The main focus of this write up is to explain the concept of Intellectual Property, Intellectual property Law and statutory provisions which protects Intellectual Property. It further seeks to understand the importance and need for Intellectual Property Protection as well as its types and to discuss what infringement in Intellectual Property entails and exceptions to Infringement.
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Introduction to Intellectual Property

The first thing that comes to mind when Intellectual Property is being mentioned is a work created from one’s innovation, capacity and mental contextualization. This surface description is not farfetched as Intellectual Property basically means the creation of the human mind, whether any musical work or artistic work as long as it is articulated from human thinking and innovation.

Imagine creating an Automobile car which cannot only fly but also swim. Such invention or creation is your Intellectual property, which if not protected by existing legislations can and would be infringed.

The concept of Infringement would be discussed as we proceed into this discourse. One peculiarity about Intellectual Property is that it is an intangible creation of the human intellect. Intangible in this sense are things that cannot be seen or physically possessed or capable of being owned physically.

According to the World Intellectual Property Organization {WIPO}, Intellectual Property,

“refers to creations of the mind: inventions; literary and artistic works; and symbols, names, and images used in commerce”.

Intellectual property is a very valuable and lucrative part of any business.  Hence, there is a need to protect such valuable invention or creative work and to help your innovation thrive and compete favorably in the global marketplace.

Intellectual property law

From the wordings, the essence of Law is not only to ensure the enforcement and compliance of rules but also to allow for legal enforceability with sanctions for non-compliance with laid down rules.

Hence, Intellectual Property Law is that aspect of Law that tries to protect commercially valuable products of the human intellect, by laying do’s and don’ts in similar legislations. This category of law tries to ensure that the owner or creator of a work benefits from his/ her Intellect with well-deserved incentives for creating such work.

In a nutshell, Intellectual Property Law works not only to protect the rights of creators in a creative work, it tries to give these creators exclusive rights to their intangible innovations and prevents them nor their work from being exploited or taken advantage of.

As rightly said by an author[1] on Intellectual Property;

“if a man is keeping an idea to himself, and that idea is taken by stealth or trickery- I say it is stealing. But once a man has revealed his idea to others, it is no longer his alone. It belongs to the world”.

Essence and importance of Intellectual property protection

Why should there be a need to protect one’s intellectual Property? Should it be protected at all? How does non protection affect one’s intellect? Does it invalidate such work?

All these are questions we tend to ask to help us understand the purpose for Intellectual Property.

  • Firstly, Intellectual property is the heart of a nation’s economic life. It plays a crucial role, if not the most crucial role in the economy, seeing how digitalized and technologically advanced the world has become. It only seems apposite that the rights of the public, whether an inventor, a designer or an artist is protected by law.
  • Currently and overtime, Intellectual Property have been able to bring monetary gain to the creator. Hence, without the need to protect your Intellectual Property which can be a source of income, depending on usage, your business is at risk. So it is no denying the importance of intellectual Property within the financial purview as well as the economic aspect.
  • Intellectual Property is also important so as to safeguard creative endeavors and commercial reputation and authenticity.  Where there is no authenticity to a creative work, that work lacks the much needed identity and permanence needed to commercialize such work in the first place.
  • Protecting innovative and creative works would undoubtedly encourage further innovation and remove the fear of potential creators.

Classifications/ types of Intellectual property

The four types of Intellectual Property include;

  1. Copyrights
  2. Trademarks
  3. Patent
  4. Trade secrets.

Copyrights

Copyright is a very popular area of Intellectual Property. It tries to protect the Intellectual Property of a person and prevents such Intellectual Property from being replicated and sold by another person who is not authorized to do so.  Copyrights simply protects the authors of original works.

According to the Black’s Law Dictionary[2], Copyright is defined as “the right of literary property as recognized and sanctioned by positive Law”

But it should be noted that Copyright does not protect mere ideas, it protects the expression of an idea in a tangible form[3]. This means that since it expressly says a tangible form, then it means that the creative work must have been written down and preserved in a tangible form. For instance, the unauthorized usage of a Warner Bros Production. Such Copyrighted work includes movies, photographs, videos, books, amongst others.

Initially, Copyright only applied to published books, but has overtime been extended to include other range of works such as maps, dramatic works, paintings, photographs, sound recordings amongst others.

Copyright has 2 main objectives;

  • The first is to protect the personal relationship between the author and his work as his innovative work.
  • The second is to allow authors leverage on their own innovative work economically and benefit from such creation financially.

It is important to note under Copyright that it is not all creative work that can be protected. The originality and authorship of such work must be ascertained for it to be protected.

Trademarks

Trademarks as the name implies are trademarks attached to a creative work which allows for easy ascertaining of a work. For instance, the logo on a Mercedes Benz Car or McDonalds’ Burger. It is that distinctive sign that identifies certain goods produced by a Company or an individual. These Trademarks covers an image or logo or word or a mark used by a brand to protect and guarantee the originality/ownership of their brand, thereby enabling clarity of products and preventing confusion by consumers of any kind[4].

It is important to note that a mere trademark has no inherent value whatsoever. What gives it value is the “good will” placed in it by consumers on the authenticity of the product marked by its description. Hence, Trademarks try to avoid any confusion or misleading advertisements or representations from such advertisement. It helps consumers distinguish from one brand or product to another.

