The Concept of Intellectual Property Rights

Introduction

Intellectual property is someone’s original creation. It could be creative writing, certain words or phrases, a piece of art, or lyrics of a song. Intellectual property like any other property needs to be protected in order to accord the owner maximum benefit from it. Unauthorised use of intellectual property is prohibited by law. Various countries have slightly different intellectual property laws¹.

Intellectual property rights are rights granted to individuals or institutions in recognition of their creative works. A number of property rights exist but the most common property rights are copyright, patents and trademarks. Intellectual property rights are enforced to varying degrees in different countries. However, there are a number of international treaties whose main aim is to protect intellectual property in different countries. These treaties were entered into by various countries with aim of encouraging the inventors to share their creations with the general public. The most comprehensive of the treaties is the world trade organisation’s agreement on trade related agreement on intellectual property (TRIPS). The treaty ensured that member states of World Trade Organisation enforce intellectual rights on local and international inventions and creations. Under this agreement, governments were required to expand their intellectual property laws to include digital content.

Copyrights

These are intellectual property rights that protect works of writing, art, music and written digital content like gaming programs. The rights are granted to the authors of such works certain periods of time. The World trade organisation agreement TRIPS requires that a copyright be granted for a period not less 50 years or the lifespan of the author. When the copyright expires, other people can be allowed access to the work. Works of art that are protected by copyright are those that are expressible in a tangible manner.

Patents

Patents fall under commercial property laws. These rights provide protection for a minimum of 20 years but may vary from country to country. Patent laws protect inventions that can be monetised. Patents are classified into three broad categories. These sub-classes of patents may not be distinct in some countries but the overall intent and purpose is maintained across the board. Countries that signed the world trade organisation’s treaty agreed to protect patents originating from other member states. The patent categories are mainly in use in the United States and some sections of the European Union. They include utility patents, design patents and plant patents.

Utility patents protect major production processes, articles of manufacture and machines. Other items used in manufacturing but are not necessarily machines are also protected by patent rights. Machines that are necessary for the production of certain goods are protected so that the original inventors can get monetary benefit from their inventions.

Design patents protect the look or design of certain goods. Manufactured goods like apparel and machines often have a certain look or design. The design distinguishes them from each other. Any new product that looks like or closely resembles the original product is deemed to be infringing on the patent.

Plant patents are used to protect newly developed plant varieties. Plant varieties that have been developed in unnatural ways are covered by this patent category. For example, maize varieties that have been developed through rigorous research and laboratory tests are protected by this right in the United States. This category also includes genetically modified organisms.

Trademarks

Trademarks are a collection of words, phrases, colors, sounds and shapes that distinguish products and companies from each other. Trademark rights are intended to protect these unique creations. Trademarks can be renewed as long is needed. That is, they have no specified period of protection. This is because a company or institution needs the trademark to distinguish itself from its competitors as long as it exists. On the other hand, a company looking to establish itself as a serious industry player would not want to look like its older peers.

Trade secretes

Trade secrets encompass information that a company or institution wishes to withhold for business reasons. The secrets are intended to confer an advantage on the owner.

Other international treaties on intellectual property protection include the Berne convention, Paris convention, and the Strasbourg Treaty. The Berne convention was mainly concerned with protection of literary and artistic property. The Paris convention covers both patents and trademarks; otherwise known industrial intellectual property. Strasbourg treaty proposed a method classification of patents.

Infringement of intellectual property

Infringement refers to unauthorised use someone’s invention. Different countries impose different forms of punishment for infringement on someone’s property. Generally, infringement is regarded as a criminal offence that may attract a prison term, a fine or both. In the recent past, intellectual property violations related to digital content have been reported. In some countries, especially the developing countries, digital content is not well protected by law. In the developed world, however, intellectual property laws are well developed and infringement is usually detected early and punished accordingly. However, in the case of digital content, various options for settlement are provided. In some cases, companies are asked to settle through the assistance of a third party. Both parties participate in the identification of an acceptable mediator. This is in the interest of both the public and the companies. Out of court settlements are less costly in terms of company reputation and payments.

