University Transylvania, Brasov

University Transylvania, Brasov

Faculty of Economic Sciences and Business Administration Business Administration, 1st year

Subject: Business Law

Student: Stan Iancu Marius Group:8812Intellectual property rights

Coordinating teacher:Lect. Univ. Dr. Av. Ec. Daj Alexis

TABLE OF CONTENTIntellectual Property Rights

- 3 -Introduction

- 5 -Types of intellectual property rights

- 5 -A. Patents

- 6 -B. Trade Marks

- 6 -C. Copyright

- 7 -D. Designs

- 8 -Comparison between main types of intellectual rights

- 10 -How are those intellectual property rights respected in our country?

- 12 -Exploiting Intellectual Property Rights by Licensing

- 13 -Economic growth

- 14 -Limitations

- 15 -Conclusion

- 16 -ABBREVIATION

- 17 -BIBLIOGRAPHY

IntroductionIntellectual property rights are those rights which may be asserted in respect of the product of the human intellect. They are recognized and protected in some way in all developed countries and encompass a broad spectrum of different rights. For example, they safeguard the creators of aesthetic and artistic works from having their creation distorted and purloined by others, they provide an incentive for invention and innovation by enabling those who develop new products and processes to reap the financial reward of their efforts, and they allow those who develop brand names to exploit the reputation attached to the brand. The importance of intellectual property rights in the modern commercial world is incontrovertible, but their interaction with Community law is complex. They raise problems not only for competition law but also for the free movement of goods and services and the operation of the single market.This is because:a) Despite the introduction of some Community-wide rights intellectual property rights are still typically granted by national laws and enforced on a national basis, conferring protection within national territories. This inevitably leads to a conflict with the Community provisions governing the free movement of goods and services.b) Intellectual property rights may erect barriers to entry to a market and thus affect the determination of whether an undertaking is in a dominant position for the purpose of Article 82. In addition, the use by a dominant undertaking of its intellectual property rights may constitute an abuse.

c) Transaction involving intellectual property rights may be agreements falling within Article 81. Holders of intellectual property rights often exploit them by licensing others to use them. The terms of such license may involve restrictions of competition, including territorial restrictions which divide the common market. To conclude all these, intellectual property rights help people whocreate something special to earn money through their work and to have their work more respected by others, because, in general, something that is unique is well-seen by people. Now, Im going to present you the main types of intellectual property rights, all this to understand better what intellectual property rights mean and how we can use them to protect our special goods, in case that we have created or we have obtained something extraordinary and now we want to keep this thing safe or we want to be sure that nobody can contest our right of possession on those things.Types of intellectual property rightsAlthough many of the legal principles governing intellectual property have evolved over centuries, it was not until the 19th century that the termintellectual propertybegan to be used, and not until the late 20th century that it became commonplace in the majority of the world.The BritishStatute of Anne1710 and theStatute of Monopolies 1623are now seen as the origins ofcopyrightandpatent lawrespectively.

A. Patents

Patents relate to inventions. The grant of a patent confers on the holder (the patentee), normally for a maximum period of twenty years, a monopoly over a new and inventive product or process, and the right to prevent others from making, disposing of, using, or importing a product which is the subject of the patent or derived from it, or from using the patented process itself. Patents protect applied technology, not abstract ideas. Patents are granted in respect of the product or process disclosed in the specification when the patent is applied for, and on the expiry of the patent anyone else in the world may use the information contained in the specification.Patentsarelegalinstruments intended to encourageinnovationby providing a limitedmonopolyto theinventor(or their assignee) in return for the disclosure of the invention.The underlying assumption being innovation is encouraged because an inventor can secure exclusive rights, and therefore a higher probability of financial rewards in the market place. The publication of theinventionis mandatory to get a patent. Keeping the same invention as a trade secret, rather than disclose by publication, could prove valuable well beyond the time of any limited patent term, but at the risk of congenial invention through third party.B. Trade Marks

