Intellectual Property
IP, refers to a legal entitlement which sometimes attaches to the expressed form of an idea, or to some other intangible subject matter. This legal entitlement generally enables its holder to exercise exclusive rights of use in relation to the subject matter of the intelectual proprety IP. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that IP rights may be protected at law in the same way as any other form of property.
Intellectual property laws are territorial such that the registration or enforcement of IP rights must be pursued separately in each jurisdiction of interest. However, these laws are becoming increasingly harmonised through the effects of international treaties such as the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, while other treaties may facilitate registration in more than one jurisdiction at a time.
Intellectual property laws confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested, and not in relation to the ideas or concepts themselves (see idea-expression divide). It is therefore important to note that the term "intellectual property" denotes the specific legal rights which authors, inventors and other IP holders may hold and exercise, and not the intellcetual work itself.
Intellectual property laws are designed to protect different forms of intangible subject matter, although in some cases there is a degree of overlap.
• copyright may subsist in creative and artistic works (eg. books, movies, music, paintings, photographs and software), giving a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time.
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A patent may be granted in relation to a new and useful invention, giving the patent holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application).
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A trademark is a distinctive sign which is used to distinguish the products or services of one business from those of another business.
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An industrial design right protects the form of appearance, style or design of an industrial object (eg. spare parts, furniture or textiles).
•A
trade secret (also known as "confidential information") is an item of confidential information concerning the commercial practices or proprietary knowledge of a business.
Patents, trademarks and designs fall into a particular subset of intellectaul property known as industrial property.
Like other forms of property, intellectual property (or rather the exclusive rights which subsist in the IP) can be transferred (with or without consideration) or licensed to third parties. In some jurisdictions it may also be possible to use intellectual property as security for a loan.
Exclusive rights
The exclusive rights granted by intelectual property laws are generally positive in nature, and therefore only grant the holder of IP the exclusive ability to take certain action, rather than the ability to exclude a third party from taking that action. For example, the owner of a registered trademark has an exclusive right to use their mark in relation to certain products or services, but generally no right to exclude others from using that mark in relation to unrelated products or services (sometimes marks which are recognised as "famous" or "well known" are deemed to have developed sufficient goodwill and reputation to be protected across unrelated classes of products and services).
The exclusive rights conferred by intellectual property laws can generally be transferred (with or without consideration), licensed (or rented), or mortgaged to third parties. Exclusive rights are generally divided into two categories: those that grant exclusive rights only on copying/reproduction of the item or act protected (eg. copyright) and those that grant a right to prevent others from doing something. The difference between these is that a copyright would prevent someone from copying the material form of expression of an idea, but could not stop them from expressing the same idea in a different form, nor from using the same form of expression if they had no knowledge of the original held by the copyright holder. Patents and trade marks on the other hand, can be used to prevent that second person from making the same design even if they had never heard of or seen the claimed "property". Those rights must be applied for or registered and are more expensive to enforce.
There are also more specialized varieties of "sui generis" exclusive rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act in Canadian law, and in European Community Law by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeders' rights, plant variety rights, industrial design rights, supplementary protection certificates for pharmaceutical products and database rights (in European law).
Exclusive rights may be analyzed in terms of their subject matter, the actions they regulate in respect of the subject matter, the duration of particular rights, and the limitations on these rights. Exclusive rights policies are conventionally categorized according to subject matter: inventions, artistic expression, secrets, semiconductor designs, and so on.
Generally, the activity regulated by exclusive rights is unauthorized reproduction or commercial exploitation. However, as indicated above, some rights go beyond this to grant a full suite of exclusive rights on a particular idea or product. Generally, it is true to say that exclusive rights grant the holder the ability to stop others doing something (ie. a negative right.), but not necessarily a right to do it themselves (ie. a positive right). For example, the holder of a patent on a pharmaceutical product may be able to prevent others selling it, but (in most countries) cannot sell it themselves without a separate license from a regulatory authority.
Most exclusive rights are nothing more than the right to sue an infringer, which has the effect that people will approach the rightsholder for permission to perform the acts to which the rightsholder has exclusive right. The granting of this permission is termed licensing, and exclusive rights licenses stipulate the extent of the licensee's ability to perform the acts the rightsholder may control. Other kinds of licenses attempt to establish additional conditions beyond the acts the rightsholder may control, and these licenses are governed by general contract principles. In many jurisdictions the law places limits on what restrictions the licensor (the person granting the licence) can impose. In the European Union, for example, competition law has a strong influence on how licences are granted by large companies.
Copyright licenses grant permission to do something. A patent license is a declaration not to do some things, under certain conditions. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use. Many countries' legal systems afford compulsory licenses for particular activities, especially in the area of patent law.
Most exclusive rights are awarded by a government for a limited period of time. Economic theory typically suggests that a free market with no exclusive rights will lead to too little production of intellectual works relative to an efficient outcome. Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved. On the other hand, "intellectual property" law could in some circumstances lead to increased transaction costs that outweigh these gains (see Coase's Penguin). Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented.
See:
• Invention
• Copyright
• Intellectual
Property Rights
• Exclusive Rights
• Limited Liability Company
• Patent
• Patent
Prosecution Process
• Patentable
Subject Matter
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• Advantage
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