Erinevus lehekülje "The proprietary world: WIPO and its ideas of intellectual property" redaktsioonide vahel

Allikas: KakuWiki
Mine navigeerimisribaleMine otsikasti
P
1. rida: 1. rida:
== From Berne Convention to DMCA ==
+
=== Disclaimer ===
  
As seen from the previous lecture, intellectual property as understood today by the [http://www.wipo.org World Intellectual Property Organization] has actually very diverse roots - the widely proclaimed idea of proper awarding of authors is definitely not the only one. Yet the proprietary approach has gradually grown to be widely accepted and it has only recently started to be questioned. In today's lecture, we will visit the major landmarks of intellectual property as it is undestood by WIPO.
+
Today's lecture will focus on the proprietary, WIPO understanding of the intellectual property concept. The critical analysis of the model as well as discussion of alternative models will follow in following lectures.
  
  
=== The Berne Convention ===
+
=== Intro ===
  
As seen previously, the birth of the Convention 1886 was largely attributed to the attempt to harmonise two rather different schools of thought (Continental European vs Anglo-American). While there are later treaties which set more detailed practices (according to WIPO, it was "concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979"), the BC is still the main foundation of proprietary approach.
+
As told earlier, there are two quite different schools in dealing with copyright and related issues - the Continental European and Anglo-American school. Estonia is generally considered to belong into the Continental European school (although some features point towards the other school too). The Continental European school is based on Roman Law and inherits its understanding of two major legal categories:
 +
* Public law - governs the relationship between individuals (citizens, companies) and the state. Examples include constitutional, criminal and administrative law.
 +
* Private law - involves relationships between individuals. Examples include business law and family law.
  
According to the WIPO website, the Convention is based on three main principles:
+
Intellectual property is considered to be a part of private law.
* Works originating in one of the contracting States (that is, works the author of which is a national of such a State or works which were first published in such a State) must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals (principle of “national treatment”).
 
* Such protection must not be conditional upon compliance with any formality (principle of “automatic” protection).
 
* Such protection is independent of the existence of protection in the country of origin of the work (principle of the “independence” of protection). If, however, a contracting State provides for a longer term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.
 
  
(source: http://www.wipo.org)
+
To describe the relation between the subjects, there are two concepts of
 +
* coordination - 'horizontal' legal relationship (between equal peers); typically in private law
 +
* subordination - 'vertical' legal relationship (between the master and the servant); typically in public law
  
Thus the Convention states the universal, unconditional 'cross-protection' between the member states. In case of  longer local protection period, the Convention guarantees protection only for the universally accepted timeframe.
 
  
 +
=== The WIPO concept of IP ===
  
The minimum standards of protection are determined as follows:
+
[http://www.wipo.org The World Intellectual Property Organization] (WIPO) was formed in Stockholm in 1967 (this may be considered the starting point of international proprietary copyright sphere). WIPO defines intellectual property as any result of human intellectual activity. Examples include
 +
* ideas
 +
* scientific discoveries
 +
* inventions
 +
* trade marks
 +
* works of art and literature
 +
* scientific works
 +
* computer hardware and software
  
* As to works, the protection must include “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression” (Article 2(1) of the Convention).
+
The idea of IP is twofold:
 +
* on one hand, to provide fair compensation for creators
 +
* on the other hand, to allow the society to use the creation
  
* Subject to certain permitted reservations, limitations or exceptions, the following are among the rights which must be recognized as exclusive rights of authorization:
+
Although IP is in essence a right, it has many features of physical property - it can be rented, bought, sold or given away, but also stolen. The major specific features of IP are:
** the right to translate,
+
* immateriality - the object of IP is not a physical entity
** the right to make adaptations and arrangements of the work,
+
* territoriality - IP is originally protected only inside the borders of the country of origin and only involves  citizens and resident aliens. There is a number of international treaties to coordinate the legislation of different countries.
** the right to perform in public dramatic, dramatico-musical and musical works,
+
* temporarity - IP has finite duration during which the rights are protected
** the right to recite in public literary works,
 
