Contenido

Los derechos de propiedad intelectual incluyen patentes, derechos de autor, derechos de diseño industrial, marcas comerciales, derechos de variedades vegetales, imagen comercial, indicaciones geográficas,[6]​ y en algunas jurisdicciones secretos comerciales. También hay variedades más especializadas o derivadas de derechos exclusivos sui generis, como los derechos de diseño de circuitos (llamados derechos de trabajo de máscara en los EE. UU.), certificados de protección suplementarios para productos farmacéuticos (después de la expiración de una patente que los protege) y derechos de base de datos (en Derecho europeo).

Plant varieties

Plant breeder's rights or plant variety rights are the rights to commercially use a new variety of plant. The variety must, among others, be novel and different, and for registration the evaluation of the propagation material of the variety is considered.[15]​.

Commercial image

Trade dress is a legal term of art that generally refers to the characteristics of the visual and aesthetic appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.[16]​.

Trade secret

A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information that is generally not known or cannot be reasonably determined, by which a company can obtain an economic advantage over its competitors and customers.[17] No formal government protection is granted; Each company must take steps to protect its own trade secrets (for example, the formula for its soft drinks is a trade secret for Coca-Cola).

La violación de los derechos de propiedad intelectual puede constituir una violación de la ley civil o penal, dependiendo del tipo de propiedad intelectual involucrada, jurisdicción y la naturaleza de la acción. Algunas de estas son:.

Se calcula que, en 2011, el comercio de obras falsificadas con derechos de autor y marcas registradas era una industria de 600 000 millones de dólares en todo el mundo, representando de 5 a 7 por ciento del comercio mundial.[18]​.

Patent infringement

Patent infringement usually occurs when using or selling a patented invention without the permission of the patent holder, that is, the patent owner. The scope of the patented invention or the scope of protection [19]​ is defined in the claims of the granted patent. In many jurisdictions there is a safe harbor for using a patented invention for research purposes. This safe harbor does not exist in the United States unless the research is conducted for purely philosophical purposes, or to gather data to prepare an application for regulatory approval of a drug. [20]​ In general, patent infringement cases are handled under civil law (e.g., in the United States), but several jurisdictions also incorporate infringement into criminal law (e.g., Argentina, China, France, Japan, Russia, South Korea).

Misappropriation of trade secrets

Trade secret misappropriation is different from violations of other intellectual property laws because, by definition, trade secrets are secrets, while patents and copyrights and trademarks are in the public domain. In the United States, trade secrets are protected by state law, and states have almost universally adopted the Uniform Trade Secrets Act. The United States also has a federal law in the form of the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831-1839), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions that penalize two types of activities. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets for the benefit of foreign powers. The second, 18 U.S.C. § 1832, penalizes its theft for commercial or economic purposes. In Commonwealth jurisdictions, confidentiality and trade secrets are considered an equitable right rather than a property right, but the penalties for theft are approximately the same as in the United States.

Promotion of innovation and creativity

The primary goal of intellectual property is to encourage the creation of a wide variety of intellectual goods for consumers.[21]​ To achieve this, the law grants individuals and companies property rights over the information and intellectual goods they create, usually for a limited period of time. Because they can benefit from them, this gives them an economic incentive to create them.[21]​ The intangible nature of intellectual property presents difficulties compared to traditional property such as land or goods. As these are non-rival goods "Rivalry (economy)"), an unlimited number of people can "consume" an intellectual good without depleting it. Furthermore, investments in intellectual goods suffer from appropriation problems: while a landowner can surround his land with a sturdy fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop its first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of information and intellectual property, but not so strong as to prevent their widespread use is the primary focus of modern intellectual property law.[21]​.

By creating limited exclusive rights for the dissemination of inventions and creative works, an incentive is created for inventors and authors to create and disseminate their work. "The idea is that creators will not have sufficient incentives to invent unless they have the legal right to capture the full social value of their inventions."[22] Some commentators have noted that the goal of intellectual property legislators and those who support their implementation appears to be the creation of an "intellectual monopoly." This absolute protection treats intellectual property as another type of "real" property, typically adopting its law and rhetoric.[24] There has also been much recent debate about the desirability of using intellectual property rights. intellectual property to protect cultural heritage, including intangibles, as well as the risks of commercialization derived from this possibility.[25]​ The topic still remains open in legal research.

