Guide Exclusive Rights:Issues in Intellectual Property Law

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INTRODUCTION
Contents:


  1. Intellectual property
  2. Intellectual Property Right - Library & Information Science Network
  3. INTRODUCTION
  4. Navigation menu

Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs WIPO n. New media also includes the social media which refer to media for social interaction. It should be noted that the terms are used interchangeably in this work.

Commenting on the new media Akhagba citing Bachelorarbeit describes the new media landscape this way: Consumption, distribution, information and use are not any longer a monopoly of traditional media broadcasters. Beforehand, it was rather the usual broadcasting from a single source to its audience.

Along with this, the people had less room for feedback, criticism and censorship.

here

Intellectual property

Circumventing those, everybody became a direct competitor of established media institutions Akhagba, p. Pockets of limited availability by geography or status notwithstanding, people now have ready access to almost inconceivably vast information repositories that are increasingly portable, accessible, and interactive in both delivery and formation. Basic human activities have changed as a result, and new possibilities have emerged.

Intellectual property rights are like any other property right. They allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions. In a definitional attempt, Pepeljugoska , p. In most of the countries worldwide, the intellectual property is protected by laws.

Lucchi , p. Intellectual property rights dictate what use can legally be made of the creative work, and are thus essential to ensuring that authors are rewarded for their efforts. The advent of the Internet, however, has raised a new and unexpected challenge, making it more difficult to reach a balance, and has fostered an extremely protective environment where works are considered similar to physical properties, with right-holders accorded extensive control over them. Ana Pepeljugoska adduces the rationale for intellectual property protection: With the continued growth of social media, it has become increasingly important for individuals and businesses to augment their plans to protect their intellectual property by developing a strategy for addressing violations of IP and other rights that take place on social media websites.

There is a wide range of concerns especially due to the fact that by using the social media, not all users distributed original content, not all users remained their selves, but adopted identities of others, used the social media platforms to harass their real world enemies Pepeljugoska , p. The multibillion dollar film, recording, publishing and software industries — which bring pleasure to millions of people worldwide — would not exist without copyright protection. Without the rewards provided by the patent system, researchers and inventors would have little incentive to continue producing better and more efficient products for consumers.

Consumers would have no means to confidently buy products or services without reliable, international trademark protection and enforcement mechanisms to discourage counterfeiting and piracy WIPO n. Granting of an intellectual property right to a person in effect allows that person to control the activities of others in respect of that particular right.

Generally, intellectual property grants a negative right - to the owner of that right, the owner may prevent others from doing certain things copying, making counterfeits and may even prevent a third party who has reached the same idea independently from exploiting that idea. Intellectual property may also grant positive entitlement, such as the grant of a patent or trademark if certain conditions have been complied with Mauritius Research Council , p.

There are two main reasons for protection of intellectual property rights. The first is to give statutory expression to the moral and economic rights of creators in their creations and such rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.

As such intellectual property is traditionally divided into two branches: industrial property and copyright and related rights. The main question which arises from this emerging society context is the question of the influence of the social media in everyday life and especially in the protection of intellectual property rights.

What is Intellectual Property Rights? Why Should I Care? By Saurabh Lal in hindi

It is undisputable that no one can deny the power of the social media, however the issue of controlling this power is rather concerning. With the penetration of the Internet and the social media in our lives, we are now immersed in what referred to be cyberspace. This new situation demands for a possibility for the rights holders to ask protection of their intellectual property rights. It is widely known that the value of the intellectual property rights in practice depends on whether the owner of the rights is capable of undertaking necessary measures to prevent others from infringing its rights Pepeljugoska , p.

WIPO however presents the reasons for intellectual property rights more succinctly: 1. The progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture. The legal protection of new creations encourages the commitment of additional resources for further innovation. The promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life.

The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish, for the benefit of all WIPO n. Abdelgawad and Dahy n. A patent provides patent owners with protection for their inventions.

