Intellectual Property Rights

INTRODUCTION
Rapid technological change and global integration require active exploration of emerging intellectual property issues, to offer creative and adequate responses to challenges facing the intellectual property system.

The overall objective is to promote the continued viability, increased efficiency and broader coverage of the intellectual property system, through exploration of all the challenges that the emergence of new uses and new users of intellectual property rights- such as holders of traditional knowledge- pose to the international community.
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WHAT IS TRADITIONAL KNOWLEDGE ? WHY IS ITS PROTECTION IMPORTANT?

Traditional knowledge is not limited to any specific field of technology or the arts. The entire field of human endeavor is open to inquiry by traditional methods and the full breadth of human expression is available for its transmission. Traditional knowledge systems in the field of medicine and healing, biodiversity conservation, the environment and food and agriculture are well known. Other key components of traditional knowledge are the music, dance, and artisanat (i.e. designs, textiles, plastic arts, crafts, etc.) of a people.
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When a traditional singer performs a song, the cadence, melody, and form all follow rules, which have been maintained for generations. Thus, a songs performance entertains and educates the current audience, but also unites the current population with the past. Understanding the interplay between practical knowledge, social history, art, and spiritual beliefs provides a valuable foundation for developing an understanding for the people which hold this knopwledge.
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Traditional , therefore, does not necessarily mean that the

knowledge is ancient. Traditional knowledge is being created everyday, it is evolving as a response of individuals and communities to the challenges posed by their social environment.
The protection of traditional knowledge is important for communities in all the countries, particularly perhaps in developing and least developing countries.

On one level, traditional knowledge plays an important role in the economic and social organization of those countries, and placing value on such knowledge is a viable means of promoting a sense of national cohesion and identity. On another level, developing and least developed countries are engaged in implementing two international agreements- the convention on biological diversity (CBD) and the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)- that may affect the manner in which knowledge associated with use of genetic resources (whether traditional or not) is protected and disseminated.

PROBLEMS CONFRONTING HOLDERS OF TRADITIONAL KNOWLEDGE

Holders of TK are faced with various difficulties - reluctance of the younger generation to learn the old ways. - rejection of tradition by young and encroachment of modern lifestyles results in decline of TK. - through diffusion many traditional practices are lost Thus a primary need is to document and preserve the TK. Absence of willing heirs to TK has resulted in precarious situation. Death of TK holder result in the demise of entire tradition and knowledge system. Another difficulty faced by TK holder is the lack of respect and appreciation for such knowledge.

Intellectual property
The agreement on TRIPS( trade related aspects of intellectual property rights) is the first successful attempt to consolidate and unify international norms for the effective protection of intellectual property. Industrial property forms part of intellectual property. The objects of IP are the creations of the human mind, human intellect and hence IP.

Types of Intellectual property

Copyright copyright relates to artistic creations, such as poems, novels, music, paintings, cinematographic works, etc. In most European languages other than English ,copyright is called authors right. Industrial property IP is misunderstood sometimes as relating to movable or immovable property used for industrial [production such as factories, equipments, etc.
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 IP includes inventions and industrial designs. Inventions are solutions of technical problems. Industrial design are aesthetic creations determining appearance of industrial products. In addition IP includes trademarks, service marks, commercial names and designations, geographical indications and the protection against unfair competition.

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 Inventions inventions are new solutions to technical problems. Invention means an idea of an inventor which permits in practice the solution to specific problem in the field of technology. Patents inventions are protected by patents. Every country gives legal protection to inventions. If a person makes what he believes is an invention, he works for an entity, ask the government by filing an application with the patent office- to give him a document in which it is stated what the invention is and that he is the owner of the patent. In the case of process patents, the right to prevent third parties from using the process that includes the invention, and to prevent third parties from using, offering for sale, selling or importing products which were made by the process that includes the invention. 11

 Industrial designs an industrial design is the ornamental or aesthetic aspect of a useful article. Such particular aspect may depend on the shape, pattern or color of the article. The design must appeal to the sense or sight. Moreover, it must be reproducible by industrial means; this is the essential purpose of the design, and is why the design is called industrial.
Industrial designs are usually protected against unauthorized copying or imitation. Under article 26.3 of the TRIPS agreement, the duration of protection available shall amount to at least 10 years. Members of the said agreement are also obliged to ensure that requirement for securing protection of textile designs, in particular in regard of any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection.

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 The document which certifies the protection may be called a registration certificate or a patent. If it is called a patent, one must, in order to distinguish it from the patents for invention, always specify that it is a patent for industrial design.

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 A contracting party is free to implement its obligations under the treaty through a special law on layout-designs ( a solution which is more and more frequent), or its law on copyright, patents, utility models, industrial designs, unfair competition or any other law or a combination of any of those laws. Contracting parties are free to provide that registration of a layout- design is a prerequisite to protection.

