5.5 Intellectual property law

‘Intellectual property’ refers to creations of the mind: inventions; literary and artistic works; know-how; technology; and symbols, names, images and designs used in commerce. Traditionally, intellectual property embraces two categories: copyright, which includes literary and artistic works in a broad sense of the word, whether regarded as art or used in commerce; and industrial property, all other creations including patents, trademarks, industrial designs and geographic indications of a source.

Terminology: IP, IPR and IP-rights. In practice, the term intellectual property is commonly referred to as “IP”, and intellectual property rights as “IPR” or “IP-rights”.

International nature. One of the most international fields of law is IP law. Not only do intangible goods move as fast across borders as e-mail, but also the law of intellectual property across the world has developed in the same direction. One reason for this is because IP-law was unified at a very early stage of its development through widely ratified multilateral treaties[1]. The infrastructure for international legislative and administrative assistance has been strengthened by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, local regulations must always be studied because there might be limitations or additional regulations that may affect IP-rights.

WIPO. The WIPO (World Intellectual Property Organisation, in French: OMPI) is a United Nations’ agency dedicated to the use of intellectual property, which has been contributing significantly to the unification of IP law. WIPO’s mission is to promote innovation and creativity for the economic, social and cultural development of all countries through a balanced and effective international intellectual property system. Accordingly, WIPO administers numerous IP-treaties, provides IP-related educational materials and guidance, promulgates the importance and usefulness of intellectual property, and works continuously on the further development and unification of IP-laws[2].

Scope. In this section the most important intellectual property rights for SME’s will be introduced: trademarks, copyright, trade secrets (know-how and other confidential information) and patents. Rights in software with features of patentable inventions, copyrighted works and confidential information will be addressed as well. Considering its importance, a separate section 5.5(g) is dedicated to IP-licensing.

Intellectual property rights that will not be addressed include:

  • Trade names. Very similar to trademarks, but limited to the name or designation of a business. IP-protection of trade names means that a company cannot use the same commercial or trade name of an existing company that is using that name already. Also a name or designation similar to the trade name may not be used if there is a likelihood of misleading the public.
  • Domain names. The law of domain names not only addresses ownership and transfer requirements, but more importantly, the abusive or bad-faith registration of domain names that include trademarks. This practice is known as ‘cybersquatting’.
  • Neighbouring rights. Certain persons or companies contribute to making copyrighted ‘works’ available to the public, or they produce subject matters that, while not qualifying as a ‘work’ under copyright law, justify protection of their copyright-like right. Typically, these ‘related rights’ or ‘neighbouring rights’ are conferred upon performers, producers of music and broadcasting organisations.
  • Databases. An electronic collection of data is usually stored in a database, a virtual card-index box where data is structured, linked, and made retrievable in different forms. Database law regulates who owns the data in a database, the data retrieved from it and the database as a framework. The laws on (the management and protection of) personal data has also influenced the development of database law.
  • Plant breeder’s rights. The availability of new or improved plant varieties is important to the agricultural sector in all countries. The business of producing a crop and its attractiveness to consumers can dramatically be affected by improved disease resistance, higher yields, sustainable agricultural production, food security generally and improvements of other properties of plants. New plant varieties, developed after years of patience, efforts and heavy investment could easily be reproduced by anyone. Protection of these efforts and investments justifies this specific IP right.
  • Semiconductor layouts (topography). Integrated circuits (also called ‘chips’, ‘processors’ or ‘ICs’) are used in many products of everyday use such as mobile phones, computers, tv-sets, household equipment and cars. Integrated circuits are manufactured in accordance with very detailed layout designs. Creating a new layout design for an integrated circuit involves a major investment and copying such a layout design is extremely cheap and easy. This led to the establishment of specific IP protection.
  • Designs and models. Industrial design is the ‘ornamental’ or visual aspect of a product, including its shape, pattern or colour. The design must have visual appeal and contribute to the product’s use, and must be capable of being reproduced by industrial means. When the functional differences between available products are relatively arbitrary, consumers decide based on price and visual appeal. Industrial design protection serves as an incentive to invest resources in the design element of production.
  • Portrait rights. In principle, private individuals are entitled to privacy. Portrait rights are an individual’s rights in a portrait of him or her (i.e. other than the copyright of the photographer who made the portrait). An example of portrait rights is the publication of someone’s picture in a magazine. The person portrayed can oppose such publication to the extent that he or she has a reasonable interest in doing so.

[1]           The main IP-conventions are the Paris Convention for the protection of industrial property (1883); the Berne Convention for the protection of literary and artistic works (1886); the Madrid Agreement concerning the international registration of marks (1891); the Nice Agreement concerning the international classification of goods and services for the purposes of the registration of marks (1957); and of more recent date: the Patent Cooperation Treaty (PCT, 1970); the Trademark Law Treaty (1994); the WIPO Copyright Treaty (1996); and the Patent Law Treaty (2000).

[2]           See http://www.wipo.int. This website contains most IP-related materials, including many publications explaining in detail how intellectual property is or can be protected.