SESSION 8

INTELLECTUAL PROPERTY LAW

I. Definition

Intellectual property (IP) : legal rights which result from intellectual activity in the industrial, scientific,
literary and artistic fields. IP rights are personal, intangible, movable OR immovable

 Aims at safeguarding the interests of creators (personal property) and other producers of
intellectual goods and services by granting them certain time-limited rights to control the use
made of their product

Common Copy/Paste is the FREE RIDING Phenomena: when you use someone else’s creation without
paying anything, without acknowledging the authors.
Bibliography to acknowledge the authors etc..

Moral rights (don’t want that others use my creation) and economic rights (need to pay royalties to have
the right)

Civil right and criminal offense (when not acknowledge, no paying the royalties). Employee is entitled to be
compensated for its own invention.

IPR Portfolio = IPR + Quasi IPR

- IPRs: Patents, Planter Breeders rights, reg. designs…

Quasi IP: (No fully recognised as IP rights) Know how, trade secrets, confidential Information… (Need to
be involved in the transaction: Non-disclosure agreement, non-competing agreement)

 IP rights of ESCP on slides of professor because o=uploaded on blackboard

Related with original works, we distinguish the main IP rights:

A) Copyright ©

Copyright designed to protect original creations (literary, musical…). No need for registration, automatic
protective right during the life of the author+70 years after (only 50 years if computer based). ONLY for
something that is published etc (not for sentences…)  Completed, original works

More on MORAL RIGHTS than on economic right (less profitable than patents) In a specific sector, want
to preserve your work because reveals your work distinguished academic personality in this specific sector.

 New types of copyright with development of technology: for performers, producers…

B) Patents

Form of copyright. Patent is a right granted to inventor by state, giving the inventor a monopoly to use
and exploit the invention. Need to protect the exclusive use and exploit in the market place, thus focus on
the ECONOMIC RIGHTS. Need for registration to be protected for 20 years maximum (5 years+4 times
renewable)

 For new idea innovative step, application of this invention in the industry (video games,
smartphones…)

Invention: solution to a specific problem in the field of technology (can be product or process)
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INTELLECTUAL PROPERTY LAW

Need to pay the owners to use. Source of profit!

If before registering the idea or during the registration process, idea not protected. So, have to do it asap
once you have the idea. No right to use before end of the process. If someone else registers the same right:
he will be protected first!

About allowing monopoly: Government knows in advances that patenting the idea can be profitable for the
state.

Patents can create cartels. Sometime, creator just wants exclusive use, monopoly in a specific sector. In that
case, regulatory intervenes because it has become a cartel, restriction of competitivity.

C) Trade marks ®

Trademarks: distinguish the G/S of one undertaking from those of another. Portection of any sign/symbol
that distinguishes itself from others in the market with ®. 10 years indefinitely renewable. Sign and
symbols only need for double protection wombiend with design protection!)

Must not be immoral, not in contrast to public interest, not descriptive, not in contrast with law… Voile
interdit à Nice depuis les attentats

 Badged of origin and help consumers to avoid confusion between G/S of variable quality

D) Design

Protects the visual appearance of a product (shape, colour, contour…). Not need of formal registration
(unregistered), 15 years protection, but can also be registered design: 25 years.

Most famous brands are protected

How on protect on different levels:

- On the international level: WIPO Convention. (in the US, China…)

- On the European level (28 member states): EU Convention of IPR, Need to ask recognition
under the European Patent Right convention

Types of law that apply (to protect)

 Criminal law: when don’t respect copyrights (civil actions: injunctions, compensation…,
criminal offense)
- Civil actions (injuction, compensation…) Because under contract, need to compensate
your employee that created because idea comes from him.
- Criminal offenses: copy paste without bibliography
 Contract law: don’t pay royalties in licence agreement
 Tort law: (Only in the UK) passing off (if share same slides in other academic institutions) if no
contact. Starting a business by using/ copying someone else’s business idea
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INTELLECTUAL PROPERTY LAW

II. Legislation
EU Directives and regulations
UK legislation (amended)
- EU patent convention (recognized IP rights on
- Patents Act 1977 EU level)
- Copyright Designs &Patents Act
International Conventions and Agreements
1988
- Trade marks Act 1994 - In Paris, Berne, EPC, TRIPS ( agreemnts on
- Registered Design Act 1949 goods and services, financial services)
If you want recognition of IP rights in Mexicio,
III. IPR Justification can ask there

1. Ethical and moral arguments

 Natural Rights theory: Moral connection between creator and thing created
 Labour theory (Locke): people should have property in the things they create as product of their
labour
 Reward theory: It is fair to reward people who create useful things

2. Natural rights based arguments

 Copyright is granted because it is right and proper to do so
 European tradition: focus on moral connection (protected because expression of author’s
personality). Pro-consumer, protection of investion
o Effect of idea on European copyright law
 UK/US tradition: Focus on idea that a person has natural right over products of their labor. Pro-
business, profitability of IP rights
o Effect of this idea on Anglo/American copyright law

3. Reward-based arguments
 Copyright protection is granted because it is fair to rewards the author for the effort made in
creating a work and giving it to the public
o Critique: Nature of the reward? How should it be determined?

4. Incentive based arguments

 Arguments based on what is good for society or for the public in general (can improve
knowledge)
- Production and public dissemination of cultural objects (books, music…) is important and
valuable activity
- Without copyright protection, the production and dissemination of cultural objects would not
take place at optimal level
-
IV. Justification for patents

Most common argument: Public benefits that flow from grant of patent monopolies. Royalties go to the
state

Patents can be described as form of social contract between patentee and state, whereby the award of
patent monopoly is given in return for public disclosure of the invention

 Idea reflected in structure and terms of patent law