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Intellectual property rights and property law
Economic globalization refers to free trade, and the increasing integration of national economies into a global market. It reflects the changes that have taken place in society and the world economy as a result of dramatically increased trade and cultural exchange. In particular, the phrase refers to the effects of free trade - also known as trade liberalisation. It results in an erosion of the nation-state and national boundaries, and is made possible by the rise of communication and information technology, the availability of air travel, and the increase in large multinational corporations. It contrasts with economic nationalism.
With increased globalisation through the world-wide spread of the use of the internet, intellectual property in international trade is increasingly important. Intellectual property laws allow different nations to exchange intellectual property with minimal friction.
Intellectual property rights are the legal rights that are acquired from the industrial, scientific, literary and artistic fields.
The role of intellectual property is to promote the creation dissemination use and protection of works. It works through giving legal expression to the moral and economic rights of creators in their creations; and to balance such rights by giving the public rights of access to these creations.
Government policy also seeks to encourage fair trading.
Effective intellectual property rights lead to economic, cultural and social progress for mankind which contribute to economic and social development. In the area of industrial development, they enable the creators of innovations to establish themselves more readily and to amortize investments made into the research into the design. Knowledge that the creator has protection for its design through patent law encourages investments in research and development, and the subsequent application of the invention.
There are three branches of intellectual property rights:-
i)copyright - for example literary, artistic and scientific works
ii)industrial property - for example inventions and industrial design, trade marks, service marks and commercial names and designations, and protection against unfair competition
iii)related rights - for example performances of performing rights, phonograms and broadcasts.
In each of these areas, intellectual property law aims to protect the creator of intellectual goods and services by granting rights for a specified period of time which will enable the creator to control the use of the protected goods.
Intellectual Property Rights in the Technological Age
Not only are intellectual property rights increasingly important today – but the development of harmonised copyright laws is essential.
Intellectual property rights are limited to national boundaries – they can only be exercised within the jurisdiction of the county under whose law they are granted.
Creative works are however able to cross international boundaries with ease in the internet age. Advances in internet technologies have transformed the distribution and consumption of intellectual property rights
Intellectual property is an integral part of economic development. New challenges through information technology (and biotechnology - which has seen momentous breakthroughs in genetic engineering) emphasize how globally interlinked national intellectual property systems have become.
International standardization and mutual recognition of rights and duties amongst nations is therefore essential. In the absence of unified laws, there is potential for conflict caused by clashes of national systems. To achieve this, governments have negotiated and adopted multilateral treaties in the various fields of intellectual property. These treaties bind each signatory country to agree to grant the nationals of other signatory countries the same protection as is granted to their won. They also include a requirement for each signatory country to follow certain common rules, standards and practices.
Worldwide economic development is dependant upon innovation. The WIPO Intellectual Handbook sets out at page 169 five aims that the governments must adopt policies to achieve this:
- to attract investment,
- to promote research
- to create an innovative culture
- to facilitate the integration of new technologies
- to give support to creators in their efforts to innovate.
This can be achieved through intellectual property rights.
Copyright gives the creators of literature, art, music, sound recordings, films and broadcasts economic rights that allow them to determine how their work is copied, distributed or broadcast. The nature of copyright is to prohibit exploitation of copyrighted works without permission.
Copyright protects the expression of an idea – not the idea itself. The work must therefore be in a tangible form, but protection will arise automatically as soon as there is a record in any form of the material that has been created.
The creator will also acquire “moral rights”. These are the right to be identified as the creator of certain kinds of material, and the right to object to the distortion or mutilation of it.
Copyright laws provide economic incentives to create by ensuring that authors enjoy financial rewards for their work. Of equal importance – they discourage counterfeiting and piracy, which destroy jobs and deprive governments of tax revenues. Additionally, the stimulate investment by ensuring that the publication of new works can be profitable, and prevent competitors from freely copying works without incurring the trouble and expense of creating them. Copyright protection provides a means of promoting, enriching and disseminating the national cultural heritage.
Today, copyrightable goods form a significant proportion of global trade. Copyright based industries at E360 billion for Europe, and US$430 billion in the US, representing 5.2% OF GDP. The IFPI advise that, as we enter the age of electronic commerce, intellectual property will be one of the most valuable commodities to be offered and sold on line.
Economic development is dependant upon the creativity of individuals, and encouragement of individual creativity and its dissemination is a prerequisite for progress. The WIPO Handbook at page 41 advises that “the enrichment of the national cultural heritage depends directly on the level of protection afforded to literary and artistic works.” It explains that the greater the number of a country’s intellectual creations, the higher its renown. Additionally, the greater the number of productions in literature and the arts, the more numerous the performers, producers of phonograms and broadcasting organizations etcetera, in the book, record and entertainment industries. It concludes that, in the final analysis, encouragement of intellectual creation is one the basic prerequisites of all social, economic and cultural development.”
