Intro Flashcards
Copyright
protects literary and artistic works (including software)
Trademark
- protects signs which are capable of distinguishing the goods or services of one company (from those of other companies)
Patent
Protects inventions
- √: products, processes, …
- ≠: laws of nature, algorithms, naturally occurring substances
Design law
Protects innovative shapes of products
IP similar rights
- Databases
- Trade secrets
- Image rights
WIPO
Mission: promote the protection of IP rights worldwide and extend the
benefits of the international IP system to all member States (art. 3 i
Convention establishing WIPO 1967)
- Areas: all IP Rights
• Protecting IP through Services
• Resolving Disputes
• Norm Setting
WTO
International intergovernmental organization
- Mission: provide « the common institutional framework for the conduct of
trade relations among its Members » (art. II para. 1 of the Marrakech
Agreement establishing WTO 1994)
- Three areas (regulated by « Multilateral Trade Agreements »)
• Multilateral Agreements on Trade in Goods (Ann.1A)
• General Agreement on Trade in Services (Ann.1B)
• Agreement on Trade-Related Aspects of IP Rights (Ann. 1C)
Law facing the network (internet)
- global use v. local regulation
- new digital assets
New legal appoaches
law is code
- code is law
- law is code
- commons approach vs proprietary approach
Principles of International Intellectual Property Law
I. National treatment II. Territoriality III. Well-known trademark IV. Exhaustion V. Exception to protection
I. National Treatment
A. Notion - Works originating in one of the member states must be protected in each member state in the same way that such state protect the works of their own nationals - Legal basis • Art. 5 para. 1 BC • Art. 2 para. 1 PC • Art. 3 TRIPS
- Most favored nation (MFN)
• MFN and National Treatment : Art. 4 TRIPS
• MFN and Free Trade Agreement: cf. Free Trade Agreement between
Switzerland and China (2013)
II. Territoriality
- An IPR has only effect in the country where it is registered. Beyond this
country, anyone can use this IPR without authorization - Legal basis: Art. 5 para. 2 BC; Art. 6 PC (// 4bis PC)
- Reminder: global use v. local regulation
- Industrial property
Pursuant to Articles 2 and 3 of the Paris Convention, protection is granted in the case of industrial propertyto natural or legal persons who:
* are nationals of a Member;
* are domiciled in a Member; or
* have real and effective industrial or commercial establishments in a Member.
Pursuant to Article 5 of the IPIC Treaty, similar criteria for determining eligible beneficiaries are applied in
relation to layout-designs or integrated circuits.
- Copyright and related rights
a) Copyright
Pursuant to Articles 3 and 4 of the Berne Convention, protection is granted to authors of literary or artistic works who:
* are nationals of a Member;
* have their habitual residence in a Member;
* have their works first (or simultaneously) published in a Member;
* are authors of cinematographic works the maker of which has his headquarters or habitual residence in a Member; or
* are authors of works of architecture erected in a Member or of other artistic works incorporated in a building or other structure located in a Member.
- b) Performers
Pursuant to Article 4 of the Rome Convention, protection is granted to performers whose: - performance takes place in another Member;
- performance is incorporated in a phonogram as defined below; or
- performance is covered by a broadcast as defined below.
Non-discrimination: NationalTreatment and MFN
These principles can be found in Articles 3 to 5of the Agreement.
Non-discrimination is a fundamental principle of theWTO. The principle of non-discrimination has twocomponents: (i) the national treatment principle; and(ii) the most-favoured nation (MFN) principle.
in the context of TRIPS, the subject of protection is “nationals”,which as mentioned before, include natural and legalpersons – who are the owners of the IPRs.
the MFN treatmentclause forbids discrimination among the nationals ofWTO Members. The MFN principle requires to accord tonations of WTO Members any advantage given tonationals of any other country - Member or not of theWTO.
Copy right till person is alive and 50 years more after the death (in some cases it possible to extend this period).
Trade mark 10 years and can be renewal after
Industrial design: The term of protection under industrial design laws is generally five years, with
the possibility of further periods of renewal up to, in most cases, 15 years.
National treatment:
works from a MS must be protected in each member state in the same that such state protects the works of their own nationals (i.e. equal treatment of nationals and foreigners in all MS) (BC Art 5.1, PC Art 2.1, TRIPS Art 3)
- Exception: term of protection for copyright (BC Art 7.8): no national treatment unless reciprocity
- “Publication” under BC does not take place when interested parties can only take notice of the work; rather, the author must release it for distribution and make it accessible to the public at large (Gold Rush)
- Posting of a photo on an overseas website is not a simultaneous publication in the US that triggers the need to complete a US copyright registration before suing for infringement (Moberg)