** the right to communicate to the public the performance of such works,
 
** the right to broadcast (with the possibility of a contracting State to provide for a mere right to equitable remuneration instead of a right of authorization),
 
** the right to make reproductions in any manner or form (with the possibility of a contracting State to permit,  in certain special cases, reproduction without authorization provided that the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author, and with the possibility of a contracting State to provide, in the case of sound recordings of musical works, for a right to equitable remuneration),
 
** the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work.
 
  
The Convention also provides for “moral rights,” that is, the right to claim authorship of the work and the right to object to any mutilation or deformation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to the author’s honor or reputation.
 
  
As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death. There are, however, exceptions to this general rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years after the work has been lawfully made available to the public, except if the pseudonym leaves no doubt as to the author’s identity or if the author discloses his identity during that period; in the latter case, the general rule applies. In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public (“release”) or—failing such an event—from the creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of such a work.
+
=== Main categories of IP ===
  
(source: http://www.wipo.org)
+
The main categories are
  
We leave more serious treatment of proprietary approach to later lectures. But as just a small remark, it is interesting to notice that while the Convention prescribes the protection of photographs for 25 years, this exception is "switched off" with the 1996 WTC treaty. Apparently the meantime development of technology made it possible to store photoes much longer, so to prevent loss of control, the point was ''de facto'' invalidated.
+
* '''Copyright''' may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time. In addition to the copyright itself, the concept of '''related''' or '''neighbouring rights''' has obtained an increasingly central role in IP (being also a major source of criticism and controversy). These include the rights of performers, phonogram makers, mass media etc.
 +
 
 +
* A '''patent''' may be granted for a new, useful, and non-obvious invention, and gives the patent holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application). Many countries also protect '''utility models''' which have lower inventive step requirements but also shorter protection.
 +
 
 +
* A '''trademark''' is a distinctive sign which is used to distinguish the products or services of different businesses.
 +
 
 +
* An '''industrial design right''' protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles).
 +
 
 +
    * A '''trade secret''' (which is sometimes either equated with, or a subset of, "confidential information") is secret, non-public information concerning the commercial practices or proprietary knowledge of a business, public disclosure of which may sometimes be illegal.
 +
 
 +
Patents, trademarks, and designs rights are sometimes collectively known as '''industrial property''', as they are typically created and used for industrial or commercial purposes.
 +
 
 +
 
 +
=== Copyright vs industrial property ===
 +
 
 +
The main differences are as follows:
 +
 
 +
* the Object - copyright is used for works of art, literature and science. A work is defined as an original intellectual creation which is expressed in an objective form and reproducible as such. Meanwhile, industrial property is mostly used for creation applicable in industry and business, like methods, inventions, trade marks etc.
 +
* the Owner - copyright belongs to the author and can be inherited on regular basis. Industrial property belongs to the person who applied for it. There are two major systems used in different countries:
 +
** application system - patent is granted to the applier, regardless of the actual authorship
 +
** author system - patent is granted to the author or his/her legal successors
 +
* the Rights - copyright is applied automatically at the moment of creation and is also applied to the 'raw' forms like sketches, partial models, chapters etc; no registration is needed. Industrial property is protected after its formal registration. As the registration may take time, most countries apply temporary protection for the registration period already, although the proper protection is applied at the issue of patent or other document. Typically the registration also involves a set fee.
 +
* the Duration - while the personal, immaterial rights are eternal and inseparable from person, the material rights are valid for the author's lifetime plus 70 years. Industrial property typically has shorter durations. In Estonia, the following durations apply:
 +
** a patent is valid for 20 years after the date of application submission
 +
** an utility model is protected for 4 years initially, further protection for 4+2 years is possible upon application
 +
** trademarks are protected for 10 years initially, further 10-year periods can be applied for.
 +
** industrial designs are initially protected for 5 years, further 5-year periods can be applied for, up to the total of 25 years.
 +
 
 +
 
 +
=== Industrial property ===

Redaktsioon: 14. veebruar 2007, kell 19:30

Disclaimer

Today's lecture will focus on the proprietary, WIPO understanding of the intellectual property concept. The critical analysis of the model as well as discussion of alternative models will follow in following lectures.


