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CONTENTS
WHAT IS INTELLECTUAL PROPERTY?
Two experts explain the mysteries of patents, trademarks, copyrights, and trade secrets.
SUPPORT FOR ECONOMIC AND POLITICAL FREEDOM
The former U.S. Commissioner of Patents and Trademarks suggests why it is in every country's interest to establish and maintain an effective intellectual property system.
A DEVELOPING COUNTRY'S PERSPECTIVE
Intellectual property rights, says a Ghanaian copyright official, galvanize domestic industry while retaining national culture, inventiveness, and creativity.
PROGRESS IN THE PHARMACEUTICAL INDUSTRY
Striking a blow against patent piracy is essential to the future of pharmaceutical research, says a former association executive.
A TRADE ASSOCIATION AT WORK
The representative of a book publishing association recounts her organization's efforts to enforce international copyright standards.
INTERNATIONAL POLICY AND ACCORDS
Here are the key multinational treaties and conventions that require member countries to provide intellectual property protection for the benefit of foreign nationals.
GLOSSARY
From assignment to World Trade Organization, an attorney defines some commonly used terms related to intellectual property rights.
SOURCES OF INFORMATION ON INTELLECTUAL PROPERTY
How to get in touch with U.S. government entities, international organizations, and other groups in the forefront of the intellectual property scene.
ADDITIONAL READINGS
IN BRIEF...
Fair Use
Copyright in an Electronic Age
The U.S. Patent System
The U.S. Special 301 Process
The World Intellectual Property Organization
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SUPPORT FOR ECONOMIC AND POLITICAL FREEDOM
By Bruce A. Lehman
In 1776, the Declaration of Independence heralded the birth of
the United States of America. In that same year Adam Smith's
seminal work on the importance of free markets and fair
competition, The Wealth of Nations, was published. The principles
in the Declaration of Independence have informed and enriched the
lives of Americans and peoples the world over who yearn for civil
and political freedom. Adam Smith's work sparked a debate on
economic freedom and the role of the state in a nation's economy
— a debate that raged in the 20th century between those favoring
a free market-based economy and those favoring a state-planned
economy. With few exceptions in the world today, nations have
chosen to let market forces determine the direction and speed
at which their economies develop.
I believe that intellectual property — copyrights,
trademarks, patents, trade secrets, and related rights —
provides important support to those freedoms. Barbara Ringer,
former U.S. register of copyrights, observed that the copyright
laws of England and the United States were “based on the harsh
but free system of enterprise that grew up in England and
America. Under this system, authors are free to write and live by
writing if they can manage to command the attention of a large
enough segment of the populace to make the dissemination of their
works even marginally profitable.”
Trademark protection is similarly imbued with these
characteristics. A free market can hardly exist without a strong
and effective trademark law. Without sanctity for a commercial
identity — thereby to enjoy the fruits of one's labor — free
enterprise and the beneficial competition it engenders are
without motivation. Patent protection gives inventors the
exclusive right to exploit their inventions. This exclusive right
gives them the economic security and, thereby, the freedom to
follow any path along which their human ingenuity and imagination
may lead them. It is not without reason that the 1948
International Declaration of Human Rights states, in Article
27(2), that every creator has the right to the protection of his
or her interests “resulting from any scientific, literary, or
artistic production of which he is the author.”
Historical Roots
Intellectual property is neither a new nor a static concept. The
grant by a state of some form of exclusive rights in their
inventions to inventors originated in the early part of the 15th
century in Venice and spread rapidly during the 16th century to
Germany, France, the Netherlands, and England. It was early
recognized that in a free market economy, patent protection
provides the necessary incentive to invent, to disclose the
invention, to invest in the commercial development of the
invention, and to motivate others to add to the store of human
knowledge by designing around the patented invention. The Statute
of Queen Anne, enacted in 1709 in England, was the first true
copyright statute and the first recognition of the source of the
copyright interest in the creative act of authorship. Copyright
laws provide authors the benefit of economic rewards, while the
public receives the benefit of literature, music, and other
creative works that might not otherwise be created or
disseminated.
Trademarks are thought to date back at least 3,500 years to
potters' marks used to identify the source of fired clay pots.
Jurisprudence and statutes for the protection of trademarks
appear to date back “only” 350 years, to early 17th-century
England. Trademarks serve to indicate the origin or source of a
particular product or service and, related to that, distinguish
the goods or services of an enterprise from those of other
enterprises. Trademarks also serve an important
consumer-protection function in establishing the link between a
good or service and its source. The consumer knows, therefore,
whom to turn to if he or she receives poor goods or services.
Trade secret protection is an integral part of honest business
practices — if information is not generally known, has
commercial value, and the owner takes reasonable steps to protect
it, it should be protected. Trade secrets are often the oil that
lubricates a technology transfer agreement. Without it, the
parties to an agreement find it difficult or impossible to freely
exchange the information vital to making the agreement work.
