Convention Establishing the

World Intellectual Property Organization

(Signed at Stockholm on July 14, 1967 and
as amended on September 28, 1979)

(viii) “intellectual property” shall include the rights relating to:

- literary, artistic and scientific works,
- performances of performing artists, phonograms, and broadcasts,
- inventions in all fields of human endeavor,
- scientific discoveries,
- industrial designs,
- trademarks, service marks, and commercial names and designations,
- protection against unfair competition,
and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

THE TERM “INTELLECTUAL PROPERTY” CONSISTS OF (Sec. 4.1, IPC):

a) Copyright and related rights
b) Trademarks and Service Marks
c) Patents
d) Geographic indications
e) Layout Designs (Topographies) of Integrated Circuits
f) Protection of Undisclosed Information
g) Industrial Designs

Technology transfer arrangements- Refers to contracts or agreements involving transfer of systematic knowledge
for the manufacture of a product, application of a process, or rendering of a service including management
contracts; and transfer, assignment or licensing of all forms of intellectual property rights , including licensing of
compute r software except computer software developed for mass market.

Copyright- right over literary and artistic works which are original intellectual creations in the literary and artistic
domain protected from the moment of creation.
Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or
mathematical concepts as such.
Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated
on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the
calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of
the work, 50 years from the end of the calendar year of making.

Trademark or service marks- any visible signs capable of distinguishing the goods (trademark) or services (service
mark) of an enterprise and shall include a stamped or marked container of goods.
Initial registration, and each renewal of registration, of a trademark shall be for a term of no less than seven years.
The registration of a trademark shall be renewable indefinitely

Trade name- Means the name or designation identifying or distinguishing an enterprise

Patent
- • Any technical solution of a problem in a field of human activity;
• Which is new (novelty);
• Which involves an Inventive step; and
 • Which is industrially applicable.

It may be, or may relate to, a product, or process, or an improvement of any of the foregoing.

The term of protection available shall not end before the expiration of a period of twenty years counted
from the filing date.1

Geographical indications- Indications which identify a good as originating in the territory, or a region or locality in
that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its
geographical origin.

Protection of Undisclosed Information

- natural and legal persons shall have the possibility of preventing information lawfully within their control
from being disclosed to, acquired by, or used by others without their consent in a manner contrary to
honest commercial practices (i.e., breach of contract, breach of confidence, fraudulent inducement, etc.)
so long as the information:

1) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its
components, generally known among or readily accessible to persons within the circles that normally
deal with the kind of information in question:
2) Has commercial value because it is secret; and
3) Has been subject to reasonable steps under the circumstances, by the person lawfully in control of
the information, to keep it secret.

Utility model- Models of implement or tools of any industrial product even if not possessed of the quality of
invention but which is of “practical utility.”

Industrial design- Any composition of lines or colors or any three-dimensional form, whether or not associated
with lines or colors.
The duration of protection available shall amount to at least 10 years.

UNEASY CASE FOR COPYRIGHT: A LOOK BACK ACROSS FOUR DECADES

economics tells you about copyright, it tells you that there’s a high fixed cost to create a copyrighted work and a
very low variable cost to distribute it, and that’s it.

The Coase Theorem, which at that time was new, stated that if there were no costs of distributing
property rights, and no costs of engaging in transactions with regard to those property rights, then the initial
distribution of rights would not matter, because no matter what that was, people would exchange rights to get
what they wanted.

The other thing I thought was fairly important is that people got mixed up in another way about why copyright
existed and what the scope of protection is as a result. The original mixup, I think, started
with King Dermott, who supposedly said, “to every cow her calf.”11

we own this work and therefore we have some kind of natural right to every penny that can be made from it. But
of course no one else has that right. Teachers certainly do not; loads of people do not;

1
It is understood that those Members which do not have a system of original grant may provide that the
term of protection shall be computed from the filing date in the system of original grant.
hardly any worker does. And now I think that kind of logic is less prevalent.

