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PULPOU BLOG
Report: 5 Agreements to Understand International Intellectual Property Legislation
A summary of the highlights of the Paris, Rome, and Berne Conventions; and the Patent Law Treaty and the WIPO Copyright Treaty.
Paris Convention
The Paris Convention applies to industrial property in the broadest sense, including patents, trademarks for goods and services, industrial designs, utility models (a type of "small patent" recognized in some countries' laws), service marks, trade names (the designation used for industrial or commercial activity), geographical indications (indications of source and appellations of origin), and the repression of unfair competition. The fundamental provisions of the Convention can be divided into three main categories: national treatment, the right of priority, and common rules.
1) National Treatment: The Convention stipulates that with respect to the protection of industrial property, the Contracting States must grant the nationals of other Contracting States the same protection they grant to their own nationals. Nationals of non-Contracting States are also entitled to this protection if they are domiciled or have a real and effective industrial or commercial establishment in a Contracting State.
2) Right of Priority: The Convention establishes the right of priority in relation to patents (and utility models where they exist), trademarks, and industrial designs. This means that based on a first application for a patent, trademark registration, or industrial design filed in one of the Contracting States, the applicant may, within a certain period, seek protection in any of the other Contracting States. These subsequent applications will be considered as having been filed on the same date as the first application. In other words, these subsequent applications will have priority over applications that others may file during these periods for the same invention, utility model, trademark, or industrial design.
3) Common Rules: The Convention also sets forth certain common rules that all Contracting States must follow. The most important are:
a) Patents: Patents granted in different Contracting States for the same invention are independent of each other: the granting of a patent in one Contracting State does not obligate the others to grant a patent; a patent cannot be refused, annulled, or terminated in one Contracting State due to it being refused, annulled, or terminated in another State. The inventor has the right to be mentioned as such in the patent. A patent cannot be denied or invalidated because the patented product's sale or the product obtained by a patented process is subject to restrictions or limitations under national law. A Contracting State may take legislative measures to grant compulsory licenses to prevent abuses from the exclusive rights conferred by the patent, but only under certain conditions, such as insufficient or lack of industrial exploitation of the patented invention after a certain period since the patent was granted or filed. The expiration of the patent cannot be foreseen except when compulsory licenses have been insufficient to prevent abuse.
b) Trademarks: The Paris Convention does not set the conditions for filing and registering trademarks, which are governed by the internal law of the Contracting States. Therefore, a trademark registration application filed by a national of a Contracting State cannot be rejected, nor can the registration be invalidated, because it was not filed, registered, or renewed in the country of origin. Once a trademark is registered in a Contracting State, it is considered independent of any other registrations in other countries, including the country of origin. Therefore, the expiration or annulment of a trademark in one Contracting State does not affect the validity of the registrations in the other States. When the trademark is duly registered in the country of origin, it must be accepted for deposit and protected in its original form in the other Contracting States upon request. However, registration can be denied in specific cases, such as when the trademark infringes on third-party rights, lacks distinctive character, is contrary to morality or public order, or may deceive the public. If the use of the registered trademark is mandatory in a Contracting State, the registration cannot be annulled for lack of use until a reasonable period has elapsed and only if the interested party does not justify the causes for non-use. Additionally, the Contracting States must refuse registration and prohibit the use of trademarks that constitute a reproduction, imitation, or translation likely to create confusion with a trademark already known in that State and owned by a person who can benefit from the Convention. They must also refuse registration and prohibit the use of marks containing, without authorization, armorial bearings, State emblems, and official signs and hallmarks of the Contracting States communicated through the WIPO International Bureau. The same applies to armorial bearings, flags, emblems, acronyms, or names of certain intergovernmental organizations.
c) Industrial Designs: Industrial designs must be protected in all Contracting States, and protection cannot be denied because the products to which the design is applied are not manufactured in that State.
d) Trade Names: Trade names must be protected in all Contracting States without the obligation of filing or registration.
e) Indications of Source: The Contracting States must take measures against the direct or indirect use of false indications of the source of products or the identity of the producer, manufacturer, or trader.
f) Unfair Competition: All Contracting States must ensure effective protection against unfair competition.
Patent Law Treaty (PLT)
The PLT aims to harmonize and streamline formal procedures related to patent applications and national and regional patents to ease the process for users. Except for filing date requirements, the PLT sets a maximum list of requirements that Contracting Parties' offices may impose. These Parties can establish more flexible requirements for applicants and owners but cannot exceed the maximum established by the PLT. Key provisions include:
a) Filing Date Requirements: Uniform requirements reduce the risk of applicants inadvertently losing the filing date, which is crucial throughout the patent process. Offices must accord a filing date when three simple requirements are met: an indication that the elements received are a patent application, indications allowing the office to identify the applicant or communicate with them, and a part that describes the invention. No additional elements can be required to grant the filing date. Contracting Parties cannot condition the filing date on claims processing or fee payment.
