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Intellectual Property: What it is and why it needs to be protected in developing nations in the new millennium - IP in the Information Age

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IP in the Information Age

The world's first large scale, general purpose, digital computer ENIAC (Electronic Numerator Integrator and Calculator), was built in 1946. These machines (computers) revolutionized the rate at which data could be processed and analyzed accurately, and thrust mankind into the information age.

Since the advent of computers, a lot of the old laws and treaties regarding intellectual property rights had to be revisited. This resulted in these laws being revised or amended, and new ones being derived. This was mainly because computers now allowed for the easy storage, retrieval, and transmission of copyrighted material. New laws also had to be derived to protect integrated circuit (IC) layout and design.

The Berne Convention for the Protection of Literary and Artistic Work (Berne Convention) and the Paris Convention for the Protection of Industrial Property (Paris Convention) are two of the first international treaties regarding intellectual property rights, and were first signed in 1886 and 1883, respectively. Since then, there have been several revisions to both the Berne and Paris Convention, with final amendments to both treaties in 1979.

There have been several other treaties after 1979 regarding intellectual property rights, and most of them refer back to the Berne or Paris Conventions, or both: the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the World Intellectual Property Organization's Copyright Treaty, and the Patent Cooperation Treaty.

International Organizations and Intellectual Property Rights

There are two prominent international intellectual property organizations responsible for negotiating and administering world intellectual property treaties today: the World Intellectual Property Organization (WIPO), and the World Trade Organization (WTO).

The World Intellectual Property Organization

The World Intellectual Property Organization (WIPO) became a specialized agency within the United Nations systems of organizations in 1974 as a result of a 1967 convention. Article 3 of this convention gives the primary objective of the organization as "to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization." (WIPO, n.d.) Its secondary objective is "to ensure administrative cooperation among the Unions." (WIPO, n.d.)

The WIPO administers 23 international treaties dealing with different aspects of IP protection, which are divided into three main categories (WIPO, n.d.):

  •  Intellectual Property Protection Treaties, which "define internationally agreed basic standards of intellectual property protection in each country" (WIPO, n.d.);
  •  Global Protection System Treaties, which ensure "that one international registration or filing will have effect in any of the relevant signatory states, hence reducing the cost of making individual applications or filings in all the countries in which the protection is sought for a given intellectual property right" (WIPO, n.d.); and
  •  Classification Treaties, which "create classification systems that organize information concerning inventions, trademarks and industrial designs into indexed, manageable structures for easy retrieval." (WIPO, n.d.)

The Berne and Paris Conventions, the WIPO Copyright Treaty, and the Patent Cooperation Treaty are all administered by the World Intellectual Property Organization.

The World Trade Organization

The World Trade Organization (WTO) was established in 1995 as a result of the Uruguay round of negotiations (1986 - 1994), and is the successor to the Global Agreement on Tariffs and Trade (GATT). (WTO, n.d.) Its objective is to help trade flow smoothly, freely, fairly and predictable. It does this, in part, by:

  •  Administering trade agreements;
  •  Assisting developing countries in trade policy issues, through technical assistance and training programs; and
  •  Cooperating with other international organizations. (WTO, n.d.)

The agreements of the WTO primarily cover goods, services and intellectual property (WTO, n.d.):

  •  The General Agreement on Tariffs and Trade covers goods,
  •  The General Agreement on Trade in Services covers services, and
  •  The Agreement on Trade-Related Aspects of Intellectual Property covers intellectual property.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is administered by the World Trade Organization.

WIPO and WTO in the new millennium

The WIPO is responsible for administering the majority of the world's intellectual property rights treaties, and the WTO for administering the most important intellectual property rights treaty, TRIPS. Together, these two organizations will take the world, and its new knowledge based economy, into the new millennium.

