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Summary - European and International IP Law (RGBSP50205)
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1International and European IP Law Exam
Introduction
Intellectual Property Rights
● Copyright
○ Protects the expression of an idea that is original
● Related rights
○ Rights of performances, phonogramers, etc
● Patents
● Planet varieties
● Trademarks
● Geographical indications
● Trade secrets
● Utility models
○ Smaller protection for a technical solution
○ Close to patents
● Designs
IPRS: Common Characteristics
1. Intangible/Immaterial character of IP
● Intellectual creations (intangible, non-physical form)
● Only the intangible asset is protected
● We need the tangible asset to express the idea
● IPRs protect immaterial goods/intellectual creations fixed in tangible form
● Examples:
○ Books — literary works
■ We protect the work of literature, not the book itself
○ Washing machine — invention
○ Abstract sign — physical imprint in on the product
2. A creative mental human activity outcome
● In the industrial, scientific, literary and artistic field
● Result of creativity
3. The property aspect
● Notion of exclusivity
○ Prohibit the exploitation of our rights
○ Notion of property is negative:
■ Prohibiting the use of the property to others
● Attribution to their holders the legal power to use and to exclude others from using the immaterial good
in question for a limited period of time
● Legal power to exclude others from using the immaterial good in question
● Question: What is the main difference between classic property of tangible objects and IP of immaterial
goods?
○ Classical property has no duration, whereas IP does
4. The ‘balance’ aspect
● Balancing exclusionary interests of their holders and access interests of third parties
● Question: can you think of a situation where we need this balance
○ Interoperability
■ Software Directive: when we need to interconnect one device to another device,
interoperability must be made possible
Importance of IP
● It protects creations of mind and clearly establishes who owns what
● It enables people to earn recognition or financial benefit
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● It can be used as a key negotiation tool — a ‘deal maker’
● It attracts investment
● It can be licensed / transferred
● It gives exclusionary rights, excludes third parties from using the same invention
● It is a source of information and knowledge
● IPRs play an important role for promoting innovation and creativity, developing employment, and improving
competitiveness. (DG Internal Market, Industry, Entrepreneurship and SMEs)
● IP is a key asset to be able to compete globally
Rationales / IP Foundations
● 2 reasons for why countries have IP laws:
○ To give statutory expression to the rights of creators and innovators in their creations and innovations,
balanced against the public interest in accessing creations and innovations;
○ To promote, as a deliberate act of governance policy creativity and innovation and to encourage fair
trading, so contributing to economic and social development
● Idealistic Foundation
○ Emphasise the link between the creator and his intellectual creation as the reason for granting IPRS
○ “The most sacred the most legitimate, the most unassailable and I may say the most personal of all
properties, is the work which is the fruit of a writer’s thought”
● Utilitarian Foundation
○ Focusing on the effects which the use of IPRs have for society (innovation, competition, consumer
satisfaction)
○ Encouragement of learning
Public Domain
● Both natural rights and utilitarian justifications recognize the need for the protection of the ‘public domain’
● Why do we say that they both recognize the need?
○ We need to keep up inspiration
○ We need to keep up the social contract —>we need prosperity, innovation and creative
■ Something that gives back to society
● It’s a space for all works which are not protected
● Creations in the public domain can be used by anyone, provided that moral rights are respected
● Works that are not protected by IP or are no longer protected by IP
○ When IP protection expires, the works fall into the public domain
Types of Rights
● Copyright: human scientific, literary or artistic creations must be creative (original)
● Related/Neighbouring rights: performances, audio and audiovisual recordings, broadcasts ..
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● Patents: human inventions must be novel, non obvious (inventive) and industrially applicable
○ They protect inventions
● Trademarks: signs must be distinctive (identify and distinguish goods/services originating from one commercial
source from those originating from another)
○ Signs which distinguish the services/goods of one company to another
● Industrial designs: the appearance of the whole or a part of a product (the ‘eye appeal’ of products) must be novel
and must have an individual character
● Utility models: minor inventions excluded from patent protection (= a three-dimensional object with definite
shape and form, capable of giving a solution to a technical problem and proposed as novel and industrially
applicable).
● Geographical Indications: Protected Geographical Indications (PGIs) and Protected Designations of Origin
(PDOs). Various EU Regulations allow the registration of geographical terms as PGIs and/or PDOs for wines,
aromatized wines, spirits, non–agricultural and agricultural products and foodstuffs. There are differences between
Gis and PDOs.
Other Intellectual Assets:
● Trade secrets: information/know-how of commercial value not known by the public or by the experts of the sector
in question that is being kept secret (NDA Agreements) (you don’t have exclusive rights but you are protected
against breach of the NDA)
○ A way of keeping secret information secret
○ NDAs are contracts which basically tell people to keep their mouth shut
● Domain names: human-friendly forms of Internet addresses, and are commonly used to find web sites. The
Internet Corporation for Assigned Names and Numbers (ICANN), is the organisation responsible for, among other
things, management of the generic top level domains such as .com, .net and .org
IP Rights Found in a Mobile Telephone
● Trademarks
○ The name ‘Apple’ and the logo are examples of some of the registered TMs the company holds
● Patents and utility models
○ Data-processing methods
○ Operating systems
○ Operation of user interface
○ Apple holds appx. 5400 patents covering all of the technical aspects of its product
● Copyright
○ Software
○ User manuals
○ Ringtones
○ Startup tone
○ Images
● Designs
○ Form of overall phone
○ Arrangement and shape of buttons
○ Position and shape of screen
● Trade secrets
○ Some technical know-how kept ‘in-house’ and not published
History of IP Rights : First ‘formal’ IP rights
● ‘Privileges’ — established around 1400
○ E.g. privileges for book printers
● First patents in England in 1331
● First patent law in Venice 1474
● 18th/19th century in Europe: Industrial Revolution — Age of Enlightenment
● New possibilities to reproduce texts, images, technology
● More and more authors and philosophers claim rights
● Idea of intellectual property/immaterial rights grows
International IP Law and Principles of Territoriality
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