Intellectual property law, otherwise called intellectual property law, is a set of rights granted to a person (group of persons) as a result of his (their) intellectual activity. These rights (right) are equated to means of individualization. There are several types of intellectual property rights, each with its own characteristics.
Concept and types of intellectual rights
Intellectual property rights are subjective rights recognized by law to own the products of intellectual activity and methods of individualization. They are also called subjective intellectual property rights. According to the position held in the Russian classifier of subjective civil rights, they are included in the category of subjective rights to intangible benefits. The latter is quite natural, since the objects of these rights are the results of purely intellectual activity (creative, mental and spiritual), and not material objects (money, things, securities).
These are unconditional rights exercised by the actions of the entitled person (rightholder), who, in order to exercise them, does not need the assistance of a person who is obligatory in relation to him. All other persons should equally refrain from encroaching on this subjective right.
The concept of "intellectual property" is considered generic in terms of some other rights.
In accordance with Article 1226 of the Civil Code of the Russian Federation, the concept of "intellectual rights" applies to a number of certain rights.
1) The exclusive right is included in the group of property rights (Art. 1226 of the Code). The exclusive right to a product of intellectual activity provides (Article 1229 of the Civil Code of the Russian Federation, clause 1):
The right to use such a product at its sole discretion in any legal way;
The right to dispose of this product (including transfer and transfer);
The right to allow or prohibit unauthorized persons to use the product of intellectual activity, etc. (Article 1233 of the Code);
The right to legal protection (the use of a product of intellectual activity by a third party without the consent of the copyright holder is considered illegal and requires the application of appropriate measures to the violator).
2) Personal non-property rights directly related to the author of the product of intellectual activity include: the right to authorship, to a name, etc. (Clause 2 of Article 1228 of the Code). All of them are not subject to alienation from the author and transfer to third parties. In fact, the author only owns and enjoys the personal moral right, while he cannot dispose and refuse it. This waiver is legally void. Detailed information on personal non-property rights is contained in Chapter 70 of the Civil Code of the Russian Federation on Copyright.
3) Other intellectual rights (succession, access, etc.) are established by legislation on the legal regulation of certain objects of intellectual activity. So, on the basis of Articles 1292, 1293, the following types of intellectual property rights are recognized as copyright:
The right of access, including copyright to imitate works of fine art, as well as the right of the creator of an architectural creation to video and photograph;
Right of succession - a percentage of the resale value, etc.
The property part of intellectual law and the breadth of jurisdictions of its owner (possession, use, disposal) cause the similarity of the exclusive right with the right of property ownership. The main differences between them are legally established by Art. 1227 of the Civil Code of the Russian Federation.
Intellectual rights, in contrast to property rights, apply only to creative (intangible) "products" of intellectual activity. They are independent of the rights to own material objects (things), with the help of which this result can be obtained (Article 1227 of the Civil Code of the Russian Federation, paragraph 1).
Consequently, the acquisition of ownership of any thing does not at all mean the acquisition of intellectual rights to it (Article 1227, paragraph 2). As an exception to the general rules, cases of simultaneous transfer of ownership rights by default are possible, which is directly indicated by the Civil Code. The rest of the circumstances of the transfer of exclusive rights must have an individual legal basis (agreement, act of the relevant state body, etc.).
Objects of intellectual property: concept, types, protection and assessment
What are the types of intellectual property rights?
A complete list of intellectual property objects is determined by article 1225 of the Civil Code of the Russian Federation. The absence of a product of intellectual activity in this list means that it does not belong to this category and does not claim intellectual rights. This means that everyone can use it without permission.
Objects of intellectual property are usually divided into groups - institutions of intellectual property rights. In other words, these are types of intellectual property rights, which include:
1) Copyright governing the relationship between persons in the process of creating and using works of literature, science and art. The basis of copyright is the concept of "work" as a unique result of creative activity, clothed in some kind of objective form. Actually, this real form of expression also needs to be protected by the rights of the author.
The definition of "copyright" does not refer to ideas and concepts, discoveries and facts, methods and methods, as well as principles, systems and processes
2) Rights adjacent to copyright is a category of exclusive rights that arose at the turn of the XX-XXI centuries as a prototype of copyright for insufficiently creative activities. It is intended to extend copyright to these imperfect results. The content of related rights differs significantly in each country. The most famous examples are the exclusive rights of music performers, broadcasting organizations and phonogram producers.
3) Patent law is a set of legal norms governing the protection of inventions, industrial designs and utility models, the aggregate of which is often called industrial property, through the granting of patents. Patent law also extends to breeding achievements.
4) Non-traditional objects of intellectual property.
5) Means of individualization of legal entities, enterprises, goods and services. These are objects of intellectual property regulated by a single legal institution for the protection of marketing designations. These include brand names, trademarks, designations of places of origin of goods. At the international level, the legal regulation of the protection of means of individualization was first approved by the Paris Convention for the Protection of Industrial Property. Most of this document is devoted to trademarks, with slightly less attention to industrial designs and inventions.
