ISL456U-TECHNOLOGY AND INNOVATION MANAGEMENT
Chapter 6: Intellectual Property Rights
Introduction
With the understanding of the value of information, the production of information has increased rapidly, however, the concepts of accessing and protecting information have also become important. These concepts have increased the importance of intellectual property rights. The intellectual property rights system has attained an interdisciplinary structure that includes innovation, creativity, and competitiveness processes.
The Concept of Intellectual Property Rights
There is a complexity of terms regarding intellectual property rights. Different terms are used such as “intellectual property” in English, “propriėtė intellectuelle” in French, “intellectual property”, “intellectual and industrial property”, “intellectual and industrial property”, “fikri ve sanayi mülkiyet” in Turkish. Their meanings and scopes are the same. These concepts include ideas and works of art, patents, brands, utility models, designs, geographical names and signs, integrated circuit topographies, computer programs and databases, and know-how and trade secrets.
Intellectual property rights can be addressed in two groups:
• Intellectual and artistic works (copyrights) • Industrial property rights
The features of intellectual property rights are:
• Intellectual property rights are the product of the human mind. • They can be built on intangible goods. • Rights are subjected to private law. • They are absolute rights, they can be claimed against everyone. • They provide financial and moral benefits to the right holder
World Intellectual Property Organization (WIPO)
The World Intellectual Property Organization, headquartered in Geneva, was established on 14 June 1967 with The WIPO Convention. Convention entered into force in 1970 and was amended in 1979. The World Intellectual Property Organization is an intergovernmental organization that became one of the specialized agencies of the United Nations system of organizations in 1974. Turkey has been a member of The World Intellectual Property Organization since 1975.
The main objectives of the organization are; to ensure the protection and development of intellectual property all over the world with the contributions of member states.
The Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade-Related Aspects of Intellectual Property Rights is one of the annexes to the agreement establishing the World Trade Organization. At the end of
the Uruguay Round (1986-1993), the last of the GATT rounds, it was decided to establish the World Trade Organization (WTO) to control the free movement of goods and services in the World.
Because the agreement brought an inclusive and compelling protection system; by introducing common standards, procedures, and dispute resolution mechanisms, it brought about the principles of “the most favored nation” and “national treatment”.
Most-favored-nation: Treating other people equally. Under the WTO agreements, countries cannot normally discriminate between their trading partners. When you grant someone a special favor (such as a lower customs duty rate for one of their products), you have to do the same for all other WTO members.
National treatment: Treating foreigners and locals equally. Imported and locally-produced goods should be treated equally — at least after the foreign goods have entered the market. The same should apply to foreign and domestic services, and foreign and local trademarks, copyrights, and patents.
Turkish Patent and Trademark Office
Registration and protection of intellectual property rights in Turkey are carried out by the Turkish Patent and Trademark Office. The previous name of the office is the Turkish Patent Institute. Turkish Patent Institute (TPE) was established in 1995. With the Industrial Property Law No. 6769 dated December 22, 2016, the name of the Institution was changed as “Turkish Patent and Trademark Office” and its short name as “TÜRKPATENT”.
Purposes for the establishment of the Turkish Patent and Trademark Office can be listed as follows:
1. To contribute to Turkey’s technological progress 2. To create a free competition environment within the country 3. To ensure the development of research and development activities 4. To establish industrial property rights with patents and trademarks and to provide protection in this regard 5. To present the information and documentation related to industrial property rights at home and abroad to the public’s benefit.
Reasons For The Protection of Intellectual Property Rights
Intellectual production is encouraged by protecting intellectual property rights, and as a result, economic, social, and cultural progress is achieved. Protection of intellectual rights, on the one hand, protects the rights of inventors, owners of the intellectual works, and those who transfer these works to the public by putting labor and capital. On the other hand, it provides the necessary conditions for conducting domestic and foreign trade under contemporary norms, especially supporting and
developing the manufacturing industry through technology development and transfer, and evaluating the cultural and artistic wealth of the society.
The main purpose of intellectual property protection is to guarantee the future of society by promoting original production. Insufficient intellectual property protection breaks new work creation or an eagerness to make an invention. At least insufficient protection leads to imitation and low-quality production. Intellectual property protection also triggers information sharing. An invention is a new step for further research and inventions.
The objectives of intellectual property protection are listed as follows:
1. Recognition of mental productivity by society, 2. Encouraging invention and innovation activities by establishing a fair competition scheme, 3. Rewarding the idea workers by supporting technological and cultural progress, 4. Promoting economic growth and employment, 5. Enrichment of public information and cultural treasury, 6. Dissemination of technical knowledge by explaining the results of Research and Development (R&D), 7. Withdrawal of foreign capital, 8. International relations
Rights on Intellectual and Artistic Works (Copyright)
Intellectual and artistic works are all kinds of intellectual products bearing the characteristics of the owner and created by an intellectual and mental effort. It is regulated by Law No. 5846 on Intellectual and Artistic Works (IAWL) (Official newspaper: Date: 13 December 1951, P.7931). Rights arising from intellectual and artistic works in Turkish law are also called copyrights. While the Anglo-Saxon Law system uses copyright, in Continental European Law, the author’s terms of rights are used.