Protection is granted for a limited period, generally 20 years. Why are patents necessary? Patents provide incentives to individuals by recognizing their creativity and offering the possibility of material reward for their marketable inventions. These incentives encourage innovation, which in turn enhances the quality of human life WIPO n. The system helps consumers to identify and purchase a product or service based on whether its specific characteristics and quality — as indicated by its unique trademark— meet their needs WIPO n.

Scheirer posits that in a new media environment, trademarks could be lost and as such, prosecuting its infringement can be challenging if its distinctiveness is not highlighted. Trade- marks must be distinctive and must not be confused with the brands or trade-marks of others.

If the owner does not take steps to prevent or stop infringements of the trade-mark, the distinctiveness of the mark could be lost and the trade-mark could then be open to challenge. Social media can increase the risk to trade-mark owners of losing distinctiveness in their marks and therefore potentially risk the trade-mark itself. WIPO identifies the essence of trademarks thus: i. Trademarks promote initiative and enterprise worldwide by rewarding their owners with recognition and financial profit.

Trademark protection also hinders the efforts of unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior or different products or services. The system enables people with skill and enterprise to produce and market goods and services in the fairest possible conditions, thereby facilitating international trade iv.

Trademark protection ensures that the owners of marks have the exclusive right to use them to identify goods or services, or to authorize others to use them in return for payment. The period of protection varies, but a trademark can be renewed indefinitely upon payment of the corresponding fees. Trademark protection is legally enforced by courts that, in most systems, have the authority to stop trademark infringement WIPO n.

A design may consist of three-dimensional features, such as the shape or surface of an article, or two- dimensional features, such as patterns, lines or color. Industrial designs are applied to a wide variety of industrial products and handicrafts: from technical and medical instruments to watches, jewelry and other luxury items; from house wares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods. To be protected under most national laws, an industrial design must be new or original and nonfunctional.

However, those features could be protected by a patent WIPO n. Most commonly, a geographical indication consists of the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local geographical factors, such as climate and soil. Whether a sign functions as a geographical indication is a matter of national law and consumer perception. The place of origin may be a village or town, a region or a country. A geographical indication as specified by World Intellectual Property Organization guarantees to consumers that a product was produced in a certain place and has certain characteristics that are due to that place of production.

It may be used by all producers who make products that share certain qualities in the place designated by a geographical indication. In Nigeria, the first copyright law was promulgated in but was amended by Decree No.

Intellectual Property Right - Library & Information Science Network

Copyright is the right of the owner of an intellectual property to exclusively produce copies, sell and control it. Copyright is the ownership and right to control all possible ways of producing and disseminating copies of an intellectual property, such as literary works, artistic works, cinematograph films, sound recordings and broadcasts Malemi , p.

Adesanya , p. Copyright essentially is the right of the author of a work to prevent its reproduction without his or her permission. The work could be of any form such as music, literary work, art, etc. Once copyright subsists in the work, the author enjoys the sole right of production and reproduction of the work and no other can so do within the specified number of years during which the copyright is to subsist unless he is given permission to so do by the author Ozoh , p.

Adding his voice, Aliede , p. Copyright is an area of the law that deals with intangible property; property that a person cannot touch or hold or lock away for safekeeping Pember, as cited by Tsebee , p. Section 39 1 of Decree 47, enumerates items eligible for copyright protection. These include: i. Literary works — which include novels, stories, poetic works, plays, stage directions, film scenarios, broadcasting scripts, choreographic works, computer programmes, text books, treaties, histories, biographies, essays, encyclopedias, dictionaries, anthologies, letters, reports, memoranda, lectures, addresses, sermons, and reports, exclusive decisions of courts, written tables or compilations.

Musical Works — refers to musical works, regardless of its quality. Artistic Work — this includes paintings, drawings, etchings, lithographs, woodcuts, engravings, sculpture, plans, maps, diagrams, photographs, architecture and the works of craftsmanship. Cinematographic film — this includes first fixation of sequence of visual image capable of being shown as a moving picture and being the subject of reproduction.

