Intellectual Property Laws: A Comparative Analysis

Introduction

Intellectual property is a concept that has been existent for many decades. The modern usage goes as far back as the mid 1800s when the North German Confederation was formed. The organization, which was in Geneva than later gave way to WIPO, or World Intellectual Property Organization (Dutfield, 2003). Until this time, the term was non-existent in the U.S. Contrary to common belief that intellectual property laws began with invention, the laws came about because of grants by the Queen to give some individuals monopoly over some privileges over some businesses and territories (May Sell, 2006).

The question behind the transfer of intellectual property has been under debate in society with various countries coming up with various laws to govern the issue. Intellectual Property laws are a set of laws that are aimed at protecting the inventions and other creative works by individuals. The importance of such laws is that they are essential in stimulating economic activity, by providing those who come up with the inventions with awards and recognition. These awards and recognitions, in turn, stimulate further inventions, from people who would like to derive the associated benefits.

Many developed countries have an elaborate set of Intellectual Property laws, which govern inventions both at a personal level and at the industrial level. Intellectual Properties may be protected under a number of Acts, such Patent Acts, Copyright Acts, Trademark acts and Broadcasting Acts. The specific policies, guidelines, and legislation, as well as the specific jurisdictional areas that Intellectual Property laws deal with are unique to the countries in which they are established.

Nonetheless, there are organizations and laws that protect intellectual Properties at an International Level. Examples of such organizations are such as the World Intellectual Properties Organization. Then there is the Trade-Related Aspects of Intellectual Properties (TRIPS) which is binding on members of the World Trade Organization. This paper critically examines the Intellectual Property Laws of the United States. This is followed up by an evaluation of IP laws in five other developed countries, Japan, Canada, Australia, Norway, and New Zealand, with a concurrent comparison of their IP laws with those of USA.

US IP Laws

In the United States, the basis for technology transfer as property is found within the constitution. The individuals who are involved in framing the constitution took a compromise position in the view of protecting the rights of the creative citizens who came up with such property. In this case, those who came up with the property would be able to own it, and they had a right to exclude other individuals from applying it for a certain period of time. At the end of such a period, the rights of use would then be extended to other individuals.

Through agreeing to incorporate the “disclosure inducement theory”, those who framed the constitution also allowed the individuals who came up with intellectual property to limit other individuals in the use of the property for a certain period of time, and in exchange, they were to disclose the property’s nature to everyone. This right is established in the U.S. Constitution, article 1, section 8, and clause 8. From this part of the constitution develops the US patent system, which describes the entire process of IP transfer from the non-profit sectors, university, and the government to the private sector. The clause also includes copyrights and trademarks within its scope.

Such elements including trademarks, patents, and copyrights are identified as intellectual property. In the United States, such properties have the countenance of the rights of personal property. The provisions and terms applied in governing these kinds of properties are included in various statutes. The regulations and laws clearly show the obligation for acquiring and maintaining the protection of IP and for assertive the property rights conveyed by the law.

Specific legislation

In this section, two pieces of legislation passed in 1980 are of interest. The first legislation bestowed upon the government authority to affect the transferring of technology that is federally originated and that of which is federally owned. On the other hand, the second legislation granted the government the authority via the statute to license and patent all inventions that are federally owned, which stood out to be instrumental in promoting the technology transfer section of the non-profit sectors such as the universities.

The Stevenson-Wydler Act was the first law under this section, which is codified in Title 15 of the Constitution of the United States, under the “Technology Innovation” in chapter 63. The law was aimed at enhancing the use of technology owned by or generated with the help of the federal government.

The act successfully aided in the transfer of technology to the local governments of the states and to the private sector. Initially, the act called for the assigning of 0.5% of the budget of laboratories under the federal government towards the transfer of technology. Later, this act was amended and it called for the sufficient funding of technology transfer activities.

