T Protection - CNDI 2024

T “Protection” Excludes Enforcement – CNDI 24
Resolved: The United States federal government should significantly strengthen its protection of domestic intellectual property rights in copyrights, patents, and/or trademarks.
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1NC – T “Protection”
a. Interpretation: IP protection is the right itself, which is distinct from enforcement of that protection.
Hicks and Holbein 97 – Laurinda L. Hicks is an attorney with the Washington, D.C. law firm Townsend & Banta, specializing in intellectual property law. James R. Holbein is the United States Secretary of the NAFTA Secretariat and an Adjunct Professor of Law at the Washington College of Law, American University.
Laurinda L. Hicks and James R. Holbein, “Convergence of National Intellectual Property Norms in International Trading Agreements,” American University Journal of International Law and Policy, vol. 12, 1997, pp. 771-790, Lexis.
Different national intellectual property legislation coexists within a common market, conferring privileges that restrict competition within the single market. The protection of intellectual property rights in a free trade market is essential to allow the free circulation of goods among member nations. In order to create a free trade market, member states must harmonize different intellectual property regimes and base the integrated system upon common rules of protection and enforcement. This is a difficult process due to divergences between national intellectual property regimes within a free trade agreement's member countries.
The focus of this article is on the convergence of national intellectual property norms into an international framework for the protection of intellectual property rights. Part I of this article examines the old system of international protection of intellectual property and its paradigms: the Paris Convention, the Berne Convention, and the World Intellectual Property Organization(WIPO). Part II studies the modern system of international protection of intellectual property rights consolidated in the World Trade Organization's Trade Related Aspects of Intellectual Property Rights (TRIPS), the North American Free Trade Agreement regional trading block (NAFTA), and the emerging regional trading block of MERCOSUR, as well as the ongoing process of harmonization of intellectual property norms within its member countries: Argentina, Brazil, Paraguay, and Uruguay.
PART I:
ORIGINAL SYSTEM OF INTERNATIONAL PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
A.
Key Features of Major Forms of Intellectual Property
The major fields of intellectual property generally are classified as patents, copyrights, layout designs of integrated circuits, trademarks, service marks, geographical indications, trade secrets, and industrial designs. They share common themes and general principles found throughout intellectual property law.
Each form of intellectual property has a set of norms to determine what subject matter is protected, the procedures for achieving protection, the duration of protection, and legal remedies for infringement of the intellectual property right. The fundamental feature of these various forms of intellectual property is the exclusive right to exclude others from certain activities. This results from the property rights conferred to the intellectual property owners in symbols, abstract concepts, information, or creative expressions created by them. They are thus granted property rights to the products of their minds - intellectual capital.
Although the definitions of intellectual property rights in various countries differ regarding several important aspects, generally accepted definitions of the various forms of intellectual property rights based on common characteristics exist. Modern international intellectual property treaties such as the North American Free Trade Agreement 3 and the Trade Related Aspects of Intellectual Property Rights (TRIPS) 4 of GATT/WTO succeeded in defining the different concepts of intellectual property rights. Patents A "Letter Patent" is a grant by the government of a right to exclude others from making, using, offering for sale, selling the invention throughout the United States, or importing the invention into the United States for a period of time. 5 The fundamental criteria for patent protection are novelty, non-obviousness, and utility. 6 Under United States law, a patent provides protection for "whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement." 7 One may patent nearly "anything under the sun that is made by man," provided it is useful. 8 There are three basic types of patents: utility patents, protecting utilitarian inventions; 9 design patents, protecting a new, original, and ornamental design for an article of manufacture; 10 and plant patents, protecting new plant varieties asexually reproduced. 11 Processes consisting merely of mental steps, however, such as a mathematical calculation, or processes amounting to only a method of doing business are not protected by patents. Patents provide the strongest protection of any form of intellectual property. The patent term is a short fixed term, 12 excluding all others from practicing his or her invention, 13 except when the patent holder grants a license to make, use, or sell the object of a patent for a limited period of time or in a limited territory. Under United States law, patent owners have the right to pursue a civil action against infringers. 14 Patent infringement consists of making, using, offering to sell, or selling a patent product within the United States, 15 or actively inducing another to do so. 16 In some cases where a patented process is performed abroad, and the product is imported into the United States or the imported product itself is covered by a United States patent, the patent owner can seek an exclusion order from the International Trade Commission. 17 Copyrights Copyright is a form of protection provided by the laws of numerous countries to authors of original works. The object of copyright protection is the form in which such works are expressed, which may be words, symbols, music, pictures, three-dimensional objects, or combinations thereof, such as copyrights, expressions with literary, artistic, or pictorial value. Copyright-related rights protect the work of performers, phonogram producers, and broadcasters. 18 Copyrights, however, do not protect any ideas, principles, themes, procedures, methods, systems, processes, or concepts. Only the form of the expression is protected. 