A trademark is typically a name, word, phrase,logo,symbol, design, image, or a combination of these elements. There is also a range ofnon-conventional trademarkscomprising marks which do not fall into these standard categories, such as those based on color, smell, or sound. Registration of a trade mark gives the holder an exclusive right to use it as such, although if it is a non-invented word it does not take the word out of general use, but only prevents its use by others as a trade mark. Other parties remain free to offer competing goods and services under other marks and brand names. If renewal procedures are complied with trade mark registration can continue indefinitely. Trade mark law in the EU was harmonized by the First Trade Mark Directive of 21 December 1988. Marks and brand names which are not registered may also be protected by other means. In the UK this is by the law on passing-off, and in many other EU countries by laws on unfair competition. C. Copyright

Copyright protects works such as literary, musical and artistic works, films, sound recordings, and broadcasts from unauthorized exploitation by third parties. Unlike a patent, copyright does not confer a monopoly because it prevents only copying: if a third party independently comes up with the same melody or words, he will not be liable for breach of copyright. Copyright does not depend on registration or formal procedures but arises automatically when the work is set down or recorded in some form.

Copyrightis a legal concept, enacted by most governments, giving the creator of an original workexclusive rightto it, usually for a limited time. Generally, it is "the right to copy", but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other, related rights.Copyright initially was conceived as a way for government to restrict printing; the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them. Copyrights have been internationally standardized, lasting between fifty to a hundred years from the creator's death, or a finite period for anonymous or corporate creations; some jurisdictions have required formalities to establishing copyright, most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as acivilmatter, though some jurisdictions do applycriminalsanctions.

Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the creator's exclusivity of copyright, and giving users certain rights. The development of digital media and computer network technologies have prompted reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and inspired additional challenges to copyright law's philosophic basis. Simultaneously, businesses with great economic dependence upon copyright have advocated the extension and expansion of their copy rights, and sought additional legal and technological enforcement.D. Designs

Under the Berne Convention countries are free to choose the way in which they protect industrial designs. In the UK a design which has features which in the finished article is new and has individual character can be registered. Registration gives the proprietor a monopoly over its use for a maximum of twenty-five years, in respect of articles for which it has registered. UK law also recognizes unregistered design rights in respect of the original design of any aspect of the shape or configuration of an article.

Now, I think that it would be great to present some differences between these intellectual property rights, in order to understand them better. Comparison between main types of intellectual rights

While trademark law seeks to protect indications of the commercial source of products or services,patentlaw generally seeks to protect new and useful inventions, and registered designs law generally seeks to protect the look or appearance of a manufactured article. Trademarks, patents and designs collectively form a subset of intellectual property known as industrial property because they are often created and used in an industrial or commercial context.

By comparison,copyrightlaw generally seeks to protect original literary, artistic and other creative works. Continued active use and re-registration can make a trademark perpetual, whereas copyright usually lasts for the duration of the author's lifespan plus 70 years for works by individuals, and some limited time after creation for works by bodies corporate.This can lead to confusion in cases where a work passes into thepublic domainbut the character in question remains a registered trademark.

Although intellectual property laws such as these are theoretically distinct, more than one type may afford protection to the same article. For example, the particular design of a bottle may qualify for copyright protection as a non-utilitarian [sculpture], or for trademark protection based on its shape, or the 'trade dress' appearance of the bottle as a whole may be protectable. Titles and character names from books or movies may also be protectable as trademarks while the works from which they are drawn may qualify for copyright protection as a whole.

Drawing these distinctions is necessary, but often challenging for the courts and lawyers, especially in jurisdictions where patents and copyrights pass into thepublic domain, depending on the jurisdiction. Unlike patents and copyrights, which in theory are granted for one-off fixed terms, trademarks remain valid as long as the owner actively uses and defends them and maintains their registrations with the competent authorities. This often involves payment of a periodic renewal fee.