United Arab Emirates Legislation

Since the United Arab Emirates joined the world trade organisation, it has had to expand intellectual property laws to meet the requirements of the world trade organisation. The United Arab Emirates is among the fast growing economies of the world. In order to continue being the destination of choice for investors, it has to guarantee the investors that their intellectual property is well protected. Creative and innovative investors often invest only in safe environments. The United Arab Emirates is also keen on protecting local inventions. The intellectual property laws in the United Arab Emirates were last revised between 2002 and 2005. Traditionally, the intellectual property laws did not recognise digital content in the internet as part of intellectual property. However, this category of intellectual property is now covered owing to increasing importance of the internet in business and education.

Copyright legislation

Federal Law No. (7) of the Year 2002 Concerning Copyrights and Neighboring Rights

Scope of protection

The scope of protection of this act is defined in section 2. It covers the following areas as stipulated in section two of the act.

1. All written works (books, essays, printouts)².
2. All digital content as stipulated by the minister. This may include software, programs and databases.
3. Material given during public gatherings. For example, lecture rooms, religious sermons, and public proceedings.
4. Dramatised work including performances for dump audiences.
5. Works of music both written and sung.
6. Sound and audiovisual material meant for either a wider audience or for teaching purposes.
7. Architectural designs and physical constructions.
8. Works of art expressed in form of drawings and paintings.
9. Photography and closely related works.
10. Works commonly known as plastic works
11. Geographical works and works related cartography
12. Productions, broad casts and performances.

The act covers works that are covered by copyright laws elsewhere in the world. It is apparent that the law was made with the standards contained in the world trade organisation and other international copyright organizations in mind. The copyright act has succeeded in pointing out all the important areas that need protection.

Rights and privileges

The act grants certain exclusive rights and privileges to copyright owners. The rights include the following:

1. The right to produce and use first publication of the work.
2. The right of producing works in the author’s name.³
3. The right to object any activity that can alter the work permanently causing damage to the reputation of the author.
4. The right to withdraw work from the market or circulation providing sufficient justification is given. Compensation shall be paid to the owner of the right prior to withdrawal. A competent court shall specify the time such compensation will be paid.
5. Alteration arising from translation is not considered a violation. However, if the translator ignored major or important areas, it will be regarded as a violation. Alterations that cause damage to the reputation of the other shall also be considered as violations.
6. The author, his agent or holder of the right has exclusive rights to allow duplication of the work. This is mainly in cases where the duplication is intended for resale. The activities related to this right are electronic loading or storing, acting a play , broadcasting, re-broadcasting transmission, performance, public communication, translation, modification, alteration, rental, lending or publication by any means.
7. The right is applicable to original computer programs and software. The right is not applicable to subsequent programs.
8. The right to exploit a product can be transferred to a third party as long as it is in writing.
9. The author can rent out his right or charge a fee. He can allow third parties to produce his material for profit as long as they agree to pay the agreed fee.
10. If the agreement above is harming the author, the author may seek the assistance of a competent court.

Limitations and Exceptions

The rights of the author are subjected to some limitations and exceptions. This means that the author cannot enjoy all the privileges under certain situations. This is practiced by all member states of the world trade organisation. The circumstances and situations in which such limitations and exceptions are applied are normally well stated in the copyright laws. The exceptions allow the use of copyrighted material without prior permission. The United Arab Emirates copyright provides exceptions under the following circumstances;

1. Making a single copy for personal use. It should never be used for monetary gain.
2. A computer program can be copied as a replacement of lost copy or as backup. This can only be exercised when the right is still valid. If the right acquired during purchase has expired, the program must be discarded and a new one with new license purchased.
3. Works may be copied to aid judicial proceedings.
4. Making copies for research or for preservation. Proper acknowledgement of the author or owner of the right must be done.
5. Work for analysis or criticism.
6. Performing work for family or for educational purposes.
7. Performing work that is permanently in public places
8. Use of recorded material for religious, cultural and educational purposes. Provided this right is exercised within the limits stipulated by the act.
9. The United Arab Emirates act also provides exceptions that are applicable to broadcasters, newspapers, and periodicals. However, there has to be a clear justification for reproduction of work. This helps to limit overproduction of copyrighted material at the expense of the author. The author still remains the primary owner and beneficiary of his material.

