INTRODUCTION TO

INTELLECTUAL PROPERTY
RIGHTS

Prof. Sampath Punchihewa

Faculty of Law, UOC
 AGENDA
⦿A telling glimpse of the topic
⦿Concept of intellectual property (IP)
⦿IP in the forefront of litigation
⦿Global IP Treaties
⦿Rationale for IP
⦿Types of IP
⦿Practical exercise
⦿Concluding remarks
 Intellectual property is the oil of the 21st century

⦿In the 21st century in a market-oriented

economy, bargaining power is essential for
extracting value from a market transaction.
⦿For more than a century, the world’s
wealthiest human being was associated with
oil, starting with John D Rockefeller in the
19th century and ending with the Sultan of
Brunei in the late 20th century. But today,
the world’s wealthiest person is a knowledge
worker.
 IP as a Property
⦿Intellectual property (IP) is the name
given to property arising out of human
intellectual effort. The output of human
intellectual effort often manifests itself as
new or original knowledge or creative
expression which adds a desirable
quality to a marketable product or
service.
⦿Just like physical property, IP has
commercial value.
IP is an Intangible Asset
⦿Unlike tangible (physical) assets such as
buildings, land, vehicle and machinery,
IP assets are intangible when first
created, but become valuable in tangible
form as products.
 The IP System
⦿The modern IP system is based on
the western conception of private
property, where the creator is the
owner of what he or she creates,
which is considered valuable by virtue
of it being considered to be new,
original, unique, special or innovative
in a particular temporal or
geographical context.
Why IP Rights?
⦿ protect innovative products and services;
⦿ increase the visibility, attractiveness and value
of your products on the market;
⦿ distinguish your business and its products from
the competition;
⦿ access technical and business information and
knowledge;
⦿ avoid the risk of unknowingly using third party
proprietary content or inadvertently losing your
own valuable information, innovations or creative
output.
The Concept of IP
Value of IP Rights
⦿ Intellectual property (IP) is the name given to
property arising out of human intellectual effort. At
the very basic level, an IP right is a property right.
Just like a car or house owner has rights over that
property (owner may use, lend, rent, sell the car or
house), a creator has rights over his creations (he
may make copies, translate, and upload the
creation on the Internet, etc.).
⦿ Therefore, IP laws provide a protective
barrier against free-riders without which
innovation is like a crop in an unfenced
field.
Delhi University Photocopy Shop Case (2017)

⦿ A small photocopying shop attached to

Delhi University regularly compiles extracts
from copyrighted books and makes it
available to students. A group of publishers
have sued Delhi University & Rameshwari
Photocopy Service for copyright
infringement of their works.
⦿ In Cambridge University Press vs Becker,
courts have held that reproducing less than
10 per cent of a book constituted "fair use".
Copyright Violation
⦿ The CID accused him of having published
and sold the novel Malagiya Eththo in
January 2015, without obtaining permission
for publishing rights of the novel from
Lalitha Sarachchandra who possessed
sole rights for publication, in violation of
Section 6 of the Intellectual Property Rights
Act No. 36 of 2003 and for having
committed a punishable offence under
Section 178 of that Act.
Coming into celebrate 170 years of tea in Sri Lanka
Pure Ceylon Tea Issue
⦿ Two trucks caught carrying with ‘purest’ refuse tea:
⦿ Two lorries containing 3,300 kilos of refuse tea
were taken into custody with two suspects by the
Special Crimes and Operations Unit attached to
the Kandy DIG Headquarters on Wednesday (30)
night.
⦿ The police team made the detection near
Kadugannawa on Kandy-Colombo main road.
Lorries were proceeding to Colombo to deliver the
refuse tea to buyers there.
⦿ The bags containing the refuse tea had carried
labels stating ‘Purest Tea’, police said
Bandu and Bindu
Bandu sues Bindu
⦿ Colombo Chief Magistrate Gihan Pilapitiya on
Tuesday ordered the Public Performance Board
and the Intellectual Property Act office to be
present in court on January 4 ,2016 to find out
whether the suspect Bindu Bothalegama, acting as
a comedy artist, had infringed the rights of the
complainant Bandu Samarasinghe.

