Intellectual property
The term of intellectual property is present in the French Droit (see the Code of the intellectual property). It is a direct copy of English, intellectual property .
In its current meaning, it recovers the rights of use of a “intellectual creation”: invention, technical solution, artistic literary work or, industrial Mark, drawings and models, Software S, Integrated circuits, etc Précisons immediately that the scientific discoveries are excluded from any protection concerned with the intellectual property (we will see why later).
Of course, the various elements which compose the intellectual property even have a different legal mode which had with their nature.
One generally includes under the expression " property intellectuelle" two principal branches: the Industrial property and the literary property and artistic.
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to fix the ideas, one can say that the Industrial property concerns, roughly speaking, the marks, the Brevet S, the inventions, the Dessins and models industrial, the Labels of origin and the indications of source.
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the Literary property and artistic is explained itself; however one incorporated there other elements on which we will return.
Industrial property and Literary property and artistic is controls by the general principles of the right of the property as enacted by the civil codes and the particular texts which are applicable for them.
It should be noted that the industrial Drawings and models have a hybrid Statut in French, between Intellectual property and Literary property and artistic Droit. This statute is in the course of generalization in the European Union
History
In Europe
The intellectual property is an old concept.
One finds first of all of them traces with the Life front Sc J-C. with the law of Sybaris, a city of Large Greece (Italy of the South). This law related to the invention of receipts of kitchen. That which held such a receipt was to make known it with the public (disclosure) n the other hand of a monopoly (patent) on this one, for one limited time. They had thus already invented the structure of the intellectual property law.
The first industrial Brevet was allotted in 1421 to the Architecte and Italian Engineer Filippo Brunelleschi, for an invention in the field of the handling of goods intended for transport by boat.
The Parta Venezia mark in 1474 first true appearance of the right of the intellectual property to the modern direction as regards patent.
It is truly with the advent of the Libéralisme and mechanization in the United Kingdom that will be born the first legislations as regards Copyright and of patent to the XVII {{E}} and 18th centuries. At the same time, one also sees developing the debate in France.
In the France of the Old Mode, the author obtained in the form of a royal “privilege” a monopoly of exploitation, which could cover as well an invention as an artistic creation.
With the Revolution, the dramatic authors (sometimes themselves engaged in the policy) obtain a formalization of this right by two successive laws (one going back to 1791 and the second of 1793). However, contrary to the property of the tangible properties, the intellectual property remains apart from the Civil code French.
With the the United States
With the the United States, the origins of the intellectual property go back to Thomas Jefferson, which took part in the establishment of the American Bureau of the patents ( US Patent and Trademark Office , USPTO). It defended a restrictive vision of the concept of Brevet, by being opposed in particular to the brevetage ideas.
Later, Hermann Hollerith, which had worked on the American Recensement of 1880 " with the main" , was employed with the American Bureau of the patents. It is there that he invented famous the Perforated card which bears its name, the Carte Hollerith. It applied the principle of the Perforated card to the automation of the American Recensement of 1890, first application of scale of the techniques Mécanographique S.
The company Dehomag poured Redevance S (Royalties) for the use of such Perforated cards starting from 1934.
A delicate right
The intellectual property gathers two types of rights: patrimonial rights (right on the benefit related to the exploitation of a work) and the moral rights (right covering the manner whose work is exploited).
The right of the intellectual property is complementary to the Civil law in the sense that actions of responsibility are regularly brought to obtain repair of a Préjudice related to an act of Unfair competition or bearing parasitism on the exploitation of a mark, of a patent, a drawing or model or of a Database.
