The Concept of Intellectual Property
1.1 Intellectual property, very broadly, means the legal rights which result from intellectual
activity in the industrial, scientific, literary and artistic fields. Countries have laws to protect
intellectual property for two main reasons. One is to give statutory expression to the moral and
economic rights of creators in their creations and the rights of the public in access to those
creations. The second is to promote, as a deliberate act of Government policy, creativity and the
dissemination and application of its results and to encourage fair trading which would contribute to
economic and social development.
1.2 Generally speaking, intellectual property law aims at safeguarding creators and other
producers of intellectual goods and services by granting them certain time-limited rights to control
the use made of those productions. Those rights do not apply to the physical object in which the
creation may be embodied but instead to the intellectual creation as such. Intellectual property is
traditionally divided into two branches, “industrial property” and “copyright.”
1.3 The Convention Establishing the World Intellectual Property Organization (WIPO), concluded
in Stockholm on July 14, 1967 (Article 2(viii)) provides that “intellectual property shall include rights
relating to:
- literary, artistic and scientific works,
- performances of performing artists, phonograms and broadcasts,
- inventions in all fields of human endeavor,
- scientific discoveries,
- industrial designs,
- trademarks, service marks and commercial names and designations,
- protection against unfair competition,
and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic
fields.”
1.4 The areas mentioned as literary, artistic and scientific works belong to the copyright branch
of intellectual property. The areas mentioned as performances of performing artists, phonograms
and broadcasts are usually called “related rights,” that is, rights related to copyright. The areas
mentioned as inventions, industrial designs, trademarks, service marks and commercial names and
designations constitute the industrial property branch of intellectual property. The area mentioned
as protection against unfair competition may also be considered as belonging to that branch, the
more so as Article 1(2) of the Paris Convention for the Protection of Industrial Property (Stockholm
Act of 1967) (the “Paris Convention”) includes “the repression of unfair competition” among the
areas of “the protection of industrial property”; the said Convention states that “any act of
competition contrary to honest practices in industrial and commercial matters constitutes
an act of unfair competition” (Article 10bis(2)).
1.5 The expression “industrial property” covers inventions and industrial designs. Simply stated,
inventions are new solutions to technical problems and industrial designs are aesthetic creations
determining the appearance of industrial products. In addition, industrial property includes
trademarks, service marks, commercial names and designations, including indications of source and
appellations of origin, and protection against unfair competition. Here, the aspect of intellectual
creations—although existent—is less prominent, but what counts here is that the object of
4 WIPO Intellectual Property Handbook: Policy, Law and Use
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.
1.6 Scientific discoveries, the remaining area mentioned in the WIPO Convention, are not the
same as inventions. The Geneva Treaty on the International Recording of Scientific Discoveries
(1978) defines a scientific discovery as “the recognition of phenomena, properties or laws of the
material universe not hitherto recognized and capable of verification” (Article 1(1)(i)). Inventions are
new solutions to specific technical problems. Such solutions must, naturally, rely on the properties
or laws of the material universe (otherwise they could not be materially or “technically” applied),
but those properties or laws need not be properties or laws “not hitherto recognized.” An
invention puts to new use, to new technical use, the said properties or laws, whether they are
recognized (“discovered”) simultaneously with the making of the invention or whether they were
already recognized (“discovered”) before, and independently of, the invention.
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