The WIPO and WTO, by nature of their multinational nature and framework, will play important roles in intellectual property rights in the new millennium. However, if developing countries that are members of these organizations are to move forward in the new millennium, maximizing the benefits that intellectual property rights have to offer, they will have to be well informed and advised before adopting new or existing treaties, and utilize all of the help, advice and guidance offered by these organizations.

Featured Intellectual Property Conventions, Treaties and Directives

There are several agreements, treaties or conventions regarding intellectual property rights, which are administered by either the WIPO or the WTO. However, this paper will only cover six of them; the ones that are most pertinent to developing nations and will take them through the start of the new millennium.

The Paris Convention for the Protection of Industrial Property

The Paris Convention for the Protection of Industrial Property (Paris Convention) was signed in Paris, on 20th March, 1883. It was the first multi-national agreement dealing with the protection of industrial property, and as of 22nd April, 2004 has 168 states that are party to it. Since March, 1883 the Convention has had six revisions: in 1900, 1911, 1925, 1934, 1958, and 1967, and one amendment, which was in September 1979. The Paris Convention contains 30 Articles covering patents, industrial property, industrial design, Marks, and trade names. Article 1 (1) of the convention states that parties to the Convention "constitute a Union for the protection of industrial property." Article 1 (2) goes on to define the objects of industrial property as "patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and repression of unfair competition." The other Articles in the Convention define how these objects of industrial property shall be registered and used in the contracting states.

Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) was concluded at Washington on 19th June, 1970. It was since amended in September, 1979, and modified in February, 1984 and October, 2001. As of 1st April, 2002, there were 115 contracting states. The PCT can only be acceded to by states that are already party to the Paris Convention. This is because the PCT takes the Paris Convention one step further by allowing any resident or national of a contracting state to file one "international" patent application seeking patent protection for an invention simultaneously in each of a large number of countries. (WIPO, n.d.) Article 1 (1) of the 69 Article treaty states that "the States party to this Treaty constitute a Union for cooperation in the filing, searching, and examination, of applications for the protection of inventions, and for rendering special technical services." In addition, Article 1 (2) states that "no provision of this Treaty shall be interpreted as diminishing the rights under the Paris Convention for the Protection of Intellectual Property of any national or resident of any country party to that Convention."

The Berne Convention for the Protection of Literary and Artistic Works

The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) was signed on 9th September, 1886, by 12 states. It was finally completed in May, 1896, and has since been revised six times: 1908, 1914, 1928, 1948, 1967, and 1971; and amended once in September, 1979.

The Convention consists of 38 Articles, and Special Provisions (6 Articles) regarding developing nations. The general Articles cover, among other things, what works are protected, the criteria to be eligible for protection, the rights guaranteed to authors, the term of protection, and rights regarding translation, reproduction and adaptation.

Article 1 of the Convention states that parties to the Convention "constitute a Union for the protection of the rights of authors in their literary and artistic works." Article 2 (1) goes on to define literary and artistic works as including "every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books... and other writings; ... musical compositions; ... cinematographic works...; works of drawing, painting, architecture, sculpture, ...; photographic works...; works of the applied art; ..."

Article 2 (3) states that "translations, adaptations, arrangements of music and other alterations of literary or artistic work shall be protected as original works without prejudice to the copyright in the original work." In addition, Article 2 (6) states that "the works mentioned... shall enjoy protection in all countries of the Union...", and Article 7 (1) that "the term of protection... shall be the life of the author and 50 years after his death."

WIPO Copyright Treaty

The WIPO Copyright Treaty (WCT) was adopted in Geneva on 20th December, 1996, and as of 24th March, 2004, 46 states are party to the treaty. The treaty consists of 25 Articles and is based solely on the Berne Convention. Article 1 (1) states that "this treaty shall not have any connections with treaties other than the Berne Convention...", and Article 1 (2) states "nothing in this treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention..." In addition, Article 1 (4) states that "Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention."