19 The subject matter of copyright protection under United States law is "original works of authorship fixed in any tangible medium of expression." 20 Categories of protected works are broad, including books, magazine articles, speeches, music, motion pictures, other audiovisual works, computer programs, computer databases, architectural and technical drawings, sculptures, paintings, and poetry. Under United States law, the copyright automatically is secured at the work's creation, defined as the first time the work is fixed in a tangible medium of expression. 21 The only requirements for copyright protection in the United States are originality and fixation in a tangible medium of expression. 22 The copyright owner, under United States law, has the exclusive right to do and to authorize others to do the following: . to reproduce the copyrighted work in copies or phono records; . to prepare derivative works based upon the copyrighted work; . to distribute copies or phono records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; and . to perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or audiovisual work. 23 A major limitation to the copyright owner under United States law is the "doctrine of fair use," 24 under which a copyrighted work is not considered an infringement if it is done for purposes of criticism, comment, news reporting, teaching, scholarship, or research. Copyrights, generally, have longer terms of protection. Copyrights of corporate or anonymous works last 100 years after their creation or seventy-five years after their first publication, whichever expires first. 25 Works by named authors are protected until fifty years after the death of the last surviving author. 26 United States copyright law provides civil and criminal remedies for copyright infringement. In order to obtain the legal remedies afforded under United States copyright law, however, the copyright owner must register his or her work with the United States Copyright Office. 27 Copyrighted works may be protected without litigation by license agreements or used by the copyright owner not only as a method to turn copyright to profit, but also to exercise control over uses made by licensees. 28 The copyright owner may license any rights to different licensees, on an exclusive or nonexclusive basis, or transfer exclusive copyright rights by assignment, mortgage, exclusive license, other type of conveyance, or operation of law. 29 Layout Designs of Integrated Circuits Semiconductor chips are integrated circuits containing transistors, resistors, capacitors, and their interconnections, fabricated in a tiny, single piece of semiconductor material. 30 The protection for layout designs (or topography) of integrated circuits is a sui generis form of protection, limited to the design as such, that allows the owner of the design to prevent the unauthorized reproduction and distribution of such designs. 31 Under United States law, the Chip Act provides protection to semiconductor chip designs. 32 "Mask works" are the subject matters of such intellectual property protection. Such terminology refers to the masks bearing the design of the circuitry used in the production of the chip. The information is protected regardless of how it is recorded, whether in the chip, on paper, or in a database. The Chip Act, however, does not protect ideas, principles, or processes embodied in the chip design. These can be protected, however, by patents or trade secrets. Under United States law, the owner of a mask work has the exclusive right to reproduce it in chips or other forms and to import and distribute semiconductor chips embodying the mask work, in products or otherwise. 33 The Chip Act does not protect commonplace designs, which are familiar in the semiconductor industry, or unoriginal variations of such designs. 34 The originality requirement for semiconductor chip protection is more stringent than for copyrights. The Chip Act provides a ten-year term of protection commencing when the mark is registered with the United States Copyright Office or is first commercially exploited anywhere in the world. 35 A prerequisite to litigation for infringement of a semiconductor chip design, as well as for enjoyment of the full ten-year protection, is registration with the United States Copyright Office. 36 Trademarks A trademark is a sign which serves to indicate the source of goods or services, as well as their producers. The sign may consist of one or more distinctive words, letters, numbers, drawings or pictures, emblems, monograms or signatures, colors or combination of colors, or a combination of any of these. 37 The main functions of trademarks under United States law are to protect consumers from confusion as to the source of goods or services purchased and to protect the trademark owner's goodwill and reputation attached to the mark. The subject matter of trademarks includes commercial symbols used to identify products, services, or their producers in the market place, but protection is not limited to verbal symbols. The trademark laws may protect other designs and distinctive features of clothing, sounds, and even fragrances, as well as the design and packaging of products and services. 38 A trademark is defined under United States law as: Any word, name, symbol or device, or any combination thereof used by a person, or which a person has a bona fide intention to use in commerce and applies to register on the Principal Register established by the Act, to identify and distinguish his or her goods including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown. 39 The United States trademark law protects trademarks, service marks, certification marks, collective marks, and trade names. In order to qualify for legal protection, trademarks must be distinctive and nonfunctional. There is a broad spectrum of distinctiveness, which may be characterized as generic, descriptive, suggestive, arbitrary, or fanciful. The non-inherently distinctive marks may be incapable of acquiring distinctiveness and functioning as a trademark. 40 Other non-inherently distinctive marks may acquire distinctiveness through use and advertisement whereby the public recognizes the mark as an indication of its source. 