Intellectual Property Law: An Introduction to Key Concepts

What is Intellectual Property?

Intellectual property is the legal right which results from intellectual activity in many different fields regarding intellectual activity (scientific, artistic, literary, etc.). Said activity is normally done within companies related to human intellectual activities: we must specify it because Al is challenging this ability. The author of an Al's creation is kind of difficult to define: some may say that Al's creations are owned by it, some others may confute this affirmation. The intellectual activities we can find in trade and consumer marketing are the brand, the trademark, the creation of an advertising campaign, a slogan, pictures and images, and so on. The protection of intellectual property is determined on something immaterial: if we take a book, we cannot take ownership of the story created by someone else; however, we can resell the book because we're selling the material part of it. The author may still prohibit the creation of a movie about the story they legally own: intellectual property protects the immaterial content called corpus mysticum, while the corpus mechanicum (material part) is not considered.

If intellectual property rights have the common feature to protect intellectual activities, we may divide them into families of intellectual property rights:

• Patents: legal rights that protect inventions or other innovative solutions to technical problems. They cover the results of the development and the owner for a maximum period of 20 years.
• Copyright and ancillary rights: legal exclusive rights that protect the result of creative and original works.
• Information protection: protection trade secrets (ex. List of clients).

➢ Trademarks and distinctive signs: a trademark identifies and distinguishes products and services of one undertaking from products and services of other undertakings. They protect distinctive company's signs and identify the specific company which registers the trade first.

Reasons to Protect Intellectual Property

• To make incentives to innovation and creativity. Without the protection of Intellectual Property Rights (IPR) there would be no incentives to create or invest in innovative activities, and therefore one couldn't exclude their competitors from doing the same thing.
• To protect moral and material interests of creator. As a writer of a novel, there are moral interests in being recognized and named as the author of the creation. As inventors, one may want to be recognized as being the author or owner of that creation to be paid for it.
• To protect the economic interests of enterprises.
• To regulate public access to these creations.
• To promote creativity, innovation, dissemination and application of results > economic and social development.

IPR are also important for a firm's activities since they stimulate dynamic competition among companies and guarantee the economic return on investments in research and development, in exploitation, as well as the goodwill value generated by them. If a competitor enhances the quality of the product through innovation, there are interests in investing in research and development.

They also enhance the activity and profits of companies that innovate with quality: if we work in a company and we need to revise a marketing strategy for a specific patented product, the existence of a patent enhances the quality of the product itself. IPR reward creators and innovators and create markets for efficient resource allocation.

IP can be seen as a mechanism that balances competing interests.

• Private vs Public interests.
• Authors/investors.

Companies: an exclusive right is a right that allows the owner to exclude or include (through patents, partnerships and authorizations) people from using the object of the IP. It regulates access to benefits of innovation and creativity.

Intermediaries.

Professional users and final users.

• In the real world there are some other faces of IP, and they encompass lots of strategies to better exploit IPR:
• IP Exploitation: to commercialize goods and services in specific countries the protection and exploitation strategy should be to use an EU Trademark or a bundle of rights to protect the object in an international level.
• IP Protection. IP Enforcement.
• IP Management.

1All these choices appertain to the Innovation Spectrum: innovations go from Closed Innovation, which does not involve collaborations with external entities, including customers, competitors, and research institutions; to Open Innovation, which promotes the flow of knowledge, ideas, and intellectual property both within and outside an organization's boundaries.

IP as a Multi-Level Field of Law

National sources, international sources and EU (or regional) sources all make reference to IP.

Principle of Territoriality

Each country creates, interprets and informs intellectual property rights. The principles of territoriality indicate that IP rights are made and observed in the borders of the state considered. The enforcement of rights is inside the borders of such state. However, this has also created some inconveniences:

• To commercialize products in multiple states we must own national intellectual property rights in each of them, otherwise other companies in that state could copy the intellectual creation.
• When there are different rules in different countries, companies may encounter some difficulties regarding the specific rules of that country when trying to adapt.

To overcome these issues caused by the principle of territoriality, 2 very important international treaties were signed: Paris Convention for the Protection of Industrial Property (1883) > trademarks, patents, indication of origins Berne Convention for the Protection of Literary and Artistic works (1886)

These are still very important to this day because they are the basis for European laws and policies. They maintain the Principal of Territoriality and intellectual property and introduce:

• Minimum Standard of Protection for Intellectual Property. Every country must comply with it, and it allows easy compliance for companies that want to operate in an international context.
• Principal of National Treatment.
• Principal of National Nondiscrimination Treatment: the same national treatment must be granted to everyone.