Laws for the protection of intellectual property are not
static but change in concert with changes in technology and
society. In Book 2, chapter III of The Wealth of Nations, Adam
Smith stated that the labor of persons we now call “performers”
is “like that of menial servants, unproductive of any value, and
does not fix or realize itself any permanent subject, or vendible
commodity, which endures after that labour is past, and for which
an equal quantity of labour could afterwards be procured.” He
concluded that, “like the declamation of the actor, the harangue
of the orator, or the tune of the musician, the work of all of
them perishes in the very instant of its production.” In 1776 it
was not possible, of course, to fix a performance in a tangible
medium. Today, a multimillion dollar worldwide industry has been
built around the fixation of performances in videos, cassette
tapes, and compact disks.
It is these changes in technology that cause the greatest
challenges and greatest opportunities to the intellectual
property system. It is a large part of the reason that the norms
in the field of intellectual property developed so rapidly in the
20th century — the century that saw the creation of
photocopiers, radio, television, videocassette recorders, cable
television, satellites, computers, and the Internet.
The TRIPS Agreement
The most important recent event in the evolution of norms in the
field of intellectual property protection was the conclusion of
the Agreement on Trade-Related Aspects of Intellectual Property
Rights, Including Trade in Counterfeit Goods. The so-called TRIPS
Agreement is an integral part of the Agreement Establishing the
World Trade Organization (WTO), which was signed in Marrakech,
Morocco, on April 15, 1994, and went into force on January 1, 1995.
The TRIPS Agreement sets forth minimum standards to be met
by members of the WTO for according rights for the protection of
intellectual property and for the enforcement of those rights.
There are separate minimum conditions that all countries must
apply with respect to copyright and related rights, trademarks,
geographical indications, industrial designs, patents,
layout-designs (topographies) of integrated circuits, and trade
secrets. It also establishes standards for the control of
anti-competitive practices in contractual licenses.
Traditionally, the weakest aspect of intellectual property
agreements has been enforcement. TRIPS, contrary to this
tradition, sets out detailed obligations regarding enforcement
procedures and includes provisions on cooperation and technical
assistance among the signatories.
Development of norms in the field of intellectual property
has not stopped with the conclusion of the TRIPS Agreement. The
Trademark Law Treaty (TLT), concluded in 1994, simplifies and
harmonizes the trademark registration process in treaty members.
On December 20, 1996, the World Intellectual Property
Organization (WIPO) Diplomatic Conference on Certain Copyright
and Neighboring Rights Questions adopted two treaties: the WIPO
Copyright Treaty and the WIPO Performances and Phonograms Treaty.
Even after the then recently concluded TRIPS Agreement, advances
in technology had rendered difficult, and soon impossible, the
protection of some forms of intellectual property. These advances
included the commercial development of the Internet and satellite
networks that allow transmission and reception, in a digital
form, of vast amounts of information and entertainment products.
The WIPO Copyright Treaty includes provisions on the
copyright protection of computer programs and databases and on
the rights of distribution, rental, and communication to the
public. The WIPO Performances and Phonograms Treaty includes
provisions on the minimum rights granted to performers and
producers of sound recordings, including the rights of
reproduction, distribution, and rental. Both treaties also
include provisions to ensure the security of technological
measures of protection and electronic management information,
which are indispensable for an efficient exercise of rights in
the digital environment.
Even before the ink was dry on these agreements, discussions
had begun on how to expand and strengthen them. Moreover,
regional discussions are moving forward for the protection of
intellectual property, including in the context of the Free Trade
Area of the Americas. (The Free Trade Area of the Americas, which
was launched by 34 democratically elected leaders in December
1994, represents a commitment to fair and open trade throughout
the Western Hemisphere by the year 2005.) Again, this is an
inevitable consequence of changing technology and economic and
political conditions throughout the world.
Expanding the Opportunities
The government of the United States would like every country to
fully implement the obligations under the agreements in place,
including the TRIPS Agreement, and to ratify and implement new
agreements, including the Trademark Law Treaty and the WIPO
Treaties. Clearly, we want this to be done because American
inventors, authors, and performers would directly benefit. But we
are also committed to this goal because it supports the economic
and political freedoms that we hold dear. The protection of
intellectual property around the world will be a “rising tide
that lifts all ships.” Indeed, a study by the World Bank on the
economic effects of TRIPS concluded that there is mounting
evidence “that the implementation of TRIPS will have a net trade-creating impact.”
