rights of Copyright and related rights producers of sound recordings and protection is obtained automatically broadcasting organizations are without the need for registration sometimes managed collectively or other formalities. However, many as well. countries provide for a national system of optional registration and deposit of works. These systems facilitate, for example, questions involving disputes over or creation, financial transactions, sales, assignments and transfer of rights.

Many authors and performers do not have the ability or means to pursue the legal and administrative enforcement of their copyright and related rights, especially given the increasingly global use of literary, music and performance rights. As a result, the establishment and enhancement of collective management organizations (CMOs), or “societies”, is a growing and necessary trend in many countries. These societies can provide their members with efficient administrative support and legal expertise in, for example, collecting, managing and disbursing

21 Watch: Courtesy Swatch AG

What is the World Intellectual Property Organization?

Established in 1970, the World Intellectual Property Organization (WIPO) is an international organization dedicated to helping ensure that the rights of creators and owners of intellectual property are protected worldwide, and What is that inventors and authors are therefore recognized and the World rewarded for their ingenuity.

Intellectual This international protection acts as a spur to human creativity, Property pushing back the limits of science and technology and enriching the Organization? world of and the arts. By providing a stable environment for marketing products protected by intellectual property, it also oils the wheels of international trade. WIPO works closely with its Member States and other constituents to ensure the intellectual property system remains a supple and adaptable tool for prosperity and well-being, crafted to help realize the full potential of created works for present and future generations. How does WIPO promote in helping these systems to evolve the protection of intellectual through treaty negotiation; legal property? and technical assistance; and training in various forms, including As part of the United Nations in the area of enforcement. system of specialized agencies, WIPO serves as a forum for its WIPO works with its Member States Member States to establish and to make available information on harmonize rules and practices intellectual property and outreach for the protection of intellectual tools for a range of audiences – property rights. WIPO also services from the grassroots level through global registration systems for to the business sector and trademarks, industrial designs and policymakers – to ensure its appellations of origin, and a global benefits are well recognized, filing system for patents. These properly understood and systems are under regular review accessible to all. by WIPO’s Member States and other stakeholders to determine how they can be improved to How is WIPO funded? better serve the needs of users and potential users. WIPO is a largely self-financed organization, generating more Many industrialized nations have than 90 percent of its annual intellectual property protection budget through its widely used systems that are centuries old. international registration and Among newer or developing filing systems, as well as through countries, however, many are in its publications and arbitration the process of building up their and mediation services. The patent, trademark and copyright remaining funds come from legal frameworks and intellectual contributions by Member States. property systems. With the increasing globalization of trade and rapid changes in technological innovation, WIPO plays a key role

23 For more information contact the World Intellectual Property Organization Address: 34, chemin des Colombettes P.O. Box 18 CH-1211 Geneva 20 Switzerland Telephone: 41 22 338 91 11 Fax: 41 22 733 54 28 e-mail: [email protected]

WIPO Publication No. 450(E) ISBN 978-92-805-1555-0