The notion of intellectual property is generally overrated

Intellectual property is about something that protects your product and certain products need protection. Copyrights, patents and trademarks are all important, but the term ‘intellectual property’ is unrealistic.

• Intellectual property covers a lot of ground, it's a category of property that includes intangible creations of the human intellect. In the 19th century that the term "intellectual property" began to be used, and in the late 20th century it became common in the majority of the world.
• The purpose of intellectual property is to encourage the creation of intellectual goods. To achieve this, the law gives people and businesses property rights to the information and intellectual goods for a limited period of time. This gives economic incentive for their creation, because it allows people to profit from the information they create. These economic incentives are expected to stimulate innovation and contribute to the technological progress of countries, which depends on the extent of protection granted to innovators.
• The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Protection and exploitation of intellectual property in the world's markets globalization is introducing additional complexity to the already-complicated topic of intellectual property. Enforcing copyright and patents has always been expensive and time consuming, and the internet has added a whole new layers of expense, as enforcement of intellectual property rights across a global jurisdiction can be nearly impossible. In today's global economy we see that countries do not share standards for patent and copyright protection and deciding who is right and who is wrong is not that simple as it may seem. We will explore in this article how different countries have different view over intellectual property. This is not to decide who is better but to understand what the future looks like and how we will experience the intellectual property system, if there will still be one.

Intellectual Property in the Global Marketplace

• Intellectual property has become one of the most important resources in the 21st century. It’s now an accepted fact that, just like financial capital or commodities it is more than an economic asset - it also forms the basis of a global market. National governments need to adapt their patent systems to help the global market function more effectively. Systems must continue to evolve to help foster a robust market. One area for further development is transparency.
• The global intellectual property market has become a major contributor to wealth and value creation worldwide. It can fairly serve the interests of individual inventors toiling in their garages, large corporations with substantial R&D operations, and the public. We need enlightened policies and practices to help this market flourish.

Intellectual property rights in the USA

• If you plan to do business in the USA, or if you are already trading there, it is essential to know how to use, guard and enforce the rights you have over the intellectual property that you or your business own. In the United States, creative work is automatically protected by copyright as long as it is both original (independently created and not copied from someone else’s work) and fixed in a tangible form (easy to see, reproduce or communicate over a long period of time).
• Copyright only protects the tangible form of your creative work - it does not protect the idea itself - only the form it takes. For example, if your business has an advertisement, the actual content is protected by copyright, but it does not prevent others from using a similar idea to create their own advertisement.
• Unlike copyright, trade marks are not automatic and are generally only protected if registered in the USA. In most countries, trade mark rights are established through registration - this is known as ‘First to File’. However, in the USA, as in the UK, the ownership of a trade mark is established by whoever first uses it in commerce. This is known as the ‘First to Use’ system and requires you to actually use the mark in connection with goods or services in order to protect your trademark. Therefore, if there is a dispute between you and another party over a trade mark, whoever used it first commercially will own the right, even if they did not register it.
• If you need to pitch an invention or design, you should use a non-disclosure agreement or obtain a provisional patent application. You should also keep any and all documents relating to the invention or design. US law also allows a one-year grace period for an inventor to register a patent from the date of public disclosure. You should note that this is different from European countries, where public disclosure could prevent you from being able to obtain a patent.
• Intellectual property (IP) laws in the USA are comprehensive, and the authorities and enforcement agencies are capable of dealing with any infringement. Thus the protection offered to foreign and domestic rights owners is of a very high standard. As a member of the World Trade Organization, the USA is committed to certain minimum IP protection standards. This means that the IP environment in which UK businesses operate in the USA will be familiar for those used to practices in the UK. To be a success in the USA and internationally, your business must protect its assets with some form of IP rights protection. 