The Patent and Trademark Amendment Act of 1980 was the second law. This act was also referred to as the Bayh-Dole Act. This Act was amended in 1984 by the Trademarks Clarification Act, and its provisions were codified in the US constitution in title 35. The Act provides the assumption of title to every invention that may be made, in part or in whole, with nonprofit organizations and federal funds, from the government to such entities including small businesses and universities.

Through this law, a uniform federal patent policy was established and the US government was provided with the first patent authority to assume title and to use its agencies to hold patents. The regulations involving the –Dhole Act were codified in title 37 part 401 of the constitution. On the other hand, the regulations involving the licensing of government-owned inventions were coded in part 404 under the same title and those involving inventions made by the employees of the government are incorporated in part 501. Due to the fact that the Bayh-Dole Act relies on the patent system in the United States to transfer technology from small businesses, universities and nonprofit, it is likely that any changes n the patent system and in the regulations that drive that system may affect the system’s technology protection and transferring ability.

Patents and antitrust laws

The view of patents as monopolies draws attention towards the issue regarding patents and antitrust laws, with the main focus being directed towards the exclusive right of the patent holder. The efforts of business competitors to make the markets stable through quota arrangements and prices and the growth and development of business were the major drives behind the establishment of antitrust laws in the US. These activities maintained that the growth of industrial monopolies and combinations were to be effectively controlled.

The first act to be passed under this docket was the Sherman Act of 1890, which was codified in title 15 of the constitution of the US. Later in 1916, the second act, the Clayton Act was passed. The Federal Trade Commission Act was then passed in 1914 as a supplement of the Clayton and Sherman Acts. The restraining of trade monopolies is prohibited by the Sherman Act. In this view, the act maintains that patents can be part of or contribute to develop a monopoly of any part of the commerce of trade or restrain trade between the states of the US, or with other countries.

The act is divided into two sections that specifically outline the provisions. The first section upholds that every conspiracy or contract in restraint of commerce or trade with foreign countries or among the states is illegal. On the other hand, the second section maintained that every individual who shall be involved in practices that monopolize trade or conspires with any other parties in acts that monopolize commerce or trade with foreign countries or among the states is to be held guilty of a misdemeanor. It is important to note that monopolization only requires one party, but the actions that restrain trade require involvement of two and sometimes many parties.

The Clayton Act was, on the other hand, developed to focus on more specific abuses of trade including cases where one corporation acquires price discrimination, interlocking directorates use among the larger organizations and the restriction of dealers from dealing in certain goods. In the history of the US, patents and anti-trust principles were perceived as antithetical. This perception has changed with time and these principles are organized complimentary tools in contemporary society, which facilitate competition.

However, patents provide rights to exclude which can be used to foreclose any third party from using the patented invention. In this case, patents can be used for different conveyances. The nature of the conveyance should be the point of interest and no the context or the purpose for which such conveyances are developed and used. Currently, patents are not observed as determiners of market power. From such a point of view, when other practices that restrain trade are involved, antitrust scrutiny can be invited. For instance, in a case where a purchaser is forced to buy certain supplies or materials from a certain supplier as a result of the exclusion of a competitor, the Clayton Act would be violated. With reference to antitrust issues, such an arrangement would be observed as extending the patent scope by restricting the application of patented intervention to goods vital for its operation, but not part of the intervention. Without involvement of coercion, nevertheless, different parties are at liberty to engage in such agreements of supply.

Export Administration Regulations and International

Traffic in Arms Regulations

In the United States, the Export Administration Regulations (EAR) is administered by the Department of Commerce. On the other hand, the Department of State is tasked with administering the International Traffic in Arms Regulations (ITAR), which protects national security. The regulation does not only apply to the transfer of physical items to individuals from outside the US but also to intellectual property and technology, even in cases where it is not associated with a physical item.

These regulations also provide for the disclosure of information on controlled items and technical data to foreign individuals who are in the US, and the offering of controlled equipment services including training to individuals from foreign countries. The EAR regulations also regulate the export of technology and related goods on the list of commodity control. These regulations also manage the export of services, articles, and any other related data of military nature. In order to maintain the vitality of the economy of the US and the capability of its military, the regulations also effectively restrict exportation of technology and goods that could hamper this status. This part of the regulations has continuously received emphasis because of global terrorism.