We make our living by trying to figure out the details; by trying to work out the conditions; by trying to see, step by
step, industry by industry, what sort of protection should this get, how long, and under what circumstances.

copyright wouldn’t be that important because no one would put his material into the central computer unless he
got paid for it.

And I think in a field like intellectual property law you cannot understand the framework and develop it without
knowing the facts about the industry and the particulars of production, and you cannot understand the relevance
of those facts without some kind of economic theory.

RETHINKING COPYRIGHT INSTITUTION FOR THE DIGITAL AGE

YOSHIYUKI TAMURA

The other type of natural law theories puts forward that an individual is naturally entitled to own their creations,
because they partially or completely reflect or embody her personality.7 To put it more bluntly, while the former
focuses on individuals’ creative activities leading to the creation of artistic, literary and scientific works, the latter
emphasises the role of such works in the creation and development of the authors’ personality.

John Locke’s writings on justifying property rights to tangible things.5 This line of justification is based on the
premise that each person is naturally entitled to own the results of her creative intellectual labour. Although Locke
did not expressly deal with justifying property rights to intangible goods, some scholars advocate the application of
Lockean labour theory also to intellectual property, including copyright, to a certain degree.6 The other type of
natural law theories puts forward that an individual is naturally entitled to own their creations, because they
partially or completely reflect or embody her personality.7 To put it more bluntly, while the former focuses on
individuals’ creative activities leading to the creation of artistic, literary and scientific works, the latter emphasises
the role of such works in the creation and development of the authors’ personality.

The first theory, the so-called ‘‘Lockean labour theory’’ of property, is premised on the freedom of human action.
To put it more bluntly, each individual has the right to act freely, and when she works at the expense of her
freedom of action, she should be entitled to own the fruits of her labour.10

Locke’s theory is premised on the existence of nature which God has given to all humanity in common

As imminent spoilage justifies the claims for property in the fruits of human labour, the consent from other
members of concerned community is not necessarily required

The incentive theory is based on the proposition that unless free-riding is prevented to a certain degree, the public
will suffer loss by decreased intellectual creation, because the motivation to create new literary, artistic and
scientific works will be significantly reduced.

The origins of today’s copyright law are closely related to the introduction of the printing press

When the printing technology had been broadly spread and used for commercial activities, the problem of book
piracy emerged. The need to protect publishers against competing cheaper editions of second comers led to the
establishment of the modern copyright institution in the beginning of 18th century in England
freedom of private individuals was not restricted by direct enforcement of copy rights against those using
copyrighted works for non-commercial purposes. Copyright, as a result, started to extensively regulate and
interfere with activities of private individuals

Before the introduction of the internet, the copyright holders had the right to prohibit reproductions of
copyrighted works for commercial purposes and the right to restrict certain public uses of copy righted works.

The internet has completely changed this situation. Copyright laws have started to affect many activities of private
individuals which were considered lawful in the analogue era

policy-making process matters and considerably affects the actual design of copyright law and the balance struck
between the interests of affected stakeholders

level of the judiciary, the courts are to be expected to strike the balance between the interests of rights holders
and users while considering the governance structure bias

interpreting copyright law in favour of the weaker and disadvantaged party in the policy-making process.

PHILOSOPHY OF INTELLECTUAL PROPERTY

JUSTIN HUGHES
A.
1. For Locke, property was a foundation for an elaborate vision that opposed an absolute and irresponsible
monarchy.
2. society rewards labor with property purely on the instrumental grounds that we must provide rewards to
get labor.

3. Locke proposes that in this primitive state there are enough unclaimed goods so that everyone can
appropriate the objects of his labors without infringing upon goods that have been appropriated by
someone else.

4. Epstein argues that "first possession" forms the basis for legal title and believes that this is the heart of
Locke's position. n39 For Epstein, the talk of labor is a smokescreen hiding the fundamental premise of
Locke's argument that a person possesses his own body:

5. Locke assumes that: (1) the individual is capable of appropriating more than she can use; (2) the individual
will be motivated to do so; and (3) nothing is wrong with this other than waste. Locke condemned waste
as an unjustified diminution of the common stock of potential property.