This expansion of opportunity will benefit not only large
corporations but independent authors and inventors as well, and
not only developed countries but developing countries large and
small. Many developing countries have recognized this basic truth
and are taking steps to strengthen intellectual property
protection. In recent years, for example, the government of
Malaysia has redoubled its efforts to improve the laws for the
protection of intellectual property and their enforcement. This
is seen as essential to the construction of what Malaysia calls
its “multimedia super corridor” — an effort to encourage the
development of information-based industries in that nation. We
have also seen intellectual property provide a basis for
establishing a viable recording industry in many countries where
it did not exist before, including Ghana. We have seen countries
like Venezuela and Trinidad and Tobago make conscious decisions
to embrace strong and effective intellectual property protection
to change the orientation of their economies from one based on
commodities (in their case, oil) to one attractive to high
technology, value-added industries.
Building an Effective Infrastructure
I believe that the question has evolved from what should be done
and when — the TRIPS Agreement and its progeny have answered
that question — to how it can be done. The U.S. government is
fully committed to finding answers to that question. Indeed, the
U.S. government, along with other governments and
intergovernmental organizations, is committed to helping all
countries meet — and exceed — their international intellectual
property obligations.
The scope of work is not insignificant. We believe that
countries must do the following to build an effective
infrastructure for the protection of intellectual property:
 Quickly enact and fully enforce TRIPS-consistent laws,
including a law or laws for each area of intellectual property
protection and any necessary authority for its enforcement in the
civil code, criminal code, or administrative code, as
appropriate.
Establish access to a properly staffed, trained, and
equipped intellectual property office that grants industrial
property protection, disseminates information about rights that
have been granted and general information about intellectual
property, and cooperates with enforcement agencies.
Establish a well-trained judiciary that has the ability to
conduct criminal and civil proceedings in a fast, fair, and
transparent manner; the authority to impose an adequate level of
fines and jail terms, as well as the will to actually impose
them; and the will to impose preliminary and permanent
injunctions with severe penalties for violation.
Establish a well-trained police force operating in a
transparent manner that has the will and authority to undertake
investigations and initiate legal action against intellectual
property pirates (if necessary, in cooperation with other
authorities). Such a police force also needs the power to conduct
raids without notice to the infringer (but with proper safeguards
to prevent abuse) and the will to do so, and the legal power to
confiscate and destroy (or turn over to the intellectual property
owner) infringing products, machinery to make such products, and
business records.
Establish a well-trained customs force operating
transparently with the will and authority to enforce intellectual
property laws at the border.
Encourage the development of a well-trained corps of
attorneys or agents in the private sector that is capable of
working with administrative authorities, police, judiciary, and
customs authorities to obtain and ensure the enforcement of
intellectual property rights for the legitimate rights holder.
Encourage the development or the establishment of private
sector organizations, such as collecting societies, bar
associations with specialization in intellectual property
matters, and organizations representing authors and inventors.
Meeting Our Obligations
Countries that have little or no experience with the protection
of intellectual property rights will find the prospect of putting
in place all of these elements intimidating. Through judicious
implementation and, to the extent appropriate, regional and
international cooperation, however, the reality of meeting these
obligations may not be as difficult as it may seem. For example,
the TRIPS Agreement requires specific protection for layout-
designs of integrated circuits. There is no requirement, however,
for establishing any administrative infrastructure for the
examination or even the registration of applications for
protection. Provision for the protection of such technology in
national law is sufficient.
In addition, there is no reason why search and examination
of a patent application must be carried out in each country in
which protection is desired. Most patent applications will have
been previously filed in the U.S. Patent and Trademark Office,
the Japanese Patent Office, or the European Patent Office. In
each office, the application would have been searched and
examined. That work is complex and requires highly trained
personnel — for instance, scientists whose skills would be
better employed in research and development. Countries may wish,
therefore, to establish a system that considers the results of
searches and examinations performed in other countries.
We are operating in an era when the training and
infrastructure-building problems of countries trying to meet
their international obligations may, through judicious use of
modern technologies, be more easily addressed. The explosion in
the commercialization of the Internet has brought with it open
data standards and new capabilities for facilitating secure
communications between patent offices and patent applicants. The
cumulative effect of these factors is that we now can take
advantage of information technologies to make providing
intellectual property protection more efficient. The United
States is working closely with the World Intellectual Property
Organization to expand opportunities for technical assistance and
training.
We also believe that technical assistance to industrial
property offices in the developing world is essential as the
needs of countries throughout the world are clear — training and
technical assistance to enable them to establish and maintain an
effective intellectual property system. I believe that the
bilateral and multilateral resources, including those of the
government of the United States and WIPO, are available to help
each country do so. Doing so will satisfy international
obligations. More importantly, it will be an obligation that
every state has to its people to protect and preserve economic
and political freedoms.
Bruce A. Lehman served in the U.S. Department of Commerce as
assistant secretary of commerce and commissioner of patents and
trademarks from 1993 to 1998. He also chaired the Working Group
on Intellectual Property Rights of the National Information
Infrastructure Task Force. Before assuming his position with the
Commerce Department, Lehman was a partner in the Washington,
D.C., law firm of Swindler & Berlin.
SIDEBAR: The U.S. Patent System
SIDEBAR: The U.S. Special 301 Process
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