Intellectual Property Law

Abdullah Al Aman
Assistant Professor
Stamford University Bangladesh

INTELLECTUAL PROPERTY
Properties are generally divided into movable and immovable properties. For example, crops
produced by a farmer is movable property, and land on which he cultivates is immovable
property. These properties can be owned, enjoyed and transferred under laws such as the
Contract Act 1872, the Transfer of Property Act 1882, the Sale of Goods Act 1930 etc. But there
is another type of property named ‘intellectual property’ which does not exactly fit the above
types. Intellectual property is intangible creative property and a product of human intellect.

DEFINITION OF INTELLECTUAL PROPERTY

Intellectual property are intangible assets deriving from creative works, technological inventions
and business reputation.
Article 2 of the Convention Establishing the World Intellectual Property Organization 1967 defines
intellectual property as the following:
“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”.
So Intellectual property refers to creations of the mind: inventions; literary and artistic works;
and symbols, names and images used in commerce.

TYPES OF INTELLECTUAL PROPERTY

Intellectual property protects original ideas, expression and signs. There are mainly three
categories of intellectual property. First is creative assets, which includes copyright, performers’
rights and broadcasters’ rights. Second is technological assets which include patents. Third is
marketing assets which includes trademark, industrial design, geographical indications, trade
secret and good will.
Such properties are protected in the following forms:

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 1. Patent
2. Copyright
3. Industrial Design
4. Trademark
5. Geographical Indication
6. Plant Variety Protection.
Patent: Patent law protects inventions that are new in that they have not been available to the
public, involve an inventive step in that they are not obvious to a person skilled in the art, and
are capable of industrial application. In order to secure protection, the inventor, or some other
person entitled to the invention such as her employer, must make an application for a patent to
be granted. A patent lasts for 20 years from the date of the patent application as long as
prescribed renewal fees are paid.
Copyright: Copyright is the right of a creator of a qualifying ‘copyright work’ to prevent others
from copying it or a substantial part of it. Copyright covers literary works (such as novels, poems
and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and
architectural design. In general it applies to protect creative works (for example books, plays and
films) as opposed to works of industrial application, such as designs for machined parts. Hence
the term of protection (life of the author plus 60 years) is much longer than for the rights that
usually apply to protect industrial designs. That said, copyright does apply to protect many
commercial items, for example computer code. Copyright arises automatically, there is no need
for registration.
Rights related to copyright include those of performing artists in their performances, producers
of phonograms in their recordings, and broadcasters in their radio and television programs.
Trademark: A registered trademark can consist of any sign that is capable of being represented
graphically and of distinguishing the goods or services of one undertaking from those of another.
An application to register a trade mark may be made by anyone who is using, or authorizing the
use of the mark or intends to do so.
Industrial Design: Industrial Design is defined as: the appearance of the whole or a part of a
product resulting from the features of, in particular, the lines, contours, colours, shape, texture
or materials of the product or its ornamentation. In order for a design to be registrable it must
be ‘new’ and have ‘individual character’. The first owner of a registered design will be the person
who commissioned the design and if made in the course of employment the employer will own
it. The right has to be renewed every five years. A registered design is infringed by the use of a
design which does not produce on the informed user a different overall impression.
Geographical indication: A geographical indication (GI) is a sign used on products that have a
specific geographical origin and possess qualities or a reputation that are due to that origin. In
order to function as a GI, a sign must identify a product as originating in a given place. In addition,
the qualities, characteristics or reputation of the product should be essentially due to the place

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of origin. Since the qualities depend on the geographical location of production, there is a clear
link between the product and its original place of production.
Geographical indications are typically used for agricultural products, foodstuffs, wine and spirit
drinks, handicrafts, and industrial products. Thai silk, Colombian coffee, Darjeeling tea, Swiss
watches etc are examples of famous GI products.
Plant Variety Protection: Plant Variety Protection gives the breeder of plant species exclusive
control over the species, rights to use the species, and encourages the development of better
plant species varieties. A new plant variety can be protected if it is distinct from any other existing
variety, sufficiently uniform, and stable. The plant variety protection was adopted with the
International Convention for the Protection of New Varieties of Plants (UPOV) during a diplomatic
conference in Paris on the 2nd December 1961. Although Bangladesh is not a signatory of the
UPOV convention, it does provide intellectual property protection for plant varieties that is
similar to that provided in UPOV member countries. The National Biodiversity Authority is the
government agency that coordinates all aspects of plant variety protection procedures in
Bangladesh and grants plant variety protection.

IP MONETIZATION
Intellectual property rights are like any other property right. They allow creators, or owners, of
patents, trademarks, or copyrighted works to benefit from their own work or investment in a
creation. Intellectual property rights can be used to generate revenue in any of the following
ways:
1. Exclusive use by right holder: Owner of an intellectual property can exclusively use the
property which may generate revenue and secure advantage over the competitors. For
example, an inventor earns money by selling products where the invention is used.
2. Assignment: An assignment is essentially a transfer of ownership of the IP rights in
question from one party to another. The assignor gives up its rights and ownership passes
to the assignee in the same way that one might sell, say, a house or a car. Assignment can
be made in consideration of fixed price and/or royalty.
3. Selling License: License is the authorization to use a copy of the intellectual property. For
example, a software developer can sell a licence for each copy of the software that can
be used on one computer. Under a licence the owner of the IP rights in question retains
ownership but permits another party to use them to varying degrees, in other words to
do acts which without that permission would be an infringement of those IP rights.
Licencing fees are usually the main source of earning money from intellectual property.
Licences can vary in terms of the scope of the rights granted with respect to: duration,
territory, field of use etc. Furthermore, the licence may be exclusive or nonexclusive:
a. Exclusive License: here one copy is sold to one transferee only. For example, a
musician may sell a license to use a piece of music for one particular movie only.
Exclusive licence costs more than non-exclusive licence.

