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Intellectual Property






 

The three main branches of intellectual property law are copyright, trademark and patents. These are sufficiently different in their nature that no one view can be said to pervade the international arrangements with respect to IP.

Despite the fact that there are international agreements intended to harmonize the rules for what constitutes intellectual property, there is still much variation among nations in the approach to IP disputes. United States law focuses on whether an infringing act is justifiable as "fair use." However, other countries' laws tend to focus on the antecedent question of whether an act of infringement has occurred.

Copyright and the Internet: Building National Legislative Frameworks Based on International Copyright Law [pdf], December 2004

This paper describes the major international treaties on copyright and discusses key issues that nations should address in updating their laws to conform to the international framework. The paper is not intended as an introduction to intellectual property rights - its assumes that the reader has a basic understanding of copyright.

Audio Discussion

Listen to Fred von Lohmann of the Electronic Frontier Foundation discuss intellectual property issues [MP3 23.3MB 1 hour, 21 minutes]. May 3, 2006

Relevant Treaties

There are more than two-dozen international agreements concerning IP. A list of some of these can be found on the World Intellectual Property (WIPO) website at: http://www.wipo.int/treaties/index.html; including an alphabetical list of all the WIPO treaties at http://www.wipo.int/treaties/a-z.html

WIPO

WIPO is an international organization under the umbrella of the United Nations tasked with administering international IP treaties and assisting governments, organizations and the private sector with IP-related issues. WIPO does not itself adjudicate disputes that arise under these treaties. However, the WIPO Arbitration and Mediation Center is the largest accredited Dispute Resolution Service Provider (DRSP) resolving domain disputes arising under the rules set by the Internet Corporation for Assigned Names and Numbers (ICANN).

WIPO survey of copyright treaty implementation [pdf] (June 2003) - 917-page long survey looks at how 39 countries that ratified or acceded to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) have implemented the treaties' provisions into their national law. The intention is to create background material for other countries to use when they will implement the provisions in their national legislation. The survey shows how it can be done and that countries have done it in very different ways. The copyright treaties, which came into force in March and May 2002 respectively, protect the rights of writers, musicians and composers.

TRIPS

Arguably the most important international agreement on IP is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which nations must adopt in order to be part of the World Trade Organization (WTO) . For the full text of TRIPS go to http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm.

TRIPS sets a minimum standard for IP protection that all signatories must meet. Any country wishing to join the WTO must incorporate these protections into its national legislation. (In 1999, the Australian government commissioned a study to monitor nations' progress in complying with TRIPS: http://www.dfat.gov.au/trips/ ) Further, TRIPS is unique among international IP agreements because it provides for the resolution of disputes between nations (only nations - not citizens or corporations) through the WTO.

The minimum standard in TRIPS is set primarily with reference to two WIPO treaties, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). Countries that join the WTO, and thereby agree to be bound by its rules, must amend their domestic law to conform with these conventions. Signatories may opt to protect more IP than required by the minimum.

However, TRIPS does not ask that member states revise their national laws to comply with the Berne Convention provisions concerning moral rights. This exception accommodates the United States, whose copyright traditions do not recognize moral rights.

The TRIPS agreement also covers some forms of intellectual property not enumerated in the Paris or Berne Conventions, including the protection of computer programs and some compilations of data. Many countries do not protect databases, the classic examples of which are phonebooks, because they are said not to be sufficiently creative. However, many countries, including members of the European Union, have adopted special legislative regimes for the protection of databases.

European Law

The European Parliament approved in March 2004 the Intellectual Property Rights Enforcement Directive. While the law was originally drawn up to target commercial counterfeiters, the directive was later expanded to cover any infringement of IP. The directive allows companies to raid homes, seize property and ask courts to freeze bank accounts to protect trademarks or IP they believe are being abused or stolen.

Criticism from IP Justice: "EU Passes Dangerous IP Law, Despite MEP's Conflict of Interest; 'Midnight Knocks' by Recording Industry Executives Get Go-Ahead" (March 9, 2004)

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