Human rights

According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."[26]​ Although the relationship between intellectual property and human rights is complex,[27][28]​ there are moral arguments for intellectual property.

Existe además una corriente, especialmente la que proviene del movimiento de software libre, que considera que el término propiedad intelectual es engañoso y reúne bajo un mismo concepto diferentes regímenes jurídicos no equiparables entre sí, como las patentes, el derecho de autor, la marca y las denominaciones de origen, entre otros.[34]​[35]​.

Costs to society

Authors such as Stephan Kinsella,[36]​ Julio Cole, Alfredo Bullard") or Enrique Pasquel")[37]​ maintain that intellectual property rights are not necessary to promote creativity and scientific advancement and impose very high costs on society. For example, they encourage costly legal litigation, they discourage the creation of greater knowledge once the creator has a monopoly on the intellectual property right. This protection grants the author a number of benefits in recognition of the inventiveness and effort used in the creation of something new that is outside of everyday life, that is, something new that implies a certain inventive level, and that is susceptible to industrial application.

Patent protection is always an extremely delicate issue in the negotiations of international treaties such as NAFTA, where developing countries that lack technology seek to reduce to a minimum the protection given to patents in order to be able to exploit said inventions as soon as possible. Meanwhile, developed countries aim to extend the protection period to the maximum with different mechanisms such as second-use patents, which are those patents that are granted to inventions that have already been patented but for which a new form of use or some new benefit has been found, and consequently an additional period of protection is granted.

Additionally, there are other controversial issues such as compulsory licenses, which are those granted to public organizations or third parties for the exploitation of an invention without the consent of the inventor in special situations such as national emergencies, but after compensation to the author. These types of licenses are also discussed in treaty negotiations, since for countries with great inventive potential these types of licenses are inadmissible, while in poor countries they always try to leave this alternative.

Automatic protection

To avoid intellectual property problems, the author must clarify and declare from the beginning the rules or conditions of use of the work to avoid errors or problems with the privacy of the creation. Many times the authors or associated owners give consent or declare use agreements where they make it clear what they allow to be done and under what domain they leave their work. For this reason, it is important to know the terms of the material in order to be able to use it or, failing that, know how to respect it and be able to reach an agreement with the owner.

Respecting a work with original authorship is more complicated or special since from the moment the material or work is born or created, it automatically acquires value and protection from the same author.[38]​.

Colombia

The protection that Colombian law grants to Copyright is carried out on all the ways in which ideas can be expressed, does not require any registration and lasts throughout the life of the author, plus 80 years after his death, after which it becomes

public domain. The registration of the work with the National Copyright Directorate is only intended to provide greater security to the right holders.

Argentina

Intellectual property is the protection that the law -Law 11,723- gives to the author of a scientific, literary, artistic or educational work for his intellectual creation; Due to this protection, the author can expose or reproduce it by any means, translate it, exploit it commercially or authorize others to do so and can prevent any unauthorized person from exercising these rights.[39]​ The Law protects the author, the collaborators, the author's heirs, those who, with the author's permission, translate the work, adapt or modify it, and the people or companies that develop computer programs based on these programs.[40]​.

Intellectual property rights protect books and other writings, dramatic works, drawings, paintings, sculptures and works of architecture, plans, maps and models, cinematographic and audiovisual works, radio broadcasts, photos, musical compositions, recordings and phonograms, choreography, computer programs and databases. Works published on the Internet are also protected and permission is required to use works published there. The use of works without the author's permission is punishable by law with a prison sentence and material published without the author's permission can be seized.

Mexico

By signing the North American Free Trade Agreement (NAFTA), Mexico entered into a series of commitments that led to modifications to the National Legislation in many of its chapters, especially regarding intellectual property. In these years, the Mexican Institute of Industrial Property (IMPI) was created.[41]​.

Author property, known as copyright, is administered by the Ministry of Public Education, through the National Copyright Institute.

The procedure is carried out before the registration department of the National Copyright Institute, the Indautor 001 form is filled out, registration fees are paid, and within thirty (30) business days the corresponding registration certificate is delivered.

The protection that the Federal Copyright Law grants to works is the life of the author and one hundred years after his death, in the case of co-authorship, this term is computed from the death of the last author.

