‘Intellectual property’ refers to creations of the mind: inventions; literary and artistic works; know-how; technology; and symbols, names, images and designs used in commerce. Traditionally, intellectual property embraces two categories: copyright, which includes literary and artistic works in a broad sense of the word, whether regarded as art or used in commerce; and industrial property, all other creations including patents, trademarks, industrial designs and geographic indications of a source.
Terminology: IP, IPR and IP-rights. In practice, the term intellectual property is commonly referred to as “IP”, and intellectual property rights as “IPR” or “IP-rights”.
International nature. One of the most international fields of law is IP law. Not only do intangible goods move as fast across borders as e-mail, but also the law of intellectual property across the world has developed in the same direction. One reason for this is because IP-law was unified at a very early stage of its development through widely ratified multilateral treaties[1]. The infrastructure for international legislative and administrative assistance has been strengthened by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, local regulations must always be studied because there might be limitations or additional regulations that may affect IP-rights.
WIPO. The WIPO (World Intellectual Property Organisation, in French: OMPI) is a United Nations’ agency dedicated to the use of intellectual property, which has been contributing significantly to the unification of IP law. WIPO’s mission is to promote innovation and creativity for the economic, social and cultural development of all countries through a balanced and effective international intellectual property system. WIPO administers numerous IP-treaties, provides IP-related educational materials and guidance, promulgates the importance and usefulness of intellectual property, and works continuously on the further development and unification of IP-laws[2].
Scope. In this section the most important intellectual property rights will be introduced:
- Trademark law
- Copyright law
- Trade secrets (know-how and other confidential information)
- Patent law
- IP-licensing
Intellectual property rights that will not be addressed include: trade names, domain names, neighbouring rights, databases, plant breeder’s rights, semiconductor layouts (topography), designs and models, and portrait rights.
[1] The main IP-conventions are the Paris Convention for the protection of industrial property (1883); the Berne Convention for the protection of literary and artistic works (1886); the Madrid Agreement concerning the international registration of marks (1891); the Nice Agreement concerning the international classification of goods and services for the purposes of the registration of marks (1957); and of more recent date: the Patent Cooperation Treaty (PCT, 1970); the Trademark Law Treaty (1994); the WIPO Copyright Treaty (1996); and the Patent Law Treaty (2000).
[2] See http://www.wipo.int. This website contains most IP-related materials, including many publications explaining in detail how intellectual property is or can be protected.
Note: this chapter is also included in the e-book Cross-border contracting – How to draft and negotiate international commercial contracts, written by Weagree-founder Willem Wiggers and published by the ITC (the joint agency of the U.N. and WTO) and downloadable free of charge.