The EAR and the ITAR regulations also have an effect on the IP as depicted by the copyright, the patents, and trade secrets. Export licenses are issued by the trademark and patent office. This issue grants the office control over exports and thus the transferring of sensitive technology to other countries. In some cases, a secrecy order is imposed on any patent application that involves sensitive material. In such cases, the patent is not issued even in cases where the applicant prosecutes the application, not until the restriction is lifted.

The Cooperative Research and Technology Enhancement Act

The US Congress passed another law, the Cooperative Research and Technology Enhancement Act, (CREATE Act) in the year 2004, which is codified under Title 35 of the constitution. The law came into effect from December 10, 2004. The development of the law was aimed at overruling a decision by the court that maintained that the patentability of an invention can be precluded in the case where the invention of an individual is rendered obvious, due to the derivation of such information from the inventor by another individual. The CREATE Act allows the separate acquisition and ownership of patents that do not appear entirely distinct, by two or more entities.

Cooperative research and development agreements

The aim of this act was to enhance technological innovation in federal laboratories that are operated by the government and those that are operated by contractors but owned by the government. The act provides that the laboratory involved may grant patent licenses, options, or assignments to a collaborating party in advance, in any case of invention, in part or in whole, by an employee of the laboratory under a reasonable compensation agreement.

Department of Energy/Nuclear Regulatory Commission: Inventions and Atomic Weapons

The laws involving this matter are codified in the US constitution under title 42, starting from 2014 to 2081. The law basically prohibits the issuing of patents for any form of invention in the application of nuclear substances or atomic energy in any form of atomic weapon. In case of any patent already granted on such grounds, the law revokes such patents. The act maintains that no rights will be conferred by any patent in regards to any form of invention on grounds of nuclear or atomic energy.

Intellectual Property laws in Japan

Japan established the Intellectual Property Basic Act in the year 2002. The Act has continuously aided the Japanese in effectively competing in the international market through the establishment of policies that govern intellectual property. Universities and small businesses are centers of interest in the establishment of these IP laws. This is so as to ensure that the researchers and investors are treated properly and that they are provided with a good working environment that would ensure that they interrelate efficiently. In the country, the IP rights are strengthened by the centers of technology transfer in the universities, and by enhanced cooperation between the business enterprises, the local governments, the universities, and the state government.

The country has established effective remedies, which are used to handle all situations of infringement within its boundaries. The IP laws in Japan allow the government to effectively engage other countries that do not adequately protect the IP rights of Japanese organizations, in discussions that would see to it that they uphold such protection. The IP policy headquarters is headed by the prime minister and formulates the policies that drive the entire process of achieving the IP related goals.

Canada Intellectual Property Laws

Canada has elaborate intellectual property legislation, detailing the various areas regarding intellectual property. The Intellectual Property laws of Canada are mainly administered by the Canadian Intellectual Property Office (CIPO). For CIPO, the premise underlying the need for Intellectual Property is the benefit of further inventive and creative activity stemming from the recognition and rewards accorded to owners of inventions and creative works.

According to CIPO (2011), it grants and registers ownership within five areas of intellectual property. These areas are patents, trademarks, copyrights, industrial designs, and integrated circuit topographies. Some of the specific acts include the patent act, the trademark act and trademark regulations, the Olympic and Paralympics Marks acts, the copyright act, the industrial design act, and the Integrated Circuit Topography Act. The Patent Act is an elaborate document, giving all details that regard inventions. According to the Patent document, it is “An act respecting patents of invention” (R.S.C., 1985, p. 8).

The Canadian Patent Act is similar to that of the United States. However, the Intellectual property laws in Canada are much more lenient and in some instances highly ambiguous. For example, Canada has a Patent law governing nuclear inventions just like its patent on the development of nuclear goods is rather shallow. It only indicates that patents for the development of nuclear energy shall be subject to inspection by staff and the public, pursuant to the guidelines within the patent.