It also includes recordingof sound track associated with the cinematograph film. Sound recording — refers to the first fixation of sound capable of being perceived aurally and or being produced, but does not include a sound track associated with cinematograph vi. Broadcast — refers to sound or television broadcast by wireless telegraphy or wire or both or by satellite or cable programmes, which include re-broadcast Abayomi , p.

With the arrival of new media especially, the social media, intellectual property issues have been confronted with new and sometimes complex challenges. The new media technologies that encourage the sharing of contents across different communication channels have brought about new difficulties in enforcing copyright, and inspired additional challenges to the basic legal philosophy of copyright. The global entertainment industry in particular has fought diligently against the free use, copying, and distribution of electronic music, videos, and movies. With the continued growth of social media, it has become increasingly important for individuals and businesses to augment their plans to protect their intellectual property by developing a strategy for addressing violations of IP and other rights that take place on social media websites.

Decrying the negative trend on the social media, Scheirer , p.

INTRODUCTION

This means that many times one can get materials that one did not subscribe to. Creators — authors, artists, inventors, designers, musicians, photographers, producers and directors are entitled to exclusive rights to use and economically exploit their work. These rights must be respected by all.


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Individuals can download just about anything from the Web, change it and reuse it…copying or downloading a file digitally whether it is text, graphics, or audio, creates an exact duplicate of the original. Furthermore, once the material is downloaded, it can easily be changed. In the case of text, any word processor can be used to seamlessly edit the material. Words, phrases, sentences, paragraphs, or even chapters can be added, changed or deleted. A download photograph can be altered with computer software like Photoshop. The second approach to IPR protection takes as its starting premise an instrumental view of intellectual property.

Perhaps the most well-known manifestation of this approach is found in the Intellectual Property Clause of the United States Constitution, which authorizes the United States Congress "[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

This instrumentalist philosophy shapes the structure of many national intellectual property systems. The grant of IPRs in nations following an instrumentalist approach is intended to provide adequate incentives for creators, inventors and authors to invest the time, resources and intellectual capital needed to create intellectual property products. However, the ultimate goal of legal protection is not remunerative reward for creators but the enhancement of social welfare through access to the ideas and information contained in their products.

Instrumentalist intellectual property systems often tailor the scope of legal protection to achieve this goal, for example by placing certain limits on the scope of protection or recognizing situations in which consumers or second-generation creators may access and use intellectual property products for socially valuable purposes. Under this instrumentalist approach, new plant varieties are afforded legal protection to encourage commercial plant breeders to invest the resources, labour and time needed to improve existing plant varieties by ensuring that breeders receive adequate remuneration when they market the propagating material of those improved varieties.

In the absence of a grant of exclusive rights to breeders, the dangers of free riding by third parties would be considerable. This is because the genetic material within plants that specifies their distinctive and commercially valuable features is naturally self-replicating, for example by reproduction of seeds or other propagating material. Self-replication makes innovations incorporating biological material particularly susceptible to exploitation by parties other than the innovator.

IPRs in plant varieties thus provide some assurance to breeders that they will be able to recoup the risks and costs of a value-added innovation that is based upon an underlying biological resource. Lesser ; OECD Ultimately, however, the grant of exclusive rights to plant breeders is designed to benefit the society granting the rights.

It provides an incentive for private research and development into new breeding techniques, thereby reducing the need for government funding to subsidize these activities. It encourages the development of new and beneficial plant varieties for use by farmers and consumers. An international system of IPR protection for plant varieties expands these benefits by facilitating access to new varieties created in other states. Once breeders are assured that their rights will be protected in other states, breeders will be more willing to make their new varieties available in those states assuming they have access to a distribution and marketing infrastructure.

This benefits farmers, consumers and researchers in many more jurisdictions. Lesser, , pp. The different policy objectives underlying the protection of IPRs have shaped the structure and evolution of the international intellectual property system. Most early domestic intellectual property laws provided no legal protection to intellectual property products created in other nations, thereby permitting those products to be exploited by free riders operating outside the state in which the products were created. The unfairness of this result prompted governments in the late nineteenth century to consider an international approach to protect IPRs.