Strong copyright laws, harmonised globally, are therefore essential. However, the practical value of such laws is dependant on its effective and efficient application. This is achieved through:
- use of collection societies to collect and distribute authors fees
- maintaining proactive and efficient enforcement by police and customs
- deterrent sentencing with aggressive prosecution to deter pirates
- the development of technical protection measures such as encryption and rights management information such as watermarking, protected by anti-circumvention legislation.
Patent law concerns new, instrially applicable inventions. A patent will give the inventor (or his employer) a monopoly to work the invention to the exclusion of others for a period of time, not exceeding 20 years.
A patent will only be granted if:
- The invention is capable of industrial application
- It involves an inventive step and not merely an obvious application of technology
- It must not fall within stated exclusions.
After the expiry of a patent, the invention falls into the public domain and anyone is free to make use of it. Competitors and researchers have access to the information during the patented period.
Patents are an essential incentive to innovative activity. They permit the exclusive right to work an invention for a limited time period. The time limited exclusivity enables the creator to utilize and secure investment in the patented goods, enabling the creator to develop an invention into a commercially polished product.
The utilization of information available through patent law’s requirement for full disclosure of a patented items technical details avoids wasted duplication of effort in the research into development of new designs. The patent system provides a framework for the collection classification and dissemination of the world’s technical information. The system therefore benefits everyone – since the wider availability of technical information spreads and widens technical knowledge. Since the patent is only granted for a limited period of time, the information within the patent is free for commercial use by all. Furthermore, the information given within the patent application is available for the purpose of research even during the patent period.
The patent gives protection against uncontrolled competition. Without such protection, any party may steal the idea without taking any financial risk.
Without adequate patent laws, inventors would be forced to keep details of a new invention secret, and would be forced to rely on the law of confidence for protection.
However, there are many instances where it would simply not be possible to keep the information secret. For example, the invention of a new type of engine, where the inventive step could easily be revealed through dismantling the engine. The inventor may well be first on the market with the new system, and it could take competitors several months before they can equip their factories and organise production of a similar product. However, the money and time expended in the development of a new invention is unlikely to be recovered in such a relative short time period – and there would be no incentive for inventors to invest time in research and development in this scenario.
A recent study found that 20% of existing international trade relies on new patents. Patent law has many advantages, of great importance in the climate of economic globalization. However, if there are no globally harmonised patent laws, the system would fail, since creators would have no security that the very detailed disclosure made on the patent application would not be copied and applied overseas.
The absence of the patent system would result in a stifling of innovative technical advancement, which would cause an immediate and detrimental effect on economic growth. Since a significant number of inventions are exported, this will also impact on the world-wide economy. Furthermore – and significantly, the non-availability of a pool of technical information would hinder the development of future inventions.
Local craftsmen bring into their work traditional art and folklore. These creations will be protected as industrial designs.
Trade marks are also essential to economic growth. It enables the trade mark owner to establish a market position and goodwill in the marketplace. Trade marks enable consumers to make their choice between various goods available on the market. They encourage the trade mark owner to maintain and improve the quality of the product sold under the trade mark so as to meet consumer expectations, thus stimulating economic progress.
Law of Breach of Confidence
This area of law is essential for protecting industrial property during the development stages before other legal rights are able to afford protection. The law is even more relevant in international trade as it was before the second world war – since inventions may be copied and then distributed easily on a world wide basis. Confidential information may protect any confidential information not in the pubic domain with the necessary quality of confidence about it. This may include a formula, plan or sketch. The law prevents the recipient of confidential information from making unfair use of the information outside that contemplated by the person giving it.
Intellectual property rights continue to play an essential role in international trade. Its relevance in the trend of economic globalization increases in part because the value of any design or invention increases since it can now easily be distributed on a global level. The importance of globally harmonised intellectual property rights is however essential to allow creators to exploit their goods without risk of overseas competitors stealing their work.
Bainbridge, D 1996 , Intellectual property –– Pitman Publishing
Heslam, P June 2004, Is economic globalization sustainable? Retrieved 19th March 2005 from http://www.jubilee-centre.org/online_documents/EconomicGlobalization.htm
Heywood, D (undated) What is globalization anyway? Retrieved 19th March 2005 from www.solidarity-us.org/henwoodOnGlobalization.html.
IFPI - What is copyright? (undated) Retrieved: March 11th 2005 from www.ifpi.org.
WIPO 2004 Second edition, WIPO Intellectual Property Handbook: Policy law and use, WIPO Publication No 489 (E)
 WIPO Intellectual Handbook: Policy law and use (2nd edition) page 169
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