Framework of IPRIntroduction

International IP Law - Course

Professor Niklas BruunIPR University CenterUniversity of Helsinki

25 October 2010

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The objectives of the presentation

Map the terrain of IPR, by providing:– a historical perspective on the

evolution of the present regulatory framework,

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Pre-modern IPR law

– Dates roughly from 1600-1890 and mainly to the time before industrialization

– The problem I: intangible property as a legal category

– The problem II: categories and structures of IP (copyright, patents, design rights etc) were unknown or emerging

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Pre-modern IPR law (cont.)

– Main categories: manual labour (labour of the body) mental labour (labour of the mind)

– Property in ones person/creativity– Literary property/intangible property as

action form of law: particular and reactive (not abstract and general as the modern law): 1742 Act for securing to John Byron, Master of

Arts, the Sole Right for Publishing for a Certain Term of Years the Art and Method of Shorthand, Invented by him

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Pre-modern IPR law (cont.)

– Frequently used legal concepts from English Case Law in the 19th century : copyright in inventions patents for art literary property as a “universal patent

for authors” copyright of trade marks

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The emerging of modern IP-law

– Background: French revolution and “droit d´auteur” as a fundamental right (1793)

– No cross border protection leads to piracy of British and French literature overseas

– Bilateral treaties in the 1840s and 1850s (see British International Copyright Act 1838, 1844), Prussia 1846, Saxony 1847, France 1851, Belgium 1854, Spain 1857

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The emerging of modern IP-law (cont.)

– Result: Conceptual harmonisation and division: copyright protects art and literature, trade and commerce is protected by other rights as patents, trade marks and design rights

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Modern IP-law

The bilateral Conventions were replaced by1. The Paris Convention (1883) for patents,

utility models, industrial designs, trade marks, trade names, indications of source or appellations of origin and the repression of unfair competition

2. The Berne Convention (1886) for copyright

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Central Principles of “First Generation”

Conventions

– National (regional) protection– The principle of national treatment– Priority date of applications for

registration made within a certain time limit from the first application (6-12 months)

– The principle of minimum protection for rightowners

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“Second Generation” Conventions

Information and Classification of IPR – The Strasbourg Agreement the Concerning

International Patent Classification (1954)– Nice Agreement Concerning the International

Classification of Goods and Services for the Purposes of the Registration of Marks (1957)

– Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks (1973)

– Locarno Agreement Establishing an International Classification for Industrial Designs (1968)

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“Third Generation” Conventions(one application-several

registrations)

– Madrid Agreement Concerning the International Registration of Marks (1891)

– Madrid Protocol (1989)– Hague Agreement Concerning the

International Deposit of Industrial Designs (1925)

– Patent Cooperation Treaty (PCT) (1970)

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“Third Generation” Conventions

(cont.)

– Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure (1980)

– Lisbon Agreement for the Protection of Appellation of Origin and their International Registration (1958)

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“Fourth Generation” TRIPS

Background: Globalisation– New relationship between trade and

IPR (Trade Related Aspects of Intellectual Property Rights)

– Minimum requirements (Bern, Paris etc)

– Most Favoured Nation-principle (MFN)– Focus on enforcement

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“Fourth Generation” TRIPS

MFN-principle:“..with regard to the protection of

intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the national of all other Members.”

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“Fourth Generation” EU

From National to Regional ProtectionStage 1. – Creating an Internal Market and promoting

harmonization of IPR-systems in the Member States Directives on trade marks and legal protection

of designs Five Directives on copyright (term of

protection, computer program, rental rights and lending rights etc)

A Directive on Databases

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“Fourth Generation” EU

Stage 2. – Creating Community-Wide IP Rights

Community Trade Mark Community Design Community Plant Variety Right Community Patent (still pending but political

agreement reached)

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“Fourth Generation” EU

Stage 3. – Creating common rules on procedures,

enforcement and sanctions (see European Directive (2004/48/EG) Centralisation of dispute solving procedures

and courts (Community patent) Crossborder Enforcement (Brussels Regulation

44/2001)

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“Fourth Generation” worldwide

Domain Names and UDRP-procedure– Fast, cheap and efficient contractual based

procedure– Cybersquatters´ registrations that infringe

trade marks can be nullified– No possibilities for damages or other

sanctions

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How does the IPR system function? Summing up

– Complicated regulation on several levels (national, regional and global)

– Regulation amended and changed several times (complicated to assess old rights)

– Enforcement slow, expensive, complicated and mainly national