This treaty covers some areas not covered in the Berne Convention and is line with current technological trends and practices. It sets the rules regarding what aspects of these trends and practices are copyrightable: "computer programs are protected as literary works..." (Article 4), and "compilations of data or other material, in any form, which by reason of their selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself..." (Article 5) Articles 6 and 7 of the treaty state the rights of authors with regards to distribution and rental of their work, respectively; and Article 12 deals with electronic (digital) rights management.

Agreement on Trade-Related Aspects of Intellectual Property Rights

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was negotiated as part of the 1986 - 94 Uruguay Round, and came into effect on 1st January, 1995. It applies to all 147 member states of the WTO.

TRIPS is a comprehensive agreement covering the trade related aspects of intellectual property, and also provides a framework for the enforcement of intellectual property rights and for dispute prevention and settlement. Within the context of the agreement, Article 1 (2) states that "intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II." This includes copyright and related rights, trademarks, geographical indications, industrial designs, patents, integrated circuit layout-designs and protection of undisclosed information. (WTO, n.d.)

TRIPS establishes minimum standards for intellectual property protection within member states, and leaves up to the member states to determine how they are going to implement the various aspects of the agreement: "...Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice" (Article 1 (1))

Parties to the TRIPS agreement (members of the WTO), must also be party to the Paris, Berne, and other conventions/treaties. Article 2 (1) states that "...Members shall comply with Articles 1 through 12, and Article 19 of the Paris Convention (1967)", and Article 9 (1) that "Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto." In addition, Article 2 (2) states that nothing in Parts I to IV of the TRIPS agreement shall "derogate from existing obligations that Members may have to each other under the Paris Convention, Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits."

The European Union's Database Directive

The European Union's Database Directive (EU Database Directive) was adopted by the European Parliament and the Council of the European Union on 11th March, 1996, and it applies to all member states of the European Union.

The EU Database Directive "concerns the legal protection of databases in any form." (Article 1 (1)) The term database is defined in Article 1 (2) as meaning "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means."

This directive differs from most other treaties regarding intellectual property rights in that it provides a sui generis right to the maker of the database. Article 7 (1) provides this right: "Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database."

Article 10 of the directive says that the sui generis right provided for in Article 7 expires 15 years after the first of January of the year following the date of completion of the making of the database, or when it was first made available to the public. Lawful users of such a database may extract and/or re-utilize insubstantial parts of its contents for any purposes whatsoever, provided he/she does not unreasonable prejudice the legitimate interests of the maker of the database. (Article 8) In addition, substantial changes to the contents of the database will qualify it, at that time, for a new 15 year term of protection. (Article 10 (3)) This means that databases that are regularly updated with new data can be protected indefinitely.

Conventions, Treaties and Directives in the new millennium

The Paris and Berne Conventions have been in force for over one hundred years, and have now become the pillars of intellectual property worldwide. The Paris or Berne Conventions serve as cornerstones for the PCT, WCT and TRIPS, and before prospective members can sign up to these treaties they must first be party to either the Paris or Berne Conventions, or both.

The PCT, WCT and TRIPS will be the most important treaties of the new millennium. The PCT, which is based on the Paris Convention, will play an important role in the simplification of global patent application and filing; the WCT, which is based on the Berne Convention, will be pivotal in enforcing copyright, in all of its forms; and TRIPS, which is based on both the Paris and Berne Conventions, will be a key to the streamlining of the trade resulting from knowledge based good and services.

The EU's Database Directive is the first of its kind in the world, and has potentially far reaching consequences because of the powerful rights it confers to creators of databases who are residents or nationals of the EU. Since it was adopted in 1996, legislators in the US have been pushing for similar laws to protect creators of databases who are residents or nationals of the United States.

The economies of the developed, or industrialized, nations are primarily knowledge based economies. International treaties and conventions will therefore have an important role to play in streamlining the appropriation, dissemination and utilization of intellectual property, the currency of this new economy. They will continue to provide the framework for the exchange of knowledge based goods, products and services in the new millennium.