41 It is generally necessary to register a trademark in a government office for effective protection. In some countries and in some situations, however, one may protect trademarks without registration. Under United States trademark law, rights arise from use, not registration, and the Trademark Act protects unregistered, as well as registered marks. Although federal registration grants substantive and procedural rights to the trademark owner, the absence of such federal registration does not place the mark in the public domain. Under the common law of unfair competition, the first person to use a mark in commerce in a particular geographic area has the right to exclude others from using a confusingly similar mark. 42 Trademarks are renewable indefinitely under United States law, as long as the mark remains in use. Federal trademark registration must be renewed every ten years. 43 The trademark owner is afforded civil 44 and criminal remedies 45 against trademark infringers. Geographical Indications "Geographical indication" designates a good as originating in a region or locality of a country, where a given quality, reputation or other characteristic of the good essentially is attributable to its geographical origin. 46 United States law only protects geographically descriptive terms that are not inherently distinctive upon a showing of acquired distinctiveness. 47 The law protects geographical indications against uses which mislead the public and acts of unfair competition. 48 Trade Secrets A "trade secret" is undisclosed information with commercial value because it is secret and is reasonably guarded. 49 The subject matter of trade secret protection is broad and includes things such as recipes, formulae for materials, compilations of information, computer programs, and production processes. Trade secrets are not limited, however, to scientific or technological information, but may include business and financial information such as customer lists, costs, and prices. 50 Countries protect trade secrets in different ways, such as by according to them the status of legal property under contract law, or by providing for prohibitions on espionage in the context of ethical business practices. Most developing countries do not have specific laws protecting trade secrets. The newest international trade agreements, such as the NAFTA 51 and TRIPS, 52 contain specific provisions for the protection of trade secrets. These protections apply to information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret. The rights of a trade secret owner are limited. Although the owner has the right to prohibit acquisition of the protected secret by wrongful means, such as breach of confidence, breach of contract, and industrial espionage, he does not have absolute power to exclude others from any particular activity. If misappropriation of the trade secret occurs in the United States, the trade secret owner has a cause of action under the Uniform Trade Secrets Act. 53 Although a number of states have adopted this piece of legislation, each state has its own body of law covering trade secrets. Both the Uniform Trade Secrets Act and the common law, however, require that a trade secret owner take reasonable efforts to protect the secret. Trade secrets may last for an indefinite period of time. As long as the information remains secret, has competitive value due to its limited availability, and is guarded with reasonable efforts, the trade secret protection subsists. Industrial Designs An industrial design is the ornamental feature of a useful article. The protection of industrial design covers the original ornamental features of a useful product, such as the design of the article, its shape, lines, and colors. 54 To be eligible for protection in a country, industrial designs must be original or novel, and the creator must register the design with the appropriate government office. Owners of a protected industrial design may prevent others from copying or imitating the protected design without the owner's authorization. The protection further provides that copies or imitations made without such authorization may neither be sold nor imported. Protection is granted for a limited period of time, usually between five and ten years. 55 B. Overview of Main Intellectual Property Treaties and Conventions 1. The Paris Convention for the Protection of Industrial Property The Paris Convention for the Protection of Industrial Property is one of the first international agreements for the protection of intellectual property rights. The original version, signed on March 20, 1883, has been successively revised. 56 The international order thus enjoys a modernized mechanism for the protection of intellectual property rights. The Paris Convention protects industrial property, namely patents, utility models, industrial designs or models, trademarks, service marks, trade names, indications of source or appellations of origin, and provides for the repression of unfair competition. 57 The Paris Convention uniformly established the principles and minimum guarantees for the international protection of intellectual property rights without prejudice to the domestic legislation of member nations. The main objective of the Paris Convention was to eliminate discrimination on the national level, thereby assuring foreigners that they could acquire and enforce their intellectual property rights in the same way as nationals of any member country of the Convention. Among its main provisions, the Paris Convention directs each member nation to accord national treatment to other member nations. 58 National treatment requires that member nations extend equal treatment to foreign intellectual property owners, affording them the same rights and protections as the nation extends to its own nationals. The Convention also requires all nations to honor prior applications of patents, trademarks, and industrial designs from a foreign nation. 59 The priority accorded to a national of a member nation filing an application to register a patent, utility model, trademark, service mark, or industrial design, within the proper term is granted the same force and effect as the same application if filed in the applicant's nation, provided the home country is a member nation of the Paris Convention. The national treatment provision of the Paris Convention, however, is often criticized because if a country chooses not to provide intellectual property protection for its citizens, the Paris Convention does not require it to provide intellectual property protection for foreigners. 60 Other important provisions concern the international protection of well-known marks 61 and the establishment of minimum norms regarding unfair competit

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