Intellectual Property
Intellectual property (IP) is an intangible thing (intangible means you cannot touch it or hold it in your hand)-- such as an idea or innovation -- that you can own, similar to the way that you can own tangible things like a car or a plot of land. The intangible thing can be something that you have written, drawn, designed, invented, or spoken, and it can be something that you have created yourself or paid someone to create for you. Like tangible property, you can buy, sell, exchange or give away intellectual property, and you can control its use by others. However, in order for your intangible thing to qualify as intellectual property so you can gain these rights you have to be able to distinguish it from similar things.
The concept of intellectual property is intended to protect innovations and allow people to make money by selling their ideas. Usually the expression "intellectual property" is used as a legal term of art to indicate four distinct types of protection given to intangible property: patents, trademarks, copyrights, and trade secrets. The rules for IP protection -- such as the scope of protection and the requirements for obtaining protection -- are set out and enforced in laws and regulations of national governments. While the details of national IP laws can vary, the basic principles are generally the same. In general, the IP owner is responsible for proving a violation in order to enforce IP rights.
International institutions that play a role
There are a number of international treaties and agreements that aim to harmonise national IP laws across countries. Most of the key treaties are incorporated under the umbrella of the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which sets out the standards for IP protection among WTO member countries. Members can use WTO mechanisms to enforce the IP protection offered by these treaties. The World Intellectual Property Organisation (WIPO) otherwise administers these treaties and drives the enforcement of intellectual property law worldwide. It also administers other international agreements on IP, including the WIPO Copyright Treaty and the WIPO Performances and Phonograph Treaty, which require signatory nations to punish people who circumvent technologies intended to protect copyrighted works.
Forms of intellectual property protection
Patents. A patent is an intellectual property protection that applies to inventions or designs for inventions, which gives the inventor exclusive rights to make, use, and sell the invention for a certain period of time. Usually an invention can include a product or a process to make a product. In general, the invention must be novel, useful, and non-obvious in order to qualify for IP protection. Patents commonly cover things like devices, chemical compositions, and processes for creating devices and chemicals. Some countries offer patents for ornamental industrial designs, and new varieties of plants.
As part of the application for a patent, the inventor must disclose the details of the invention or design to the public. After the period of exclusive rights has expired, then anyone else can use the invention or design however they want to. The idea behind patents is that the period for exclusive rights will encourage innovation because inventors (or those who fund inventions) will have a chance to recover their costs for research and design. At the same time, patents are intended to serve the public interest by encouraging researchers to share information and limit duplication of effort. The TRIPS treaty obliges WTO member countries to protect the exclusive rights of patent holders for 20 years from the date of filing. Signatory countries must adopt legislation that gives full product patent protection by 1 January 2005.
Trademarks. A trademark is an identifying feature that denotes a particular group of goods or services. It is usually some kind of distinctive sign -- like a word, logo, colour combination, or musical tones -- that is intended to differentiate a company's products or services from those of its competitors. It is intended that clients and consumers will associate the trademark with the goods or services of the company, in particular with the high quality of the particular goods or services.
Trademarks are protected as intellectual property in order to allow companies to build a reputation for their goods and services that can be associated with the identifying feature. You are not allowed to use a trademark for your goods and services that is the same as or similar to a protected trademark if it is likely to cause confusion among clients and consumers. For example, confusion is likely to be caused by a similar trademark that is used to identify similar goods and services, or to identify different products or services sold in the same market. When choosing a trademark, you have a responsibility to avoid infringement of other trademarks, and may be required to conduct a search to make sure that no one else is using the trademark. In order to protect your trademark, registration with the national authority is sometimes, but not always, required. Some countries grant protection to the first person to use the trademark in the course of business, but other countries grant rights to the first person to register the trademark.
Even when not required, it is recommended that you register your trademark to ensure that you can stop others from using it. For example, if your trademark is registered, then other people will be certain to find it when they conduct a search. But once you register the trademark you have to use it or it could be considered abandoned. If the trademark is "well known", then it does not always have to be registered. For example, WTO member countries have to give protection to well-known trademarks (such as the McDonalds golden arches). Trademark protection is indefinite, as long as the requirements are met.
Copyright. A copyright is an intellectual property protection granted to literary, musical and artistic works, including drawings, poems, films, written publications, and software. It applies to original, creative works fixed in a tangible medium that is permanent or stable. It gives the creator the exclusive right to copy, publish, perform, or broadcast the work, but it does not prevent the independent creation of similar works by others. It also does not prevent the "fair use" of the work, such as for news reporting, teaching, or research. The copyright exists automatically once the work has been created, and does not require registration. It usually lasts for the life of the creator plus 50 years. If the creation is made in a work setting, then the employer holds the copyright on the work.
Under the TRIPS treaty, corporate entities can have the copyright for 50 years from the year of publication. However, when the work is made for hire, the copyright can last much longer. For example, in the United States such a work can have a copyright for 120 years from the time of creation or 95 years from first publication, whichever is shorter. Even though copyright registration is usually not required in order to gain copyright protection, it is available in most countries; in some countries registration is considered proof of the copyright ownership. The copyright owner must include a copyright notice on the work. On a recording the copyright notice should include a symbol âwith the year of first publication and the name of the copyright owner. For other works the copyright notice should include a symbol â or the word "Copyright", the year of the first publication, and the name of the copyright owner. For example, "Copyright 2003 bridges.org".
Trade Secrets. A trade secret is confidential business information that gives its owner a competitive advantage, such as techniques, processes, recipes, or methods. Trade secrets are protected as intellectual property where they are valuable to the owner and steps are taken to keep the information confidential. They are not protected if someone else independently obtains the information.
Adapted from: APC.org