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TRADEMARKS
Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark.

Such signs, in particular wiords including personal names, letters, numerals, figurative elements and combination of colors as well as any combination of such signs, shall be eligible for registration as trademarks ( TRIPS article 15.1).

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 Most countries require that trademarks for which protection is desired be registered with government authority. The protection that laws give to a trademark consists essentially of making it illegal for any entity other than the owner of the trademark to use the trademark or a sign similar to it, at least in connection with goods for which the trademark was registered or with goods similar to such goods without the authorization of the owner.
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 The TRIPS agreement sets out, in its article 16, the rights conferred on the owner of a trademark and the protection to be given in respect of well-known marks.

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TRADE NAMES
Another category of objects of industrial property is commercial names and designations. A commercial name or trade name- the two expressions mean the same thing- is the name or designation which identifies the enterprise. In most countries, trade names may be registered with a government authority. Protection generally means that the trade name of one enterprise may not be used by another enterprise either as at trade name or as a trademark or service mark and that a name or designation similar to the trade name, if likely to mislead the public, may not be used by another enterprise.
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GEOGRAPHICAL INDICATIONS
An indication of source is constituted by any denomination, expression or sign indicating that a product or service originates in a country, a region or a specific place( for instance, made in .).

As a general rile, the use of false or deceptive indications of source is unlawful.

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PROTECTION AGAINST UNFAIR COMPETITION

The last object of the protection of industrial property is the protection against unfair competition. The following in particular constitute acts of unfair competition in relation to industrial property: all acts of such a nature as to create confusion with the establishment, the good s or the industrial or commercial activities of a competitor; false allegations in the course of trade of such a nature as to discredit the establishment, the goods or the industrial or commercial activities of a competitor; and indications or allegations the use of which in the course of trade is liable to mislead the public as to the characteristics of goods.
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 The protection against unfair competition supplements the protection of inventions, industrial designs, trade marks and geographical indications. It is particularly important for the protection of know how, that is : technology or information which is not protected by patent but which may be required in order to make the best use of a patented invention. Members of the TRIPS agreement are required to provide natural and legal persons the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in manner contrary to honest commercial practices so long as such information:

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a)

Is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among all readily accessible to persons within the circles that normally deal with the kind of information in the question; Has commercial; value because it is secret; and

b)

c)

Has been subject to reasonable steps under the circumstances, by the person lawfully in control of the in formation, to keep it secret
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BASIC NOTIONS OF COPYRIGHT (INTRODUCTION)

Copyright legislation is part of body of law known as intellectual property, which protects the interests of creators by giving them property rights over their creations. Subject matter protected by intellectual property rights: 1) literary, artistic and scientific works; 2) performances of performing artists, phonograms, and broadcasts; 3) inventions of all fields of human endeavor; 4) scientific discoveries; 5) industrial designs; 6) trademarks, service marks, and commercial names and designations; 7) protection against unfair competition; and 8) all other rights resulting from intellectual activity in the 23 industrial, scientific, literary or artistic fields.

PROPERTY
The most important feature of property is that the owner of the property may use it as he wishes; no body else can lawfully use his property without his authorization. The property owner may be a human being or a legal entity , such as a corporation. Roughly speaking, thjere are three types of property. One is property consisting of movable things, such as a wristwatch, a car, or furniture in a home. In some legal systems, this is known as movable property.

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 No one except the owner of the wristwatch, the car or the furniture can use these items of property .

This legal right is referred to as exclusive, because the owner has the exclusive right to use his property.
Naturally, the proprietor may authorize others to use the property, but without such authorization, use by others illegal.

The second type of property, or as it is sometimes known, real property.

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 Land and things permanently fixed on it, such as houses, are immovable property, because they cannot be lifted or moved. The third type of property is intellectual property, which protects the creations of the human mind, the human intellect.

This is why this kind of property is called intellectual property:

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INTELLECTUAL PROPERTY
Intellectual property has been divided into two branches, namely industrial property, which protects inventions, and copyright,which protects literary and artistic works as well as creations in the field of so-called related rights. while other types of intellectual property also exist, for present purpose it is helpful to explore the distinction between industrial property and copyright in terms of the basic difference between inventions and literary and artistic works. Inventions may be defined(in a non-legal sense)as new solutions to technical problems.
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 These new solutions are ideas, and are protected as such; protections of inventions under patent law does not require that the invention be represented in a physical embodiment. Protection accorded to inventors is, therefore, protection against any use of the invention without the use of authorization of the owner. Even a person who later makes the same invention independently, without copying or even being aware of the first inventors work, must obtain authorization before he can exploit it.