6. The non-waste condition, however, allows the individual to barter for things which he can enjoy, which
may be more durable, and which have been gathered as surplus by other individuals similarly motivated.

B. LABOR AND THE PRODUCTION OF IDEAS

1. As society has moved toward more complicated technologies, the huge scales of activity required by most
research, involving time, money, and expertise, have made the autonomous inventor a rarity. This trend
strengthens the image of idea-making as labor akin to the mechanical labor that operates industrial
assembly lines.
AVOIDANCE VIEW OF LABOR.
1. Lawrence Becker aptly has described Locke's view of labor as a "proposal that labor is something
unpleasant enough so that people do it only in the expectation of benefits." n55 In fact, Locke himself
refers to labor as "pains."
2. In an understanding of labor based on the notion of "avoidance," labor is defined as an unpleasant activity
not desirable in and of itself and even painful to some degree.
3. The instrumental claim has a utilitarian foundation: we want to promote labor because labor promotes
the public good. Once we recognize that property is needed to motivate work for the public good, we may
transform the reward into a right just as we often convert systematically granted benefits into rights
deserved by the recipients
4. The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the
conviction that encouragement of individual effort by personal gain is the best way to advance public
welfare through the talents of authors and inventors . . . Sacrificial days devoted to such creative activities
deserve rewards commensurate with the services rendered."

THE VALUE ADDED THEORY

1. "holds that when labor produces something of value to others -- something beyond what morality
requires the laborer to produce -- then the laborer deserves some benefit for it."
2. The "labor-desert" theory asserts that labor often creates social value, and it is this production of
social value that "deserves" reward, not the labor that produced it.
3. To receive patent protection, a new invention must meet a standard of "usefulness" or "utility," n73 a
criterion which suggests that the invention must manifest some value added to society.
4. The patent law requires that the new value be greater than that derived from "tinkering" with known
technology
5. A patentee is not required to exploit his patent; indeed, there is universal recognition that the
patentee may shelve his invention and use his patent only to prevent others from utilizing the
patented process or invention
6. value-added interpretation of intellectual property laws is easier to support by moving away from
particular legal doctrines. Probably the best support for the value-added theory is an argument based
upon "net gain." This rule-utilitarian argument for granting intellectual property rights finds it
unnecessary that individual cases of copyright or patents be of social value. A very high percentage of
protected works could be worthless so long as the system of property protection results in a net
increase in social value beyond what would be produced without the system.

LABOR THE IDEA/EXPRESSION DISTINCTION

1. The avoidance theory argues that labor, by its nature, is unpleasant. The value-added theory places no
limits on the general nature of labor; it can be pleasant or unpleasant, stupefying or invigorating. The
value-added theory may explain why labor justifies property at the social level, while the avoidance
theory makes the individual feel justified in receiving something for his "pains."
2. The Lockean conception of idea-making provides another ground for [*312] treating idea and execution as
a single event.
3. Existing intellectual property regimes favor granting property rights only to those ideas which have
received substantial execution. Patents are not granted for formulae disembodied from any technical
applications; in some sense, such unapplied formulae may be thought of as unexecuted ideas.
4. Protection of expression and not of ideas can be understood as protection for that part of the idea-
making process that we are most confident involves labor. In a world in which we cannot definitely
separate idea and execution, we still find ways to emphasize that property protection goes to execution
and less to the ideas themselves.

