Intellectual Property Law
Anglais juridique

Intellectual Property Law

Plan :

  1. INTRODUCTION
  2. COPYRIGHT LAW
  3. INTERNATIONAL LAW RELATIG TO INTELLECTUAL PROPERTY
  4. PATENT LAW
  5. TRADE SECRET LAW
  6. TRADEMARK LAW
  7. GEOGRAPHICAL INDICATIONS
  8. LICENSES
  9. FRANCHISE AGREEMENTS

I. INTRODUCTION

  • Intellectual property law refers to the legal rights (droits juridiques) which result from intellectual activity in the industrial, scientific, literary and artistic fields (domaines) ;
  • Intellectual property law aims at protecting creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions ;
  • It creates a type of monopoly : it is an exception to competition law ;
  • There are 4 types of intangible property : patents (brevets), trademarks (marques), copyrights (droits d’auteur) and trade secrets (secrets de fabrication).

II. COPYRIGHT LAW (droits d’auteur)

  • A copyright seeks to promote literary and artistic creativity by protecting, for a limited time, works that include, for example, literary, music and dramatic works ;
  • Copyright protects particular expressions of ideas, not the ideas themselves ;
  • A protectable work must be original ;
  • Copyright law is partially harmonized through international agreements such as the Berne Convention dating from 1886, and the WIPO (Wold Intellectual Property Organization) Copyright Treaty ;

1. Rights of copyright owners

  • The creator has the exclusive rights to reproduce the work, to distribute the reproductions, to display and perform the work publicly and to authorize others to do any of these things ;
  • Although copyright protected is given automatically in all countries that are members of the Berne Convention, without the need for registration, countries operate a registration facility (un système d’enregistrement).

2. Length (durée) of copyright protection

  • In the US, France and the UK, the copyright lasts for the author’s lifetime plus 70 years after his death ;
  • In the US, the copyright in a « work made for hire » (œuvre exécutée sur commande) lasts for just 95 years = the work was prepared by an employee within the scope of employment.

3. Copyright Infringement (violation) and Fair dealing (traitement équitable) / Fair use doctrine

  • It is the unauthorized use or copying of the work ;
  • The doctrine of fair use/dealing offers a defence to accusations of copyright infringement: if the work has been copied for non-profit, educational purposes, for example.

4. Remedies for copyright infringement

  • In the US, willful (volontaire) copyright infringement for profit is a federal crime.
    Civil remedies are also available (for example : an injunction against future infringement) ;
  • In the UK, a criminal prosecution is also possible, when there exists deliberate intent.
    If a criminal prosecution succeeds, a separate civil case will be necessary to recover financial losses caused by the infringement.

III. INTERNATIONAL LAW RELATIG TO INTELLECTUAL PROPERTY

  • The Trade Related Aspects of Intellectual Property Rights (TRIPS) is an agreement between countries that engage in international trade (commerce international) ;
  • The World Trade Organization (organisation mondiale du commerce = OMC) regulate trade agreements between many nations and establishes rules for the protection of intellectual property rights ;
  • The TRIPS agreement establishes minimum levels of protection that each government has to give to the intellectual property of WTO members.
  • According to the TRIPS agreement, members of the WTO must recognize ownership rights if they are validly registered in another nation that has ratified these agreements.

IV. PATENT LAW (droit des brevets)

  • The inventor is given the exclusive right to prevent others from making, using, and selling his patented invention for a fixed period of time in return for the inventor’s disclosing the details of the invention to the public (la divulgation des détails de son œuvre au public);
  • The TRIPS agreement provides patents are granted for 20 years, after which the protected invention falls into the public domain (domaine public) ;
  • The European Patent Convention also requires all jurisdictions to give a European patent a term of 20 years, from the actual date of filing an application for a European patent ;
  • The invention must be new ;
  • The invention must also be non-obvious (non-évidente) ;
  • Many countries have expanded patent protection to ornamental industrial designs : it is known as a design patent in the US (protection for 14 years), and design model (protection from 14 to 25 years depending on the type of design : 2D or 3D) in European countries ;
  • The inventor has the right to record his invention in a Patent registration office ;
  • Patent law infringement will occur if anyone seeks to commercialize an invention that has already been registered, regardless (indépendamment) of the intent or knowledge of the infringer ;
  • In both the US and UK, protection against infringement is civil (different types of remedies are available : compensatory damages, injunctions etc).

V. TRADE SECRET LAW (secret de fabrication)

  • Trade secrets may consist of any formula, idea, physical device, pattern (modèle), process, customer list ;
  • They provide a competitive advantage in a competitive market ;
  • In the US, a company owning trade secrets can automatically bind any employee by a duty of confidentiality ;
  • Lawful discovery of a trade secret is known as reverse engineering : in this case, people who discovered a trade secret independently can’t be stopped from using information protected under trade secret law ;
  • In the US, the discovery of a secret by illegal means will lead to criminal charges: the Economic Espionnage Act of 1996 (EEA) gives the US Attorney General sweeping powers (des pouvoirs considérables) to prosecute any person or company involved in trade secret infringement ;
  • French law provides for penal sanctions in this case ;
  • In the UK, the claimant can sue for breach of confidence (abus de confiance).

VI. TRADEMARK LAW (droit des marques)

  • A trademark is a sign used by a company to distinguish its goods ;
  • Trademarks can be centrally registered today under the Madrid Protocol (administered by WIPO), which removes the need for multiple registration, although registration is not required ;
  • Trademark rights can continue indefinitely as long as the mark is being used and the registration is renewed every 10 years ;
  • Trademark infringement is one form of unfair competition, it can be protected through an action for passing off (commercialisation trompeuse) ;
  • In the US, there are criminal penalties and civil remedies ;
  • In the UK, the registered owner may claim civil remedies (for example : damages).

VII. GEOGRAPHICAL INDICATIONS

  • Geographical indications are signs used on products to indicate their geographical provenance ;
  • A number of treaties administered by the WIPO provide for the protection of geographical indications ;
  • Geographical indications are understood by consumers to denote the origin and the quality of products.

VIII. LICENSES

  • A licensing agreement is a partnership between an intellectual property rights owner (licensor) and one who is authorized to use such rights (licensee) in exchange for an agreed payment (fee or royalty) ;
  • Trademarks and patents may be used under licence ;
  • Compulsory licences (licences obligatoires) – A compulsory license is an authorization which is granted by the government without the permission of the patent holder. It can be issued by governments with the aim of exploiting patents and copyrights in the interests of society at large.

IX. FRANCHISE AGREEMENTS

  • Franchising is the practise of using another firm’s successful business model ;
  • The franchisor can exploit his market position by sharing his knowledge with the franchisee in exchange for royalties.
    For example : McDonalds, KFC, Quick.

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