An intellectual property can be defined as a creation of mind that has a commercial value. Certain rights are granted to the person who owns an intellectual property. Here is a brief overview about such rights.
According to the World Intellectual Property Organization statistics, 2013, concentration of filing for IP protection varied across geographical regions. Asia accounted for the largest filing concentrations for patents, utility models, trademarks and industrial designs.
It is believed that, the concept of intellectual property (IP) has its roots in the early Jewish law. Later, it emerged after the French Revolution, when the French liberal theorist, Benjamin Constant opposed the concept (‘of property which has been called intellectual’), which was introduced during that time. The concept of intellectual property was also mentioned in the famous 1845 Massachusetts Circuit Court ruling in the patent case, Davoll et al. v. Brown. Subsequently, the World Intellectual Property Organization (WIPO) was established in 1967. It is a United Nations specialized agency dedicated to promote protection of international property, across the globe. The term ‘intellectual property’ became popular after the enactment of the Bayh-Dole Act (or Patent and Trademark Law Amendments Act) in the United States, during 1980.
What is Intellectual Property?
The term intellectual property encompasses various types of creations of mind, like inventions, works of art, music compositions, movies, literary works, paintings, or even brand names and symbols. According to the concept of intellectual property, such creations of mind are intangible or non-monetary assets with a commercial value. The owners of such non-monetary assets are granted some exclusive rights over their creations, so that they benefit financially, and/or earn recognition. However, it is not possible to recover or replace an intellectual property that is stolen. If stolen, the interests of the owner, over his/her creation will get affected. So there must be laws to protect the moral as well as material interests of the owner over his/her intellectual property. IP law deals with the rights assigned to owners of intellectual property.
Intellectual Property Rights
As mentioned earlier, the creators or owners are granted certain exclusive rights over their creations or works. Such exclusive rights are called intellectual property rights. These rights help them benefit from their creations, and also enable them to protect their work. In that way, intellectual property is like any other real property which is financially beneficial for the owner. The monetary benefits encourage people to come up with new inventions and creations that can indirectly boost economic growth.
Intellectual property rights enable the owners or creators to protect their work. These rights can be related to Article 27 of the Universal Declaration of Human Rights. According to this statute, “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. So owners of intellectual property can benefit through protection of the moral and material interests of their creations. Almost all nations have their own set of intellectual property laws.
An intellectual property can be either artistic or commercial. The artistic works come under the category of copyright laws, while the commercial ones (also known as industrial properties), include patents, trademarks, industrial design rights, and trade secrets. Copyright laws deal with intellectual property of creative works, like books, music, software, painting, etc. Industrial properties are created and used for industrial or commercial purposes.
So, IP rights are categorized into different types, as per the nature of the intellectual property. The most common types are copyrights, trademarks, patents, industrial design rights, and trade secrets. So these rights safeguard the interests of the owners of IP. If you are an author, who has written a new book, you can apply for a copyright for your work. Likewise, patents can be obtained for inventions. Once you establish your IP right, you can protect your work legally.
A copyright is a right conferred on the owner of a literary, musical, dramatic, or other artistic works. They include paintings, books, movies, musical compositions, plays, choreography, photographs, sculpture, etc. Even computer programs, databases, technical drawings, advertisements, maps, sound recordings, etc., are covered by copyright. A copyright protects the expression of an idea through a medium.
Original works are automatically protected with copyright, without any registration. Original works come with copyright protection, from the moment they are created. However, it is always better to register the same. It will prove beneficial in case of financial or legal disputes. In the United States, registration of a copyright can be done at the U.S. Copyright Office.
A copyright is an exclusive right to control the publication, distribution, recording, broadcasting, translation, and adaptation of creative works. Such a right enables the owner to derive monetary benefits from the use of his works, by others. Apart from that, he can protect his work by claiming authorship. A copyright owner has the right to prohibit or authorize certain acts in relation to his work.
The right lies with the owner-cum-copyright holder for a certain period, which begins from the date of creation of his work. As time lapses, the work can be republished or reproduced by others. Usually, the timespan of a copyright extends through the entire life of the owner, and lasts up to a period of about 50 to100 (70 years in the U.S.) years after his/her death. In case of anonymous works, the right lasts for 95 years from the date of first publication or 120 years from the date of creation. The laws regarding copyright may vary from one country to another.
A trademark is a symbol that is generally used to identify a particular product, which indicates its source. A trademark can be a combination of words, phrases, symbols, logos, designs, images, or devices; used by an individual, legal entity or business organization, to distinguish their products from others. For example, you can identify the products of Nike Inc., from the logo, which is embossed on their products. Some products have their trademarks on the package, label, or voucher. Nowadays, trademarks are displayed on the company buildings too.
