Intellectual

Property Law
Intro to IP and IPRs
What is intellectual property (IP)?

And what are intellectual property rights (IPRs)?

 Intro to IP and IPRs
Definitions / descriptions of IP and IPRs: Rights-based vs conceptual

Conceptual definitions:
IP can be described as
Rights-based definitions: ‘creations of the mind’.
See Art.1(2) TRIPS, Art.2 (WIPO)
WIPO Convention
? IP/IPR as umbrella term for IPRs then (usually) are
individual types of exclusive exclusive rights granted by
rights, referential & aiming states to the creators of IP to
for legal certainty allow them to control the
use of their intellectual
creations.
WIPO ( art 2)
(viii)“intellectual property” shall include the rights relating
to:
— literary, artistic and scientific works,
— performances of performing artists, phonograms,
and broadcasts,
— inventions in all fields of human endeavor,
— scientific discoveries,
— industrial designs,
— trademarks, service marks, and commercial names
and designations,
— protection against unfair competition,
and all other rights resulting from intellectual activity
in the industrial, scientific, literary or artistic fields.
Intellectual property
• Copyright

• Industrial Property

• .Trademarks

• . Patent

• . Industrial designs

• . Trade Secret

• Geographical Indications

• This list is not exhaustive and there are other rights, for example, TK.
Intellectual property law creates exclusive rights in a wide
and diverse range of things, from novels, computer
programs, paintings, films, television broadcasts, and
performances, through to dress designs, pharmaceuticals,
and genetically modified animals and plants.
We are surrounded by and constantly interact with the
subject matter of intellectual property law. For example, you
are reading a copyright work bearing the Cambridge
University Press trade mark.

You are probably sitting on a chair which might be (or have

once been) protected by design right (of some sort) and
marking the book with a pen the mechanism for which has,
at some stage, been patented.
One product - many
IP rights
Trade marks Patents and utility models
▪ NOKIA ▪ Data-processing methods
▪ Product "208" ▪ Operating system
▪ Operation of user interface

Copyright Designs
▪ Software ▪ Form of overall phone
▪ User manuals ▪ Arrangement and shape of buttons
▪ Ringtones ▪ Position and shape of screen
▪ Start-up tone
▪ Images
Trade secrets
▪ Some technical know-how kept
"in-house" and not published

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Examples of
valuable intellectual
property

Coca-Cola® Apple® Harry Potter

Polaroid® instant camera DNA copying process

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While there are a number of important differences between
the various forms of intellectual property, one factor that
they share in common is that they establish property
protection over tangible entities such as ideas, inventions,
signs, and information.
While there isand
property a close relationship
thetangible betweeninintangible
objects which they are
embodied, intellectual property rights aredistinct and
separate from property rights in tangible goods.
For example, when a person posts a letter to someone, the personal
property in the ink and parchment is transferred to the recipient. If the
recipient is pleased with the letter, they can frame it and hang it on the
wall; if they are unhappy with the letter, they can burn it; if it is a love
letter, they might store it away, in which case it will pass under the
recipient’s will when they die.

Despite the recipient having personal property rights in the letter as a

physical object, the sender (as author) retains intellectual property
rights in the letter. The author will be the first owner of copyright in
the letter, which will enable them to stop the recipient (or anyone else)
from copying the letter or from posting it on the Internet.
Justifying IP Rights
Why should we grant intellectual property
rights?
◦Should intellectual creations be protected at all?
◦If so, should that be by means of exclusive rights?
◦If so, should protection be available across the
world?
 Justifications expressed in Int (IP) Law?
WTO TRIPS Agreement (1994), Article 7
The protection and enforcement of intellectual property rights should contribute to
the promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technological
knowledge and in a manner conducive to social and economic welfare, and to a
balance of rights and obligations.
Universal Declaration of Human Rights (1948), Article 27
1) Everyone has the right freely to participate in the cultural life of the community, to
enjoy the arts and to share in scientific advancement and its benefits.
2) 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.
 Theories of Intellectual
Property (Justifications for
Intellectual Property
i. Utilitarian

Protection)
o Maximisation of net social welfare;
o “Greatest happiness of the greatest number” (Bentham);
o IP different to tangible property, because IP consumption does not
diminish use – can be used by many people at same/different time. IP
still costs to produce, but the costs of copying are low. Therefore,
copiers can undercut producers and this creates disincentives for
creation.
 Theories (Contd.)
ii. Natural Right theory: Labour Theory (Locke’s Theory)
Property right is a natural right. A person has a right to own
the creation of his mind in the same manner he owns creation
of his labour.
A person who labours has natural property right to the fruits
of their labour (Locke);
E.g. majority in Millar v Taylor, “a reward for creative labour”;
Lord Mansfield CJ, “It is just that an author should reap the
pecuniary profits of his own ingenuity and labour”;
Theories (Contd.)
iii. Personality theory

Private property rights are crucial to the satisfaction of

fundamental human needs (Kant and Hegel);
IP rights may be justified on the ground that they shield from
appropriation or modification artefacts through which authors
and artists have expressed their ‘wills’ and ‘personality’ (Fisher
2001).
Link for readings

https://legaldesire.com/theories-of-intellectual-property-rights/
Law and Economics

The law and economics approach also addresses the question of what
incentives are needed to create intellectual property and the optimal
amount of protection that should be afforded to it.
However, proponents of law and economics do so from the perspective
of what is best for the functioning of the market.
International Convention for IP

Paris Industrial Property Convention 1883 (Stockholm Revision 1967)

The Paris Convention addresses patents, industrial design rights, trade

marks, well known marks, names and unfair competition.

Berne Convention 1886

This established protection for literary, dramatic, musical and artistic
works.
Other Conventions

Universal Copyright Convention 1952

Patent Co-operation Treaty 1970
WIPO Copyright Treaty 1996
TRIPS Agreement 1994

TRIPS offers uniform and extensive protection of

intellectual property rights (IPRs) to trademarks,
patents, copyrights, industrial designs, trade
secrets, geographical indications (GIs).
WIPO
The convention establishing the WIPO was signed in Stockholm in
1967 and entered into force in 1970.
However, the origin of WIPO goes back to 1883- the Paris Convention
on industrial property and 1886- the Berne Convention on copyright.
Both were placed under the supervision of the Swiss Federal
Government. Initially there were two secretaries (one for industrial
property, and other for copyright). However, in 1893 the two
secretaries united. United International Bureaux for the Protection of
IP (BIRPI) became WIPO.
Thank you.