Intellectual property in The European Union

• The European Union harmonized laws relating to intellectual property rights in EU countries to avoid barriers to trade and to create efficient EU-wide systems for the protection of such rights. There is a certain level of standardization of intellectual property laws across the EU. This is covered by many international conventions, most of which are implemented by the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).
• EU-wide protection of intellectual and industrial property helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Hence, intellectual property has been recognized as an integral part of property and one of the keys to added value and competitiveness.
• Every trade mark is protected on the territory of the EU. Member States remain free to fix the provisions of procedure concerning the registration, the revocation and the invalidity of trade marks acquired by registration. European firms obtain, by submitting a single application, protection of their trade mark not only throughout the European Union, as a Community trade mark, but also in countries that are a party to the Madrid Protocol. Conversely, holders of international registrations under the Madrid Protocol may apply for protection of their trade marks under the Community trade mark system.
• Companies that wish to adapt their activities to the scale of the EU have at their disposal the legal instrument of the EU trade mark, enabling their products or services to be distinguished by identical means throughout the entire European Union. A Community trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods produced by one firm from those produced by other firms. The Community trade mark provides uniform protection throughout the European Union, which can be obtained by means of a single procedure. This protection enables the proprietor to prevent any other person from using the mark for the same products or services or for similar products if there is a danger of confusion. The application for an EU trade mark is filed at the European Union Intellectual Property Office and is registered for not less than five years.
• As regards industrial property, a Directive seeks to guarantee effective legal protection for industrial designs (in machinery, tools, electronic equipment, etc.), by defining a "design", by establishing the conditions governing its protection and the scope of protection including the exclusive right to use the design. The Community Design provides uniform protection throughout the European Union for registered designs managed by the Office for Harmonization in the Internal Market (Trademarks and Designs) in Alicante.
• Traditionally, European patents are granted by the European Patent Office (EPO) on the basis of a single application. Yet after grant, each European patent is in fact a bundle of national patents which need to be separately validated in each Member State. The patent reform obtained with enhanced cooperation enables, since 2013, any inventor to obtain unitary patent protection for 25 EU Member States (except Italy and Spain) without the need for validation in the individual Member States. Unitary patent protection fosters scientific and technological advances and the functioning of the internal market by making access to the patent system easier, less costly and legally secure. It improves also the level of patent protection by making it possible to obtain uniform patent protection in the participating Member States and eliminates costs and complexity for undertakings throughout the Union. It is available to proprietors of a European patent from both the participating Member States and from other States, regardless of their nationality, residence or place of establishment.
• An European Commission Directive provides a stable legislative framework for the protection of biotechnological inventions allowing the use of research results while taking account of the ethical aspects, relating, in particular, to the protection of the human body. A Regulation created a supplementary protection certificate for plant protection products, allowing a further five years’ protection for inventions in the plant protection field after the basic patent has expired.
• Innovative businesses are increasingly exposed to dishonest practices aimed at misappropriating trade secrets, such as theft, unauthorized copying, economic espionage or the breach of confidentiality requirements, whether from within or from outside of the Union. Recent developments, such as globalization, increased outsourcing, longer supply chains, and the increased use of information and communication technology contribute to increasing the risk of those practices.