➢ Principal of Priority: if a company registers a patent in its own country, they have a period to register the intellectual property rights in another country and the relevant date considered will be the one of the first registration (so no one else can copy their trademark)

Over time, other treaties and international institutions were formed:

• United Nations (UN).
• World Intellectual Property Organization (WIPO): specialized agency from UN with the specific task/mission of protecting intellectual property throughout the world. It basically provides a forum for negotiations for international agreements, administer treaties for international registration of procedures of patents and trademarks and more.
• World Trade Organization (WTO): it defines trade rules among nations and its importance has been established since the creation of TRIP's Agreement (it balances the interest of most advanced/industrialized nations compared to developing countries).

EU IP Law

The first intervention of the EU institution was for the need to create the Internal Market of EU: a harmonized, and sometimes unified, regional system of rules as economic and political objectives. The domestic (national) IP systems and International IP system preceded and to exist alongside the EU.

Main National IP Sources

• Civil Code " Legge sul diritto d'autore (L. 633/1941)
• Codice della Proprietà Industriale (D.Lgs. 30/2005) 2

Copyright

Copyrights is the exclusive right of the author of an original literary or artistic work to authorize or prohibit certain acts relating to the work, such as reproduction, distribution and communication to the public. Copyright is relevant for different marketing activities:

➢ Protection of creative works in the advertising field.

➢ Database protection (consumer data compilations, clients, turnover data): it protects the compilation of data and not the data within the database itself.

• Online distribution of protected content: Another relevant feature of copyright protection has now an impact on advertising markets. Protected content used to circulate on social media and other platforms, sometimes monetizing on such content when it involves the attention of users: when there are copyright violations, the platform has no specific responsibility about it.

However, at some point content owners began to complain that there was value generated and not redirected to them (creators). For this reason, specific rules have been introduced to govern the liability of digital platforms: this is also relevant for marketing activities because the commercial user has content that they can lawfully use. The platforms then implemented automatic filters.

Copyright and Related Rights in a Nutshell

Copyright and related rights are IP rights recognized and protected by States (in Italy, art.2575-2583 and Law n. 633/1941). The object of copyright is to protect authorial works and other categories of expressive and informational subject matter (creative works). It confers exclusive rights, limited internally and externally and moral rights, even though not harmonized at the EU level.

Copyright lasts 70 years after the death of the author: after this period, the object of copyright becomes public domain. We have 2 rights:

• Economic rights: to exploit commercial uses of a work (harmonized at the EU level).
• Moral rights: linked to the personality of the author (diritto di partenita) (not harmonized at EU level). These are regulated by each state according to the principle of territoriality.

Related rights are similar to copyright in structure, but they are linked not to the creative world but to something else. They protect the investment/organizational efforts in the fixation and aggregation of works (performers, producers of phonograms and broadcasting organizations).

Copyright law is only partially harmonized at European level and at international level only to a limited extent. There is no such thing as EU copyright (no unitary title), on the contrary there is an EU Trademark law or an EU Designs system. Rules on copyright will vary from one member state to another but we have some rules about copyright that are harmonized at EU level.

We should imagine copyright within a net of relationships: it is defined within national sources, international sources and EU sources. One of the most important conventions is the Berne Convention which set some standards to look up to.

Rationale of Copyright

There are several reasons to make protection by copyright, or author's right, available:

1. Purely utilitarian: it is useful for society to reward the creation of literary or artistic works, because such rewards will encourage authors to create more works, by which society benefits.
2. Idea of natural right: only the author can pick and exploit the fruits of their own labour and it creates a mechanism that balances opposing interests (authors and creators, cultural sector enterprises like publishers, and the public that benefits from the circulation and enjoyment of works).
3. Work reflects and even is an extension of the personality of the author (personalistic/naturalistic theory), and that the protection of the personal integrity of authors extends to their work. This last reason is also the basis for the existence of moral rights for authors, such as the right to be identified as the author, next to their economic rights.

A Multi-Level Legal Framework

• National Sources > Legge 22 aprile 1941, n. 633 - Protezione del diritto d'autore e di altri diritti connessi al suo esercizio;
• International Sources > Berne Convention 1886; Rome Convention 1961; TRIPS Agreement 1994.

WIPO Treaties: WIPO Copyright Treaty 1996 and WIPO Performances and Phonograms Treaty 1996.

• EU > 14 legal sources among Directives and Regulations. 3