Types and Scope of Intellectual Property in Food Industry

Priyanka Sardana and Vijay Sardana

The concept of Intellectual Property (IP) treats certain intangible products similarly to physical things. In most countries, IP laws grant certain kinds of exclusive rights over these intangibles on the analogy of property rights, some expiring after a set period of time, and others lasting indefinitely.

Intellectual Property v/s Industrial property

The “industrial property” is an integral part of the broader concept of “intellectual property.” It is not something tangible like factories, equipment and material for industrial production but something intangible though in most cases extremely valuable. Thus for the shareholders of a global food company – the internationally recognition is equally important.

“Intellectual property” is a special kind of property. The most important feature of it is that the proprietor or owner may use his property as he wishes and that nobody else can lawfully use his property without his authorization. Of course, there are generally recognized limits of the exercise of that right. For example, the owner of a piece of land is not always free to construct a building of whatever dimensions he wishes, but must respect the applicable legal requirements and administrative decisions.

To understand these issues, we can distinguish these properties in three kinds:

  • Moveable properties: One is property consisting of movable things, such as a food product or a car. No one except the owner, for example you yourself, owner of the car may use those objects. This is a legal situation which is called an exclusive right, namely, the exclusive right, belonging to the owner. But you may allow or authorize your friends to use your property. It is subject to a administrative constraints. Moreover, the right to use is not unlimited.
  • Another type of property is Immovable property namely; land, and things permanently fixed on it, such as factory, houses etc. We have already seen an example of the limitations of such property, namely, the requirements to be adhered when constructing a building.
  • There is third kind of property called intellectual property. The objects of intellectual property are the creation of the human mind, the human intellect. This is why this kind of property is called “intellectual” property. In a somewhat simplified way, one can state that intellectual property relates to pieces of information which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information reflected in those copies. Like movable and immovable properties, intellectual property, is also characterized by certain limitations, for example, limited duration in the case of copyright and patents.

Branches of Intellectual Property

Intellectual property is usually divided into two branches, namely “industrial” property and “copyright.”

Industrial Property

Industrial property is sometimes misunderstood as relating to movable or immovable property used for industrial production, such as factories, equipment for production, etc. However, industrial property is a kind of intellectual property and thus relates to creations of the human mind.

Typically, such creations are inventions and industrial designs. Simply stated, inventions are solutions to technical problems, and industrial designs are aesthetic creations determining the appearance of industrial products. Industrial property includes trademarks, service marks, commercial names and designations, including indications of source and appellations of origin, and the protection against unfair competition.

Here, the aspect of intellectual creations–although existent–is less prominent, but what counts is that the object of industrial property typically consists of signs transmitting information to consumers, in particular, as regards products and services offered on the market, and that the protection is directed against unauthorized use of such signs which is likely to mislead consumers, and misleading practices in general.

The expression “industrial” property may appear as not entirely logical because it is only as far as inventions are concerned that the main segment of economy that is interested in them is industry.

Indeed, in the typical situation, inventions are exploited in industrial plants. But trademarks, service marks, commercial names and commercial designations are of interest not only to industry but also to commerce. Notwithstanding this lack of logic, the expression “industrial property” has acquired, at least in the European languages, a meaning that clearly covers not only inventions but also the other objects just mentioned.

Copyright

Copyright relates to artistic creations, such as poems, novels, music, paintings, cinematographic works, etc. In most European languages other than English, copyright is called author’s rights. The expression “copyright” refers to the main act which, in respect of literary and artistic creations, may be made only by the author or with his authorization. That act is the making of copies of the literary or artistic work, such as a book, a painting, a sculpture, a photograph, a motion picture. The second expression, “author’s rights” refers to the person who is the creator of the artistic work, its author, thus underlining the fact, recognized in most laws, that the author has certain specific rights in his creation, for example, the right to prevent a distorted reproduction, which can be exercised only by himself, whereas other rights, such as the right to make copies, can be delegate to other persons, for example, a publisher who has obtained a license to this effect from the author.

Types of Intellectual property

The four main types of non-physical things considered by this point of view are copyrights, patents, trademarks and trade secrets. Common types of intellectual property rights include conflicting areas of law:

  • Copyrights, which give the holder some exclusive rights to control some reproduction of works of authorship, such as books and music, for a certain period of time.
  • Patents give the holder an exclusive right to prevent third parties from commercially exploiting an invention for a certain period, typically 20 years from the filing date of a patent application.
  • Trademarks are distinctive names, phrases or marks used to identify products to consumers.
  • Trade secrets, where a company keeps information secret, perhaps by enforcing a contract under which those given access to information are not permitted to disclose it to others.

There are also more specialized varieties of so-called sui generis intellectual property rights, such as circuit design rights, plant breeder rights, plant variety rights, industrial design rights, supplementary protection certificates for pharmaceutical products and database rights.

These rights, conferred by law, can be given, sold, rented (called “licensing”) and, in some countries, even mortgaged, in much the same way as physical property (especially real property). However, the rights typically have limitations, sometimes including term limits and other exceptions (such as fair use for copyrighted works). These limitations are sometimes analogous to public easements, they grant the public certain rights which are considered essential.

It is important to understand that it is the rights that are the property, and not the intellectual work they apply to. A patent can be bought and sold, but the invention that it covers is not owned at all. For this and other reasons, some people think that the term intellectual property is misleading. Some use the term “intellectual monopoly” instead, because such so-called “intellectual property” is actually a government-granted monopoly on certain types of action. Others object to this usage, because of negative connotation of the term “monopoly” and the wide-availability of substitute goods. Others still prefer not to use a generic term because of differences in the nature of copyright, patent and trademark law, and try to be specific about which they are talking.

Need for Intellectual Property Protection

These laws grant the “owner” a monopoly on the use or copying of the protected “property”. This was done historically to both grant a boon to a ruler’s or king’s favourite, as well as to resolve a free rider problem or coping someone else efforts without permission (“to promote the progress of science and useful arts”). In the latter sense, patents and copyrights serve as incentive to inventors and authors to produce works which benefit the public. These creators can demand a fee from those who wish to copy their invention or publish their compositions.

Seen as an incentive to benefit the public, patent rights in particular have sometimes promoted innovation by ensuring that someone who devoted, say, ten years of penury while struggling to develop vulcanized rubber or a workable steamship, could recoup his investment of time and energy. The inventor could demand a fee from those who wanted to make copies of his invention. Set it too high, and others would simply try to make a competing invention, but set it low enough and one could make a good living from the fees.

In latter years, the public benefit idea has been downplayed in favour of the idea that the primary purpose of “property rights” is to benefit the holder. This view places a priority on the benefit of the patent or copyright holder, even to the detriment of society at large, and has attracted some opponents.

In some fields, patent law has had an unintended, indeed, a perverse consequence: treating mental products like physical ones has stifled innovation in those fields, rather than aiding it.

Please do send your feedback to us about the articles and also topics you want we should cover in future articles. In the next article we will discuss Economic and Legal Aspects of Intellectual Property.

 

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