Apart from this legislative leniency, another difference between the Canadian patent act and the US patent act is that since Canada has a queen, there is a provision regarding how the act affects the queen. The provision dictates that the Act is binding on her Majesty. In recent times, Canada has been under increasing pressure to change its intellectual property laws so as to ensure that they align with those of the US. In fact, the United States has been accused by some of dictating intellectual property standards globally (Gabriel, 2013).

Norway Intellectual Property Laws

Just like the countries discussed above, Norway, the top-ranked developed country based on the UN Human Development Index, has elaborate intellectual property laws. However, unlike Canada, Norway’s Intellectual Property Laws are highly elaborate dealing with a host of fields. The IP laws in Norway are administered by the Norwegian Industrial Property Office, (NIPO). It carries out tasks such as the processing of patent applications and registration of trademarks and designs (NIPO, 2013).

Some of the main IP laws in Norway include the Broadcasting Act, which deals with broadcasting, the Trademarks Act, the Patents Act, and the Designs Act, among many other Acts (WIPO, 2013). Rather than have sections within one act, the Norway IP laws are separated into separate acts. For example, there is the Law on Employee’s inventions, which governs the protection of inventions developed by employees.

Norway, just like the US, is concerned about global intellectual property laws. It supports the development of comprehensive regulations, which will govern intellectual property world over. In connection with these notions, Norway is a member of the World Intellectual Property Organization, United Nations agency which deals with the maintenance and improvement of worldwide intellectual property. Moreover, Norway is also bound by the (TRIPS), the Trade-Related Aspects of Intellectual Properties, owing to its status as a member of the World Trade Organization. A significant point of difference between the Norwegian patent law and the US patent law is that the Norwegian patent law lack provision regarding nuclear use.

Intellectual property laws in Australia

In Australia, intellectual property law has changed drastically over the last decade. Developments on the internet, the rise in technology, trade globalization, and the increase in the importance of super brands- precisely, trademarks with super brands- among other factors have greatly affected the laws that guide intellectual property in this country. Moreover, increases in globalization have prompted the owners of intellectual property to embark on expanding their global rights with the view of capturing the benefits that come with ownership of such property in an integrated and affluent world economy.

The IP laws in Australia were designed so as to protect the personal rights of Australians, to encourage innovation, and to protect the businesses which come up with new innovations for them to have competitiveness in the market. The concept of natural rights has been greatly considered in the development of intellectual property laws in Australia. It is believed that the works of an individual, such as the artistic works, are an extension of their personality and thus should be protected and respected.

The laws provide a basis for moral rights including the right of integrity, the right of attribution of the original owner of creativity, and the rights of preventing one’s works from being altered, all of which have an impact on the reputation of an individual (Davison, Monotti, Wiseman, 2012). The intellectual laws were also created to expose individuals to incentives to create and disseminate inventions. As such, it is difficult for an individual to disseminate a newly created invention to the public due to the expenses and the channels.

However, through the IP laws, individuals are exposed able to reach out to the public and thus gain the public. Case in point, the patent registration process requires the holders of the patent to reveal the method that is best known for the operation of their invention. When information is disseminated to the public via the patent register, the patent holder is granted exclusive rights for a limited period of time and he/she gets to gain the public benefit. In case there were no such rights, individuals would not access incentives that would aid them in making their information available. The same process applies to the copyright system.

These incentives have greatly helped in the funding of technological transfer in the country. This system of promoting technological advancement is similar in terms of the targeted outcome with that of the US but different in the structure. Most of the funds in the US are directed towards inventions within the federal government under the federal laboratories, while in Australia the incentives are widely spread among the public in order to promote innovation.

Like in the US and other countries globally, the IP laws in Australia have been developed to protect the efforts of individuals from commercial free riding and to safeguard their benefits in terms of competition in the market. Through the offering of patents and copyright laws, the inventions of individuals are protected from infringement. This is an aspect that has promoted innovation in the country since individuals are assured of economically gaining from their inventions.