Intellectual property rights in Russia

• The laws on intellectual property protection in Russia are comprised in the Civil Code of the Russian Federation that was enabled in 2008, after a series of modifications throughout the years. It includes the Copyright Law that was separated until that moment. Russia has laws governing copyright protection, trademark and service mark protection, company’s intellectual assets protection, computer programs and database protection, protection of typologies of integrated circuits. The Intellectual Property Law was last amended at the end of 2015.
• Copyright in Russia developed originally along the same lines as in Western European countries. A first copyright statute dated back to 1828, and in 1857, a general copyright term of fifty years was instituted. The copyright law of 1911 was inspired by Western laws of the continental European tradition. One noteworthy exception in Russian copyright law was the "freedom of translation"—any work could be freely translated into another language. Copyright protection in Russia is given for a period of 70 years to nationals that have created literature, works of art or scientific work. In Russia, both public and unreleased work is granted copyright protection and it includes oral creations, interviews and speeches among the usual creative art. Russian copyright law offers moral and economic rights to its owner. The economic or patrimonial rights provide the author with the right of allowing third parties to reproduce his work and the right to distribute, make public or broadcast the creation. There is no general right that allows an author to receive money for his or her creation unless the work is audiovisual. There is only a resale right of 5% of the resale price that includes works like paintings and sculptures.
• The legal frame for patent protection in Russia is governed by the Patent Law of the Russian Federation that protects the use of utility models and industrial property. Russia is a signatory member of the Patent Cooperation Treaty which enables foreign companies to adhere to patent protection in Russia.
• Russia is a signatory member of the Madrid Agreement on International Registration of Trade Marks and it offers legal protection on trademarks and service marks for companies using them as long as they have been registered with RosPatent, which is the registration office for intellectual property in Russia. A foreign citizen who wants to protect his trademark in Russia may contact a law firm in Russia that will handle the entire procedure.
• Protection of computer programs, databases and typologies of integrated circuits are also protected by law in Russia, even if they are part of a special intellectual protection category: the protection of company's intellectual assets. Companies are protected in Russia mainly by incorporation and through the Trademark Law. But a company also benefits from software, database, industrial design and utility model protection. A Russian company may choose to protect its know-how technology, its pattern of integrated circuits, if considered necessary, its domain name and its website content as well.
• Programming and software can also fall under the incidence of the Intellectual Property Law in Russia, as the number of IT companies has increased considerably in the past few years. IT companies can protect the rights related to the software, programs and know-how they develop. They can register trademarks related to the names of the work they create. The development and work created by their employees can also be protected under the intellectual property legislation, however the employment contract must contain specific clauses related to the rights of employees over intellectual work.
• "The Russian Court for Intellectual Property Rights" - Not long ago, Russia has also enabled the Court for Intellectual Property Rights, simply known as the IP Court which tries cases related to intellectual property infringements. This court acts as a first instance and appellate court of justice in IP-related cases. Both Russian companies and citizens are allowed to file petitions with the IP court.

Intellectual property in China. How strict are the Chinese?

• Intellectual property rights have been acknowledged and protected in the People's Republic of China since the 1980's. The People's Republic of China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are common in the PRC, The American Chamber of Commerce in China surveyed over 500 of its members doing business in China regarding IPR for its 2016 China Business Climate Survey Report, and found that IPR enforcement is improving, but significant challenges still remain. The results show that the laws in place exceed their actual enforcement, with patent protection receiving the highest approval rate, while protection of trade secrets lags far behind.

In January 1992, the PRC entered into a Memorandum of Understanding with the United States government to provide copyright protection for all American "works" and for other foreign works. Several bilateral negotiations have been conducted between the two governments. At some points, trade sanctions were threatened by the two governments over IPR's issues. At the conclusion of negotiations in 1995, the Sino-US Agreement on Intellectual Property Rights was signed. In June 1996, the two governments entered into another agreement protecting American intellectual property in the PRC.

