Intellectual Property

Intellectual property rights (IPR) consider creative work as a form of property and give the owners of the creative work the right to use, rent or sell some or all of their rights over that property. Usually, IPR gives the creator an exclusive right over the use of his/her creation for a certain period of time. Intellectual property rights can be divided into several categories:

Copyright is a form of property right attached to an original work and which controls the right to copy the work for a period lasting up to 70 years after the death of the author, depending on the type of property being protected. A “Work” can be a literary or artistic work including books and other writings, musical compositions, photographs, advertisements, maps, catalogues, web page paintings, sculpture, computer programs, films and certain databases. Copyright encourages and rewards creative work as it makes it unlawful to copy the results of someone else’s efforts without their permission.

Related (also called “neighbouring”) rights are granted to certain well-defined categories of persons who are involved in the business of musical or audio-visual creation, such as performers (e.g. actors, singers and musicians), producers of phonograms (sound recordings), and producers of first fixation of films, and broadcasting organisations. The duration of related rights is fifty years following the date of the performance, the fixation, or after the first transmission (for broadcasters). Throughout Europe, copyright protection does not require formal acts such as registration or copyright note.

Case Study

E-Marketing Clinic is a small one-woman operation offering consultancy services to small and medium sized companies wanting to market on the Internet. The company has a comprehensive web site with downloadable reports and guides to help people understand and implement e-marketing. This information is an effective tool for establishing the credibility of E-Marketing Clinic. Indeed, the company has been quite successful and Lisa, the owner, has established a name for herself in Internet marketing circles.

One day, while using a search engine to look for new information in her field, Lisa discovered a link to a web site that appeared to be very similar to hers. She visited the site and was surprised to discover that someone had taken all her material, claimed it as his own and posted it on his web site.

Lisa contacted her lawyer, who promptly issued a “cease and desist” order to the plagiarist and his ISP, and the copied web site disappeared right away. Surprisingly, this has happened to Lisa several times since and she now makes it a regular habit to monitor search engines for illegal copies of her web site and documents. She also publishes a copyright notice on every page of her web site. Strictly speaking, this isn’t necessary. But it probably acts as a deterrent to the casual plagiarist.

International Regulatory Framework and EU Regulatory Framework coexist in the field of copyright. The key international agreement is the Berne Convention for the protection of literary and artistic works that has been ratified by more than 120 countries.

The European Council approved the directive ‘on the harmonisation of certain aspects of copyright and of related rights in the Information Society deals both with legal and technical aspects’ on April 9, 2001. Member States must implement it latest by December 22, 2002.

This directive covers reproduction rights, communication to the public rights, distribution rights, and legal protection of anti-copying and rights management systems. The proposal requires that Member States continue to provide network operators with an exception from the reproduction right for certain technical acts of reproduction (such “cache” copies which are stored on Internet servers as users browse the World Wide Web) and recognise that Member States may provide rights-holders with fair compensation for private copying by analogue as well as digital means, in accordance with their legal traditions and practices.

The directive aims to adapt the existing European framework on IPR to the on-line environment and comply with international commitments. It stimulates creativity and innovation by ensuring that music, films and all materials protected by copyright enjoy adequate protection throughout the single market. It will facilitate cross-border trade in copyright-protected goods and services, with particular emphasis on new electronic products and services (both on-line and on physical carriers such as CDs).

In the case of private copying, photocopying and illustrations for teaching and scientific research, the proposal specifies that right holders must have access to fair compensation.

The objective of the directive on the legal protection of databases is to afford an appropriate and uniform level of legal protection of databases in any form, as a means to secure the remuneration of the maker of the database. It protects via copyright a database which “by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation”. It does not protect the contents of the database, which may or may not be protected by copyright or related rights, but the database itself.

The directive excludes the protection of computer programs used in the making or operation of databases accessible by electronic means but covers:

· rental right, lending right and certain rights related to copyright in the field of intellectual property

The New Economic Right

The new economic right protects substantial investment made in obtaining, verifying or presenting the contents of the database. It lasts for 25 years from 1 January of the year following the completion of the database.

Industrial property provides a monopoly right of the exploitation of certain intellectual creations:

Trademarks provide protection for signs, which distinguish the goods or services of one undertaking from those of other undertakings. In most countries registration is necessary. There is no time limit for the protection offered, provided the appropriate formalities for renewal of the registration are complied with.

Patents are protected primarily to stimulate innovation and creation of technology. The social purpose is to provide protection for the results of investment in the development of new technology, thus giving innovators the incentive and means to finance research and development. The protection is usually given for a certain term, typically 20 years. It should be noted that United States patents are not recognised in the European Union. Also, at the time of writing, business models can be patented in the US, but not in the EU.

Industrial designs

Industrial designs provide protection for the shape or appearance of a design that is industrially exploited. Registration protects industrial design for a limited time, generally 10 to 15 years.

Unfair competition

Competition law can provide protection against a number of commercial practices that involve the unlawful acquisition of a company’s intellectual portfolio, such as “know how” or trade secrets. Both EU and national competition law apply and rules may differ from one country to another. There is no particular body of competition law that applies to the Internet, so a new perspective is given to established issues.

New and specific trademark-related e-commerce problems regarding Internet domain names are beginning to occur and will doubtless star in upcoming legal cases. Questions arise over the international domains, particularly .com. What happens if a company in one country acquires the .com for its name (newcompany.com for instance) and a year later another company from another country with a trademark for the same name claims and wants to register it? What happens if two companies, from different countries and both holding trademarks within their countries, have a dispute over who holds the right to a particular name? These issues have not yet been clarified, but doubtless will be raised and clarified in the courts in upcoming years, particularly as new international top level domains, such as .eu, are established.

What is clear, following several landmark legal cases, is that domain name squatting is illegal. Domain name squatting is the act of acquiring a domain name that obviously belongs to someone else, either because the other party has a trademark on the name or has clear ownership of the name (ie. a celebrity or politician), with intent to sell or lease the domain name to the rightful owner.

The growing scarcity of international top level domains makes it more and more difficult to find a short and attractive domain name. The .eu domain is an initiative launched in February 2000 by the European Commission to create a new top-level domain for European business. The setting up of the .eu domain is part of the ‘eEurope Action Plan’ adopted by the European Council. It will accelerate e-commerce in Europe, give users a specific European identification, avoid necessity of registration in different Member States, and increase consumer confidence in the use of the Internet. Registration under. eu will be open to organisations, companies and individuals of the European Union.

In December 2000 the European Commission adopted a proposal for a Regulation on ‘the implementation of the Internet Top Level Domain .eu’. The proposal aims to create a single registry to operate .eu. The registry would be a not-for-profit organisation with registered offices, central administration and principal place of business in the European Union.

12. Intellectual Property

The New Economic Right

Industrial designs

Unfair competition