Category Archives: General

What is Intellectual Property?

We know that the inventor of a machine, the author of a book, or the writer of music usually ”own” their work. From this ownership, certain consequences flow. We cannot just copy or buy a copy of their works without consideration of their rights. Equally, original industrial designs of furniture, wallpaper and the like seem naturally to be owned by someone or some organization.

Each time we buy such ”protected” items, a part of what we pay goes back to the owner as recompense for the time, money, effort and thought they put into the creation of the work. This has resulted over the years in the development of industries, which in turn encourages new talent to produce more and more original ideas and articles.

It would be worthwhile to consider a formal definition of intellectual property, in order to understand the scope and importance of the various types of intellectual property, against the backdrop of the relevant governing international treaties.

What is ”property”?

The most important feature of a property is that the owner of the property is free to use it as she/he wishes, provided the use is not against the law, and to exclude others from so using that owned item of property.

“Intellectual property” is reserved for types of property that result from creations of the human mind, the intellect. Interestingly, the term intellectual property in the Convention Establishing the World Intellectual Property Organization, or “WIPO”, does not have a more formal definition. The States that drafted the Convention chose to offer an inclusive list of the rights as follows:

“Literary artistic and scientific works; performances of performing artists, phonograms, and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks, service marks, and commercial names and designations; protection against unfair competition; and “all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.” (Convention Establishing the World Intellectual Property Organization, Signed at Stockholm on July 14, 1967; Article 2, ยง viii)

For various administrative and historical reasons, intellectual property is usually dealt with under the following main headings:

  1. Literary, artistic and scientific works e.g. books. Protection of this property is governed by laws concerning Copyright.
  2. Performances, broadcasts e.g. concerts. Protection of this property is governed by laws concerning Copyright’s Related Rights.
  3. Inventions- e.g. a new form of jet engine. Protection of inventions is covered by laws concerning Patents.
  4. Industrial designs- e.g. the shape of a soft drinks bottle. Industrial Designs may be protected by its own specialised laws or those of Industrial Property or Copyright.
  5. Trademarks, service marks and commercial names and designations- e.g. logos or names for a product with unique geographical origin, such as Champagne. Protection is normally available under various Trademark laws.
  6. Protection against unfair competition- e.g. false claims against a competitor or imitating a competitor with a view to deceive the customer

In order to understand this concept in a better way, let us examine one example of each type of intellectual property and the area of law which protects it:

  • A company wishes to ensure that noone else can use their logo. This logo will be called a Trademark and they can seek protection under Trademark law.
  • A music composer creates a new tune and wishes to protect it. This will be covered under copyright law.
  • A singer wishes to assign the rights to reproduce a video she has made of her concert. The right that she has acquired is a related right. It is a kind of a copyright but not exactly a copyright. A copyright will be needed for this.
  • A new way to process milk so that there is no fat in any cheese made from it, is a new process. It is a new invention and will be covered under the area of Patent law. A patent may be acquired for this process.
  • A company has decided to invest in packaging, which is distinctive, and they wish to ensure that they have sole use. The company can here protect its industrial design.
  • A company decides to use a logo that has the same shape as its competitor but with a different colour. This is a typical example of unfair competition and the company can seek protection under the various national laws.

Why is protection under Intellectual Property Rights so important?

There are several reasons:

  • A person puts in work and great effort into an intellectual creation. He must receive some benefit as a result of this endeavor.
  • By giving protection to intellectual property, many such endeavors are encouraged and industries, based on such work, can grow. Thus, people see that such work brings financial return.

To illustrate this point, we turn to the case of the world pharmaceutical industry. An investment of many years and R&D expenses (lab time for creation, testing, government or agency approval procedures) running into the hundreds of millions of rupees may be necessary before any new medicine reaches the market. Without IP rights to exclude competitors from also producing the same new medicine, the pharmaceutical company would have no incentive to invest so heavily in the development of a drug.

Without patent protection, such a company would face economic losses, originating from the “free-riding” of their competitors. Without trademark protection, this company would not be able to build “brand loyalty” that, hopefully, would last beyond the years of protection, granted by patents. Without the protections given within IP laws and treaties, such pharmaceutical firms simply would not commit an effort to experiment in the search for new health products. As you can see from this brief example, without the protections outlined above, the world might well be literally less healthy than it is.

Intellectual property rights also extend protection to unwritten and unrecorded cultural expression of many developing countries, generally known as folklore. With such protection, these will form an unimaginable fund of knowledge and information to the great advantage of the country and cultures of origin.

The reason for States to enact national legislation, and to join as signatories to either (or both) regional or international treaties governing intellectual property rights include:

  • to provide incentive towards various creative endeavors of the mind by offering protections;
  • to give such creators official recognition;
  • to create repositories of vital information;
  • to facilitate the growth of both domestic industry or culture, and international trade, through the treaties offering multi-lateral protection.

[gravityform id=1 name=UntitledForm]