1.1 - Intellectual property (“IP”)

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Intangible objects. Intellectual property rights (“IPRs”) protect intangible, immaterial objects. The most important IPRs protect brands (trade marks), works of authorship (copyrights) and inventions (patents). A trade mark, work of authorship or invention consists of an immaterial, intangible object (“corpus mysticum”), which can be embodied in an unlimited number of physical, tangible objects. That tangible embodiment of a trade mark, a copyrighted work or an invention is the domain of (regular) property rights. A property right gives the owner of a product the absolute and exclusive right to use and exploit that product. In the same way do intellectual property right give IP owners an absolute and exclusive right to – in short – exploit  the protected intangible object, such as a trade mark, a copyrighted work or a patented invention.

Corpus mysticum versus corpus mechanicum. The intangible object – an invention, copyrighted work or trade mark – and the physical representation thereof are two different things. The heirs of the Belgian painter Magritte, who died in 1967, own the copyright in the painting “La Trahison des Images” ("The Treachery of Images”). With the painted caption "Ceci n'est pas une pipe" ("This is not a pipe") Magritte made it clear that the viewer is not looking at a pipe, but at the representation of a pipe painted on a canvas. On balance, the same applies to Magritte’s copyright. Just as the painting only contains a picture of a pipe but is not an actual pipe, the copyrighted work is not the physical painting, but the visual composition comprising this specific image of a pipe (shape, color and lighting), accompanied by the caption "ceci n'est pas une pipe." The painting - a painted canvas in a frame - is the subject of an ordinary property right. The painted “work” is the subject of an intellectual property right: Magritte’s copyright. The owner of the painting can sell the painting, but does not own the copyright of the painted image. The owner of the copyright in the painted image can take action against reproductions of the work that have been made without his consent. That copyright not only covers reproductions of the painting, but also depictions of the painted image on T-shirts, mugs, posters or stickers.

Absolute and exclusive rights. IP-rights are exclusive rights. They give the owner – simply put – exclusive rights regarding the exploitation of  the protected object. IP-rights are also – like a classic property right in physical objects – absolute rights. In principle, they can be enforced against any third party. In that way they are distinct from so-called relative rights, such as a claim arising from a contract or tort, which only provide a claim against one or more individuals, who have either entered into the contract or committed the tort.

Exclusive character – control. The exclusive and absolute character of IP-rights echoes through in the judgment of the Court of Justice of the EU of 19 September 2013 in Martin Y Paz v Fabriek Marcoquinerie Gauquie  (IPPT20130919). The case concerned trade mark rights in the trade mark “Nathan Baume”. The Court held that a trade mark proprietor, who has previously consented to a shared use of his trade mark by a third party for certain goods (handbags and shoes), but has later on withdrawn that consent, cannot be deprived (i) of any possibility of asserting the exclusive trade mark rights against that third party and (ii) of exercising that exclusive right in respect of these goods. This outcome underscores that, as an absolute and exclusive right, an intellectual property right primarily gives its proprietor control over the object of his property right. In the absence of any ‘rights in rem’ or contractual rights of third parties, the IP proprietor should be free to exercise that control over his intellectual property.

 

Tort. In general, an infringement of an IP-right constitutes a tort (a civil wrong). Generally speaking, the proprietor of an IP-right is – under applicable national law – entitled to an injunction against an infringing party, irrespective of whether or not that third party knew or should have known that it was infringing an IPR. As a tort an infringement may also result in a claim for damages, but – again under applicable national law – liability for damages usually requires that the infringing party knew or should have known of the infringement.

Timeless objects. The intangible nature of IP protected objects also means that these objects are not subject to the forces of nature and time, but do potentially have eternal life. Even after centuries, an immaterial object can still be vital and easily reproduced. This is in stark contrast with physical objects where the "test of time" inevitably takes its toll. 

Classics. The fact that the Bible. The Koran and texts by Greek, Roman and Chinese philosophers can still be read and used as part of educational programs “speaks volumes” in this regard.

Term of IPRs. Because intangible objects do have eternal life, the question arises whether or not the existence of IP-rights should be limited in time. Contrary to property of material objects, the duration of IP-rights is not tied to the existence of the object of the right, but is independently set. Contrary to IPR protected objects, intellectual property rights do not last forever, but either exist for a fixed maximum period or last as long as their protected object is used.

Term. For example, copyrights and patents have fixed maximum terms. That is – in short – 70 years for copyrights and 20 years for patents. Other IPRs also have fixed terms, except for trade marks and trade names. The duration thereof is dependent upon the continued use of the mark or the name. A trade mark can, for instance, be revoked if it has not been genuinely used for an uninterrupted period of 5 years, in the absence of proper reasons for such non-use. However, if a trade mark is regularly used its duration is not subject to any maximum length of time.  

Omnipresent. Due to their immaterial, intangible nature, objects of intellectual property rights are not limited to a single location, but can be ubiquitous or omnipresent. This is illustrated by the fact that in the internet era one single mouse click makes it possible to distribute a book or a film on a global scale. In addition, that book or film can be simultaneously exploited at multiple locations. This ubiquity of intangible objects is also a fundamental difference with the material nature of the object of a classic property right. A material object can only be in one location at a time.