Though a trademark can be acquired through continuous use, it is always better to register the same, if you want to enforce rights associated with it. Before filing the application, make sure that similar trademarks do not exist. Such an application for registration can be made at the regional or national trademarks office, along with the required fees. In the United States, the application is processed by the U.S. Patent and Trademark Office. You may also apply for an international trademark, through the trademark office in your country. While a registered trademark is often accompanied with the letter ‘R’ inside a circle, unregistered ones can be identified with the letters ‘TM’. The letters ‘SM’ are used for representing brand services. These symbols are used in superscript style.
A registered trademark confers an exclusive right on the owner to use the same. The owner may let another party use the registered trademark, in return of payment. Once registered, trademarks are protected legally, and the owners can sue others for unauthorized use of their trademarks. Others cannot use a registered trademark, and such unauthorized use entitles the owner to take legal action against such people.
Usually, trademarks are registered for a period of ten years. The registration has to be renewed every ten years, along with the required fees. Some regions may allow renewal for an extended duration, if the applicant pays additional fees. Once registered, the trademark has to be used actively for at least five years. In the United States, the registration of a trademark has to be maintained with an Affidavit of Continuous Use, that has to be filed after the fifth year (and before the end of sixth year) of the registration. Renewal of registration is also mandatory.
Patents are rights related to new inventions, provided the inventor makes a detailed public disclosure of the same. Such rights are conferred on people who invent a new machine, a process, a technical solution to a problem, or a biological discovery. In order to be patented, the invention should fit into a specific criteria, which may differ from country to country. In general, the invention must be new; and should be useful or can be applied in industries. It should not be a literary or artistic work, a method of medical treatment or diagnosis, or a mathematical discovery. Some countries approve a type of intellectual property, termed ‘utility model’, which is similar to the patent. This IP right is meant for protection of inventions.
In order to obtain a patent, an application has to be made to the relevant patent office. In the United States, patent application has to be filed in the U.S. Patent and Trademark Office. There are three different types of patents -utility, design and plant. You have to make the right application, along with the required materials and fees. Applying for a patent is a complicated procedure, and it will be better to hire a patent attorney for this purpose. You have to spend hefty amounts for obtaining a patent and maintaining the same. Even patent litigation may cost a fortune.
The person who receives a patent for his invention has the exclusive right to prevent others from making, using, selling or distributing the patented invention without his permission. Patents are territorial. In other words, the rights related to a patent can be enforced in that country, where the application has been filed and granted. Even the patent laws may vary from one country to another. If an inventor wants his invention to be patented in other countries, he must apply for the same, in those countries.
Generally, the time limit of a patent is 20 years, but a design patent lasts for 14 years only. Once granted, the patent has to be maintained through yearly renewal. This requires the patentee to pay renewal fees.
Industrial Design Rights
These rights protect the visual design of objects that are not purely utilitarian, but have aesthetic or ornamental value. Such a design may refer to the creation of a shape, color, pattern, or a combination of all these things. The design can be either two-dimensional (based on pattern, colors and lines) or three-dimensional (as per shape and surface). An industrial design right is conferred after considering factors, like novelty, originality and visual appeal. Such designs are used on products, like watches, jewelry, electronic goods, textiles, etc.
In order to protect an industrial design, it has to be registered. In the United States, an application for the design patent is processed by the U.S. Patent and Trademark Office. It takes around two years for the procedure. In some countries, the applicant may be allowed to protect his work as unregistered work. Sometimes copyright protection can be granted for an industrial design.
As in case of other types of intellectual property rights, the owner has the exclusive right to protect and use the design. He can prevent unauthorized use, that includes making, selling or importing products, in which the designs are incorporated or applied. This right is mainly territorial, but some countries offer provision for international registration.
The person who has an industrial design right has the exclusive right to make or sell any objects in which the design is applied. Usually, the right is conferred for a period of ten years. The duration of this right may vary from one country to another. Some nations allow renewal of the registration. Renewal fee is not required for maintaining a design patent in the United States, where the right lasts for a period of 14 years.
Trade secrets include designs, practices, formulas, instruments, processes, recipes, patterns, or ideas; which are used by a company to gain economic advantage over its competitors. In short, a trade secret has some information that is not known to general public, and is of economic benefit to the holder, who has to maintain the secrecy.
Unlike other types of intellectual property rights, trade secrets cannot be registered and protected. The holder has to take reasonable efforts to maintain its secrecy. Various measures, like restricted access to confidential information or post-employment restrictive covenants, can be taken to maintain a trade secret.
The owner of a trade secret does not possess any right to sue anyone who gains access to that secret, independently. However, the owner can prevent use of the trade secret by anyone, who has learned it through him. For example, an employer can protect trade secrets through contracts with his employees. Trade secrets differ from other types of intellectual property rights, because it is the responsibility of the owner to keep the secret, which is not protected by law. Once the trade secret is leaked, it can be used by any person.
These are some of the common types of intellectual property rights. Intellectual property rights have encouraged people to come up with indigenous creations, as the law protects their rights over their works. Thus, it is very important to respect these rights and refrain from infringing them.