Intellectual Property

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Intellectual Property (IP) as defined by the World Intellectual Property Organization (WIPO) is anything created by the mind such as inventions,literary and artistic works, symbols, names, images, and designs that are commercially used. [1]

Contents

Types of Intellectual Property

Intellectual Property is protected by:[2]

  • Copyright-protects the original works of authors which include: poems, novels, scripts, musical compositions & recordings and other forms of literary, dramatic or artistic creations.
  • Patent-is granted for the protection of inventions, which is defined as a product or process of a new way of doing things or solving problems. An invention can only be patented if it can be utilized practically, and displays an element of novelty and shows characteristics of new element in the body of existing knowledge called, "prior art" in the technical field. It must show an inventive step. Patentable work in most countries include mathematical methods, scientific discoveries, new medical treatments etc.[3]
  • Trademark- provides protection and exclusive right to the owner of distinct marks used to identify goods or services.[4] It includes words, signs, names, symbols, sounds or colors which identify a certain company, product or service.
  • Trade Secret- is confidential business information that provides economic edge to a certain company. Examples of trade secrets include formula, methods or techniques used in business, program etc. Trade Secrets are protected under Article 39 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

History of Intellectual Property

The Ancient Greece

The beginnings of intellectual property can be traced back to Ancient Greece, around 500 B.C.E. The chefs in the Greek colony of Sybarias were the first holders of year-long monopolies in creating a particular recipe. The Stanford Encyclopedia of Philosophy cited the accounts written in American Patent and Copyright Law, written by Bruce Bugbee in 1967, that the first violation of intellectual property during the ancient times was revealed by Vitruvius (257-180 B.C.E.), a judge in a literary contest in Alexandria. He exposed false poets who used the words and phrases of others and they were tried, convicted and disgraced.[5]

The Roman Period

During the Roman period, Fidentinus was caught reciting the words or Martial without citing his source. Although punishments were enforced to those individuals who use the words of others during the Ancient Greek or Roman times, there is no recorded Roman Law written for the protection of Intellectual Property.[6]

The Florentine Republic

During the birth of the Florentine Republic, historical accounts revealed that franchise, privileges and royal favors were granted to individuals for their works and inventions. According to Bugbee, the Florentine Republic issued the first statutes protecting the rights of authors and inventors of products from their intellectual creations on June 14, 1421 to a famous architect named Filippo Brunelleschi. The Florentine Patent Statute of 1421 became the basis of the first lasting intellectual property institution, written in the Venetian Republic statute of 1474, which was established 150 years prior to England's Statute of Monopolies.[7]

According to the Frank D. Prager, author of the Journal of the Patent office Society 26 (11), the first person who received the first actual Patent of Monopoly in Venice was John of Speyer, A German printer. He was given the exclusive right to print without opposition based on customary law and it was later confirmed with a written pronouncement by means of statute of administrative Decree.[8] During this period, inventions were officially evaluated and examined by experts before a patent was granted. Two recorded copyright and patents were enforced in Venice. Copyrights were also granted in Venice around the 1500's for new and old books. However, commerce in Venice declined and the development of copyright was subdued by Church and State Censorship.

The Statute of Monopolies

Based on historical accounts, the first law enacted for the protection of Intellectual Property was the English Statute of Monopolies of 1623, which serves as the original basis of Anglo-American Patent Law. The statute defined inventions as new and patents are granted for a limited time of 14 years, and ended the granting of rights to ideas or works the are not original and are already being used by the general public.[9]

Statute of Anne

According to historians, the first modern copyright law was enacted April 10, 1710; known as Statute of Anne (Anno Octavo, Annae Reginae), it was "an act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned". The law grants an individual 14 years of copyright, though his assignee or assigns are given the right to renew to print or reprint the book for another fourteen years.[10] Part of the Statute reads...

Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting,and Publishing, or causing to be Printed, Reprinted, and Published Books,and other Writings, without the Con-sent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Fami-lies: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write use-ful Books; May it please Your Majesty, that it may be Enacted, and be it Enacted by the Queens most Excellent Majesty,...(Statute of Anne 1710, Great Britain)

Connecticut Copyright Statute

The first formal copyright law that was enacted in the United States was the Connecticut Statute of 1783, based on the Statute of Anne, granting an author 14 years of copyright to profit from his work and renewable for another 14 years if he is still alive. This statute served as the basis for US Copyright Act.[11]

US Federal Copyright Act of 1790

The United States Congress enacted the US Copyright Act of 1790, an act that secured the copies of maps, charts and books to the authors and proprietors of such materials, giving them the sole right and liberty to print, reprint, publish and sell for the period of fourteen years. The copyright owner must be a citizen of the United States and the copyright can be further renewed by himself, his executors, administrators or assigns for an additional fourteen years.[12] Note that the Copyright Act of 1790 protects only a few materials such as books, charts and maps and it is still an adaptation of the Statute of Anne.

Revised US Copyright Law of 1831

In 1831, the United States Congress revised the US Federal Copyright Act of 1790 due to the active lobbying of Noah Webster and his agents in the Congress. The Revised US Copyright Law of 1831 extended the term of copyright owners for twenty eight years and the copyright for musical composition was added. In addition, the children and widow of a deceased author were granted the right and liberty to renew the copyright for fourteen years.[13]

UK International Copyright Act of 1838

The UK Copyright Act of 1838 provided foreign authors who are under the colony of the United Kingdom the same right enjoyed by British citizens to own the copyright for their works. This law became the basis of international copyright law.[14]

Expansion of Intellectual Property Laws

Copyright and Patent Laws was expanded during the 19th century. In 1853, Harriet Beecher Stowe alleged that a German translation of her book, Uncle Tom's Cabin is an infringement of her copyright. Her claim was rejected by Federal Circuit Court and cited that, "a translation may, in loose phraseology, be called a transcript or copy of her thoughts or conceptions, but in no correct sense can it be called a copy of her book". This decision was strongly attacked during the late part of 19th century, which prompted the Congress to encourage the court to reverse its decision and accept the concept that the "work" protected by copyright include the substance not just the mere form, which means than translation in any language is a violation of copyright since no new substance was created in the work.[15] Meanwhile, in 1842, the patent statute was expanded by Congress when Industrial Designs were added. In 1930, the Patent Protection Act was enacted to protect new varieties for asexually propagated plants.[16]

An amendment to the Federal Copyright Law was enacted on March 4, 1909 known as the Copyright Act of 1909 which further added the list of copyrighted materials, extended the 28 year copyright term to be renewable for another 28 years, copyright infringement and penalties as well as foreign authors granting reciprocal rights to United States citizens by either agreement, convention or treaty and international agreements.[17] This act was superseded by the Copyright Act of 1976 also known as Title 17 of the United States Code, which became the primary basis of the United States copyright law; it was enacted to address the issues of intellectual property due to the advancement of technology and the introduction of new form of communication such as radio, television and computer.[18]

Another law that was enacted for the protection Intellectual Property was the Lanham Act of 1946, which governs the trademark law of the United States and clearly cited the prohibition of trademark infringement, trademark dilution and false advertising.[19]

Treaties on Intellectual Property

As early as 1873, the need for international protection for intellectual property was realized after foreign exhibitors declined to participate in the Hungary-Vienna International Exhibition of Inventions because of fear that their ideas might be stolen and be used for commercial purposes. This prompted the Congress in Vienna to enact a temporary but secure protection for the intellectual property rights of exhibitors. By 1878, Vienna led the International Congress on Industrial Property, which was held in Paris, and it was resolved that an international diplomatic conference is necessary to discuss uniform legislation regarding industrial property between countries. In 1880, a diplomatic conference was held in Paris where a draft convention was created.[20]