The Industrial Property Law contemplates different legal figures of protection that are applied according to the nature of the intellectual product. When it comes to a patent, a title is issued, which constitutes a social contract, through which the owner is granted the temporary right (around 20 years) to exclusively exploit the invention that gave rise to the patent and in exchange, the inventor discloses the technical content of his invention to allow the flow of information, which constitutes a valuable system for scientific and technological advancement.

In the case of utility models, industrial designs, layout designs of integrated circuits, trademarks, notices and trade names, a registration is issued that constitutes a social contract, through which the owner is granted the right to use or commercially exploit, for a certain period of time (in the case of Utility Models in Mexico, it is valid for 10 years), the intellectual creations that gave rise to any of these protection figures.

When it comes to designations of origin, a declaration is issued that protects natural or legal persons who are dedicated to the extraction, production or elaboration of the product or products included in the declaration. The Mexican State is the owner of the declaration and, to use it commercially, a request must be made to the Mexican Institute of Industrial Property.

Industrial secrets refer to information of industrial or commercial application of a confidential nature. All the information that constitutes the industrial secret must be contained in documents, electronic or magnetic media, optical discs, microfilms, films or other similar instruments and the necessary agreements must be signed between all the people who know it totally or partially, through which they expressly undertake to maintain total discretion. For this figure, no registration is carried out with the IMPI.

The patent is the best-known figure in the industrial property system and the one most used to protect the knowledge generated in many areas of research. The Industrial Property Law establishes a series of characteristics for patents, as well as the requirements that must be met by inventions for which protection is requested through this figure.

Generally, to be protected by a patent, the invention must meet the following conditions: have practical use and present an element of novelty, that is, a new characteristic that is not part of the existing body of knowledge in its technical field. That body of knowledge is called “prior art.” On the other hand, the invention must involve an inventive activity that could not be deduced by a person with an average level of knowledge in that technical field. Furthermore, the invention must be susceptible to industrial application, that is, it must be able to be used for industrial or commercial purposes without being limited to being a merely theoretical phenomenon.

Finally, the subject matter of the invention must be considered “patentable” in accordance with the legislation. In many countries, scientific theories, aesthetic creations, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods or methods for medical treatment (as opposed to medical products), and computer programs are generally not patentable.

Contenido

Los derechos de propiedad intelectual incluyen patentes, derechos de autor, derechos de diseño industrial, marcas comerciales, derechos de variedades vegetales, imagen comercial, indicaciones geográficas,[6]​ y en algunas jurisdicciones secretos comerciales. También hay variedades más especializadas o derivadas de derechos exclusivos sui generis, como los derechos de diseño de circuitos (llamados derechos de trabajo de máscara en los EE. UU.), certificados de protección suplementarios para productos farmacéuticos (después de la expiración de una patente que los protege) y derechos de base de datos (en Derecho europeo).

Plant varieties

Plant breeder's rights or plant variety rights are the rights to commercially use a new variety of plant. The variety must, among others, be novel and different, and for registration the evaluation of the propagation material of the variety is considered.[15]​.

Commercial image

Trade dress is a legal term of art that generally refers to the characteristics of the visual and aesthetic appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.[16]​.

Trade secret

A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information that is generally not known or cannot be reasonably determined, by which a company can obtain an economic advantage over its competitors and customers.[17] No formal government protection is granted; Each company must take steps to protect its own trade secrets (for example, the formula for its soft drinks is a trade secret for Coca-Cola).

La violación de los derechos de propiedad intelectual puede constituir una violación de la ley civil o penal, dependiendo del tipo de propiedad intelectual involucrada, jurisdicción y la naturaleza de la acción. Algunas de estas son:.

Se calcula que, en 2011, el comercio de obras falsificadas con derechos de autor y marcas registradas era una industria de 600 000 millones de dólares en todo el mundo, representando de 5 a 7 por ciento del comercio mundial.[18]​.

Patent infringement

Patent infringement usually occurs when using or selling a patented invention without the permission of the patent holder, that is, the patent owner. The scope of the patented invention or the scope of protection [19]​ is defined in the claims of the granted patent. In many jurisdictions there is a safe harbor for using a patented invention for research purposes. This safe harbor does not exist in the United States unless the research is conducted for purely philosophical purposes, or to gather data to prepare an application for regulatory approval of a drug. [20]​ In general, patent infringement cases are handled under civil law (e.g., in the United States), but several jurisdictions also incorporate infringement into criminal law (e.g., Argentina, China, France, Japan, Russia, South Korea).