Literary and artistic works include books, music, works of the fine arts such as paintings and sculptures, and technology-based works such as computer programs and electronic data bases. 28

 Unlike protection of inventions, copyright law protects only the form of expression of ideas, not the ideas themselves. The creativity protected by copyright law is creativity in the choice and arrangement of words, musical notes, colors and shapes. Copyright law protects the owner of property rights in literary and artistic works against those who copy or otherwise take and use the form in which the original work was expressed by the author.
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COPYRIGHT
Structure of copyright law will be divided into the following sections: 1) the works protected by copyright; 2) the rights granted to the owner of copyright; 3) limitations on such rights: 4) duration of copyright; 5) ownership and transfer of copyright; 6) enforcement of copyright.

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PROTECTED WORKS
literary and artistic works shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; Lectures, addresses, sermons and other works of the same nature; Dramatic or dramatico-musical works;

Choreographic works and entertainments in dumb show;

Musical compositions with or without words;
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 Cinematographic works to which are assimilated works expressed by a process analogous to cinematography; Works of drawing, painting, architecture, sculpture, engraving and lithography; Photographic works, to which are assimilated works expressed by a process analogous to photography; Works of applied art;

Illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
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 Copyright applies to every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.

The expression literary and artistic works is a general concept to be understood, for the purposes of copyright protection, as including every original work of authorship, irrespective of its literary or artistic merit.
A computer program is a set of instructions which controls the operations of computerin order to enable it to perform a specific task, such as the storage and retrieval of information. A computer program is produced by one or more human authors but, in its final mode or form of expression, it can be 33 understood directly only by a machine, not by human.

RIGHTS PROTECTED
Copyright is a branch of intellectual property. The owner of copyright in a protected work may use the work as he wishes, and may prevent others from using it without his authorization. Thus, the rights granted under national laws to the owner of copyright in a protected work are normally exclusive rights to authorize other to use the work, subject to the legally recognized rights and interests of others. There are two types of rights under copyright, economic rights, which allow the owner of rights to derive financial reward from the use of his works by others, and moral rights," which allow the author to take certain actions to preserve the personal link between himself and the work. 34

RIGHT OF REPRODUCTION AND RELATED RIGHTS

The rights of the owner of copyright to prevent others from making copies of his works is the most basic right under copyright. The right to authorize rental of copies of certain categories of works, such as musical works included in phonograms, audiovisual works, and computer program. The right of rental is justified because of technological advances have made it very easy to copy these type of works; Experiences in some countries has showed that copies were made by customers of rental shops, and therefore,that the right to control rental practices was necessary in order to prevent abuse of the copyright owners right of reproduction.

Finally, some copyright laws include a right to control importation of copies as a means of preventing erosion of the principle of territoriality of copyright; that is, the legitimate economic interests of the copyright owner would be endangered if he could not exercise the rights of reproduction and distribution on a territorial basis.
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RIGHTS OF PUBLIC PERFORMANCE, BROADCASTING AND COMMUNICATION TO THE PUBLIC

On the basis of the right of public performance the author or the other owner of copyright may authorize live performances of a work, such as the presentation of a play in a theatre or an orchestra performance of a symphony in concert hall. Public performance also includes performance by means of recordings; thus, musical works embodied in phonograms are considered publicly performed when the phonograms are played over amplification equipments in such places as discotheques, airplanes, and shopping malls.
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 The right of broadcasting covers the transmission by wireless means for public reception of sounds or of images and sounds, whether by radio, television, or satellite. The rights of broadcasting, communication to the public and public performance have been the subject of much discussion.

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TRANSLATION AND ADAPTATION RIGHTS

Translation means the expression of a work in a language other than that of the original version. adaptation is generally understood as the modification of a work to create another work. Translation and adaptations are works protected by copyright. Therefore in order to reproduce and publish a translation or adaptation, authorization must be obtained from both the owner of the copyright in the original work and of the owner of copyright in the translation and adaptation.

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MORAL RIGHTS
1) The right to claim authorship of the work ( sometimes called the right of paternity). 2) the right to object to any distortion, mutilation or other modification of , or other derogatory action in relation to, the work which would be prejudicial to the authors honour ( sometimes called the right of integrity ). these rights, which are generally known as the economic rights and to remain with the author even after he has transferred his economic rights.

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LIMITATIONS ON RIGHTS
Exclusion from copyright protection of certain categories of works. For example, a work of choreography would only be protected once the movements were written down in dance notation or recorded on videotape. Rights of authors and other owners of copyright concern particular acts of exploitation, There are two basic types of limitations in this category: Free uses which are acts of exploitation of works which may be carried out without authorization and without an obligation to compensate the owner of right for the use, and non voluntary licenses under which the acts of exploitation may be carried out without authorization, but with the obligation to compensate the owner of rights. The making of quotations from a protected work, provide that the source of the quotation, including the name of the author is mentioned and that the extent of the quotation is compatible with fair practice; use of works by way of illustration for teaching purposes; and use of the works for the purpose of news reporting. 40

1) 2)