b) Uniform Formal Requirements: Incorporates requirements related to the form and content of international applications under the PCT, including the PCT request form content and its use accompanied by an indication that the application should be processed as a national application, reducing procedural differences between national, regional, and international patent systems.
c) Standardized International Forms: Must be accepted by the offices of all Contracting Parties.
d) Simplified Procedures: Includes exceptions to mandatory representation, restrictions on the systematic requirement for evidence submission, the obligation for offices to accept single communications covering more than one application or patent in certain cases (e.g., a single power of attorney), and restrictions on requiring copies and translations of previous applications.
e) Accidental Rights Loss Prevention: Includes notification of deadline extensions, continuation of proceedings, restoration of rights, and restrictions on patent revocation or invalidation for formal defects if not communicated during the application phase.
f) Electronic Filing Facilitation: Ensures coexistence of electronic and paper communications, with Contracting Parties able to exclude paper communications from June 2, 2005, but must still accept paper communications for filing date attribution and deadline compliance. Declarations specify continued support for developing and transitioning countries to use electronic filing.
Rome Convention
The Rome Convention ensures the protection of performers, phonogram producers, and broadcasting organizations:
1) Performers: Actors, singers, musicians, dancers, and other performers are protected against unauthorized broadcasting, public communication, fixation, and reproduction of their performances if initially fixed without their consent or reproduced for purposes other than those for which consent was given.
2) Phonogram Producers: Have the right to authorize or prohibit direct or indirect reproduction of their phonograms. Phonograms are defined as sound recordings of performances or other sounds. Users must pay equitable remuneration to performers and producers for secondary uses like broadcasting or public communication unless Contracting States decide otherwise.
3) Broadcasting Organizations: Have the right to authorize or prohibit retransmission, fixation, reproduction of fixations, and public communication of their broadcasts in places accessible to the public for a fee.
The Rome Convention allows national laws to set limitations and exceptions to these rights for private use, brief excerpts for current event reporting, ephemeral fixations by broadcasting organizations, use for teaching or scientific research, and other cases where national law provides exceptions to copyright on literary and artistic works. Once a performer consents to their performance being recorded on a visual or audiovisual fixation, performer rights provisions no longer apply.
Protection duration must be at least 20 years from the end of the year when:
- Phonogram fixation and related performances occurred,
- Non-phonogram performances occurred,
- Broadcasts were made.
National laws increasingly provide a minimum protection of 50 years for phonograms and performances.
Berne Convention
The Berne Convention protects authors' works and rights based on three principles and includes provisions for minimum protection and special provisions for developing countries:
- Principles:a) Works from a Contracting State must receive the same protection in all other Contracting States as works from their nationals.b) Protection cannot be conditioned on formalities.c) Protection is independent of the existence of protection in the work's country of origin. If a Contracting State provides a longer protection period than the minimum prescribed, and protection ceases in the country of origin, protection may be denied once it ceases in the country of origin.
- Minimum Protection Conditions:a) Works: Protection extends to all literary, scientific, and artistic productions, regardless of the mode or form of expression.b) Rights: Subject to reservations, limitations, or exceptions, the following rights must be recognized as exclusive rights of authorization: translation, adaptation, and arrangement of the work, public performance of dramatic, dramatic-musical, and musical works, public recitation of literary works, public communication of the performance or recitation of such works, broadcasting, reproduction by any means and form, use as a basis for an audiovisual work, and reproduction, distribution, performance, or public communication of such audiovisual work.
The Convention also provides for "moral rights," allowing authors to claim authorship and object to any distortion, mutilation, or modification prejudicial to their honor or reputation.
- Duration: Protection must last at least 50 years after the author's death, with exceptions for anonymous or pseudonymous works (50 years after lawful public availability unless the pseudonym leaves no doubt about the author's identity or the author reveals their identity within that period, in which case the general rule applies). For audiovisual works, the minimum protection is 50 years from public availability or creation if not made available. For applied art and photographic works, the minimum protection is 25 years from creation.
WIPO Copyright Treaty (WCT)
The WCT, adopted under the Berne Convention, protects works and authors' rights in the digital environment. Contracting Parties must comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention. The WCT protects:
- Computer Programs: Regardless of mode or form of expression.
- Compilations of Data: Constituting intellectual creations by reason of selection or arrangement.
Additional rights under the WCT include:
- Distribution Right: Authorizes making the original and copies of the work available to the public by sale or transfer of ownership.
- Rental Right: Authorizes commercial rental to the public of the original and copies of computer programs, cinematographic works, and phonogram-incorporated works, as determined by national law.
- Communication to the Public: Authorizes any public communication by wire or wireless means, including making works available interactively online.
The WCT includes the "three-step test" for limitations and exceptions to ensure they comply with the Berne Convention's standards, extendable to the digital environment. Contracting States can create new exceptions suitable for the digital environment, provided they meet the three-step test conditions.
Protection duration must be at least 50 years for any work type. Enjoyment and exercise of rights under the Treaty are not subject to formalities.
The Treaty obligates Contracting Parties to provide legal remedies against circumvention of technological protection measures used by authors and against removing or altering rights management information.
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