As a trademark must be used to maintain rights in relation to that mark, a trademark can be 'abandoned' or its registration can be cancelled or revoked if the mark is not continuously used. By comparison, patents and copyrights cannot be 'abandoned' and a patent holder or copyright owner can generally enforce their rights without taking any particular action to maintain the patent or copyright. Additionally, patent holders and copyright owners may not necessarily need to actively police their rights. However, a failure to bring a timely infringement suit or action against a known infringer may give the defendant a defense of implied consent orestoppelwhen suit is finally brought.How are those intellectual property rights respected in our country?In Romania, intellectual property rights are protected mainly by two specialist institutions: OSIM(State Office for Inventions and Trademarks) and ORDA(Romanian Copyright Office).OSIMprotects intellectual property rights in the area of industrial property, in accordance with national legislation and national treaties and conventions.

Itsresponsibilitiesinclude:

a) registering and examining applications in the area of industrial property;

b) issuing protection certificates which grant their holders exclusive rights in Romania;

c) certifying and authorizing patent attorneys.ORDAprotects intellectual property rights in the area of copyrights and related rights.Commercial disputes relating to intellectual property can be resolved amiably at the Centre for Mediation of Commercial Disputes within Chamber of Commerce and Industry of Romania.Romania has signed many multilateral agreements and treaties relating to the protection of intellectual property rights.

Romania is a founding member of the World Intellectual Property Organisation(WIPO) and permanently cooperates with it on the basis of the Programme for cooperation between the Government of Romania and the WIPO.

To optimize the process of combating counterfeiting and piracy,cooperation protocolshave been concluded between various national institutions. Therefore, OSIM and ORDA cooperate with the National Customs Authority in order to combat counterfeiting and piracy in the area of intellectual property rights. In addition to OSIM, there are a number of other organisations, mostly private, working to ensure that intellectual property rights are respected.

The Working Group on Intellectual Property Issues is a public-private partnership between state institutions and private organisations which all share the common objective ofcombating piracy and counterfeiting.TheRomanian National Chamber of Industrial Property Attorneys (CNCPIR) is a professional, non-governmental organisation whose mission is toregulate the activity of patent attorneys.

The most famousandrecent caseinwhichthe somebody from Romania called OSIM waswhenthe football club FC PolitehnicaTimisoarawanted toget back the icon, the trophies and the colors of the club.Afterthe callto OSIM,Timisoara succeeded to regainits record and they were able to use their colors and icon again.Exploiting Intellectual Property Rights by LicensingYou may be interested in starting a new business, expanding an existing business (extending your territory or the nature of business) or improving the quality of the goods or services of your SME and thereby its market position. In many situations, licensing of intellectual property rights is an effective tool for achieving these business goals.A licensing agreement is a partnership between an intellectual property rights owner (licensor) and another who is authorized to use such rights (licensee) in exchange for an agreed payment (fee or royalty). A variety of such licensing agreements are available, which may be broadly categorized as follows:

Technology License Agreement

Trademark Licensing and Franchising Agreement

Copyright License AgreementIn practice, all or some of these agreements often form part of one single contract since in transfers of this nature many rights are involved and not simply one type of intellectual property right. You may also come across licensing agreements in other circumstances, such as, during a merger or acquisition, or in the course of negotiating a joint venture.

As an intellectual property owner and a licensor, your SME can expand its business to the frontiers of your partners' business and ensure a steady stream of additional income. As a licensee, your SME can manufacture, sell, import, export, distribute and market various goods or services which it may be prevented from doing otherwise. In the international context, a formal licensing agreement is possible only if the intellectual property right you wish to license is also protected in the other country or countries of interest to you. If your intellectual property is not protected in such other country or countries then you would not only not be able to license it, but also you would have no legal right to put any restriction on its use by anyone else.Economic growth

The WIPO treaty and several related international agreements are premised on the notion that the protection of intellectual property rights are essential to maintaining economic growth. TheWIPO Intellectual Property Handbookgives two reasons for intellectual property laws:

One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations.