The drafters of the first multilateral intellectual property treaties quickly realized, however, that there was insufficient political support for reconciling many of the differences that existed among national IPR laws. For this reason, the drafters abandoned the idea of harmonizing diverse national laws to create a single, international IPR applicable in all signatory states. They fashioned instead a system that creates a limited set of treaty-based obligations that each member state of that system is then required to implement in its national IPR laws. Implementation of treaty-based obligations in national IPR laws can occur in one of two ways.

In some nations often referred to as "automatic incorporation" states , treaties become binding as a part of domestic law as soon as formal ratification procedures have been adopted. In these nations, treaties are considered to be "self-executing" or capable of being given "direct effect" in domestic law such that courts and administrative agencies can construe the treaty directly and enforce the rights it grants to the owners of intellectual property products.

In other nations, however often referred to as "legislative incorporation" states , treaties are considered to be "non-self-executing" and can only become binding in domestic law once the parliament or legislature has adopted legislation to implement the treaty. In these nations, owners of intellectual property products rely on this domestic legislation rather than on the treaties themselves when they seek to enforce rights granted to them under the treaties.


  1. Introduction.
  2. 1.1 Historical Development:.
  3. Die Geschwister (German Edition)!
  4. Because of the limited scope of international IPR agreements, there are to this day with the limited exception of the European Union no international IPRs available to inventors and creators who seek to market their products across borders; rather, IPRs are territorial in nature and are acquired and enforced on a country-by-country basis under territorially-circumscribed national IPR laws. Thus, for example, the inventor of a genetically enhanced variety of corn who seeks patent protection for that variety must apply for protection in each country in which he or she hopes to sell the corn.

    The inventor must comply with all of the requirements that each country imposes for granting patent rights to the new variety. Recent international agreements have achieved some modest forms of procedural harmonization, but they have not altered the fundamental premise that national laws rather than international treaties are the immediate source of nearly all private rights in intellectual property products. Two basic principles flow from this territorial approach to protecting IPRs. First, where national laws differ as to the scope or content of the protection they provide to intellectual property products, the rights enjoyed by the owners of those products will vary in different national jurisdictions.

    Second, territoriality implies that each nation has the right to decide on the form of IPR protection to be granted within its own borders, provided that it complies with the obligations contained in international IPR agreements to which it is a party. Although territoriality thus gives governments some autonomy to set national IPR policies within their own borders, states often view the policies other governments choose as a subject of concern. Indeed, the global reach of markets for intellectual property products makes this concern a necessity. To take just one example, most patent laws grant inventors owning patents within a state the right to prevent the importation into that state of products created in other nations that contain the patented invention.

    Thus, where distribution markets transcend national borders, an industry may find itself precluded from distributing products in other jurisdictions as a result of patent rights, as occurred when Indian cotton producers were precluded from importing certain forms of transgenic cotton into the United States. Correa, , p. The territorial approach to IPR protection appears at first to present myriad difficulties for creators and owners of intellectual property products. In addition, the obligations these agreements impose have expanded over time, thus narrowing although by no means eliminating the differences among national intellectual property systems.

    The following sections briefly explain the core obligations contained in most international IPR agreements. More detailed information concerning the rights and obligations contained in specific IPR agreements relating to plant varieties is provided in Part II below. One of the cornerstones of international IPR agreements is the national treatment principle. National treatment levels the playing field among treaty parties and prevents a state from giving its own creators and inventors unfair advantages over foreign creators and inventors.

    In the absence of national treatment, for example, domestic firms could freely exploit intellectual property products created in other member states while simultaneously enjoying legal protection within their own domestic markets. The provisions of several intellectual property treaties contain a limited exception to national treatment known as reciprocity.

    Reciprocity is often applied to new IPRs as means of encouraging other nations to recognize the new rights and extend their protection to foreign nationals. Once a large number of states have recognized the new IPR, they may revise the treaty to eliminate the reciprocity option and impose a national treatment obligation. The most favoured nation "MFN" principle is a common feature of international trade agreements but has only recently been applied to IPRs.