Bases
According to a philosophical approach, the right of the intellectual property is founded on the theory of the Propriété formulated by Locke in the two Treaties of the civil government (1690). In the Test on the human understanding (II, 27,9), Locke affirms that as being conscious and thinking, the man is owner of itself. However, by his work, the man mingles so that the Nature gave him part of itself. Consequently, he is owner of the result of his work, as this one incorporates part of itself:
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“Although the lower ground and all creatures belong jointly to all the men, each man is however owner of his own person. No other that itself does not have a right on it, the work of its body and the work of its hands belong to him into clean. It mingles its work with all that he makes leave the state in which nature left it, and there joined something which is his. By there, it makes its property of it. This thing being extracted by him from being common where nature had put it, its work adds something to him, which excludes the common right of the other men. ” (§27)
In this direction, the intellectual property constitutes the purest form of the property, since the original idea includes/understands primarily a share of the conscience of its inventor, mingled with the information given by nature or the thought with other men. Therefore, the man thus has a property right on his intellectual creation, in the same manner and more still than a craftsman is owner of the work of his hands.
However, in practice, the right of the intellectual property is founded on the will to support the technological advancement and the emergence of new works. However, creation is cumulative . A news Technologie is not possible that thanks to the Innovation S which preceded it, a work of art is related to other works having influenced its creator, a scientific discovery is based on the preceding discoveries. According to the terms of Newton: If I cuts off seen further some other men it is by standing upon the shoulders giants (“If I could further see
The right of the intellectual property is thus in practice founded on an arbitration between the incentive to create current innovators and the safeguarding of the capacities to use this creation by the future creators.
In the methods of the right of the intellectual property, it is necessary to distinguish three essential fields: the Patent , the Copyright and the Royalty .
See also: Patent
The patent is a title of industrial property which confers on its holder an exclusive right of exploitation on the patented invention, during one limited time and on a given territory. N the other hand, the invention must be revealed with the public. The goal of the patent is to avoid the recourse to the Secret industrialist: the innovator then maintains the absolute secrecy of sound Innovation (the exact formula of the Coca-Cola for example) and has a monopoly as a long time as a competitor does not end in same the Innovation. Compared to the Secret industrialist, the patent thus allows the applicant to protect himself from the realization from the same discovery by another person in exchange from the immediate disclosure from the discovery.
The patent thus represents a mode of arbitration: the temporary Monopoly rent granted to the inventor provides him the incentives necessary to the Innovation, while the obligation of disclosure preserves the capacity of the other innovators to quickly benefit from the Innovation patented. The essential terms of the patents are then its lasted , its extension (as from which moment a Innovation is near another Innovation) and its depth (which are the rights of the holders of the patent on the Innovation S derived from his).
The duration, the extension and the depth are normative characteristics, decided by the legislator. In right, the attention goes rather on the conditions of obtaining and exercise of a patent. First of all, the patent protects a manufactoring process, and not a simple idea. The applicant must thus be able to present a true manufactoring process of a good to found his request. Mister Professor Henri Desbois essentially popularized the maxim “the ideas and by destination are of free course” the process must then respect three essential criteria:
The patent is also accompanied by an obligation of exploitation. If the holder of a patent does not exploit it itself within a reasonable delay, a company can require to exploit the patent by pouring a license appropriate to the holder of the patent, following a mechanism of obligatory license.
The deposit of the patent generally passes by the payment to the qualified office of a sum depend on the geographical extent of protection.
The dispute of a Brevet is a long and expensive procedure. The last years saw multiplying the cases of small companies renonçant with such disputes, and acceptor to pay licenses with more important companies or renonçant with the payment of a license on behalf of these companies. In parallel, of large companies constituted a vast wallet of patents of doubtful validity, and threaten to make use of these patents to discourage from the concurrent companies innovating, those not knowing if they enfreignent one of these patents potentially.
Vis-a-vis the number of the cases in Europe and of the United States, the Gouvernement S required on several occasions of the Autorité S delivering the patents more strictly to apply the criteria of patentability, in particular the criterion of originality as well as the obligation of precise description. However, the incomes of the offices of the patents come partly from the patent applications deposited, creating a conflict of Intérêt which pushes them to accept doubtful requests. Thus, the European commission and the government of the the United States study the possibility of imposing on their offices patents penalties when a patent is invalidated.