• The legal framework for protecting intellectual property in the PRC is built on three national laws passed by the National People's Congress: the Patent Law, the Trademark Law and the Copyright Law. A great number of regulations, rules, measures and policies have been made by the NPC Standing Committee, the State Council and various ministries, bureaux and commissions. The circulars, opinions and notices of the Supreme People's Court also form part of the legal framework.
• The Trademark Law of the People's Republic of China sets out general guidelines on administration of trademarks, protection of trademark owners' exclusive rights and maintenance of quality of products or services bearing the registered trademarks, "with a view to protecting consumer interests and to promoting the development of the socialist commodity economy." Adhering to the Paris Convention, the Chinese government passed the Provisional Regulations Governing Application for Priority Registration of Trademarks in China to grant the right of priority to trademark applications submitted in PRC by the nationals of the Paris Convention member countries.
• The Copyright Law of the PRC was adopted and promulgated in 1990 and the "Implementing Rules" adopted in 1991 and revised in 2002. In most cases the copyright term is the life of the author plus 50 years, but for cinematographic and photographic works and works created by a company or organization the term is 50 years after first publication. To implement the Berne Convention and the Universal Copyright Convention, as well as bilateral copyright treaties signed between the PRC and other foreign countries, the PRC government passed the Regulations on Implementation of International Copyright Treaties. These have given foreign copyright holders protection for their rights and interests in the PRC. Before the PRC acceded to the Berne Convention, computer software was not treated as a kind of literary work under the Copyright Law. The Berne Convention does not require copyright registration, and thus protection in the PRC technically does not require registration. However, registering copyrights for literary works can avoid, or at least simplify, ownership disputes. Copyright registration cost is 300 RMB. On the downside, the copyright registration process requires the registrant to disclose detailed information, including software source code, which companies might be reluctant to share.
• The PRC passed the Patent Law of the PRC to encourage invention-creation and to promote the development of science and technology. The subsequent Implementing Regulations of the Patent Law of the PRC added clarification. Apart from major legislation on trademarks, copyright and patents, a few other laws and regulations have been passed to deal with intellectual property related issues. The General Principles of Civil Law was adopted to protect the lawful civil rights and interests of citizens and legal persons, and to correctly regulate civil relations. Articles 94-97 of the General Principles of Civil Law deal with intellectual property rights of Chinese citizens and legal persons.
• The enforcement of protection of intellectual property rights is particularly difficult in the PRC. Without adequate education with regard to IPR's, there is little awareness that infringement is a crime. For example, though the first intellectual property law was drafted in 1982, the first IPR training center was not established until 1996. Sometimes local protectionism may dilute the strength of central legislation or the power of law enforcement. For example, local governments might not want to genuinely support the work of copyright protection supervisors. It may create obstacles during IPR's investigation and assist local counterfeiters by letting them hide their production lines in safer places. When counterfeiters have good connections with local governmental or law enforcement officials, they may find an umbrella for their counterfeiting activity. Chinese government-sponsored search-engine Baidu provides links to third-party websites that offer online counterfeit products as well as access to counterfeit hardware and merchandise. The Chinese government dominates 70% of its country's search engine revenue and has been called on by US officials to limit the activity of online counterfeiting groups.
• The Chinese government’s plan is to turn China into a knowledge and innovation economy by 2020.  IP protection in China continues to improve as many Chinese companies have understood the importance of a strong IP portfolio and started actively using IP as a strategic asset. Many Chinese companies have invested money, time and effort to obtain and protect their growing, high-quality IP portfolios. The enforcement is constantly improving and Chinese companies have started to enforce their IP rights.

