Real Property Vs Intellectual Property
Everyone touts the importance of real property (commonly referred to as land); we are often advised to try as much as possible to buy one because it appreciates and it is an investment that can never go wrong. But has it ever occurred to you that irrespective of whether you can afford to purchase a land, you can put the creations of your mind to good use and convert them into the property, that is just as valuable as, or even more valuable than a piece of land on Banana Island?
Intellectual Property is similar to real property, in that they are both properties and can be the subject of ownership. However, their distinction lies in their form; intellectual property is intangible property. Real property may take the form of a bare land, or it may be a land with structures erected upon it, while IP may take any of several forms.
What is Intellectual Property (IP)?
Think about it for a while, what do you think intellectual property means? Intellectual property is the intangible property generated through the use of the intellect, imaginations and the mind, which the law protects. It refers to literary, scientific and technological creations which result from an inventive activity. The World Intellectual Property Organization (WIPO) defines
it as ‘the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields.’ 1 It has also been defined as ‘that area of the law which concerns legal rights associated with creative effort or commercial reputation and goodwill’.
If a person through the use of his/her imagination, writes a story, the law recognises that the story is the product of the person’s creativity, so the law rewards that creativity by giving the person intellectual property rights in that literary work. Also, when a person develops a drug that is effective for curing an ailment, the law also rewards the person’s research, industry and productive activity by conferring exclusive rights on that person, through the IP system.
IP rights can take any of the following forms: Copyright, Trademarks, Patents, Industrial designs and Trade secrets. Trademarks, patents, industrial designs and trade secrets are often referred to as industrial property. This is because they are often used in the course of trade or commerce.
Copyright is the exclusive protection and right given to authors or creators of literary, musical or artistic works. Copyright is the form of IP protection appropriate for creative works. The entertainment industry: movie industry and music industry, as well as the print media and the broadcast industry, all thrive on copyright. So copyright protects creative works and expressed creativity. Some rights which do not fall squarely within copyright are protected as neighbouring rights. Examples include folklore and performer’s rights (these will be explored in detail in subsequent articles).
Trademark, like the name implies, are marks used in the course of trade. Trademark protects words, symbols, shapes, figures, colours (in some countries smell can be protected as a trademark), logos that are used to indicate the commercial origin of goods and services and to distinguish them from the goods and services of others. Newer forms of IP rights are springing up and they can be subsumed under trademarks. Examples include domain names and geographical indications.
Patents generally protect inventions (including products and processes) that are new, that result from inventive activity and that can be practically applied to any field of human endeavour in order to achieve a particular result or solve a problem. A drug can be patented, an industrial machine can be patented, software that runs on the computer or phone can also be patented. cars, electric cookers, robots etc can all be patented.
Again, like the words industrial designs imply, this form of IP right protects designs. While patents are used to protect inventions that serve some utility function, industrial designs are used to protect objects that appeal to the sense of beauty or aesthetics as well as their shapes and sizes. For example, cups, spoons, buckets, shoes and clothes may be protected using industrial designs.
Trade secrets are used to protect the confidential information of commercial value. They are often used to protect secret recipes and formulas. For example, till date, the exact recipe used in the manufacture of the soda drink, Coca-cola remains a closely guarded trade secret. A trade secret may be used to keep recipes and processes secret. This is because the commercial success of a product may lie in its recipe or process being kept a secret.
Sometimes, a product may be protected by different IP rights at the same time. For example, a Coca-Cola drink: the shape of its bottle is protected by industrial design, its content by trade secret and the name and logo of the product which is Coca-Cola is protected by trademark.
Similarly, the shape of a phone is protected by industrial design, the software on the phone is protected by patent, its brand name (such as Motorola or Samsung) is protected by trademark, also the popular Motorola signature tone/phrase ‘Hello Moto’ is also protected by trademark.
IP protection permits the creators of innovative works and ideas to reap the benefits of their creative/innovative activity. It rewards their creativity, which in turn serves as an incentive for the production of more creative works.
1 WIPO, Intellectual Property Handbook (2 nd edn, WIPO Publication 489(E), WIPO 2004) 3.
2 David I Bainbridge, Intellectual property Law (6 th edn, Pearson Longman 2007) 3.