Sokoi University Intellectual Property Lecture 1 PDF

SOKOINE UNIVERSITY OFAGRICULTURE COURSE: INTELLECTUAL PROPERTY (IRM 201) (Semester 1: 2018/2019) TOPIC: Introduction to the concept of Intellectual Property Instructor: Prof. M. J. F. Lwehabura 1 ...

SOKOINE UNIVERSITY OFAGRICULTURE COURSE: INTELLECTUAL PROPERTY (IRM 201) (Semester 1: 2018/2019) TOPIC: Introduction to the concept of Intellectual Property Instructor: Prof. M. J. F. Lwehabura 1  INTELLECTUAL PROPERTY What is Intellectual Property (IP)? Intellectual Property Rights System is a field of practice that recognizes, protects and gives rights to creative works which are a result of application of human mind/intellect activities in industrial, scientific, literary, sports, culture, entertainment, artistic etc. These property rights allow the holder to exercise a control or domination on the use of the item for a specified period. These creations may include inventions; literary and artistic works; and symbols, names and images used in commerce. Intellectual property is a general term for the set of intangible assets owned and legally protected for the company, institution or individual from outside or non owner use or implementation in various forms without consent. Rights given under IP are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. Such rights may include: Exclusive rights to (or authorize others to) – Reproduce a work – Prepare a derivative work – Distribute copies – Publicly perform or display a work Violation of one of the exclusive rights is the basis for infringement. Intellectual property rights are like any other property right. IP is defined as an asset because it is aimed to provide it the same protective rights as physical property. They allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions. Knowledge, creative ideas, or expressions of human mind that have commercial value are protectable under copyright, patent, service mark, trademark, or trade secret laws from imitation, infringement, and dilution. Intellectual property includes brand names, discoveries, formulas, inventions, knowledge, registered designs, software, and works of artistic, literary, or musical nature. Intellectual property is divided into two categories: Industrial property and copyright. Industrial Property: Industrial property can be divided into two main areas: 2   Protection of distinctive signs, in particular trademarks (which distinguish the goods or services of one undertaking from those of other undertakings) and Geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin). Industrial property includes: patents for inventions, trademarks, industrial designs, service marks, commercial names and geographical indications. Copyright Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Under copyright there is what is called “Related right”. These are rights related to copyright They are right given to performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs. Intellectual property rights are like any other property right. IP is defined as an asset because it is aimed to provide it the same protective rights as physical property. They allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions. Why promote and protect intellectual property? There are several compelling reasons for protecting and promoting IP. (i) Intellectual property protection is critical to fostering innovation. The progress and well- being of humanity rest on its capacity to create and invent new works in the areas of technology and culture. Without protection of ideas, businesses individuals would not obtain the full benefits of their inventions and would focus less on research and development (i) The legal protection of new creations encourages the commitment of additional resources for further innovation. (ii) Third, the promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life. An efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a catalyst for economic development and social and cultural well-being. The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish, for the benefit of all. Therefore IP rights are important because they can: 3   set business apart from competitors  be sold or licensed, thus providing an important revenue stream  offer customers something new and different  form an essential part of marketing or branding  be used as security for loans Fully control of IP, creates strong business sense allowing to:  protect business against infringement by others and ultimately be able to defend in the courts as sole right to use, make, sell or import it  stop others using, making, selling or importing it without your permission  earn royalties by licensing it  exploit it through strategic alliances  make money by selling it TYPES IP COPYRIGHT Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings. What can be protected? Exhaustive lists of works covered by copyright are usually not to be found in legislation. Nonetheless, broadly speaking, works commonly protected by copyright throughout the world include:  literary works such as novels, poems, plays, reference works, newspaper articles;  computer programs, databases;  films, musical compositions, and choreography;  artistic works such as paintings, drawings, photographs, and sculpture;  architecture; and  advertisements, maps, and technical drawings. Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. Copyright may or may not be available for a number of objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship. Right from Copyright There are two types of rights under copyright:  Economic rights, which allow the rights owner to derive financial reward from the use of their works by others; and 4   Moral rights, which protect the non-economic interests of the author. Most copyright laws state that the rights owner has the economic right to authorize or prevent certain uses in relation to a work or, in some cases, to receive remuneration for the use of their work (such as through collective management). The economic rights owner of a work can prohibit or authorize:  its reproduction in various forms, such as printed publication or sound recording;  its public performance, such as in a play or musical work;  its recording, for example, in the form of compact discs or DVDs;  its broadcasting, by radio, cable or satellite;  its translation into other languages; and  its adaptation, such as a novel into a film screenplay. Examples of widely recognized moral rights include the right to claim authorship of a work and the right to oppose changes to a work that could harm the creator's reputation. Collective Management of Copyright and Related Rights