Japan - Protecting Intellectual Property

• Developing earnings from IP is a key focus and Japan's intellectual property is generating revenue at record pace. Intellectual property is generating soaring revenue for Japan, jumping by 74 percent over the past years according to the latest government data. Developing and protecting it is a key element of Prime Minister Shinzo Abe’s long-term growth strategy, which calls for greater investment in innovation to create wealth as the nation’s workforce ages and shrinks. Intellectual property, which applies to intangible assets including brands, copyright, patents and industrial designs, covers everything from cultural icons like Super Mario and Hello Kitty to robotics advances by Fanuc Corp. The nation ranked second behind the United States in IP exports in 2014, the latest year for which complete data was available, according to the OECD.
• Japan generally provides strong Intellectual Property Right protection and enforcement. Company doing business in Japan should have an intellectual property plan and register their intellectual property prior to entering the market. Registration of patents and trademarks is on first-in-time, first-in-right basis. Hence, applying for trademark and patent protection even before selling products or services, must be considered.
• Japanese trademark law is mainly enacted by the Trademark Act. Under this Act, only registered trademarks establish a "trademark" right, and examination procedure is necessary for trademarks to be registered. Japan's first modern trade mark law was enacted in 1884. The current Trademark Act was enacted in 1958, and has been amended several times since then. On the other hand, the protection for unregistered trademarks is provided by the Unfair Competition Prevention Act. It is required to file an application for trademark registration with the Japan Patent Office. When an application for trademark registration is filed, it is necessary to designate “a trademark to be registered” and “goods” or “services” for which the trademark is to be used and they must be described in a request for trademark registration. According to the Trademark Act, goods and services are called “designated goods” and “designated services”, respectively, when they are designated as mentioned above. The scope of a right is decided by these designated goods or designated services. When an application for trademark registration is filed, the Japan Patent Office examines whether the trademark filed can be registered.
• The Patent Act of Japan defines invention as “the highly advanced creation of technical ideas utilizing the law of nature.” Article 39 states that a person who is the first to file an application for a patent for an invention may obtain that patent, rather than a different person who is the first to invent the same invention. A person desiring to obtain a patent has to submit a request, specification, claims, any drawings necessary, and the abstract to the commissioner of the Japan Patent Office. A submitted application will be checked to see whether it fulfills the necessary procedural and formal requirements. An invitation to correct will be made where necessary documents are missing or required sections have not been filled in. An examination will be carried out by an examiner of the JPO, who will decide whether the application fulfills requirements prescribed by law.
• The Design Law: “The purpose of this Law shall be to encourage the creation of designs by promoting their protection and utilization so as to contribute to the development of industry.” Designs represent a quest for a better appearance resulting in enjoyment which is connected with the use of beautiful products. This external appearance is something that can be perceived uniformly by anybody. That is why designs can be easily copied. Thus, a design system should be planned so that it would on one hand protect the assets of the creator of a new creative design, while on the other hand, the usage of the design should be also determined so as to encourage design creativity which also contributes to industrial development. In order to obtain a design right, an applicant must fill out the forms prescribed in the relevant ordinances and submit them to the Japan Patent Office then it will be checked to see whether it fulfills the necessary procedural and formal requirements. An invitation to correct will be made where necessary documents are missing or required sections have not been filled in. A set of prescribed requirements must be fulfilled in order to obtain a design registration. An examiner will check whether an application meets these requirements.
• Japanese copyright law protects all works “in which thoughts or sentiments are expressed in a creative way, and which falls within the literary, scientific, artistic, or musical domain”. The Copyright Law does not require any formalities such as publication or registration of a work for protection. Although registration is not a condition for the acquisition, enjoyment, or exercise of copyright, the Copyright Law does provide for certain copyright registration systems. For example, a work whose date of publication is registered is presumed to be published on the date registered.
• The Japanese Copyright Law has two rights: “Author’s Rights” and “Neighboring Rights”. Author’s Right – The authorship of a work generally belongs to the person who created it. Upon creation of copyright able work by an author, the Copyright Law confers upon the author certain moral rights in addition to copyrights. Neighboring Rights – refer to the rights of performers, broadcasters, and other individuals who do not author works, but play an important role in communicating them to the public.
• Japan has also a special law, the Unfair Competition Prevention Act (UCPA), which regulates trade secret infringement. The purpose of this Act is to ensure fair competition among business operators and the proper implementation of international agreements related thereto, to provide measures for the prevention of unfair competition and compensation for damages caused by unfair competition and thereby contribute to the sound development of the national economy. The Unfair Competition Law defines a “trade secret” as technical or business information useful in commercial activities, such as manufacturing or marketing methods, which is kept secret and not publicly known.
• The fact that protection of intellectual property rights has been strengthened in recent years is due among other things to agreements reached between the WIPO (World Intellectual Property Organization), WTO and TRIPS (an organization for intellectual property rights related to trade), which are specialized UN organs aiming at increasing the level of international consciousness about the effect of increased competitions among countries and industries in each country. These and other agreements have made it possible to create an integrated system designed to protect intellectual property rights in each country through treaties, various international meetings, and similar activities.