C. IDEAS AND THE COMMON

1. You may prevent someone from publicly using an idea, but preventing the private use of ideas may not be
possible
COMMON AND TEMPERED PROPERTY RIGHTS
2. This complete exclusion is impossible for two reasons. First, any property scheme which completely
excludes third parties from ideas must enforce its restrictions in ways incompatible with our notions of
privacy and individual freedom. Second, successful policing of such exclusion probably would be
impossible. This impossibility can be thought of in either technical or economic terms.
3. Intellectual property systems handle this situation of questionable added labor with a few general
principles. First, if the idea is sufficiently separate from its "parent" idea to have required significant
independent labor or creativity, it belongs to the laborer.n120 Conversely, if the new idea bears too much
resemblance to its parent idea, the owner of the parent has a controlling interest in the new idea. Finally,
the two principles are limited by situations in which the descendant idea includes the entire parent idea,
as with a new machine which uses a patented process as one of several steps or a play which uses
someone's concerto as its theme. In these cases, the owner's interests in the parent idea must be
accommodated with much less balancing than that afforded by the first two principles
4. A copyright does not enable its holder to prevent parodies of the copyrighted work; as long as the parody
has creativity and originality, it may use substantial elements of the original.n122 However, if reasonable
people would easily mistake the parody for the original, the copyright holder would have an especially
strong interest in stopping publication of the parody because it will probably appear to be a bad or
erroneous production of the original

THE COMMON IDEAS THAT CANNOTBE GRANTED PROPERTY RIGHTS

1. These common, everyday ideas are too generically useful to allow someone to monopolize them. The
common would not have "enough and as good" if they were removed.
2. A second group of extraordinary ideas -- which contains ideas like the architectural columns -- may not be
monopolized because of their widespread public use.
3. What separates the everyday idea from the protectable idea is the former's relative unimportance and
the latter's uniqueness; what separates the protectable idea from the extraordinary idea is that the
extraordinary idea is uniquely important

AUGMENTING THE COMMON THROUGH EXPIRATION OF PROPERTY RIGHTS

1. Copyrighted property enters the public domain fifty years after the death of the author.n142 Patents
expire after a maximum of thirty-four years
2. Trade secrets may be the lone exception; they must be constantly defended, not only against real
industrial espionage but as a legal requirement to maintain their protection. Trade secrets and "gathered
information" property have no fixed expiration, but they tend to be self-extinguishing. At some point, the
guard drops and the trade secret expires. This general occurrence of expiration marks a radical difference
from physical property arrangements.

C. NON WASTE CONDITION AND INTELLECTUAL PROPERTY

1. if the idea I give my friend allows her to accumulate a surplus for bartering, this idea exists in or begins
the money economy. The idea can be treated as intellectual property precisely because it produces
surplus value which can be traded
NON WASTE OF INTELLECTUAL PROPERTY
1. From an individual's perspective, it is much harder to say at a point in time, T[1], that the individual's
investment in some idea is wasted. The investment may yield value at a later T[2]. Of course, one can
claim that intellectual goods actually are perishable: ideas go stale, new stories become "old," literature
becomes dated, and patents become worthless as the technology on which they are based becomes
obsolete.
 ECONOMIC UNDERPINNINGS OF PATENT LAW
KEN DAM
appropriability problem—is that if a firm could not recover the costs of invention because the resulting
information were available to all, then we could expect a much lower and indeed suboptimal level of innovation. In
short, the patent system prevents others from reaping where they have not sown and thereby promotes R&D
investment in innovation.

These three problems--which may for shorthand be referred to as the monopoly, rent-seeking and inhibition-of-
future-innovation problems--are often put forward under one rubric or another as objections to patents

PROBLEM:
1. The right to exclude may create a monopoly.
2. Using the term economic rent rather than monopoly promotes clearer thinking, but it does not eliminate
economic policy issues.
3. Overly broad patent protection can inhibit future innovation.

PATENT PROCEEDING is an ex parte proceeding.\

These three problems--which may for shorthand be referred to as the monopoly, rent-seeking and inhibition-of-
future-innovation problems--are often put forward under one rubric or another as objections to patents than
monopoly. A strong theme in the law and economics literature is that rent seeking is primarily wasteful and should
be minimized.

Economic rent is the price paid by the patent system to deal with the appropriability problem.

A patent system operates over time. To be an efficient system it must optimize the flow of innovation over time.
The patent system must thus balance innovation today against innovation tomorrow.