The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.TheAnti-Counterfeiting Trade Agreement(ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally".Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets."IP-intensive industries" are estimated to generate 72 percent morevalue added (price minus material cost) per employee than "non-IP-intensive industries".A joint research project of theWIPOand theUnited Nations Universitymeasuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth."Economists have also shown that IP can be a disincentive to innovation when that innovation is drastic. IP makes excludablenon-rivalintellectual products that were previously non-excludable. This createseconomic inefficiencyas long as the monopoly is held. A disincentive to direct resources toward innovation can occur when monopoly profits are less than the overallwelfareimprovement to society. This situation can be seen as a market failure, and an issue ofappropriability.LimitationsSome critics of intellectual property, such as those in thefree culture movement, point atintellectual monopoliesas harming health, preventing progress, and benefiting concentrated interests to the detriment of the masses,and argue that the public interest is harmed by ever expansive monopolies in the form ofcopyright extensions,software patentsandbusiness method patents.

TheCommittee on Economic, Social and Cultural Rightsrecognizes that "conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights".It argues that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws.

Somelibertariancritics of intellectual property have argued that allowing property rights in ideas and information creates artificial scarcity and infringes on the right to own tangible property. Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The trend has been toward longer copyright protection (raising fears that it may some day be eternal).In addition, the developers and controllers of items of intellectual property have sought to bring more items under the protection.Because they are systems ofgovernment-granted monopoliescopyrights, patents, and trademarks are calledintellectual monopoly privileges.

Another limitation of current U.S. Intellectual Property legislation is its focus on individual and joint works; thus, copyright protection can only be obtained in 'original' works of authorship.This definition excludes any works that are the result of community creativity, for example Native American songs and stories; current legislation does not recognize the uniqueness of indigenous cultural 'property' and its ever-changing nature. Simply asking native cultures to 'write down' their cultural artifacts on tangible mediums ignores their necessary orality and enforces a Western bias of the written form as more authoritative.

ConclusionThese exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of and investment in intellectual property, and, in case of patents, pay associatedresearch and developmentcosts. Intellectual property rights give the holder an exclusionary, and sometimes exclusive, right to the exploitation of an emanation of the intellect. The nature of the right varies from one type of intellectual property to another. Intellectual property rights vary in duration. Some arise only upon registration, while others arise from the act of creation itself.I hope this project succeeds to create a new image of what real means intellectual property rights and this project will help me, as a future economist, to understand better The Law and the Economy as sciences. ABBREVIATION

EU- European Union

EC- European Community

WTO- World Trade Organization

EEC- European Economic Community

UK- United Kingdom

OSIM- State Office for Inventions and Trademarks

ORDA-Romanian Copyright OfficeWIPO- Intellectual Property OrganisationCNCPIR- TheRomanian National Chamber of Industrial Property Attorneys ACTA- Anti-Counterfeiting Trade AgreementBIBLIOGRAPHYMARK JANIS, RICHARD KAY and ANTHONY BRADLEY :European Human Rights Law

ALISON JONES and BRENDA SUFRIN: EC Competition Law

CARMEN ADRIANA GHEORGHE, LAURA MURESAN and CRISTIAN POTINCU: Dreptul afacerilor References

http://en.wikipedia.org/wiki/Copyrighthttp://www.osim.ro/legis/legislatie/brevet/lg64_91_rep07.htmhttp://en.wikipedia.org/wiki/Exclusive_righthttp://ec.europa.eu/youreurope/business/competing-through-innovation/protecting-intellectual-property/romania/index_en.htmhttp://www.legi-internet.ro/lgdraut.htmhttp://en.wikipedia.org/wiki/Trademarkhttp://osim.ro/legis/plegisl.htmhttp://www.wipo.int/wipolex/en/profile.jsp?code=WTOhttp://en.wikipedia.org/wiki/Intellectual_propertyPAGE - 2 -