International Game Developers Association

[edit] A Quick History of IP Rights

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Intellectual property law governs property created by the mind. While legal codes relating to physical property date back to the Babylonian Code of Hammurabi (c. 1750 BC), intellectual property law is a much newer phenomenon.

In 1474, the city of Venice passed the first intellectual property law. It protected inventors' interests by assuring their right to control the copying of their creations. In 1624, England enacted the Statute of Monopolies, which granted intellectual property rights to an inventor for a limited period of time.

The origins of the modern system of Copyright lay in the Statute of Anne. Passed in England in 1709, this act was revolutionary as it combined a number of competing rights and benefits. For the first time rights were granted to authors to control the publication of their work; in addition, the act recognised the public benefits of encouraging creative work by requiring that copies of a book were available in certain libraries.

The Copyright clause of the U.S. constitution, drafted in 1787, further codified intellectual property rights by giving Congress the power to "promote progress in science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries".

By 1883, growing concerns over the theft of intellectual property coupled with an increase in international trade led to the Paris Convention for the Protection of Industrial Property. It was the first significant international treaty regarding intellectual property protection and allowed individuals in one nation to obtain protection of inventions, trademarks, and industrial designs in other countries. In 1886, the Berne Convention for the Protection of Literary and Artistic Works established similar global protection for everything from poems and operas to paintings and architectural works.

Led by an impetus to promote and reward creativity by protecting the works of the mind, the Paris Convention and the Berne Convention combined to usher in the modern intellectual property regime. Subsequent developments in copyright and intellectual property law have sought to balance monopoly rights and social concerns in the face of progressing technology.

The global evolution of intellectual property (IP) reflects its increased importance in world trade, its role in creating a national identity, and its impact on the social and economic well-being of nations. The extent of protection and enforcement of IP rights has varied widely throughout the world; as IP becomes more important in trade, these differences become a source of tension in international economic relations. The World Intellectual Property Organisation (WIPO) was established in 1967 to promote intellectual property protection throughout the world. It administers the Paris and Berne Conventions, which grant IP holders internationally, recognised rights. Unfortunately, these treaties failed to provide ways to enforce those rights. New rules of trade were needed to introduce more order and predictability to the rights afforded.

From 1986 - 1994, the Uruguay Round negotiated the General Agreement on Tariffs and Trade (GATT) which addresses IP rights. GATT attempts to unite the way IP rights are protected globally under uniformed international rules. The Uruguay Round produced the Trade-Related Aspects of Intellectual Property Rights Including Trade in Counterfeit Goods agreement (TRIPs) which contains provisions relating to all aspects of intellectual property. The aim of TRIPs was to ensure broad and strong minimum standards of protection, globally, across a wide range of intellectual property rights and ensure direct legal responsibility for their enforcement. Many countries lobbied for the TRIPs agreement to counteract the losses resulting from international counterfeiting and pirating. The proposal addresses a wide range of intellectual property rights, including trademarks, copyrights, patents and industrial designs, geographic indicators, semi conductor integrated circuits and trade secrets. It requires a member country to provide national treatment to nationals of other participating countries and permits trade sanctions to be imposed against other member nations for violation of its provisions. The agreement allows members to implement laws which give more protection than is required, so long as the additional protection does not conflict with the TRIPs provisions.

The WTO came into existence on the first day of 1995 as a result of the Uruguay Round negotiations. It acts as the administrator for GATT and other WTO trade agreements, a forum for trade negotiation and a handling body for trade disputes. The WTO in conjunction with the WIPO presently oversees the international protection of intellectual property through the TRIPs agreement. Under the TRIPs agreement member countries must comply with the substantive obligations of the Paris Convention and the Berne Convention. With the exception of the Berne Convention on moral rights, all members have changed their intellectual property laws to conform to the TRIPs agreement. Under the TRIPs agreement the Patent Term was revised to 20 years from the original filing date. In addition, limits were imposed on the use of compulsory licensing; only allowing it under certain conditions.

The TRIPs agreement also expanded the scope of copyright, including computer programs and databases as literary works for protection. It establishes a rental right for computer programs and protection for semi-conductor chip designs; prohibiting the importation of articles or products that contain infringing chips. The minimum term of copyright is set at life plus 50 years and, for legal entities, 50 years from first publication (but these terms can vary from country to country). For semiconductor chip designs, it increases the term of protection to 10 years and makes compulsory licensing permitted only for a public non-commercial use to correct anti-competitive behaviour.

Trademarks are also guaranteed a high level of protection. The TRIPs agreement requires a minimum of seven years protection, renewable at seven year intervals, and cancellation for non-use is permitted only after three years of consecutive non-use.

Presently, the explosive growth of the computer industry has required new laws to adequately protect the investment of developers. Constant developments in biotechnology have challenged the traditional principles of patent law which originally intended to protect mechanical and chemical inventors but now, has had difficulty being applied to micro organisms, plant varieties, and higher life forms. In attempting to afford greater protection to intellectual property rights, WIPO has provided further remedies for IP owners to enforce their rights. In 1994, 35 countries signed a Trademark Law treaty, granting service marks the same rights as trademarks. The treaty also streamlines the procedures relating to the registration and assignment of trademarks, making it easier to secure registration of valid trademarks throughout the world.

The emergence of the Internet and the recent development of digital technologies used to replicate movies and music has resulted in a demand for increased copyright protection. The WIPO Copyright treaty of 1996 provides advanced copyright protection by increasing the range of protected subject matter and expanding the range of modes of disseminating works which are regarded as infringing acts. Having encompassed technological changes and new areas of interest and concern, the treaty has widened and deepened the protection offered; reflecting the need to develop new norms and standards in keeping with advances in technology and business practices.

On 1 June 2001, WIPO members adopted the Patent Law Treaty to establish international minimum filing dates and standardised requirements for applications for national, regional, and international patents alike. Users of the patent system will thus be able to rely upon predictable and simple procedures for filing.

The increased protection afforded intellectual property has generated a debate on the appropriate scope of protection that society should afford intellectual property rights holders. Many question at what point does the granting of monopoly rights to creators stop conferring a benefit and begin heaping losses resulting from monopolies and a stifling of competition? Undeniably, as the printing press once compelled governments to develop copyright rules as a means of protecting intellectual property; technological innovations continue to exceed the conceptualisations of intellectual property law.