Misappropriation of trade secrets

Trade secret misappropriation is different from violations of other intellectual property laws because, by definition, trade secrets are secrets, while patents and copyrights and trademarks are in the public domain. In the United States, trade secrets are protected by state law, and states have almost universally adopted the Uniform Trade Secrets Act. The United States also has a federal law in the form of the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831-1839), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions that penalize two types of activities. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets for the benefit of foreign powers. The second, 18 U.S.C. § 1832, penalizes its theft for commercial or economic purposes. In Commonwealth jurisdictions, confidentiality and trade secrets are considered an equitable right rather than a property right, but the penalties for theft are approximately the same as in the United States.

Promotion of innovation and creativity

The primary goal of intellectual property is to encourage the creation of a wide variety of intellectual goods for consumers.[21]​ To achieve this, the law grants individuals and companies property rights over the information and intellectual goods they create, usually for a limited period of time. Because they can benefit from them, this gives them an economic incentive to create them.[21]​ The intangible nature of intellectual property presents difficulties compared to traditional property such as land or goods. As these are non-rival goods "Rivalry (economy)"), an unlimited number of people can "consume" an intellectual good without depleting it. Furthermore, investments in intellectual goods suffer from appropriation problems: while a landowner can surround his land with a sturdy fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop its first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of information and intellectual property, but not so strong as to prevent their widespread use is the primary focus of modern intellectual property law.[21]​.

By creating limited exclusive rights for the dissemination of inventions and creative works, an incentive is created for inventors and authors to create and disseminate their work. "The idea is that creators will not have sufficient incentives to invent unless they have the legal right to capture the full social value of their inventions."[22] Some commentators have noted that the goal of intellectual property legislators and those who support their implementation appears to be the creation of an "intellectual monopoly." This absolute protection treats intellectual property as another type of "real" property, typically adopting its law and rhetoric.[24] There has also been much recent debate about the desirability of using intellectual property rights. intellectual property to protect cultural heritage, including intangibles, as well as the risks of commercialization derived from this possibility.[25]​ The topic still remains open in legal research.

Human rights

According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."[26]​ Although the relationship between intellectual property and human rights is complex,[27][28]​ there are moral arguments for intellectual property.

Existe además una corriente, especialmente la que proviene del movimiento de software libre, que considera que el término propiedad intelectual es engañoso y reúne bajo un mismo concepto diferentes regímenes jurídicos no equiparables entre sí, como las patentes, el derecho de autor, la marca y las denominaciones de origen, entre otros.[34]​[35]​.

Costs to society

Authors such as Stephan Kinsella,[36]​ Julio Cole, Alfredo Bullard") or Enrique Pasquel")[37]​ maintain that intellectual property rights are not necessary to promote creativity and scientific advancement and impose very high costs on society. For example, they encourage costly legal litigation, they discourage the creation of greater knowledge once the creator has a monopoly on the intellectual property right. This protection grants the author a number of benefits in recognition of the inventiveness and effort used in the creation of something new that is outside of everyday life, that is, something new that implies a certain inventive level, and that is susceptible to industrial application.

Patent protection is always an extremely delicate issue in the negotiations of international treaties such as NAFTA, where developing countries that lack technology seek to reduce to a minimum the protection given to patents in order to be able to exploit said inventions as soon as possible. Meanwhile, developed countries aim to extend the protection period to the maximum with different mechanisms such as second-use patents, which are those patents that are granted to inventions that have already been patented but for which a new form of use or some new benefit has been found, and consequently an additional period of protection is granted.

Additionally, there are other controversial issues such as compulsory licenses, which are those granted to public organizations or third parties for the exploitation of an invention without the consent of the inventor in special situations such as national emergencies, but after compensation to the author. These types of licenses are also discussed in treaty negotiations, since for countries with great inventive potential these types of licenses are inadmissible, while in poor countries they always try to leave this alternative.

Automatic protection

To avoid intellectual property problems, the author must clarify and declare from the beginning the rules or conditions of use of the work to avoid errors or problems with the privacy of the creation. Many times the authors or associated owners give consent or declare use agreements where they make it clear what they allow to be done and under what domain they leave their work. For this reason, it is important to know the terms of the material in order to be able to use it or, failing that, know how to respect it and be able to reach an agreement with the owner.

