The proprietary world: WIPO and its ideas of intellectual property

Allikas: KakuWiki
Redaktsioon seisuga 14. veebruar 2007, kell 19:32 kasutajalt Kakk (arutelu | kaastöö)
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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.


As discussed 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