Patents

Patent is the grant of a property right by the Government to the inventor. Patents are those exclusive rights which are granted for an invention or provides an initiative for a problem and how to solve that problem. These incentives are given as a way of applauding their innovations which is necessary for the sustenance of human life. This innovation cannot be commercialized without the patent owner’s consent.  Also, for such innovation to be protected by a patent, it must therefore be of practical use. A patent owner is within rights to decide who may or may not use the patented invention during the subsistence of period the patent is protected. The same way the patent owner can decide who uses his invention is the same way such owner may give his permission or license as the case may be, to other parties to use their inventions. However, such permission is subject to mutually agreed upon terms.

It is important to note that patent owners may sell their patent inventions to another party. Where this happens, such patent owner ceases to be the owner of the innovation, wherewith the ownership rights then transfers to the other party who becomes the new owner of the patent. Patent owners are under an obligation to disclose their inventions and information pertaining to it to foster widespread knowledge and enhance productivity.

There are 3 types of Patents;

  1. Utility patents for new and useful processes, machines, manufacture compositions, or improvements of them (20 years term).
  2. Design patents for new, original, and ornamental designs for an article of manufacture (14 year term), and
  3. Plant patents for new and distinct, invented or discovered asexually reproduced plants (20 year term).

Trade Secrets

            Trade secrets as the name also implies are confidential business information which are expected to remain within the purview of the owner. Hence, any unauthorized use of such information by persons other than the owner constitutes a clear violation of the trade secret. One can say that Trade secret encompasses the idea of Intellectual Property. Trade secrets tries to protect and prevent unfair competition.

There are some conditions that are required for the information to be considered Trade Secret[5].

  • The information must be secret
  • It must have commercial value because it is secret
  • Reasonable steps must be taken by the owner of such information to keep it a secret.

Unlike Patent which is constrained in time, Trade Secret is not limited in time as it can span for a lengthy period of time, as long as the secret is not revealed to the public.

Information considered trade secret gives the owner or business an economic advantage over its competitors because they are classified. One does not need to submit his/ her trade secret to the government for registration or approval. Note that if the trade secret owner fails to safeguard this very confidential information and the trade secret is revealed, such trade secret no longer enjoys trade protection. Trade Secrets may take several forms such as patterns, business plans, formulas, recipes, methods, designs, amongst others.

Intellectual property law as a succor against infringement

Copyrights and other form of Intellectual property protection is an essential part of preserving human innovation and creative thinking. Where it so happens that such creative work has been used in an unauthorized manner or without prior consent of the Owner, such violators are said to have infringed on the Owner’s Intellectual Property.

Copyright infringement is the use of works protected by Copyright law without permission for usage where such permission is required, thereby infringing on certain exclusive rights granted to the copyright holder.

In Sony Corp. V Universal City Studios,[6] the petitioner manufactured home videotape recorders and marketed them through retail establishments. The Respondents owned the copyrights on some of the television programs that were broadcast to the public. The Respondents then brought an action against the Petitioners claiming that the VTR consumers had been recording some of the respondents’ copyrighted works shown on television, which infringed on their copyrights. They also mentioned inter alia that the petitioners were liable for such copyright infringement because they advertised the VTR’s, seeking monetary damages, an injunction and equitable accounting of profits. It was held that the sale of the VTR’s to the general public did not constitute contributory infringement of respondents’ copyrights.

Not only has Intellectual Property and its existing legislations served as a succor and relief for owners of a creative works, it has also provided them with rights over their work without any fear of interference or usage by a non-consenting party. It also tries to ensure the commercialization of ones’ product or business for financial gains.

Exceptions to IP being an infringement (fair use)

The concept of Fair Use which is an exception to copyright infringement allows for the use of the Owners’ creative work for purposes such as reporting, news or criticisms as the case may be. Beside this exception, any unauthorized use of the owner’s work would be an infringement to the rights of the creator and authorship. Fair use allows for the use of copyrighted material without the permission of the copyrighted owner. However it has to show that such work was used for a transformative purpose.

In respect to Fair Use[7] and when it applies, there are some factors to consider;

  • The purpose and character of your use.
  • The nature of the copyrighted work
  • The amount and sustainability of the portion taken, and
  • The effect of the use upon the potential market.

Conclusion

The concept of Intellectual Property is now an established principle in virtually the global market places, Individuals and Businesses are seeing the need to protect their creative work and innovations. It is therefore no gain saying that laws and legislations whether national or international has been able to ensure commercialization of products, guarantee of the human mind and the productivity of the human capacity, without which chaos and unfair competition would take center stage in the market scene.

It only seems appropriate that reasonable measures are put in place to ensure this valuable part of a business, is protected and to foster subsequent innovations.  Intellectual Property protection is a bane not a boon to every business thriving.


[1] Linda Sue Park, a Korean American author.

[2] (6th Edition)

[3] This distinction between ideas and creative work was made in Green v Broadcasting Corp of New Zealand (1989) 2 All ER 1056.

[4] It has been posited that a Trademarks operate on 3 different levels; to indicate the origin or ownership, to guarantee a quality of a product or service and as a medium of advertisement.

[5] Article 39 of the Agreement on Trade- Related Aspects of Intellectual Property.(Note that this conditions varies from country to country).

[6] 464 U.S 417(1984)

[7] In Perfect 10, Inc. V Amazon. Com, 508 F.3d 1146 (9th Cir. 2007), it was said interalia that the Plaintiffs must satisfy 2 requirements to present a prima facie case of direct infringement;

  1. They must show ownership of the alleged infringed material, and
  2. They must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders by law. Even if a plaintiff satisfies these two requirements, the defendant may avoid liability if it can establish that its use of the image is a fair use.
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