    The principle extends the national treatment rule by compelling a government that provides a privilege or benefit to one state within a treaty system automatically to grant that same privilege or benefit to all states within the same system. The MFN principle thus prevents a subset of states within a larger treaty system from entering into bilateral or other special agreements among themselves, unless they grant the rights contained in those agreements to all other parties within the larger treaty system.

    Intellectual property agreements specify the subject matter characteristics of the products that are eligible for legal protection. In the context of patents, for example, a treaty may specify the types of inventions such as products and processes to which states parties must grant legal rights.

    These subject matter requirements are generally drafted using language that instructs member states concerning the basic characteristics that a product must possess for it to merit protection under domestic IPR laws, while preserving sufficient flexibility for states to tailor the details of protection to the particularities of their national legal systems. It is the exclusivity of the rights granted that allows IPR owners to recoup the investment of time, money and resources required to create intellectual property products.

    The particular exclusive rights mandated by IPR agreements differ depending on the specific type of IPR product at issue. Intellectual property agreements also specify for their states parties the minimum term of years during which intellectual property products must receive legal protection.

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    Once that term has expired, the treaties do not require states to grant legal protection to the products. Thus, unless the state adopts a longer term of protection, after the expiration of the initial term of protection the product may be freely used by anyone for any purpose, including as a source for creating new products or simply for consumption.

    A corollary of this rule is that national IPR laws do not permit putative inventors and creators to claim IPRs in materials as they are found in nature or where they are already part of the public domain. International IPR agreements constrain the ability of national governments seeking to restrict the exercise of IPRs to achieve competing social or policy objectives, such as access to information, research, education and cultural development.

    Restrictions designed to achieve these objectives are generally known as "exceptions and limitations" to exclusive IPRs.

    1.0 Introduction:

    These exceptions and limitations generally appear in two forms. The first form permits third parties to engage in specified uses of intellectual property products without the permission of the rights holder and without the payment of remuneration. The second form is known as a "compulsory licence. To prevent both forms of exceptions and limitations from eviscerating IPRs altogether, intellectual property agreements impose specific constraints the ability of member states to adopt them.

    The grant of IPRs in national laws would be meaningless without adequate and effective mechanisms to enforce those rights. For this reason, recent intellectual property agreements specify the types of enforcement provisions that member states must adopt in their national laws. The penalties include civil judicial proceedings for monetary damages or an injunction to prevent the continued unauthorized use of the product and criminal proceedings commenced by the government itself. Taken together, these core provisions of international IPR agreements impose significant legal obligations on member states.

    The agreements do not, however, purport to definitively address all of the issues raised by the grant of legal protection to intellectual property products. For this reason, the treaties are often referred to as "minimum standards" agreements in that they create only a basic floor of legal protection to which all member states must adhere. There are three important consequences of this minimum standards framework. First, it allows member states the discretion to interpret and apply those provisions of the treaties that are ambiguous or that reasonably permit more than one construction.

    Second, a minimum standards approach permits, but does not require, states to grant additional IPR protections within their national laws. And third and perhaps most importantly, the framework leaves member states free to enact laws that serve other political, economic or social objectives, even where those objectives are in tension with IPRs, provided that those laws are not inconsistent with the terms of IPR agreements. In the last five years, however, an increasing number of developing countries have entered into bilateral or regional trade and investment treaties with the United States or with the European Community.

    These treaties often contain higher standards of intellectual property protection than those specified in multilateral intellectual property agreements. Drahos, ; GRAIN, They thus restrict the minimum standards approach contained in the multilateral agreements, for example, by requiring states to enact specific intellectual property protection rules in their national laws or by requiring developing countries to follow the standards contained in multilateral agreements to which they are not parties.

    For a more detailed discussion, see para. The minimum standards framework as limited by bilateral or regional treaties requiring higher standards of protection provides a methodology for analysis but not a solution for every potential clash between IPRs and other governmental policies.