Collective management is the exercise of copyright and related rights by organizations acting in the interest and on behalf of the owners of rights. The creator of a work has the right to allow or to prohibit the use of his works. A playwright can consent to his work being performed on stage under certain agreed conditions. A writer can negotiate a contract with a publisher for the publication and distribution of a book. And a musician can agree to have performance recorded on compact disc. These examples illustrate how the owners of the rights can exercise their rights in person. Copyright registration In the majority of countries, and according to the Berne Convention, copyright protection is obtained automatically without the need for registration or other formalities. Most countries nonetheless have a system in place to allow for the voluntary registration of works. Such voluntary registration systems can help solve disputes over ownership or creation, as well as facilitate financial transactions, sales, and the assignment and/or transfer of rights. Please note that WIPO does not offer a copyright registration system or a searchable copyright database PATENT A patent is a right granted for any device, substance, method or process, which is new, inventive and useful. A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent. Generally speaking, a patent 5 provides the patent owner with the right to decide how - or whether - the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document. Types of Patents (i) Utility Patent This involves inventions or discovering of new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement (ii) Plant Patents This involves inventions or discovering of distinct and new variety of plant, including cultivated spores, mutants, hybrids, and new seedlings. (iii) Design Patents This involves inventions or discovering of original, and ornamental design for an article Conditions of patentability Not all inventions are patentable. Laws generally require that an invention fulfill the following conditions, known as the requirements or conditions of patentability:  Industrial Applicability (utility). The invention must be of practical use, or capable of some kind of industrial application.  Novelty. It must show some new characteristic that is not known in the body of existing knowledge (referred to as prior art ) in its technical field.  Inventive step (non-obviousness). It must show an inventive step that could not be deduced by a person with average knowledge of the technical field.  Patentable subject matter. The invention must fall within the scope of patentable subject matter as defined by national law. TRADE MARK A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back to ancient times when artisans used to put their signature or "mark" on their products. What can be registered as Trademark? A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features such as the 6 shape and packaging of goods, non-visible signs such as sounds or fragrances, or color shades used as distinguishing features – the possibilities are almost limitless. Trademark protection At the national/regional level, trademark protection can be obtained through registration, by filing an application for registration with the national/regional trademark office and paying the required fees. At the international level, you have two options: either you can file a trademark application with the trademark office of each country in which you are seeking protection, or you can use WIPO’s Trademark duration The term of trademark registration can vary, but is usually ten years. It can be renewed indefinitely on payment of additional fees. Trademark rights are private rights and protection is enforced through court orders. Trademark registration rights In principle, a trademark registration will confer an exclusive right to the use of the registered trademark. This implies that the trademark can be exclusively used by its owner, or licensed to another party for use in return for payment. Registration provides legal certainty and reinforces the position of the right holder, for example, in case of litigation. GEOGRAPHICAL INDICATIONS A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are that are essentially attributable to that place of origin.. In order to function as a GI, a sign must identify a product as originating in a given place. In addition, the qualities, characteristics or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production. Most commonly, a geographical indication includes the name of the place of origin of the goods. Using the place name when the product was made elsewhere or when it does not have the usual characteristics can mislead consumers, and it can lead to unfair competition. What does a geographical indication provide? A geographical indication right enables those who have the right to use the indication to prevent its use by a third party whose product does not conform to the applicable standards. For example, in the jurisdictions in which the Mufindi geographical indication is protected, producers of 7 Mufindi tea can exclude use of the term “Mufindi” for tea not grown in Mufindi or not produced according to the standards set out in the code of practice for the geographical indication. However, a protected geographical indication does not enable the holder to prevent someone from making a product using the same techniques as those set out in the standards for that indication. Protection for a geographical indication is usually obtained by acquiring a right over the sign that constitutes the indication. Type of products that can acquire geographical indications Geographical indications are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products. Protecting geographic indications There are three main ways to protect a geographical indication:  so-called sui generis systems (i.e. special regimes of protection);  using collective or certification marks; and  methods focusing on business practices, including administrative product approval schemes. These approaches involve differences with respect to important questions, such as the conditions for protection or the scope of protection. On the other hand, two of the modes of protection — namely sui generis systems and collective or certification mark systems — share some common features, such as the fact that they set up rights for collective use by those who comply with defined standards. Broadly speaking geographical indications are protected in different countries and regional systems through a wide variety of approaches and often using a combination of two or more of the approaches