Intellectual Property

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Intellectual Property (IP) as defined by the World Intellectual Property Organization (WIPO) is anything created by the mind such as inventions, literary and artistic works, symbols, names, images, and designs that are commercially used.

Types of Intellectual Property

Intellectual Property is protected by:

• Copyright - protects the original works of authors, such as poems, novels, scripts, musical compositions and recordings, and other forms of literary, dramatic or artistic creations.
• Patent - granted for the protection of inventions, which is defined as a product or process that is a new way of doing things or solving problems. An invention can only be patented if it can be utilized practically, displays an element of novelty, and includes characteristics of new elements in the body of existing knowledge, called "prior art," in the technical field. It must show an inventive step. Patentable work in most countries includes mathematical methods, scientific discoveries, new medical treatments, etc.
• Trademark - provides protection and exclusive rights to the owner of distinct marks used to identify goods or services. It includes words, signs, names, symbols, sounds, or colors that identify a certain company, product or service.
• Trade Secret - confidential business information that provides economic edge to a certain company. Examples of trade secrets include formulas, methods, or techniques used in business, programs, etc. Trade Secrets are protected under Article 39 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

History of Intellectual Property

Ancient Greece

The beginnings of intellectual property can be traced back to Ancient Greece, around 500 B.C.E. The chefs in the Greek colony of Sybarias were the first holders of year-long monopolies for creating a particular recipe. The first violation of intellectual property during the ancient times was revealed by Vitruvius (257-180 B.C.E.), a judge in a literary contest in Alexandria. He exposed false poets who used the words and phrases of others and were tried, convicted, and disgraced.

The Roman Period

During the Roman period, Fidentinus was caught reciting the words of Martial without citing his source. Although punishments were enforced to those individuals who used the words of others during the Ancient Greek or Roman times, there is no recorded Roman Law written for the protection of Intellectual Property.

The Florentine Republic

During the birth of the Florentine Republic, historical accounts revealed that franchise, privileges, and royal favors were granted to individuals for their works and inventions. The Florentine Republic issued the first statute protecting the rights of an author or inventor of products for his intellectual creations on June 14, 1421, to a famous architect named Filippo Brunelleschi. The Florentine Patent Statute of 1421 became the basis of the first lasting intellectual property institution, written in the Venetian Republic statute of 1474, which was established 150 years prior to England's Statute of Monopolies.

The person to receive the first actual Patent of Monopoly in Venice was John of Speyer, a German printer. He was given the exclusive right to print without opposition based on customary law, and it was later confirmed with a written pronouncement by means of statute of administrative decree. During this period, inventions were officially evaluated and examined by experts before a patent was granted. Two recorded copyright and patents were enforced in Venice. Copyrights were also granted in Venice around the 1500's for new and old books. However, commerce in Venice declined and the development of copyright was subdued by Church and State Censorship.

The Statute of Monopolies

Based on historical accounts, the first law enacted for the protection of Intellectual Property was the English Statute of Monopolies of 1623, which served as the original basis of Anglo-American Patent Law. The statute defined inventions as new, and patents lasted for a limited time of 14 years. The statute ended the granting of rights to ideas or works the were not original and already used by the general public.

Statute of Anne

The first modern copyright law was enacted April 10, 1710. Known as Statute of Anne (Anno Octavo, Annae Reginae), it was "an act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned." The law granted an individual 14 years of copyright, though his assignee or assignees are given the right to renew to print or reprint the book for another fourteen years. Part of the Statute reads:

Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting,and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Con-sent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Fami-lies: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write use-ful Books; May it please Your Majesty, that it may be Enacted, and be it Enacted by the Queens most Excellent Majesty, ...(Statute of Anne 1710, Great Britain)

Connecticut Copyright Statute

The first formal copyright law that was enacted in the United States was the Connecticut Statute of 1783, based on the Statute of Anne, granting an author 14 years of copyright to profit from his work and renewable for another 14 years if he is still alive. This statute served as the basis for US Copyright Act.

US Federal Copyright Act of 1790

The United States Congress enacted the US Copyright Act of 1790, an act that secured the copies of maps, charts and books to the authors and proprietors of such materials, giving them the sole right and liberty to print, reprint, publish and sell for the period of fourteen years. The copyright owner must be a citizen of the United States and the copyright can be further renewed by himself, his executors, administrators or assignees for an additional fourteen years.

Revised US Copyright Law of 1831

In 1831, the United States Congress revised the US Federal Copyright Act of 1790 due to the active lobbying of Noah Webster and his agents in the Congress. The Revised US Copyright Law of 1831 extended the term of copyright owners for twenty eight years and the copyright for musical composition was added. In addition, the children and widow of a deceased author were granted the right and liberty to renew the copyright for fourteen years.

UK International Copyright Act of 1838

The UK Copyright Act of 1838 provided foreign authors who are under the colony of the United Kingdom the same right enjoyed by British citizens to own the copyright for their works. This law became the basis of international copyright law.

Expansion of Intellectual Property Laws

Copyright and Patent Law was expanded during the 19th and 20ths centuries. Over the years, many new types of intellectual property were allowed to be copyrighted, including industrial designs, photography, asexually propagated plants, surgical procedures, computer software, and architectural works.