Infringement and Remedies

The United Arab Emirates provides for infringement and possible remedies. In case of infringement, the United Arab Emirates permits the judges to seek the opinion of an expert. The expert is expected to use his technical knowledge to determine whether an infringement has occurred and if it has to what extent or on what components of a copyrighted material. However, the final decision is at the discretion of the judge. In this act, the section that deals with infringement provisions is called “Precautionary Measures and Penalties. The section gives the author possible remedies like taking precaution, sanctions and penalties administered by the courts. The exact provisions are as listed below:

1. Making a comprehensive description of the work.
2. Suspension of all promotion activities related to the work (publication, exhibition and reproduction).
3. Seising the original work and other material that would have been used to reproduce it.
4. Proving public exhibition of performed art and ordering those involved to stop any further unauthorised use of the material.
5. Calculating the income obtained from unauthorised use through the help of an expert. Products or of such an activity can also be impounded.
6. The violations are to be matched with the provisions of the law and recorded.

Infringement and remedies of the United Arab Emirates are mainly applicable to the traditional context. For example, violations that take place in the internet may not be easy to quantify in monetary terms. The best remedy in such cases is preventing the violation from taking place. It is also impossible to seize or impound some works. For example, culturally accepted pattern of doing things cannot be copyrighted. In the internet, information can be stored in virtual storage spaces making it impossible to know the source of a violation.

Neighboring laws

Neighboring laws are intellectual property laws that are intended to protect foreign inventions. That is, inventions of foreign origin enjoy protection under these laws. The laws should essentially be like those of the country of origin. However, in most cases, they are subjected the provisions of the hosting country. They are meant to encourage foreign investment. Inventors may avoid some countries for fear of losing their inventions to duplicators. The neighboring intellectual property laws are modeled on basis of the world trade organisation recommendations. Therefore, these laws are more likely to be identical to each other with slight variations.

Critical review of the act

The provisions contained in the act do not make any specific mention of the internet apart from in passing. There are situations in which companies and institutions that facilitate communication in the internet could be accused of copyright infringement. Internet service providers and companies providing virtual storage could be victims of such litigation. There, is a need therefore to include specific provisions to shield companies that only facilitate movement of data in the internet are not directly involved in copyright infringement. Protection of these players is crucial to the development of the information technology subsector.

The act is also not adequate in providing for reproducing material for academic use. Reproduction for educational purposes ensures that students in the United Arab Emirates get adequate material without hurting the author financially. Digital content is dynamic and the act should have provisions that encourage content development.

Over specified situations could also curtail development². In some cases, general provisions for infringement and penalties is good for development. The United Arab Emirates could also benefit from reuse of copyrighted material. Term extension on copyrights should be approached with caution. Any country should ensure that request for deadline extension should be examined to establish the motive of such a request. Such requests may be made in bad faith in order to deny the host nation technological benefits.

The act does not contain information on how to protect government databases. Government database may contain sensitive information that should not be shared freely. Information contained in the database should be protected from authorised transfer and duplication.

A balance between protectionism and free sharing of intellectual property should be established. While laws should protect inventors, limits to this protection should be established. This will ensure an invention is improved. All inventions have to go through several cycles of improvement before it can become useful. Intellectual property laws should protect the interest of both inventors and potential users.