outlined above. These approaches have been developed in accordance with different legal traditions and within a framework of individual historical and economic conditions Difference between a geographical indication and trademark Geographical indications (GIs) identify a good as originating from a particular place. By contrast, a trademark identifies a good or service as originating from a particular company. A trademark often consists of a fanciful or arbitrary sign. In contrast, the name used as a geographical indication is usually predetermined by the name of a geographical area. Finally, a trademark can be assigned or licensed to anyone, anywhere in the world, because it is linked to a specific company and not to a particular place. In contrast, a GI may be used by any persons in the area of origin, who produces the good according to specified standards, but 8 because of its link with the place of origin, a GI cannot be assigned or licensed to someone outside that place or not belonging to the group of authorized producers INDUSTRIAL DESIGN Design refers to the features of shape, configuration, pattern or ornamentation which, when applied to a product, gives the product a unique appearance. A design can be registered only if it is new and distinctive. An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two- dimensional features, such as patterns, lines or color. CONFIDENTIALITY / TRADE SECRETS A trade secret can be any information that derives independent economic value from not being generally known or readily ascertainable. Among the things that can be trade secrets are a formula, pattern, compilation, program, device, method, technique, or process. A trade secret is both a type of IP and a strategy for protecting your IP. It can provide effective protection for some technologies, proprietary knowledge (know-how), confidential information and other forms of IP. A confidentiality agreement is often used to stop employees from revealing your secret or proprietary knowledge during and after their employment or association with your business. It is important to make sure that trade secret is backed with signed confidentiality agreements with every person who has knowledge of the secret. If an agreement is breached, someone can have evidence of what was agreed and protection through the law. Perhaps your IP is unlikely to result in a registrable right, or maybe you want to retain exclusive use beyond the term of a patent. A trade secret strategy is appropriate when it's difficult to copy the construction, manufacturing process or formulation from the product itself; that is when reverse engineering is unlikely. However, secrecy does not stop anyone else from inventing the same product or process independently and exploiting it commercially. It does not give an individual exclusive rights thus it s possible for a firm to be vulnerable when employees with this knowledge leave your firm. Trade secrets are difficult to maintain over longer periods or when a larger number of people are made privy (sharing in the secret of) to the secret. 9 PLANT BREEDER’S RIGHTS (PBR) Plant Breeder's Rights (PBR) are used to protect new varieties of plants that are distinguishable, uniform and stable. A PBR is legally enforceable and gives you, the owner, exclusive rights to commercially use it, sell it, direct the production, sale and distribution of it, and receive royalties from the sale of plants. If you have developed, or are in the process of developing a new plant variety, protecting your intellectual property through plant breeder's rights should be considered an integral part of your overall business strategy. ENFORCING IPR The development and advancement of economy in today’s world focuses on information-based technology. Through these technologies business, trade and inventions and innovations all over the world are being created and developed thus making IP important. Because of IP importance, some initiatives by World Trade Organization (WTO) and the progression of an agreement for standards of trade-related intellectual property rights, backed up by tough measures from economically developed countries such as United States, system of intellectual property rights protection has been globalized. Intellectual property right protection is crucial for protecting interest of business, trade and innovation all over the world. An efficient and effective enforcement mechanism for intellectual property infrastructure is important and necessary. Effective enforcement ensures:  stimulation of investment in innovation and  avoiding commercial-scale infringements that result in economic harm. Enforcement is intended to prohibit or make other refrain from infringement. Infringement is an action that breaks a rule, law, or an action that is against a law, an agreement, etc.: It is an action of violation of a rule or an agreement that applies in a specific situation. An infringement can result in legal penalties when a law is broken. Types of infringement (i) Non-intentional infringement Infringement caused without knowledge or awareness of such act. 10  (ii) Intentional/Willful infringement This is done deliberately and intentionally, and with knowledge For non intentional infringement the best approach to stop it would to sending a letter (commonly known as “cease and desist letter”) to the alleged infringer informing him/her of the possible existence of a conflict of IP rights between the two parties by identifying exact area of conflict.Essentially a letter is intended to suggest that a possible solution to the problem can be discussed. Intentional infringement includes serious actions/ activities of violation of IPR such as: (i) Counterfeiting: To imitate so as to make it look like the original and (ii) Piracy: unauthorized duplication of copyrighted content that is then sold at substantially lower prices in the 'grey' market. the unauthorized reproduction or use of a copyrighted book, recording, television program, patented invention, trademarked product, etc.: For such serious events of infringement law enforcement authorities should be consulted for legal actions to be taken against the infringer so as to prevent continuation of the alleged infringement. Judicial authorities are very effective for deterring infringement as may order the infringing goods be destroyed or disposed of outside the business channels of commerce without compensation of any sort. On the other hand if you consider it in your interests to avoid court proceedings, you may consider making use of available alternative dispute mechanisms such as arbitration or mediation (see “Arbitration and Mediation 11