Because of quality thus considered to be doubtful of certain patents, it is important that those are translated in the national languages so that local SME attacked by a multinational large company on the basis of patent can easily dispute those in justice.
See also: Copyright
The copyright covers the patrimonial part right of a Auteur on creations of its spirit. With the international level, it is governed by the Convention of Bern which stipulates that is thus protected the expression from an original work of the spirit. The moral rights of the author are field of the Royalty. He thus applies to the works of art, with some Design S like with the Logiciel S.
Contrary to the Patent, the copyright protects only the expression from an idea. Thus, a person who would write the Small Prince without to have been informed of the work of Saint-Exupéry does not enfreindrait the copyright . If this case (under consideration by Borgès) is purely hypothetical, the problem becomes effective in the field of the software. Thus, a algorithm is at present not patentable in oneself. On the other hand, a software implementing this algorithm is subjected to the copyright , but this one does not protect its author against the writing by another person from the same program if this person were informed only starting algorithm, which it will be able to always claim. This difficulty is with the source of the debate on the Software patent.
In the same way, the copyright is a right attache with the work of the simple fact of its existence. It is thus not subjected to declaration or disclosure.
The copyright gives to the author the exclusive choice of the methods of publications, reproduction, adaptation and translation of its works for a given time. Its fundamental role is indeed to make it possible the author to gain a remuneration proportional to the quality of its work by protecting it from the Piratage, the copy not - authorized its works. The reasoning which founds it is the following: let us suppose, to simplify, that an author prints with his expenses his book. In the absence of copyright , another person can print the same book. Because of competition between the two versions, the book will be sold at its only cost price (the cost of impression). The author then does not perceive any remuneration for his efforts. Knowing that in advance, the potential author will not write his book, or will not publish it.
Since the beginning of the Years 1980, the copyright knew a strong extension, initially in direction of the new forms of artistic expression, Photographie, performance S, Design, like in direction of the interpreters (Acteur S, Musicien S).
See also: Royalty
The expression royalty recovers here the only shutter of the moral rights related to creations of the spirit, in opposition to the copyright (right patrimonial), although in French Droit it recovers the two aspects.
These moral rights are primarily related to the personality of the author and gather the right to assert the paternity of work, the right to decide moment and methods of its publication (right of disclosure), the right to be opposed to any deformation or mutilation of work (right to the respect of work), the right to be opposed to any use being able to attack the Réputation or to the honor of the author. In French Droit, they also comprise the “right of retirement and of repentance”, i.e. an author has the right to ask so that its work be withdrawn from circulation in exchange of a compensation of the people engaged in her distribution who enjoy in addition a priority right in the event of back in circulation of the aforesaid work. This right is however applicable only within the framework of transfers of the rights of exploitation but not to works of Article.
Contrary to the patrimonial rights, these moral rights are inalienable, perpetual and imprescriptible: an author cannot yield them (but they are transmitted by heritage because perpetual), they do not expire and it is impossible to give up it. This moral right would be also discrétionnaire, in the sense that it would be thus likely abuse.
Whereas the patrimonial rights rather in the past were the subject of international agreements, it is only with the signature of the Convention of Bern (1989) that the the United States recognize a moral dimension with the royalty. These rights are still severely criticized besides by the American editors, who estimate that they wrongly limit the capacity of the authors and the editors to be contracted freely and make weigh a risk on very undertaken edition.
See also: trade Mark
According to the Code of the intellectual property (art L.711.1), a mark is sign of chart being used to distinguish the produced S or services from a Natural person.
In the United States the right of appropriation is acquired by the Usage, in Europe it is acquired by the recording.
To be valid, the mark must fill three criteria:
It must be Distinctive taking into consideration average Consommateur. It must be licit. It should not attack the former rights.