Australian Intellectual Property

• In Australia intellectual property (IP) and other intangible assets that relate to doing business include patents, trade marks, designs, and secret processes and formula. Australian IP law is designed to encourage innovation and protect businesses that develop original IP in order to have a competitive advantage. Australia is also a signatory to a number of international agreements that protect IP in other countries. IP Australia is the Australian Government agency that administers IP rights and legislation.
• Patent protection. An Australian patent provides a legal right to stop third parties from manufacturing, using and/or selling an invention in Australia. It may also be used to license someone else to manufacture an invention on agreed terms. Australian patents are administered by the Patent Office of IP Australia. Patents can be complex. IP Australia strongly recommends consulting a qualified patent professional before applying for a patent.
• Trade mark protection. Australia has a well-developed legal system that protects the intellectual property of businesses and individuals. Businesses can register a trade mark as a marketing tool. A registered trade mark provides legal protection that prevents others from using your brand. Trade marks are issued and protected nationally.
• Registering a domain name. A domain name is a unique internet site address that allows others to access your website. Internet addresses ending in ‘.au’ are registered in Australia and are administered and regulated by the .au Domain Administration (auDA). To register for an .au domain, the domain name must be available and the business must meet auDA’s policy on domain name eligibility and allocation. For more information on registering a domain name in Australia, including a complete listing of registration companies, see auDA’s web page on Domain Name Registration.
• Design protection. Australia has a statutory framework for the registration of designs. A design application can be filed containing one design, a single design in relation to many products, or multiple designs. Applications for registration of designs must be filed with the Designs Office of IP Australia. The Designs Office will assess whether the design meets legislative requirements.
• Copyright protection. Australian copyright law is designed to encourage and protect those businesses which invest their time and talent in the creation of new material. Australia is also a signatory to a number of international conventions that deal with copyright. Material is automatically protected by copyright in Australia under the legislative framework. No specific registration is required. There are some exemptions from what is covered and around the use of copyrighted material.
• The Intellectual Property Research Institute of Australia (IPRIA) was established in 2002 as an initiative of IP Australia. Its mission is to increase the understanding, creation, use and exploitation of intellectual capital by Australian organisations and individuals. The focus is to move understanding and engagement with intellectual capital from a technical to a strategic consideration. Intellectual capital in this context is broader than formal intellectual property rights and includes the management of knowledge, personnel and intangible assets.

Intellectual property for an emerging Africa

• Over the years, the main IP focus in Africa has been to establish and develop basic IP infrastructure, regulatory frameworks, capacity-building, and human capital. The goal now is to put these IP tools to work in support of the economic objectives of African economies.
• Africa has a great tradition of innovation and creativity and has extraordinary creative resources but has often struggled to realize their full economic potential. That is changing. Increasingly, African economies are seeking to add value to their innovative and creative resources through the IP system. Although African economies still face many competing and compelling policy priorities, innovation and IP are slowly but surely rising up the African policy agenda.
• Africa is on the cusp of something new and exciting. Today, the continent is home to some of the world’s fastest growing economies and African nations are embracing the opportunities afforded by the knowledge economy and the digital revolution to reduce poverty, enhance agricultural productivity, and boost industrial competitiveness in their drive to secure sustainable and inclusive development.
• The 2015 Global Innovation Index (GII) reveals positive developments in the African innovation landscape. Mauritius, South Africa and Senegal top the Sub-Saharan Africa rankings this year, and a growing number of African economies are punching above their economic weight in the area of innovation. For example, in Sub-Saharan Africa, low-income economies like Rwanda, Mozambique and Malawi are now performing on a par with middle-income economies. Similarly, Burkina Faso, Kenya, Mali, and Uganda are generally outperforming other economies with similar levels of development. Despite limited means, these African economies are proving efficient in translating the investments they make in innovation and the creative economy into concrete outputs.

Legal systems of property are pragmatic and outcome-oriented. They bring about desired social ends through a historically contingent, evolving blend of rights and duties for owners. There is no ‘natural’ or ‘objective’ basis for property; we deem something property because better social outcomes are realized by doing so. If another, better social outcome presents itself, whatever the debate among contending social and political alliances that gave rise to such a notion, we revise our concept of property. The long history of private property usurped for public benefit – in times of war, say, or when building railroads – and the restrictions on the kinds of objects that can be bought and sold, offers adequate testimony for this claim. The public domain is ours to draw upon for future use. The truth is that intellectual property law is easily one of the most destructive forces in economy. Nearly one-fourth of scientists responding to a survey by the American Association for the Advancement of Science, the largest general scientific body in the world, reported that patents were hampering their research. In the European Union, over €60 billion are wasted every year on research and development of products that are already protected by patent law. An experiment using a virtual world to simulate the effects of the US patent system found that the “participants were more likely to innovate when there was no intellectual property system at all, or when they could open-source their innovations and share them with people.”