According to regulation the Intellectual and Artistic Works Law, intellectual and artistic works are divided into four groups:
1. Literary and Scientific Works 2. Musical Works 3. Works of Fine Arts 4. Cinematographic Works
For a product to be protected as intellectual work, this product must have two elements. One of these elements is that the work has “bearing the characteristic of its author” and the other is “to be included in one of the types of intellectual and artistic works listed in the law”. Unlike patent and industrial design protection, protection under this law is not registered.
Literary works, musical works, and works of fine arts are at the core of the intellectual and artistic work. Works of
art include all works of fine art, including architectural works. However, the subject of this law has expanded over time. Firstly, science and cinema; then, models, maps, handicraft, decoration arts, choreography and pantomime over time; and finally, computer programs and databases are included in the scope of this law. Musical works are all types of musical compositions, with or without lyrics (IAWL Article 3). Works of fine arts are the ones that have aesthetic value (IAWL Article 4). Cinematographic works are works such as films of an artistic, scientific, educational or technical nature or films recording daily events or movies, that consist of a series of related moving images with or without sound and which, regardless of the material in which they are fixed, can be shown by the use of electronic or mechanical or similar devices ((IAWL Article 5).
Rights of the Author
The author of a work is the person who has created it. The author of an adaptation or collection is the person who has made the adaptation, provided that the rights of the original author are reserved. In the case of cinematographic works, the director, the composer of original music, the scriptwriter, and the dialogue writer are joint authors of the work. For cinematographic works that are produced with the technique of animation, the animator is also among the joint authors of the work (IAWL Article 8). If a work created jointly by more than one person can be divided into parts, each person shall be deemed the owner of the part s/he created (IAWL Article 9). If a work created by the participation of more than one person constitutes an indivisible whole, the author of the work is the union of the persons who created it. The provisions on ordinary partnership shall apply to such union (IAWL Article 10).
The rights of authors in their intellectual and artistic works are divided into two as moral and economic rights (IAWL Article 13). The authors may directly exercise their economic rights arising from the work or transfer it to third parties. Contrary to moral rights, it may be subject to foreclosure and compulsory execution, hostage and prison rights, or to third parties through inheritance. Economic rights arising from the work can be used independently. Economic rights arising from intellectual and artistic works in the law are as follows: right of adaptation, right of reproduction, right of distribution, right of performance, right to communicate a work to the public by devices enabling the transmission of signs, sounds, and/or images. Moral rights are those that are strictly dependent on personality and cannot be delegated. The moral rights of the author arising from the intellectual and artistic works are as follows: authority to disclose the work to the public, the right to deny the publication of the work, the authority to designate the name, rights of the prohibition of modification, the right to use the work for a temporary period, the right to use the work in works and exhibitions to be returned after use, the right to prevent the destruction of the work.
Neighboring rights are the ones that belong to performers who interpret, introduce, recite, sing, play and perform work in various ways and in an original form with the permission of the author.
International Conventions Concerning the Protection of Intellectual and Artistic Works
The “Convention on the Protection of Literary and Artistic Works” dated 9 September 1886, which is known as the Bern Convention, is the first international arrangement in the field of intellectual and artistic works. It has been changed many times. Each amendment is accepted as an independent agreement and must be accepted by the members. With this convention, member countries mutually recognized the protection they gave the authors of work in their national laws (principle of reciprocity). Due to the principle of reciprocity, the author of a work and the work is protected in all Union countries.
The Berne Convention is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them.
Turkey signed the Berne Convention on 27 October 1951, and it came into force on January 1, 1952. Afterward, in 1995, it adopted the Paris Text of the Convention in 1971 with the law numbered 4117 Other conventions for the international protection of intellectual and artistic works are the World Intellectual Property Organization Copyright Agreement, Universal Copyright Convention, Rome Convention on the Protection of Performer Artists, Phonogram Producers and Broadcasters, The Buenos Aires Convention of 1910, The Convention on the Protection of Television Broadcasts.
Industrial Property Rights
Patent
Patent can be defined as a document showing that the creative thinking of the inventor is protected under legal provisions for a certain period of time.
Conditions of Patentability
The invention to be patented should be new; if the invention was disclosed to the public before the patent application was made, the invention is not new. The last condition sought to grant a patent or utility model certificate is the applicability to the industry. If the invention is producible and usable in any industrial area including agriculture, it shall be considered as applicable to industry (IPL Article 83/6). The invention is practicable; means that it can be used, it can be produced, it can be repeated.
Patent Application
Patent claim right belongs to the inventor or their successor; transfer of such right shall be possible. If the invention is made together by more than one individual,
the patent claim right belongs to all these unless otherwise is decided. If one invention is made by more than one individual independent of each other, the patent claim right belongs to the earlier application, on the condition that the earlier dated application is published. The first application of a patent shall be the right owner of patent demand until proven otherwise (IPL Article 109). Until proven otherwise, it shall be considered that the applicant is the rightful owner of the patent claim (IPL Article 110/1).