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 b. Non-exclusive License: here one copy is sold to multiple transferees.
4. Compulsory License: Compulsory licence or non-voluntary licence is granted by a
designated governmental authority under certain circumstances. For example, the
government can issue licenses to manufacture a patented medicine, if the original owner
of the patent fails to supply the medicine adequately at a reasonable price. Under
compulsory licence, the original owner gets a portion of the profit earned by the licence
holder.

OBJECTIVES OF IP LAW
Intellectual property rights reward creativity and human endeavor, which fuel the progress of
humankind. The multibillion dollar film, recording, publishing and software industries – which
bring pleasure to millions of people worldwide – would not exist without copyright protection.
Without the rewards provided by the patent system, researchers and inventors would have little
incentive to continue producing better and more efficient products for consumers. Consumers
would have no means to confidently buy products or services without reliable, international
trademark protection and enforcement mechanisms to discourage counterfeiting and piracy.
The progress and well-being of humanity rest on its capacity to create and invent new works in
the areas of technology and culture. The objective of intellectual property (IP) law is to encourage
innovation in technology, commerce and culture. IP law does this by facilitating an exchange of
temporally limited exclusive rights for complete disclosure of inventions and creative works.
Hence, society and the right holder mutually profit.
Financial incentivization: Legal protection of new creations encourages the commitment of
additional resources for further innovation. Granting of exclusive IP rights afford protection that
in turn allow owners to benefit from a property they have acquired. Thus, exclusive rights provide
a financial incentive. Protection allows investment in IP and recovery development costs and
associated profits.
Increased economic growth: The promotion and protection of intellectual property spurs economic
growth, creates new jobs and industries, and enhances the quality and enjoyment of life.
Protection of IP rights is essential to maintaining economic growth. IP-intensive industries are
estimated to generate 72% more value added per employee than their nonintensive
counterparts. Studies have found a positive correlation between the strength of the IP system
and economic growth.
Morality: A person has a natural right over the outcomes of his or her labor. Human mind itself is
the source of all wealth and survival. Therefore intellectual property should get the same
protection as real property.

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LAW OF INTELLECTUAL PROPERTY
Intellectual property law is the branch of law that regulates the creation, ownership, use, transfer
and enforcement of intellectual property rights. Both national laws and international treaties
deal with this subject.
Article 27 of the Universal Declaration of Human Rights 1948 provides for the right to benefit
from the protection of moral and material interests resulting from authorship of scientific,
literary or artistic productions.

Long History
● The Romans used marks on pottery and swords to denote its maker.
● Historically, patent law was based on custom and common law in England, not on statute.
Royal grant by Henry VI in 1449 to John of Utynam, for a twenty-year monopoly to make
coloured glass.
● Copyright Act 1710 is the first British Act to provide for copyright regulated by the
government.
● The importance of intellectual property was first recognized in the Paris Convention for
the Protection of Industrial Property (1883) and the Berne Convention for the Protection
of Literary and Artistic Works (1886). Both treaties are administered by the World
Intellectual Property Organization (WIPO).

International Treaties
● Paris Industrial Property Convention 1883, 1979.
● Berne Convention 1886, 1971.
● Universal Copyright Convention 1952.
● Patent Cooperation Treaty 1970.
● Madrid Agreement Concerning the International Registration of Marks 1881.
● TRIPS Agreement 1994.

PARIS INDUSTRIAL PROPERTY CONVENTION 1883, 1979

● The Convention protects Patent, trademark, industrial design, geographical indications
etc.
● It incorporates three principles: national treatment, right of priority and common rules.
● Common rules:
1. Patents and marks are independent in each country.
2. Patent cannot be refused due to sale restrictions.
3. Compulsory license cannot be granted within 3 years of granting a patent.
4. Well known marks and international signs must be protected.
5. Trade names must be protected without registration.
6. Industrial design cannot be refused for foreign products.
7. Use of false geographical indications must be prohibited.
● There are 177 parties. Bangladesh signed in 1990 with effect from 3 March 1991.

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BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS 1886, 1979
● This Convention incorporated four principles relating to copyright: national treatment,
automatic protection, independence of protection, and minimum standards.
● There are 176 parties including Bangladesh which signed it in 1999.
● Art. 1-3 of its Appendix gives special rights to developing countries. Bangladesh availed it
till 2024.

TRIPS AGREEMENT 1994

● The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an
international legal agreement between all the member nations of the World Trade
Organization (WTO). It sets down minimum standards for the regulation by national
governments of many forms of intellectual property (IP) as applied to nationals of other
WTO member nations.
● TRIPS requires WTO members to provide legal rights under copyright, patent, trademark,
industrial design, geographical indications etc.
● The obligations under TRIPS apply equally to all member states, however developing
countries were allowed extra time to implement the applicable changes to their national
laws.

NATIONAL INTELLECTUAL PROPERTY LAWS: BANGLADESH

1. Copyright Act 2000
▪ Copyright Rules 2006
2. Patents and Designs Act 1911
▪ Patents and Designs Rules 1933
3. Trademark Act 2009
▪ Trademark Rules 2015.
4. Geographical Indication Products (Registration and Protection) Act 2013.
▪ Geographical Indication Products Rules 2015.
5. Plant Variety Protection Act 2019.