In Australia, patents offer protection to owners of inventions by providing the legal basis on which third parties are stopped from, using, manufacturing, or even selling of an invention. It may also issue an individual with a license, allowing them to manufacture inventions as per the agreed terms. Businesses are also provided with a chance to register a trademark to be applied as a tool for marketing in the country. The registered trademark legally protects a party's brand from being used in unauthorized manner.

The IP laws also provide for the registration of domain name and design, which are placed under legal protection from infringement. Copyright law in the country has been developed in order to encourage individual to invest their talents and time into developing new items. Copyright laws automatically protect materials in the country, and there are no registration formalities that are required. However, there are exemptions in regard to the use of material that has been copyrighted and the content that is covered by such laws (Australian Trade Commission, 2013). These protection laws resemble the protection laws in the US, as they offer individuals rights to exclusion.

Intellectual Property laws in New Zealand

The IP laws in New Zealand are highly established, an aspect that can be related to their outstanding record in terms of international participation in efforts aimed at strengthening enforcement of IP rights at the global level. The IP laws in New Zealand are closely related to those of the United States as defined by the multilateral Anti-Counterfeiting Trade Agreement (ACTA), which has been developed between them. The development of this agreement was aimed at helping the parties to come up with an effective framework that would enable them to combat infringement of the IP rights, especially in regards to counterfeiting and piracy.

In New Zealand, copyright protection is principally governed by The Copyright Act of 1994. This act provides protection for the author during their lifetime plus an addition of 50 years after their date of death for dramatic, literary, musical, and artistic works, and protection for 50 years from the year of production in the case of films and recordings. The Copyright Amendment Act was passed in 2008 with the aim of bringing the old law up to date. The patent owners in New Zealand are granted exclusive rights whereby they are allowed to exclude others from using or commercializing the invention that has been patented for up to a period of 20 years.

Trademarks are also provided under the IP laws in New Zealand, whereby they enable different businesses to distinguish their products from those of other competitors who offer similar products. This provision is important in helping different businesses to compete effectively by gaining and retaining their customers. Design protection is also offered in New Zealand, where the external features of a given product are protected from infringement. This differs from the patent protection in the sense that the design protection only covers the external features that meet the eye, but the patent protection is involved with the ideas or concepts behind a given invention. Plant variety rights are also protected by New Zealand IP laws.

Conclusion

Intellectual property laws have been in existent since 1867. They started when a few individuals sought monopolies over some privileges that were granted by Queen Elizabeth I. In modern-day, the laws are designed, passed and implemented differently in various parts of countries of the world. However, legal infrastructure that aligns the laws in different parts of the world exists (Sell, 2003). This ensures that an invention can be granted protection in the applicant’s home country and in other parts of the world.

It is important to note that intellectual property laws are of great importance in the protection of the rights of the privacy of interventions as brought forth by different individuals. These laws safeguard an invention from being exploited through commercialization or any other means by individuals who are not authorized. In the US, IP laws have been well developed with time, putting into consideration all sorts of privacy, with the aim of efficiently combating infringement and promoting innovation.

Proper funding of copyright, trademark, and patent protection measures in the US has facilitated the development process through safeguarding of individual inventions and motivating individuals to venture into new material. The Australian IP laws system is similar to that of the United States with the major difference being that the US has directed its incentives in promoting transfer of technology towards inventions that are managed by the federal institutions while in Australia the incentives are spread towards the public.

On the other hand, the New Zealand intellectual laws are similar to those of the US, an aspect that can be attributed to the agreement that exists between the two countries in efforts to combat infringement. Canadian IP laws are however too lenient and very ambiguous. Because of this, there has been pressure for Canada to ratify the ACTA agreement. In Norway, the IP laws are highly elaborate. Norway also ratifies international IP laws such as the WIPO and TRIPS. Nonetheless, the fundamental issue is that all these countries recognize the need for IP laws in order to stimulate inventions.

References

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