In 1853, Harriet Beecher Stowe alleged that a German translation of her book Uncle Tom's Cabin was an infringement of her copyright. Her claim was rejected by Federal Circuit Court and cited that, "a translation may, in loose phraseology, be called a transcript or copy of her thoughts or conceptions, but in no correct sense can it be called a copy of her book." This decision was strongly attacked during the late part of 19th century, which prompted Congress to encourage the court to reverse its decision and accept the concept that the "work" protected by copyright included the substance and not just the form, meaning that a translation in any language is a violation of copyright, given that no new substance was created in the work.

An amendment to the Federal Copyright Law was enacted on March 4, 1909, known as the Copyright Act of 1909. This amendment further expanded the list of materials that could be copyrighted, extended the 28 year copyright term to be renewable for another 28 years, and copyright infringement and penalties as well as foreign authors granting reciprocal rights to United States citizens by either agreement, convention or treaty and international agreements. This act was superseded by the Copyright Act of 1976, also known as Title 17 of the United States Code, which became the primary basis of the United States copyright law: it was enacted to address the issues of intellectual property due to the advancement of technology and the introduction of new form of communication such as radio, television and computer.

Another law that was enacted for the protection Intellectual Property was the Lanham Act of 1946, which clearly cited the prohibition of trademark infringement, trademark dilution, and false advertising.

Treaties on Intellectual Property

As early as 1873, the need for international protection for intellectual property was realized after foreign exhibitors declined to participate in the Hungary-Vienna International Exhibition of Inventions because of fear that their ideas might be stolen and be used for commercial purposes. This prompted the Congress in Vienna to enact a temporary but secure protection for the intellectual property rights of exhibitors. By 1878, Vienna led the International Congress on Industrial Property, which was held in Paris, and it was resolved that an international diplomatic conference was necessary to discuss uniform legislation regarding industrial property between countries. In 1880, a diplomatic conference was held in Paris where a draft convention was created.

Paris Convention for the Protection of Industrial Property

The first major international treaty for the protection of industrial property was created in 1883, known as the Paris Convention for the Protection of Industrial Property. It protected inventions, trademarks and industrial designs. The original treaty was signed by Belgium, Brazil, El Salvador, France, Guatemala, Italy, the Netherlands, Portugal, Serbia, Spain and Switzerland. The treaty took effect on July 7, 1884; at that time, Great Britain, Tunisia and Ecuador also joined the treaty. The United Stated joined by 1887. The treaty was revised several times, with the latest amendment on September 28, 1979. At present, 173 countries have signed the Paris Convention for the Protection of Industrial Property.

Berne Convention for the Protection of Literary Artistic Works

The Association Littéraire et Artistique International initiated the establishment for international copyright protection as influenced by the French copyright law, "droit d'auteur." The Association drafted a treaty, which was introduced in 1886 in Berne, Switzerland. Subsequently, the Berne Convention for the Protection of Literary Artistic Works was created to provide international protection for the intellectual property rights of authors and artists who were citizens of the countries that were member of the convention. The authors or artists have the right to control and receive payment for their works, including architectural works, drawings, music, novels, poems, plays, short stories, songs, operas, paintings and sculptures. The first signatories of the treaty were Belgium, France, Italy, Germany, Spain, Switzerland, Tunisia and the United Kingdom. The United States did not become part of the Berne Convention until March 1, 1989.

The Berne Convention established an International Bureau to handle administrative works. In 1893, the International Bureaus of the Paris Convention and the Berne Convention merged to create a United International Bureaux for the Protection of Intellectual Property (BIRPI), which later became the World Intellectual Property Organization (WIPO), headquartered in Berne, Switzerland.

There have been many other treaties created to protect Intellectual Property, which are administered by the WIPO. These include:

• Brussels Convention
• Madrid Agreement (Indications of Source)
• Nairobi Treaty
• Patent Law Treaty
• Phonograms Convention
• Rome Convention
• Singapore Treaty on the Law of Trademarks
• Trademark Law Treaty
• Washington Treaty
• WIPO Copyrigt Treaty (WCT)
• WIPO Performances and Phonograms Treaty (WPPT)

ICANN and Intellectual Property

Prior to the establishment of the Internet Corporation for Assigned Names and Numbers, President Bill Clinton's Administration created a White Paper, which contained the plans to be carried out by the U.S. government in order to create a new internet governing body to be responsible for improving the technical management of the Internet's names and addresses. One of the key elements discussed in the White Paper was to encourage the participation of the World Intellectual Property Organization (WIPO) to help address issues on Intellectual Property rights, particularly the issue on how to resolve trademark or domain name conflicts.

In 1999, WIPO submitted to ICANN its report on Internet Domain Name Process and made some recommendations on the following topics:

• Best Practices for Registration Authorities
• Administrative Procedure Concerning Abusive Domain Name Registrations
• Exclusions for Famous and Well-known Marks
• New gTLDs

In 2002, the ICANN Board created the Intellectual Property Constituency (IPC) under the Generic Names Supporting Organization (GNSO). The IPC is responsible for representing the interests and positions of the owners of trademarks, copyrights, and other intellectual property rights in relation to ICANN's Policies in managing the Domain Name System.

World Intellectual Property Organization

Intellectual Property Constituency

Generic Names Supporting Organization. Develops and recommends to the Board substantive policies relating to generic top-level domains and other responsibilities set forth in the Bylaws (ICANN Bylaws).