Duration of copyright
Copyright does not continue indefinitely. The law provides for a period of time, a duration, during which the rights of the copyright owner exists. The period or duration of copyright begins from the movement when the work has been created, or, under some national laws, when it has been expressed in tangible form. As a general rule, the life of the author and not less than 50 yrs after his death. Under collective administration, authors and other owners of rights grants exclusive licenses to a single entity.
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Enforcements of rights
The conventions contain very few provisions concerning enforcements of rights, but the evolution of new national and international enforcements standards.
Conservatory or provisional measures have two purposes: To prevent infringements from occuring, particularly to prevent the netry of infringing goods into the channels of commerce, including entry of imported goods after clearance by customs; and To preserve relevant evidence in regard to an alleged infringement.
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1)

2)

 Civil remedies compensate the owner of rights for economic injury suffered because of the infringement, usually in the form of monetary damages , and creative an effective deterrent to further infringement, often in the form of a judicial order to destroy the infringing goods. Criminal sanctions are intended to punish those who willfully commits acts of piracy of copyright and related rights on a commercial scale, and, as in the case of civil remedies.

Measures to be taken at the border are different from the enforcement measures describe so far, in that they involve action bye the customs authority rather than by the judicial authority.
Border measures allow the owner of rights to apply to customs authorities to suspend the release into circulation of goods which are suspected of infringing copyrights.
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TECHNOLOGICAL AND ECONOMIC GROWTH

Long term economic growth is the result of an increase and accumulation of scientific and technological knowledge, i.e., increased knowledge about useful goods and how to make them. With new opportunities present, the critical role of technology as the driver of economic progress has been widely acknowledged. The value added to most new products comes basically through intangible components, including technology. The last decade has witnessed sweeping economic changes all over the world, particularly in developing countries. 44

 Today, nobody challenges the importance of creativity, inventions and innovation to economic and technological development. Restrictive policies with respect to controles on terade on industry, foreign investment and technological collaboration habve been discarded. As country after country has liberlised its economic regime, new competitive pressures have come into play. Economic progress requires a constant stream of new ideas and products to improve the quality of life, regardless of whether the innovation is a simple gadget or a sophisticated invention.
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GROWING ROLE OF INTELLECTUAL PROPERTY RIGHTS(IPRs) Intellectual capital is often of considerable vaklue because it is unique. It comprises, inter alia, patents for inventions, trademarks, industrial designs, utility models, appellations of origin, integrated circuit topographies, copyrights, but also knowhow, trade secrets, proprietary technology, talents, skill and knowledge of workforce, training systems and methods, customer lists, distribution network, quality management system, etc. The transfers of technology, licencensing agreements and joint ventures are based on IPR assests.
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 Novel-financing techniques and mergers have emphasized of the role of intellectual property portfolios in companies. IPRs are now pledged as security for loans and the assessment the real worth of companies more pften requires the valuation of their intellectual property portfolio.

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The role of IPR in promoting socio-economic development

The patent industry must be understood as a policy instrument that encourages developing indigenous technological capabilities by providing an incentive to local inventors, research and development organizations and industry. In fact, it represent s strong shield for the development of innovative domestic industry, however small it may be at that moment. The patent system does not constitute an instant remedy, but rather along-term infrastructure investment in the development of a national matket. Without a patent system, inventors, entrepreneurs and companies would have no effective protection against the imitations of their inventions, and less incentive to invest in the development and strengthening of their technological capacities.
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Functions of the industrial property system The main functions of the industrial property system may be summarized as follows: To stimulate inventive and innovative activity; To encourage the development of new technology; To encourage the commercialization of inventions and innovations; To facilitate access to the latest technological information.
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IPR in transfer of technology

Contrary to secret technological know-how, patents perform several simultaneous functions, which are critical for the efficiency of the network transferring and disseminating technology, namely:

Patents provide information on who possesses which technology; Patents give evidence of the technological strength of the respective partners because they are easy to investigate and, by their very nature, represent R&D efforts resulting in an advance in the art;
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 Patent claims allow one to define precisely the technical and territorial scope of any technology transfer transaction, as well as the technology to be transferred and clearly distinguished, from any other technical knowledge of which a partner may lean during the transfer contacts. This is particularly important in contract research and in cooperative research projects where the background knowledge of each partner must be distinguished from the jointly developed new technology, and where the jointly developed technology must be duly attributed for exploitation to each partner; The exclusive nature of patents, which transforms ubiquitous technical information into an appropriate assets, makes it possible that inventions can actually be transferred from one owner to another for monetary consideration in respect of the contract performance, the cooperative efforts or the commercial value attributed to a particular technology. Therefore, the transfer of the IPRs is as important as is their information and incentive function, and is by no means limited to the grant of licenses as an additional source of income or as an instrument to serve markets into which an enterprise is not able to 51 enter itself.