The duration of the protection of a mark is ten years (absolute monopoly of use) as from the date of filing of the request. This protection can be renewed indefinitely.
The Databases in Europe have their own legal protection, since the European directive of March 11th 1996. This protection with the characteristic to be double. The databases are protected on the one hand like works of the spirit, by the royalty, and like informational good of a new kind, by the right sui generis of the producer of the database.
By database, one understands any collection of information here, in electronic form or not (except for the software engine, if the base is in electronic form), accessible individually. This very broad definition covers as well in practice the data banks as Internet sites for example.
The first protection, in accordance with the philosophy of the Royalty, relates to only the form of the base, its architecture, and is conditioned as for any other work by a condition of originality. The base must have a choice of original indexing to be protected by the royalty.
The second protection, specific to the databases, relates to the matter contained by the base. The right sui generis is arranged in the category of the right neighbors of the royalty, ad hoc property right incorporeal, giving patrimonial prerogatives to the producer of the base. But as for the royalty, the exercise of the right is attached to a condition. Here, it is not a question of originality, but of economic value: the base must have been the object of an investment qualitatively or quantitatively substantial. The producer of the database can thus prohibit with any user the extraction of qualitatively substantial elements quantitatively or of the base, or the systematic extraction of this one.
Protection applies to 15 years. Certain exceptions are planned for the legitimate users. The theory of commercial law of the essential facilitated also applies and limit largely the range of the right in the situation where the producer of the base would be in a situation of Monopole in fact.
It should be noted that it is indifferent that the base is public or not. The public data remain public and are free of right; but what is protected is their assembly in a particular diagram, according to the idea that the whole is worth more than the sum of the components. Thus no matter who for example could build and market his own database of phone book. On the other hand, nobody would have the right of simply " Copy-to stick " yellow pages.
In economy, the intellectual property enters the field of the Industrial engineering.
The crucial questions raised by the economy with the mode of the intellectual property relate to the allowance of the resources. The economists thus consider the intellectual property in terms of Incitation S, Efficacité and costs of transaction. In addition, the accent carries on the patrimonial right , largely leaving coast the moral rights while the trade-mark law arises from the model of vertical Différentiation and horizontal Différentiation.
The monopoly rent is the surplus which the holder of patent is able to obtain thanks to his position of Monopole conferred by the patent. This Rente is lower than the social surplus generated by the invention (if not, the monopoly would not have customers ready to buy its invention), and is all the more weak as the Demande for the invention is sensitive to the prices (see the article Monopole on the possibilities of the monopoly to extract a revenue). This revenue is supposed to compensate for the innovator for his investments in research and development, plus what these sums would have reported to him if they had been invested elsewhere.
The externality of knowledge , or information disclosure, gathers the benefit carried out by the other innovators who can use the results published within the framework of the patent for their own use.
The social surplus is the increase in wellbeing brought to the purchasers of the innovation.
The dead loss corresponds so that the agents lose which would have bought the invention if it had been sold at its cost price (if it were offered by companies in Perfect competition), but which cannot buy it because of the monopoly price, higher.
The duplication of the investments corresponds to the investments carried out by the competitors of the innovator to make research on the same invention. Because of the deposit of the patent, these investments are lost. This “race with the patent” shows that the incentives to innovate provided by these systems are higher than the social optimum (where only the company carrying out the innovation at the possible minimum cost research would undertake). Vis-a-vis uncertainty as for the exact cost of a research project, as for its duration and these results, this inefficiency is regarded by the majority of the economists as negligible taking into consideration generated social surplus.
A protective role (allowing the innovator to receive, in certain circumstances, a remuneration for its efforts). The enquiring employee, is held however by contract, in the vast majority of the cases, to give up his exclusive right of exploitation on the patented invention. What besides does not come to deteriorate its creative capacities.
A facilitator role (the description of the innovation supports sometimes the derived innovation) provided that this description is sufficiently explicit (particular processes excluded voluntarily from the drafting).