Establishing short patent durations ensures that the government can benefit from technology transfer. Neighboring laws should protect foreign inventors but, at the same time, enable transfer of information to the host state. Companies should agree to transfer some of their knowledge to the local government. This will ensure products intended to solve local problems are manufactured. It is for this reason that most patents are not renewed after their expiry. However, states should also be reasonable as inventions and discoveries are expensive. Inventors should be given enough time to recover their costs. If they do not recover their costs, then they will not it reasonable to continue investing in research.

Infringement in internet

The internet is continually expanding thus exposing users to potential copyright infringement situations⁴. The provisions on the act does not make mention of any specific rights, privileges and exceptions. This may imply that the state does not appreciate the role the internet plays in the development of the communication sector. It may also imply an intention by government to restrict the development of the internet. It is important for government to make its position known with regard to internet development. As it stands currently ,infringement on the internet may go unpunished because there is specific provision for it. Punishment may be extended to situations which would not attract criminal punishment in some countries. This could arise if general copyright laws are used to in adjudication of internet infringement.

Patents in the UAE

Patents laws in the United Arab Emirates are similar to those present elsewhere in the world. However, the patents are valid for a period of 15 years. If a renewal request is made, it can be granted for not more than five years. Patents on drugs and related inventions are granted for a non renewable term of ten years. This is beneficial to the country as its local manufacturers can get permission to produce generic drugs. Generic drugs are cheap thus enabling a greater coverage.

Trademark

Trademark laws in the United Arab Emirates are similar to that applicable elsewhere in the world. However, in the United Arab Emirates, they are applicable for a period not more than ten years. It is renewable for a similar period.

Conclusion

Intellectual property is a creation of the mind. It includes phrases, lyrics of a song, poems, other written material, and works of art. Works of art include visual and performed arts like dances. Copyright laws in the United Arab Emirates were designed to fit a variety of situations. The situations range from original compositions to written work. The act contains provisions for exceptions and remedies for infringement. However, they seem overly restrictive. This can be a negative attribute as it may discourage progressive development. The act does not make any specific provisions tat apply to internet and digital content. This way, provisions meant for other forms of intellectual property may be used to make decisions affecting digital content.

The government should make provisions for digital content. This is because technology plays a key role in modern day living. Increased sharing of information creates an innovative environment. Some provisions can restrict the flow of information. Information is supposed to flow freely within a country and outside the country. The United Arab Emirates should approach requests for extension of intellectual property rights with caution. This is because the requests could have been made with an exploitative intention. In addition, it is not a common practice in the world to extend intellectual property rights. Patent laws and trademark laws used in the United Arab Emirates are similar to those practiced elsewhere in the world. However, some differences may exist in the duration they take to expire.

References

Fitzgerald, B and Olwan, R, “The legality of free and open source software licenses: the case of Jacobsen v. Katzer”, in Perry, Mark and Fitzgerald, Brian F., Eds. Knowledge Policy for the 21st Century, 2009. Web.

United Arab Emirates, Federal Law No. 7 of the Year 2002 Concerning Copyrights and Neighboring Rights. Web.

Atkinson, B and Fitzgerald, B, “Copyright as an instrument of information flow and Dissemination, The case of ICE TV Pty Ltd v Nine Network Australia Pty Ltd”, 2008. Web.

Ellis, E, National Treatment Under the Berne Convention and the Doctrine of Forum Non Convenience. n.d. Web.

Footnotes

1. Fitzgerald, B and Olwan, R, “The legality of free and open source software licences: the case of Jacobsen v. Katzer”, in Perry, Mark and Fitzgerald, Brian F., Eds. Knowledge Policy for the 21st Century, 2009. Web.
2. United Arab Emirates, Federal Law No. 7 of the Year 2002 Concerning Copyrights and Neighboring Rights. Web.
3. Atkinson, B and Fitzgerald, B, “Copyright as an instrument of information flow and Dissemination, The case of ICE TV Pty Ltd v Nine Network Australia Pty Ltd”, 2008. Web.
4. Ellis, E, National Treatment Under the Berne Convention and the Doctrine of Forum Non Convenience. n.d. Web.