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Monday, March 4, 2024

Intellectual Property Is Everywhere, But Beware Of Misconceptions

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In addition to the article what is intellectual property? Today I wanted to share with you some thoughts on intellectual property and misconceptions about it.

This post is a summary excerpt from a presentation entitled “Intellectual property everywhere, but not always as we think” that I gave in particular in 2017.

Intellectual property is everywhere: 

  • all types of industries
  • all types of actors (even SMEs and individuals)
  • all types of creations (from the simplest – at first glance – to the most sophisticated)

Intellectual property is polymorphic: 

  • patents
  • copyrights and neighboring rights
  • trademarks and other distinctive signs
  • Designs & Models

But beware of misconceptions and beliefs!

Intellectual property is a very specific, complex and often overlooked field. Consequence: there are many misconceptions.

Example: “I have filed a patent with the BOIP and the EUIPO”; however, the BOIP and the EUIPO are the trademark services and design offices (other offices are in charge of patents). 

As Osama Ammar of The Family once said: “There is no standard solution in intellectual property. You have to be very tailor-made. In addition, most lawyers refuse to deal with it. Lawyers send people to hyper specialists in intellectual property. (…) And it’s really complicated, in fact”.

Back to basics:

  • Patents: technical inventions – solving technical problems – 20 years of protection
  • Copyrights: literary and artistic works (broad sense) – protection up to 70 years (after the author’s death!)
  • Trademarks: distinctive signs – 10 years of protection (infinitely renewable)
  • Designs & Models : shapes / formatting / external appearance of a product – in principle: 5 years of protection (renewable 4 x)

For more details, I refer you here.

Amount of misconceptions (of all types!); some examples:

  • “ To be protected by copyright, you have to deposit or register your work” / “You have to take a copyright”
  • “ I made a discovery, I can patent it”
  • “ I am the first to have had the idea, so I am the author”
  • “ I can download as many works as I like from the Internet, as long as it is for my private use”
  • “ I can protect the results of my scientific research by copyright”
  • “ I can take photos from the Internet and publish them on Facebook, on my blog… as long as I mention the source and the author of the photos”
  • “ I can make links to videos on the Internet because I wasn’t the one who originally uploaded the video”

Let’s dig deeper into some misconceptions:

  1. Computer programs, industrial and / or functional creations par excellence, can be protected by patent law.

Well no!

The main mode of protection for computer programs is copyright, which protects literary and artistic works. The legislator has resorted to a fiction to enshrine the protection of computer programs by copyright: code is regarded as text / lines of code as sentences or chains of words; and therefore the code is a literary work. Since it is copyright that protects literary works, it is copyright that protects code and lines of code, and therefore the computer program.

The choice of copyright to protect computer programs and the fiction of a “literary work” affects the scope of protection: only the “expression” (the “text”) is protected, not the features / raw instructions etc. If it is possible to achieve the same result, the same functionalities, the same raw instructions via another “text” (via another code, other lines of code), there will be no infringement. For more on this, see Software: functionality protection and copyright.

Of course, it is possible to obtain a patent for computer-implemented inventions, i.e. inventions which involve the use of a computer, a computer network or other programmable device and one or more characteristics of which are realized in whole or in part by a computer program. But it is then not the computer program or the “software” per se that is protected by the patent but more broadly the invention implemented by or making use of the hardware / software. Moreover, to be patentable, such an invention, like any invention, must have a technical character, and not only an economic, aesthetic, financial, commercial or mathematical utility or purpose.

The protection of computer programs by patents is therefore only very partial (bearing in mind that the principle is the exclusion of computer programs from the scope of patentability – cf. art. 52 (2) c) of the European Patent Convention).

  1. Copyright protects literary and artistic works

Yes, but… the concept of “literary and artistic” is extremely broad!

We have just seen it in connection with computer programs and code.

But much more fundamentally still: copyright protects everything that is formatted in a literary and artistic way. These concepts of “literary” and “artistic” can be interpreted very widely.

It is therefore not only works of art (in the strict sense) or Fine Arts or even great literature that are protected by copyright. Far from there!

Instructions for using technical devices (GSM, computer, boiler, etc.) may be protected by copyright.

The same goes for architectural plans and very sophisticated scientific articles.

Copyright is therefore not synonymous with art law or the law of works of art; and is not the prerogative of great literary authors or artists.

On the other hand, since the Leola judgment, it seems that olfactory works and works of taste, that is to say objects not perceptible by sight and / or hearing, cannot fall within the scope of application. Copyright. I have summarized this judgmentthere and delivered my first comments about it there.

  1. “I am the employer, everything my employees create belongs to me”

The question of who owns (the employer or the employee?) The intellectual property on what the employee creates as part of his work mission or his duties is fundamental because it will determine:

  • to whom belongs the intellectual creation thus created;
  • who can obtain protection thereon (egg a patent or design);
  • And who can do what with said intellectual creation.

And, contrary to the widely held idea (wrongly …), it is FALSE to assert and believe that the employer is automatically invested with all the intellectual property on the creations of his employees, even within the framework of the work relationship.

The question of who owns the intellectual property in creations made by an employee varies from one intellectual right to another.

This question is therefore complex and requires consideration on a case-by-case basis.

I had already summarized the situation in my article Intellectual property and employee creations, to which I refer for all the details.

But what should be remembered here is that:

  • we must avoid believing (on the employer’s side) that the law will protect them for everything that their employees create within the framework of their work mission and / or within the framework of their functions;
  • each intellectual right responds to its own rules and sometimes a presumption of transfer is provided for by law; sometimes nothing is planned;
  • in order to avoid all the problems, it is necessary to insist with the employers so that they are interested in this thorny question and that they foresee, in the employment contracts (or in separate contracts) that they make sign their employees, precise clauses, specific and adapted to each intellectual right concerned.
  1. “I ordered a work, I paid for it, and so I own the copyright on this work”

The problem is similar to labor relations and the issue of intellectual property on the work performed by the employee that I just mentioned.

Except that it is a question here of the work carried out by an independent creator; creations made to order from an independent service provider (no employment relationship; no employment contract).

Example: need a website or a logo; hence appeal to an agency; the agency provides a quote; the agency is paid; from this fact alone (order-estimate-remuneration for the benefit of the agency), does the logo belong to the person who placed the order and who paid? NO, if an express and written assignment of intellectual rights (essentially, copyright) to the logo has not been provided for.

This scenario leads to a great deal of litigation, failing to have contractual provisions regarding intellectual property.

Here too, it is therefore necessary to provide for clear contractual provisions on intellectual property when ordering creations from independent third parties.


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