Intellectual Property and the Internet

The internet has been with us for the last three decades, but it was not until the early 1990s with the advent of the World Wide Web (web) along with the web browser, and the increasing popularity of the personal computer, that the internet gained its notoriety and ubiquity. Since then there has been an information revolution, where everything that can be digitized is available on the web, and the birth of a new industry: e-commerce, where goods and services are bought and sold on the web.

Copyright

Because copyrighted material can be easily converted into digital format, it is widely available on the borderless World Wide Web. The type of material available ranges from books to software, and poses a serious threat to creators of literary and artistic work.

The purpose of copyright is twofold: to give creators of literary and artistic works sole rights to their works, and to encourage diversity in literary and artistic works. In so doing the creators get remuneration for their work and the cultural landscape of a society is enhanced. All of this is now threatened because of the ubiquitous nature of the web, where a creator's work can be easily reproduced and made available to anyone in the world via a website, with no monetary reward for the creator. Although websites such as Amazon.com sell books online, allowing authors to gain monetarily through the sale of their books, other forms of copyrighted material, such as music, are still freely available online.

In order to protect the owners of copyrighted material in the digital domain, some states are now moving towards using electronic (digital) rights management information, which is provided for in the WCT. This type of information is information "...which identifies the work, the author of the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information..." (WCT, 1996, Article 12 (2)) The WCT makes it illegal to circumvent such measures, or to distribute material in which its electronic (digital) rights management information has been altered or removed. (Article 12) The WCT leaves it up to the Contracting Parties to enact legislation enforcing these rights within their states. (Article 14) The US has done so via the 1998 Digital Millennium Copyright Act (DMCA), and the European Union via the 2001 EU Copyright Directive.

Trademarks

Trademarks are used to identify a company or its product, distinguishing it from the competitor's product. The company's name followed by .com usually signals a web presence, and can be, in some instances, a trademark of its own. With the advent of e-commerce, new types of businesses have emerged, some of which exist only on the internet: Amazon, EBay, Yahoo! and Google. The names of these companies are synonymous with certain types of goods and services only available via the internet, and are arguably trademarks themselves. However, the names of these companies are also domain names and raise the question of whether domain names should be protected as trademarks, and the extent to which they should be protected.

In August 1999, the Internet Corporation for Assigned Names and Numbers (ICANN) adopted a Uniform Domain Name Dispute Resolution Policy (UDRP), which was based on the recommendations of the Report of the first WIPO Internet Domain Name Process. This policy allowed for the resolution of disputes arising out of bad faith domain name registration (cyber squatting). (WIPO, 2002) The realization was that domain names, in certain instances, are comparable to trademarks and warranted protection as such.

The Internet and Developing Nations

The internet offers two main opportunities to citizens of developing nations: a resource tool, and a market for their products. The internet is a great resource tool because of the plethora of the information that is available on it, copyrighted or not. It also makes available an international marketplace for intellectual and other local products. However, these opportunities are only available to the few citizens of these nations who can afford access to computers and the internet, and know how to use them.

Although there is a wealth of information that is available on the internet, much of the information that is needed to increase the knowledge base of developing nations, such as the results of scientific research or scientific journals, are often only available on a pay-per-use system. This puts them out of the reach of most citizens in developing nations, denying them a great and precious source of knowledge.

The internet offers the few citizens of the developing world who have access to it, a global marketplace for their often new and innovative ideas and products. It also offers them a means of marketing aspects of their culture, and cultural products, to the entire world. Many governments of developing nations are now beginning to use the internet to promote their country's culture, uniqueness, or as a tourist destination.

If developing nations are to truly exploit the power and potential of the internet, their governments will have to make it more readily available to their citizens. What some Caribbean nations are already doing is exempting computers and computer related products from any sort of taxes and duties, thus reducing the cost of computers encouraging their citizens to purchase them. What governments can also do is to promote free training programs that will teach members of their public service how to use computers and the internet.