The respect of the intellectual property is also a stake for the international business. It is framed by agreements defined within the framework of OMC. In particular, the agreements ADPIC frame the intellectual property in the International business. These agreements engage besides the countries signatories for the modification of their system of Brevet S.
OMPI is an agency of the UNO which defends the intellectual property. However, the signature in 1994 of the agreements ADPIC mark an inflection in the international policy concerning the intellectual property, with the appearance on stage of an organization controlled better by the industrialized countries: OMC.
The protocol of London (2000) tends not to make more compulsory the translations of Brevet S in the European Union for the countries signatories.
The management of the intellectual property (Intellectual Property Asset Management) is not any more the prerogative of experts or specialized lawyers. It is possible today for the researchers of a company, assisted lawyers, to seek on the Web the patents most adapted with specialized applications. The indexing by the data on the patents facilitate the searchs for information in world databases.
the criticism of the marks, characteristic of the movements altermondialists. The most famous work in this respect is No Logo of Naomi Klein. the criticism of the patents, particularly in certain fields, the such patents on the software, the Culture or the molecules of Médicament S. the existence of such patents is shown to prevent the populations of the Tiers-monde, in particular in Africa and Asia, to reach the treatments against the AIDS. critic of the Royalty on the software, emanating in particular from the large data-processing companies, such Microsoft. On the contrary the defenders of the Free software defend the royalty and are opposed to the software patents. The royalty has more and more vocation to take into account " creations-outils" whose condition of originality is strongly debatable. They are more utility objects. critic of the term of " property intellectuelle" : he was in particular regarded as ambiguous by Richard Matthew Stallman which wrote on this subject a test in order to clarify its position and which fights against the meaning of this term - inter alia. He denounces the fact that the term of " propriété" fact of thinking of the physical property from which the legislation is very different, affirms that the term gathers a number of heteroclite laws to the too divergent objectives and operation (even opposite) to be put together, and encourages with a separate consideration of each field (the Copyright, the Brevet S) and with the abandonment of the term of " property intellectuelle" (and in particular for the name of the Worldwide organization of the intellectual property). In fact, part of the community of the Free software, and some Actors of free the, reject this term and follow in that the point of view of Stallman.
Methods
The patent
Principle
Legal criteria
The applicant must also provide a detailed description of the patent, allowing any qualified person in the field considered to reproduce the patented process.
Drifts
The copyright
Royalty
Marks
Are deprived of distincif nature:
Signs or dénomiations being designation necessary, generic or usual of a product or service. For example " Apple" cannot be an apple registered trademark.
Signs or denominations indicating a characteristic of the product or service. For example, the source of a product cannot be a registered trademark, Evian is not a registered trademark.
A sign made up exclusively by the imposed mark, the nature or the function of a product.
It should not be against the moralities.
It should not induce the consumer in error.
It must be authorized. For example the official emblems are prohibited.
The former rights are multiple, it can act of a name of controlled origin, a recorded or manifestly known former mark, of a company name, a Royalty, of a name…
Databases
The intellectual property in economy
Patent and effectiveness
For the economist, the key question of the patent is that of its static effectiveness (in the allowance present of the resources) and dynamics (allowance of the future resources). The problem of the static effectiveness rather studies the conditions of obtaining the patent and its nature, while that of the dynamic effectiveness brings into play the questions of duration, depth and extension.
Static effectiveness
In static terms, the arbitration cost benefits of the patent is conceptually rather clear, summary in the following table:
Dynamic effectiveness
The dynamic effectiveness takes into account the consequences of the patent on the future innovations. From this point of view, the patent has a double role.
Economic analysis of the copyright
An international stake
Intellectual property and international business
Management of the intellectual property
Critical of the intellectual property
Like any property, the concept is disputed. It is necessary to distinguish the industrial property and commercial from the cultural property, because the dispute is different and does not emanate from the same people.
One can in particular quote:
See too
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