Magistrate Pilapitiya made this order after hearing

the submissions of the parties in a case in which
complainant Samarasinghe had alleged that the
Bindu Bothalegama, by imitating him, had violated
the provisions of the Intellectual Property Act.
Terminology
⦿ Intellectual Property (IP) continues to be a
dynamic and constantly evolving field,
closely tied to technological, economic,
political and social changes.
⦿ Globalization
⦿ Knowledge economy
⦿ TRIPS
⦿ Intangible assets
⦿ Public goods
⦿ Technology
⦿ Innovation/Invention
⦿ Know-how
⦿ R&D
⦿ Incentivize
⦿ Exclusive Rights
⦿ Monopoly
⦿ “Imagination is more important than knowledge”
Albert
Einstein

⦿ Albert Einstein’s preference for imagination over

knowledge is a starting point, because IP is
based on the power of imagination. Einstein
understood that it is the ability to stand on an
existing foundation of accepted knowledge, and
see beyond to the next frontier of discovery that
is the source of personal, cultural and economic
advancement.
What is Intellectual Property?

IP resides everyday objects

The contents of a jar, the lid and
seal may be protected by
patents. Registered and
unregistered design rights can
also protect the lid and shape of
the jar. Copyright can protect
the artwork in labels, and
trademark can protect the
shape of the jar lables, colours
used, and brand names.
The concept of IP
⦿ Intellectual property (IP) refers to creations
of the mind
⦿ IP, very broadly, means the legal rights
which result from intellectual activity in the
industrial, scientific, literary and artistic
fields.
⦿ IP law aims at safeguarding creators and
other producers of intellectual goods and
services by granting them certain time-
limited rights to control the use made of
those productions.
⦿ Intellectual property is traditionally divided
into two branches, “industrial property” and
“copyright & neighboring rights.”
Intellectual Property Paradigms
⦿ IP shall include rights relating to:
⦿ - Copyright and Related Rights-literary, artistic
and scientific works,
⦿ - performances of performing artists, phonograms
and broadcasts,
⦿ - Patents-inventions in all fields of human
endeavor, -
⦿ - Industrial Designs,
⦿ - Trademarks, service marks and commercial
names and designations,
⦿ - Protection against Unfair Competition.
⦿ - Confidential information/Know-how/ Trade
Secrets
⦿ Geographical Indications
 THE INSTRUMENT OF IP AND COMMON
APPLICATIONS
Application Application
Simple Literary
Patent e.g. pharmaceutical molecule Graphical copyright
Complex Video graphic
e.g. microprocessor element Audio

Useful idea Original expression

Knowledge

Distinctive identity

Non –physical application Physical application

Design
Trade mark Badge of identity for Shape
Goods or services Configuration
e.g. logo,shape, sound, colour Ornamentation
Justification of IP Rights
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Philosophical Underpinnings of
IP
⦿understanding of philosophical roots of
IP protection
⦿IP is viewed through economic, moral,
cultural and political dimensions
⦿In his famous treatise on the Wealth of
Nations, Adam Smith notes that ‘the
invention of all those machines by which
labour is so much facilitated and
abridged seems to have been originally
owing to the division of labour
IP and Theoritical Foundation
⦿Several theories have been advanced to
explain why the society needs to grant
IP rights
⦿According to a leading study by Fritz
Machlup, there are four well-known
justifications for IP protection
⦿They are, namely, the ‘natural-law’
thesis, the ‘reward-by-monopoly’ thesis,
the ‘monopoly-profit-incentive’ thesis,
and the ‘exchange-for-secrets’ thesis.
Theoritical Foundation Contd.
⦿The ‘natural-rights’ school of
thinking assumes that the creator
or inventor has a ‘natural’
property right in his intellectual
achievement and society is
morally obliged to recognize and
implement his property right. See
Lockean ‘labour desert theory’ in
his famous The Second Treaties
on Government
Incentive Theory
⦿According to the utilitarian justification,
IP rights are necessary because they
contribute to general economic welfare
⦿In order to achieve this goal, property
rights are granted to authors and
inventors as an incentive to create and
top invent, but some aspects must
remain in the public domain to preserve
future creations and innovations
Multinational IP Treaties