What are the non-traditional objects of intellectual property
The products of intellectual activity created by the creative efforts of people bring enormous benefits to society and need effective legal protection. As it turned out, protection in the framework of generally accepted legal systems was not enough for them. This is how new, non-traditional types of intellectual property objects appeared.
1. Breeding achievements for which the objects of intellectual rights are animal breeds and plant varieties registered with the State Register of Protected Breeding Achievements.
Conditions for the protection of selective achievements:
World novelty;
Uniformity for breeding traits;
Distinctness from analogues;
Stability for several generations to come.
To obtain a patent for a breeding achievement, one should apply to the executive power body dealing with these issues at the federal level. The term of such a patent is 30 years.
2. Topology of integrated microcircuits - the spatial and geometric placement of many elements of integrated microcircuits, interconnected and fixed on a material carrier. In other words - the CHIP connection diagram. If desired, the copyright holder can register his invention with the state executive authority on intellectual property. The term of the exclusive right to the topology is 10 years, after which it becomes public domain.
3. Production secret (know-how). This category includes any economic, technical, production, organizational and other information, including data on products of intellectual activity in the field of science and technology. This includes information on the methods of conducting professional activities (part 4 of article 1465 of the Civil Code of the Russian Federation, as amended, recognizes as a secret of production only the results of scientific and technical work and methods of professional activity), which are of commercial value (actual or potential) due to the unknown and official inaccessibility to third parties, for which the owner of the information has established a trade secret regime.
The employer has the exclusive right to an official production secret. The period of validity of the exclusive right to know-how continues as long as the confidentiality of its content is relevant. In order to preserve this data, special measures must be taken. A typical example is the protection of the know-how of the contents of the popular Coca-Cola beverage for over 100 years. Its composition is divided into three parts and each of them is placed in an individual safe of a Swiss bank. The drink mixes automatically, so no one knows the complete recipe. Know-how can become the subject of a patent license or simply become part of an invention.
4. A unified technology is the result of a scientific and technical initiative, covering objects of intellectual property and forming the basis for industrial implementation in practice. A unified technology may contain the results of intellectual activity that are not related to objects of intellectual property. The right to use it may be directly owned by the creator or organizer of this creation under agreements with the patent holders of the constituent parts of this technology. In the case of the development of a technology under a state contract for its practical implementation with the involvement of budgetary funds, the contractor must obtain the appropriate rights to the result of intellectual activity within six months after the completion of the work. If this does not happen, all rights are transferred to the subject of the Russian Federation or directly to the Russian Federation.
5. Scientific discovery and rationalization proposal - "forgotten retro objects" of intellectual property (IP). In the past, scientific discovery was considered a non-traditional form of IP. Later this was abandoned, referring to world practice, and in vain for one simple reason. Traditionally, in Russia, scientific discoveries continue to be recorded in various public academies, where registration does not entail actual protection. This generates a systematic leak of valuable ideas and confidential scientific information, which really harms the economic development of the country.
Until now, many people and even (unfortunately) media representatives confuse the concepts of "discovery" and "invention". Scientific discovery is the actual act of revealing a phenomenon or pattern in the surrounding world. In addition, this discovery contributes to the formation of a new level of knowledge in the life of society. The discovery of the following new objects does not belong to scientific discoveries: planets, insect species, deposits, chemical elements of D.I. Mendeleev and others. These are just the results of scientific research. In turn, Mendeleev's Periodic Law is a truly scientific discovery. As for the invention, it always means the creation of something new, previously unknown on Earth.
It is worth considering a little the essence of the rationalization proposal (in the language of production - "rationalization proposal"). It is subject to industrial property and is registered with the organization or industry itself. According to the wording, a rationalization proposal is a technical solution that is novelty for its organization or industry, industrially suitable and has a positive effect. It turns out that the encouragement of rationalization activities, on the one hand, increases the performance of the enterprise, and on the other hand, motivates employees to increase:
Labor productivity and quality;
Creative activity;
Feelings of belonging to the goals and objectives of the enterprise.
In this area, there is a good example to follow - Japanese managers.
International transfer of intellectual property
How to manage intellectual property
Today, intellectual property (IP) is extremely important for enterprises, the national economy of many countries and the whole society. Copyright, trademark, and other intellectual property rights help businesses grow by allowing them to enjoy the privileges they deserve from their innovation, creativity and advertising. In addition, more and more companies from different countries are using someone else's IP every day, using it in the production of goods, the provision of services, and even in the formation of their internal activities.
The International Chamber of Commerce (ICC) launched the Business Against Counterfeiting and Piracy Initiative (BASCAP), which offered companies a set of IP Guidelines to effectively manage their own and others' intellectual property used in their business.
Based on the experience of most sectors of the economy, this document developed practical steps to assess the usefulness of enterprise IP management rules, in particular in matters of trademarks and copyright. This is expected to enhance the protection of their personal intellectual property and open up new avenues to increase productivity and reduce the risks of piracy and counterfeiting.
These recommendations are designed for managers of various areas of IP - from its development to implementation, involving the ordering of components, production, wholesale and retail trade, intracorporate use. The document describes methods of building a supply system, establishing cooperation with intermediaries and using third-party IP.