Paris Convention for the Protection of Industrial Property

The first major international treaty for the protection of industrial property was created in 1883, known as Paris Convention for the Protection of Industrial Property; it protected inventions, trademarks and industrial designs.[21] The original treaty was signed by Belgium, Brazil, El Salvador, France, Guatemala, Italy, the Netherlands, Portugal, Serbia, Spain and Switzerland.[22] The treaty took effect on July 7, 1884 wherein Great Britain, Tunisia and Ecuador also joined the treaty. The United Stated joined by 1887. The treaty was revised several times on December 14, 1900 at Brussels, June 2, 1911 in Washington, November 16, 1925 in Hague, October 31, 1958 in Lisbon, July 14, 1967 in Lisbon, and the latest amendment was done on September 28, 1979. At present, 173 countries have signed the Paris Convention for the Protection of Industrial Property.[23]

Berne Convention for the Protection of Literary Artistic Works

The Association Littéraire et Artistique International initiated the establishment for international copyright protection as influenced by the French copyright law, "droit d'auteur."[24] The Association drafted a treaty, which was introduced in 1886 in Berne, Switzerland. Subsequently, the Berne Convention for the Protection of Literary Artistic Works was created to provide international protection for the intellectual property rights of authors and artists who are citizens of the countries that are member of the convention. The authors or artists have the right to control, and receive payment for their works such as architectural works, drawings, music, novels, poems, plays, short stories, songs, operas,paintings and sculptures. The first signatories of the treaty were Belgium, France, Italy, Germany, Spain, Switzerland, Tunisia and The United Kingdom. The United States did not become part of the Berne Convention until March 1, 1989.[25]

The Berne Convention, just like the Paris Convention, established an International Bureau to handle administrative works. In 1893, the International Bureaus of the Paris Convention and the Berne Convention merged to create an United International Bureaux for the Protection of Intellectual Property (BIRPI) which later became the World Intellectual Property Organization (WIPO) in 1967, headquartered in Berne, Switzerland.[26]

Other treaties created to protect Intellectual Property that are administered by the WIPO include:[27]

ICANN and Intellectual Property

Prior to the establishment of the Internet Corporation for Assigned Names and Numbers, President Bill Clinton's Administration created a White Paper, which contained the plans to be carried out by the U.S. government in order to create a new internet governing body to be responsible for improving the technical management of the Internet's names and addresses. One of the key elements discussed in the White Paper was to encourage the participation of the World Intellectual Property Organization (WIPO) to help address issues on Intellectual Property rights particularly the issue on how to resolve trademark or domain name conflicts.[28]

In 1999, WIPO submitted to ICANN its report on Internet Domain Name Process and made some recommendations on the following topics:[29]

  • Best Practices for Registration Authorities
  • Administrative Procedure Concerning Abusive Domain Name Registrations
  • Exclusions for Famous and Well-known Marks
  • New gTLDs

In 2002, the ICANN Board constituted the creation of the Intellectual Property Constituency (IPC) under the Generic Names Supporting Organization (GNSO).IPC is responsible for representing the interests and positions of the owners of trademarks, copyrights, and other intellectual property rights in relation to ICANN's Policies in managing the Domain Name System.[30]

References

  1. WIPO
  2. www.stopfakes.gov
  3. Scope of Patent
  4. Trademarks
  5. History of Intellectual Property Ancient Greece
  6. History of Intellectual Property Roman Times
  7. Intellectual Property during the Florentine Republic
  8. [191[_ Prager History of Intellectual Property
  9. Statute of Monopolies 1623
  10. Statute of Anne 1710
  11. Connecticut Statute of 1783
  12. Copyright Act of 1790
  13. Revised US Copyright Law of 1831
  14. UK International Copyright Act of 1838
  15. Growth of Intellectual Property
  16. Patent Protection Act of 1930
  17. Copyright Act of 1909
  18. Copyright Act of 1976
  19. The Lanham Act of 1946
  20. Commentary on the Paris Convention for the Protection of Industrial Property
  21. Treaty of Paris Convention for the Protection of Industrial Property
  22. Commentary on the Original Signatories of the Paris Convention
  23. Members of the Paris Convention
  24. A Short History of Copyright Battles
  25. International Copyright Relations of the United States
  26. www.wipo.int
  27. WIPO Administered Treaties for IP Protection
  28. White Paper
  29. WIPO Report
  30. IP Constituency
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