Key Provisions on Intellectual Property
What is intellectual property? Dear reader, before we begin, I would like you to perform a small mental exercise. Please think about whether you have heard the term "intellectual property" before. If so, ask yourself what you understand by this term. If you haven't heard it, look around and note for yourself any man-made objects near you. In any case, try to reflect on what intellectual property means to you and why the word "intellectual" is present in it.
Now we can move on. The term "intellectual property" does not have a very long history. Specialists began to use this term more or less widely about 30 years ago. The main reason for this was the creation of WIPO (World Intellectual Property Organization) in 1967.
The term itself is quite controversial. There are various opinions regarding its applicability in general to the spectrum of objects it covers[1]. However, we will not discuss all these contradictions here, accepting the term "intellectual property" as it is.
According to the official WIPO website, intellectual property (IP) "refers to creations of the mind: inventions, literary and artistic works, symbols, names, images and designs used in commerce." The website also provides further meaning of IP:
"Intellectual property is divided into two categories: industrial property, which includes inventions (patents), trademarks, industrial designs and geographic indications of source; and copyright, which includes literary and artistic works, such as novels, poems and plays, films, musical works; and artistic works, such as drawings, paintings, photographs and sculptures, as well as architectural designs. Related rights include the rights of performing artists in their performances, the rights of producers of phonograms in their recordings and the rights of broadcasting organizations in their radio and television programs"[2].
Obviously, the spectrum of IP is quite broad. The exercise at the beginning was suggested to help you understand later the difference between what you already know about intellectual property and what is officially understood by this term, and to give those who were not familiar with IP a hint of what it might mean. However, the list presented above cannot be considered exhaustive. In addition to industrial property, copyright, and related rights, there are such IP objects as unfair competition (although it is indicated in the Paris Convention for the Protection of Industrial Property, it is still a very peculiar object at the junction of competition law and intellectual property), plant varieties, layout designs of integrated circuits, issues in the field of traditional knowledge and expressions of folklore, as well as other objects.
Of course, we do not constantly deal with all the above-mentioned objects. But if you look around again, you will see that most of them surround us, and we actively interact with them.
The day of an average city dweller begins with listening to the radio or watching TV, reading newspapers, and navigating the Internet. During the day, they use a mobile phone, computer, and other high-tech devices from various manufacturers. They buy food, listen to music, watch videos, and so on. Even if you look at the pen you are using, you will find that it is designed in a certain way, has a certain appearance, and perhaps even bears the name or logo of the manufacturer or another company. All these elements can be protected individually as IP objects. Another example is your favorite song. A single song can include the rights of such entities as the music author, the lyricist, the performer, and music publishers (producers of phonograms): all of them have the right to receive a share of remuneration from the use of this song, if it is protected, from almost any user and in almost all cases of use (even non-commercial, but with limitations and exceptions established by law).
Why does IP matter? Great, you might say, IP protects a bunch of things, but why should an ordinary person know about its existence? Why should business pay attention to IP? Why are states so interested in ensuring the protection of intellectual property rights? There are too many questions surrounding IP, but the most important one in the context of this article is "why do I need to know about IP at all?". This question can be answered in at least three ways. The simplest answer would be: "Because IP protection means that infringement of IP rights can entail liability"[3]. Another answer could be: "Because you can use the IP protection regime to protect your IP rights and benefit from it"[4]. At the national and international level, the answer could be: "Because an adequate IP protection regime can serve as a tool for economic development and international trade, thereby contributing to the prosperity of an individual country"[5]. Striking examples in this case are countries such as South Korea and Singapore[6].
What you need to know about IP. As I said above, IP covers very diverse objects. For example, acquiring rights to inventions is very different from how copyright arises. Some objects (e.g., design) can be protected simultaneously in several different ways, each of which has its own advantages and disadvantages. If you want to use the IP system effectively, you will need to consult a specialist or conduct your own research. However, there are a few basic things you need to know before you choose one option or another.
1) Copyright protects the form of expression of ideas, but not the ideas themselves. For example, the abstract idea of a love song is not protected, whereas the actual lyrics of the song and the music for it will be protected. Methods, processes, and principles are not protected.
2) Patents protect various solutions to practical problems (e.g., inventions, utility models). Unlike copyright, if a solution is protected (e.g., the architecture of a mobile phone screen), it does not matter in what form it is expressed (e.g., the shape of the mobile phone screen is changed). Methods and processes can also be protected if they meet patentability criteria.
3) Trademarks protect the link between the manufacturer of a good/service and its good/service, as the main function of a trademark is to identify the goods/services of one manufacturer from homogeneous goods/services of another manufacturer. Trademarks play a very serious role in doing business, as without them, manufacturers could use the signs of other manufacturers, by which consumers identify their goods, on their own similar goods. This would lead to consumer confusion and would harm bona fide manufacturers, thus leading to market chaos.
IP in the digital age. The general perception of IP among Internet users is that IP is an evil that deprives the average consumer of the right to use the fruits of culture free of charge, or threatens punishment for such use. However, it must be understood that IP is merely a tool that can be used both to support economic development, by protecting the interests of creators and investors, and to provide adequate access to technological and cultural achievements, including stimulating derivative creativity. Unfortunately, the existing IP system is often abused. Phenomena such as "patent trolls" or high-profile cases like Napster[7] or MGM v Grokster[8] show negative trends in the use of the IP system, the inadequacy of patent and copyright law, and their inability to fit into the realities of the digital age.
However, I also consider it necessary to mention such initiatives as Creative Commons[9] for literary and artistic works, and GNU/GPL[10] for software, which strive to adapt the current IP regime to the digital environment.
Conclusion. Dear reader, thank you for following me on this short (and rather superficial) journey into the world of intellectual property. IP may seem boring or exciting, it can be hated or loved, but in the end, that is not important. What is important is that IP exists and will surely exist for some time to come. So, knowing about it is better than ignoring it, as it can be used for the benefit of both an individual and society, regardless of whether this benefit is in monetary terms or in the form of knowledge.
If you want to learn more about intellectual property, you can ask me or other specialists in this field. Our unified email address is info@legalmaxlaw.com
Jakhongir Aripov
Head of Intellectual Property Practice
LEGALMAX LAW FIRM
[1] For a more critical analysis of the term, see the article: Richard M. Stallman, Did You Say “Intellectual Property”? It's a Seductive Mirage, URL: http://www.gnu.org/philosophy/not-ipr.html (accessed: 20.03.2013)
[2] “About Intellectual Property” // official WIPO website, URL: http://www.wipo.int/about-ip/en/ (accessed: 20.03.2013)
[3] See, for example, "Batman on Copyright Guard" // Inform-Advance, URL: http://www.inform-advance.com/post_1362377389.html – (accessed: 16.04.2013); "Harlem Shake and Copyright" // Inform-Advance, URL: http://www.inform-advance.com/post_1363233168.html (accessed: 16.04.2013).
[4] See, for example, "10 Most High-Profile Disputes Over Intellectual Property" // RIA Novosti, URL: http://ria.ru/society/20120426/635112901.html (accessed: 16.04.2013).
[5] For a broader discussion of the importance of IP, see K. Idris, Intellectual property - a power tool for economic growth. // WIPO, 2003, URL: http://www.wipo.int/freepublications/en/intproperty/888/wipo_pub_888_1.pdf (accessed: 20.03.2013)
[6] See Hang Chang Chieh, Marvin Ng "IP and Innovation: Singapore’s Experience" // URL: http://www.eng.nus.edu.sg/etm/research/publications/05.pdf (accessed: 16.04.2013)
[7] A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001)