Intellectual Property: Rights Defective
Intellectual property is a powerful and impacting concept. It refers to creations of the mind, such as inventions, designs, literature, and symbols. These creations, historically, have been subject to protection by state enforceable laws, in order to protect the creators from the misuse of their work and to incentivize them to continue their creativity and to create more. Due to the increasing importance of intellectual property rights, the same state enforceable laws began to decrease, or even eliminated intellectual property rights, in certain areas, leading to the “defective” or “dead” intellectual property rights.
Definition – The term “defective” intellectual property, or IP, is used to refer to the incomplete or severe limitation of rights of one who is entitled to an IP right. Defective IP rights, in a way, are like the missing teeth of an otherwise healthy relationship, leaving the creator or owner handicapped or powerless to protect his own work.
Areas of Defective IP – Defective IP rights occur in all areas where IP rights are applicable and are subject to be administered; however, the categories where defective IP is more noticeable are 1) Patents, 2) Copyrights, 3) Trademarks and 4) Trade secrets.
Patents – Patents are a powerful tool, in order to protect the inventor’s intellectual creations, and to grant that inventor the right to stop someone else from using and telling others about his invention. Unfortunately, in certain countries, such as China, where many products and inventions are being copied, “defective” patents still exist. This means that, although the patent may be granted, it does not grant an exclusive right to the creator. This is because these patents does not register the countries in which the invention becomes protected, and thus, the inventor is not able to completely stop the copying and use of the invention in countries, other than the one in which the patent is issued. Additionally, certain countries may have certain limitations to the acts which can be protected and prohibited by the patent. For example, certain countries may only allow a patent when the creation is new and inventive, but may not allow patents on processes or methods.
Copyrights – Copyright is a powerful tool, which grants the copyright holder the right to protect his (or her) work from being copied or imitated. However, there are certain countries, which provide copyright protection only to a certain degree or provide copyright protection limited to certain conditions. For example, in some countries, such as China, copyright is only granted when a copyright registration is done in the local copyright office and only to certain works, such as books, music, pictures, and software. The same limitations that applied to patents apply also to copyrights, when it comes to the limitations in what can be protected.
Trademarks – Trademarks are used to distinguish a certain product from the products of other manufacturers, which offer a similar product. In order to obtain a trademark, one must file an application in the trademark office and wait for the result of the review before knowing whether the trademark is protected. In some countries, such as China, the trademark laws are not effective when it comes to the protection of trademark rights. For example, in China it is difficult to distinguish between similar marks and in certain circumstances it is even impossible to register a trademark in the first place. This leads to trademark rights being “defective”, as the trademark owner is unable to protect his trademark effectively.
Trade Secrets – Trade secrets are the most powerful and effective protection for a creator or maker of a product or service. Trade secrets involve information that is not publicly known or easily acquired through publicly available resources and is meant to be kept secret. However, in certain countries, such as the United States, trade secret laws are limited in the protection that they provide. For example, in the United States the law does not necessarily protect companies from the misappropriation (or stealing) of their trade secrets, and the laws that do protect companies may not be enforced by the courts. This leads to “defective” trade secret rights, as the trade secret is not adequately protected by the laws, leading to the misappropriation of that information.
Conclusion
Intellectual property rights are a powerful and important tool in protecting rights of creators, owners and inventors. However, in certain countries, these rights may be “defective” or incomplete due to a variety of reasons, resulting in those rights being partially or completely unusable. It is important to note that these rights can be strengthened, or at least improved, by the appropriate application of relevant laws and regulations. Additionally, a better understanding of the limitations in certain areas, such as trademark and copyright, should be addressed in order to better ensure that intellectual property rights are fully utilized and protected.