The patent application is made to the Turkish Patent and Trademark Office. The inventor shall be declared in the application. However, inventor may ask to remain anonymous. In case the applicant is not the inventor or is only one or a few of the inventors, such persons shall be obliged to explain the way they obtained the right to file a patent application in the application documents (IPL Article 90/5).
Scope and Protection of a Patent Right
Patent application and patent provide legal protection to the patentee. The patentee avails himself of the patent right without any exceptions of where the invention was made, its technological area, and whether the products are imported or are domestic (IPL Article 85/1).
Patent Types
The patent can be divided into product and procedural patents, original patents and supplementary patents, public patents, and confidential patents.
Product Patent and Procedure Patent: While the product patent directly reveals a product by the inventor, the procedure patent refers to technical procedures or solutions, which can be used in producing a technology, yet are not direct products.
Main Patent and Supplementary Patent: The patent that is given for the protection of inventions which perfect or develop the main patent or the invention that is the subject of the patent and which are in coherence with the subject. The supplementary patent is an integral part of the original patent. Improving the state of the art does not apply to additional patents. The supplementary patent can be converted to the original patent by the applicant.
Public Patent and Confidential Patent: As a rule, patents are public and anyone can access information about them. A confidential patent is a patent granted to concealed inventions that are important in terms of national defense and registered in a registry that is not open to public scrutiny for a certain period of time.
International Treaties Concerning Patent
The Paris Convention: The Paris Convention was adopted in 1883. The implementation of The Convention is monitored by the World Intellectual Property Organization (WIPO). The Convention, which is described as the “Constitution of Industrial Property”, includes regulations
on patents, trademarks, industrial designs, utility models, service marks, trade names, geographical indications, and the repression of unfair competition.
Patent Cooperation Treaty (PCT): The purpose of the Patent Cooperation Agreement (PCT) is to eliminate the difficulties arising from the worldwide patent applications and examination of these applications for the protection of the same invention. In other words, it is to facilitate the protection of the invention worldwide with a single international patent application.
European Patent Convention: Signed in 1973, the European Patent Convention entered into force in 1977, and Turkey became a party on November 1, 2000. The objectives of the convention are to strengthen the cooperation between European states on the protection of inventions, to ensure the registration of patents in member countries through a single procedure, and to establish standard rules for patents granted in member countries.
Utility Model
A small invention and a small patent that defines technical solutions based on simple formulas and principles responding to some requirements are called The utility model. For example, a slipper manufactured according to the collapse points of the soles; a magnifying glass that can be placed at the bottom of an entire page and can be read; can be given as examples.
Protection of Utility Model
Right For the registration of the utility model, an application is made to the Turkish Patent and Trademark Office. The utility model protection period is 10 years and this period cannot be extended.
Design
According to IPL Article 55, design shall be the appearance of the whole or a part of a product resulting from the features of, the line, contour, color, shape, material, or texture of the product itself or its ornamentation.
Purpose of Protection of Designs
The purpose of the provisions of the IPL regarding design is to protect the designs, create a competitive environment, and develop the industry.
Designs within the Scope of Protection and Conditions of Protection
The design shall be protected by IPL provided that it is new and has an individual character. If an identical design isn’t presented to the public in any part of the world; a) before the application or priority date for the registered design; b) before the design is presented to the public for the first time for non-registered design, it shall be accepted as a new design. If the design differs only in immaterial details, it shall also be accepted as identical (IPL Article 56/4).
International Registration of Designs
International conventions containing provisions for international registration and protection of designs are the Paris Convention, Bern Convention, and TRIPs mentioned in the previous sections.
Trademarks
According to IPL Article 4, trademarks may consist of any signs like words, including personal names, figures, colors, letters, numbers, sounds and the shape of goods or their packaging, provided that such signs are capable of distinguishing the goods or services of one initiative from those of other initiatives and are represented on the register in a manner to determine the clear and precise subject matter of the protection afforded to its proprietor.
Trademark Types
The types of trademarks that can be registered are: Trade Goods Mark, Service Mark, Guarantee Mark, Collective Mark, Well-known Trade Mark.
Signs That Cannot Be Registered As Trademarks
The reasons preventing the registration of a sign as a trademark are divided into two groups: Absolute grounds for refusal and relative grounds for refusal.
Trademark Registration
The registration application is made to the Turkish Patent and Trademark Office. For the trademark to benefit from the protection provided by the IPL numbered 6769.
Know-How and Trade Secret
Know-How
According to the World Intellectual Property Organization (WIPO), know-how is information or production methods that are used ase techniques related to industrial property.
Trade Secret
Trade secret is all kinds of information and documents related to the business’ field of operation, which operations have the discretion to be kept confidential and are known and obtained by a limited group, and the disclosure of which to the public or third parties is likely to cause serious harm to the business concerned.