⦿ Paris Convention for the Protection of

Industrial Property of 1883
⦿ Berne Convention for the Protection of
Literary and Artistic Works of 1886
⦿ Rome Convention for the Protection of
Performers, Producers of Phonograms
and Broadcasting Organizations of 1961
⦿ Trade-Related Aspects of Intellectual
Property Rights-(The TRIPS Agreement
1994)
Theoritical Richness of IP
⦿‘Reward-by-monopoly’ thesis,
emphasizes a creator or an inventor
should receive a reward for his or her
services in proportion to their usefulness
to society
⦿Apart from these traditional justifications,
more recently, the ‘incentive-to-
commercialize’ or the ‘incentive-to-
invest in further development’ thesis or
so-called ‘prospect theory’ has attracted
Dominant Theory
⦿ In essence, though, the incentive theory
remains the dominant view of IP rights and
it can also be traced as the ‘engine of IP
policy’.
⦿ The incentive theory advances the
argument that the homo economicus will
tend not to engage in economically
valuable creativity and innovation without
external rewards. According to basic
human sense, external motivational factors
such as rewards would also create a
psychological effect resulting in intrinsic
motivation for further innovations.
What is copyright?

⦿ Copyright is a legal term used

to describe the rights that
creators have over their literary
and artistic works.
⦿ Works covered by copyright
range from books, music,
paintings, sculpture and films,
to computer programs,
databases, advertisements,
maps and technical drawings.
What is a Patent?
⦿ A patent is an exclusive right
granted for an invention.
Inventions are new solutions to
specific technical problems.
⦿ Generally speaking, a patent
provides the patent owner with the
right to decide how - or whether -
the invention can be used by
others. In exchange for this right,
the patent owner makes technical
information about the invention
publicly available in the published
patent document.
⦿ An example of a patented
invention
Fog-harvesting technology helps relieve water
shortages in arid regions
Invention
IP Rights in this innnovation
⦿ CloudFisher® is a registered TM held by the
German Water Foundation, and the technology
itself is protected using both UM and Patents. This
technology is protected to prevent others from
copying it and to ensure that the patent owner has
freedom to operate with no fear of infringing
anyone else’s rights because the technology can
also be used for commercial purposes, for
example by breweries,” The owner of the
technology used the PCT to protect the technology
(WO/2016/062877) because it offers a very cost-
effective and straightforward way of applying for
patent protection in many different countries.
FTO Analysis
⦿ A Freedom to Operate (FTO) analysis invariably
begins by searching patent literature for issued or
pending patents, and obtaining a legal opinion as
to whether a product, process or service may be
considered to infringe any patent(s) owned by
others. Many private law or IP firms offer such
analyses as part of their legal services to clients.
⦿ An FTO analysis based on the search of patent
literature is just the first step. If the patent search
reveals that one or more patents do limit a
company’s freedom to operate, the company must
decide how to proceed.
What is a Trademark?

⦿ A trademark is a sign
capable of distinguishing
the goods or services of
one enterprise from those
of other enterprises.
Trademarks date back to
ancient times when
craftsmen used to put
their signature or "mark"
on their products.
What is an Industrial Design?

⦿ An industrial design
constitutes the ornamental
or aesthetic aspect of an
article. A design may
consist of three-
dimensional features, such
as the shape or surface of
an article, or of two-
dimensional features, such
as patterns, lines or color.
What is a Geographical Indication?
⦿ Geographical indications and
appellations of origin are
signs used on goods that
have a specific geographical
origin and possess qualities, a
reputation or characteristics
that are essentially
attributable to that place of
origin. Most commonly, a
geographical indication
includes the name of the
place of origin of the goods.
Unfair Competition and Undisclosed
Information
⦿ Unfair competition is defined as
‘any act of competition contrary to
honest practices in industrial or
commercial matters’
⦿ Undisclosed information (a trade
secret) is ‘any information that can
be used in the operation of a
business or other enterprise and
that is sufficiently valuable and
secret to afford an actual or
potential economic advantage
over others.
 PRACTICAL EXERCISE
⦿ Prepare a Mapping Exercise offering a
telling glimpse of the IP in a nutshell. The
task should consist the type of IP, subject
matter of protection
Type of IP
and duration
Subject Matter Duration
of
exclusive right. Refer to the Table below:

Copyright Original Lifetime plus 70

expression of work yrs
Patent Inventiveness 20 yrs from the filing
of application
Thank you for patient
listening!
Contact: sampath@law.cmb.ac.lk