Intro

As told earlier, there are two quite different schools in dealing with copyright and related issues - the Continental European and Anglo-American school. Estonia is generally considered to belong into the Continental European school (although some features point towards the other school too). The Continental European school is based on Roman Law and inherits its understanding of two major legal categories:

  • Public law - governs the relationship between individuals (citizens, companies) and the state. Examples include constitutional, criminal and administrative law.
  • Private law - involves relationships between individuals. Examples include business law and family law.

Intellectual property is considered to be a part of private law.

To describe the relation between the subjects, there are two concepts of

  • coordination - 'horizontal' legal relationship (between equal peers); typically in private law
  • subordination - 'vertical' legal relationship (between the master and the servant); typically in public law


The WIPO concept of IP

The World Intellectual Property Organization (WIPO) was formed in Stockholm in 1967 (this may be considered the starting point of international proprietary copyright sphere). WIPO defines intellectual property as any result of human intellectual activity. Examples include

  • ideas
  • scientific discoveries
  • inventions
  • trade marks
  • works of art and literature
  • scientific works
  • computer hardware and software

The idea of IP is twofold:

  • on one hand, to provide fair compensation for creators
  • on the other hand, to allow the society to use the creation

Although IP is in essence a right, it has many features of physical property - it can be rented, bought, sold or given away, but also stolen. The major specific features of IP are:

  • immateriality - the object of IP is not a physical entity
  • territoriality - IP is originally protected only inside the borders of the country of origin and only involves citizens and resident aliens. There is a number of international treaties to coordinate the legislation of different countries.
  • temporarity - IP has finite duration during which the rights are protected


Main categories of IP

The main categories are

  • Copyright may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time. In addition to the copyright itself, the concept of related or neighbouring rights has obtained an increasingly central role in IP (being also a major source of criticism and controversy). These include the rights of performers, phonogram makers, mass media etc.
  • A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application). Many countries also protect utility models which have lower inventive step requirements but also shorter protection.
  • A trademark is a distinctive sign which is used to distinguish the products or services of different businesses.
  • An industrial design right protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles).
   * A trade secret (which is sometimes either equated with, or a subset of, "confidential information") is secret, non-public information concerning the commercial practices or proprietary knowledge of a business, public disclosure of which may sometimes be illegal.

Patents, trademarks, and designs rights are sometimes collectively known as industrial property, as they are typically created and used for industrial or commercial purposes.


Copyright vs industrial property

The main differences are as follows:

  • the Object - copyright is used for works of art, literature and science. A work is defined as an original intellectual creation which is expressed in an objective form and reproducible as such. Meanwhile, industrial property is mostly used for creation applicable in industry and business, like methods, inventions, trade marks etc.
  • the Owner - copyright belongs to the author and can be inherited on regular basis. Industrial property belongs to the person who applied for it. There are two major systems used in different countries:
    • application system - patent is granted to the applier, regardless of the actual authorship
    • author system - patent is granted to the author or his/her legal successors
  • the Rights - copyright is applied automatically at the moment of creation and is also applied to the 'raw' forms like sketches, partial models, chapters etc; no registration is needed. Industrial property is protected after its formal registration. As the registration may take time, most countries apply temporary protection for the registration period already, although the proper protection is applied at the issue of patent or other document. Typically the registration also involves a set fee.
  • the Duration - while the personal, immaterial rights are eternal and inseparable from person, the material rights are valid for the author's lifetime plus 70 years. Industrial property typically has shorter durations. In Estonia, the following durations apply:
    • a patent is valid for 20 years after the date of application submission
    • an utility model is protected for 4 years initially, further protection for 4+2 years is possible upon application
    • trademarks are protected for 10 years initially, further 10-year periods can be applied for.
    • industrial designs are initially protected for 5 years, further 5-year periods can be applied for, up to the total of 25 years.


Industrial property