Respecting a work with original authorship is more complicated or special since from the moment the material or work is born or created, it automatically acquires value and protection from the same author.[38]​.

Colombia

The protection that Colombian law grants to Copyright is carried out on all the ways in which ideas can be expressed, does not require any registration and lasts throughout the life of the author, plus 80 years after his death, after which it becomes

public domain. The registration of the work with the National Copyright Directorate is only intended to provide greater security to the right holders.

Argentina

Intellectual property is the protection that the law -Law 11,723- gives to the author of a scientific, literary, artistic or educational work for his intellectual creation; Due to this protection, the author can expose or reproduce it by any means, translate it, exploit it commercially or authorize others to do so and can prevent any unauthorized person from exercising these rights.[39]​ The Law protects the author, the collaborators, the author's heirs, those who, with the author's permission, translate the work, adapt or modify it, and the people or companies that develop computer programs based on these programs.[40]​.

Intellectual property rights protect books and other writings, dramatic works, drawings, paintings, sculptures and works of architecture, plans, maps and models, cinematographic and audiovisual works, radio broadcasts, photos, musical compositions, recordings and phonograms, choreography, computer programs and databases. Works published on the Internet are also protected and permission is required to use works published there. The use of works without the author's permission is punishable by law with a prison sentence and material published without the author's permission can be seized.

Mexico

By signing the North American Free Trade Agreement (NAFTA), Mexico entered into a series of commitments that led to modifications to the National Legislation in many of its chapters, especially regarding intellectual property. In these years, the Mexican Institute of Industrial Property (IMPI) was created.[41]​.

Author property, known as copyright, is administered by the Ministry of Public Education, through the National Copyright Institute.

The procedure is carried out before the registration department of the National Copyright Institute, the Indautor 001 form is filled out, registration fees are paid, and within thirty (30) business days the corresponding registration certificate is delivered.

The protection that the Federal Copyright Law grants to works is the life of the author and one hundred years after his death, in the case of co-authorship, this term is computed from the death of the last author.

The Industrial Property Law contemplates different legal figures of protection that are applied according to the nature of the intellectual product. When it comes to a patent, a title is issued, which constitutes a social contract, through which the owner is granted the temporary right (around 20 years) to exclusively exploit the invention that gave rise to the patent and in exchange, the inventor discloses the technical content of his invention to allow the flow of information, which constitutes a valuable system for scientific and technological advancement.

In the case of utility models, industrial designs, layout designs of integrated circuits, trademarks, notices and trade names, a registration is issued that constitutes a social contract, through which the owner is granted the right to use or commercially exploit, for a certain period of time (in the case of Utility Models in Mexico, it is valid for 10 years), the intellectual creations that gave rise to any of these protection figures.

When it comes to designations of origin, a declaration is issued that protects natural or legal persons who are dedicated to the extraction, production or elaboration of the product or products included in the declaration. The Mexican State is the owner of the declaration and, to use it commercially, a request must be made to the Mexican Institute of Industrial Property.

Industrial secrets refer to information of industrial or commercial application of a confidential nature. All the information that constitutes the industrial secret must be contained in documents, electronic or magnetic media, optical discs, microfilms, films or other similar instruments and the necessary agreements must be signed between all the people who know it totally or partially, through which they expressly undertake to maintain total discretion. For this figure, no registration is carried out with the IMPI.

The patent is the best-known figure in the industrial property system and the one most used to protect the knowledge generated in many areas of research. The Industrial Property Law establishes a series of characteristics for patents, as well as the requirements that must be met by inventions for which protection is requested through this figure.

Generally, to be protected by a patent, the invention must meet the following conditions: have practical use and present an element of novelty, that is, a new characteristic that is not part of the existing body of knowledge in its technical field. That body of knowledge is called “prior art.” On the other hand, the invention must involve an inventive activity that could not be deduced by a person with an average level of knowledge in that technical field. Furthermore, the invention must be susceptible to industrial application, that is, it must be able to be used for industrial or commercial purposes without being limited to being a merely theoretical phenomenon.

Finally, the subject matter of the invention must be considered “patentable” in accordance with the legislation. In many countries, scientific theories, aesthetic creations, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods or methods for medical treatment (as opposed to medical products), and computer programs are generally not patentable.