The PRV School is aimed at anyone who is interested in learning about intellectual property rights. Intellectual property is not a particularly easy subject. Here at PRV, we have chosen a level which we believe will suit small-scale entrepreneurs and students at universities and university colleges taking a course in entrepreneurship, finance, technology or design. With some guidance, students at upper secondary school will also find the material useful. However, students on law courses at university level should seek out more detailed and specialist literature.
Intellectual property and abstract concepts
In simple terms, intellectual property rights concern exclusive rights to phenomena which you cannot touch, i.e. the opposite of material objects. There are various types of intellectual property rights. A novel technical solution to a problem can be protected through a patent, a logotype or other symbol can be registered as a trademark, a furniture design can be granted design protection and an artistic expression in the form of music, literature or visual art, for example, can be protected by copyright. The actual right does not presuppose that a physical example of anything actually exists. The right is therefore not necessarily linked to the existence of an object. What the various intellectual property rights have in common is that certain types of results from intellectual creations have been considered to be of financial value and therefore worthy of protection. This is the reason why the legislator has established rules concerning intellectual property rights in an attempt to create incentives for people and enterprises to develop the various phenomena. The incentive consists of giving the person or enterprise which created a phenomenon worthy of protection a certain limited exclusive right to it. The idea is that entrepreneurs, inventors, artists and other actors will be stimulated into developing phenomena worthy of protection. Intellectual property rights promote financial, technical and cultural development within society.
We have attempted to use simple language wherever possible, even though the subject of intellectual property rights is abstract in nature. However, law often revolves around definitions of terms which are not always that straightforward. As a result, we do not consider it possible to eliminate the use of all words which could be considered legal in nature. The aim has been to explain terms which are very complex. At the same time, we have also sought to keep the text to a reasonable length. This is of course a balancing act. There are also other reasons to learn the legal terminology. It will make it easier for you to communicate with professional actors which you may need to communicate with and you will be respected more for what you know.
A Swedish perspective
The general rule is that intellectual property rights apply nationally. Most rights are applied for and registered in each country separately. For example, a patent which has been registered in Germany by the German authority will have no effect in Sweden. However, a number of international agreements have resulted in the regulatory systems of many countries being very similar. There are also a number of European agreements both within and outside the EU which mean that there are many similarities within Europe. However, we have decided to focus on the Swedish system and refer to certain international aspects where relevant.
Educational set-up and layout
The PRV School comprises seven chapters. The first four chapters consist of a review of the four categories of intellectual property right which we consider to be the most pivotal and which fall within PRV’s remit. These are patents, trademarks, design protection and copyright.
After you have read the first four chapters, you should have a basic understanding of the key aspects of intellectual property rights. These four chapters have the same layout and answer the following questions in simple terms:
- What phenomena is it possible to obtain exclusive rights to?
- What is required in order to have/be granted exclusive rights?
- Who can be granted exclusive rights?
- How long do exclusive rights apply for?
- What uses can the holder of exclusive rights prohibit?
- What protection does the holder have against similar phenomena?
- Are there are any restrictions on the exclusive rights?
- What recourses does the holder have in the event of the exclusive rights being infringed?
- What international rules apply?
- Each chapter concludes with a simple quiz.
The aim of this structure is to enable the various intellectual property rights to be compared. There are both similarities and differences.
The fifth chapter looks at what a holder can do with their exclusive rights. The actual purpose of exclusive rights is to create the legal and financial opportunities which the holding of an intellectual property right gives. It is a question not only of opportunities for collaboration, of the buying and selling of intellectual property rights, of the option to licence out exclusive rights through agreements and thereby earn money, but also of the opportunity to prevent others from utilising what is covered by the exclusive rights. Ultimately, legal sanctions may come into play. These sanctions can stem from either administrative law (e.g. fines or imprisonment) or civil law (financial compensation to the right holder).
This chapters will therefore tell you not only what you need to know about how you can earn money on intellectual property rights, but also how you can reduce the risk of you losing money due to the intellectual property rights of your competitors and others.
The sixth chapter takes a very brief look at other intellectual property rights. Particular emphasis is placed on company name law which sets out rules which require every enterprise to be designated by an individual mark (company name). Company name protection thus applies to the commercial activity itself, while the goods and services that are produced can be protected through specific trade symbols. Company name law is therefore very similar to trademark law and has been abridged for reasons of space.
The seventh chapter concerns related and supplementary legal areas which are very similar to, and to some extent overlap, intellectual property law. Some people even consider them to be intellectual property rights to some extent. Examples include the ban in marketing law on reputation parasitism and rules concerning trade secrets, confidentiality and competition clauses. These rules can be used as supplementary protection. Finally, reference is made to competition law which should be thought of as the opposite of certain actions with intellectual property rights. Intellectual property rights undoubtedly give the holder an exclusive right to prevent others from manufacturing or using what is protected, but this exclusive right is not unrestricted. Competition legislation contains rules which prohibit the abuse of a dominant market position. In addition, certain licence agreements may be prohibited if they restrict competition. In other words, the utilisation of an intellectual property right must be balanced against the requirement for free competition.
One aspect which complicates intellectual property law is that there are both general rules and exceptions from them. In turns, many of these exceptions have general rules and exceptions, etc. As this review is basic in nature, we have chosen to focus on the general rules, but we also mention many of the more important exceptions. A description such as this must be simplified in nature and you should therefore be aware that you will not know everything there is to know about intellectual property law after you have been through this material.
There are many opportunities to learn more about intellectual property law. You could for example read the information given elsewhere on www.prv.se. PRV organises many courses and lectures and often participates in seminars and trade fairs concerning entrepreneurship across the country. You can also follow the PRV blog, which covers various aspects of intellectual property law in an easily digested manner.
As regards literature, you could try reading Marianne Levin’s "Lärobok i immaterialrätt" or "IMMATERIALRÄTT och otillbörlig konkurrens" by Professors Bernitz, Karnell, Pehrson and Sandgren. New editions of these books are published frequently. You should preferably read the most recent edition, as the details of intellectual property law change quite frequently. The books therefore become outdated very quickly. Law is unfortunately a perishable commodity.
Some universities and university colleges offer courses within intellectual property law, although some require students to have already completed a basic course in law.
A brief history of intellectual property law
In the mid-1800s, the industrial revolution had created a prosperous middle class which could afford to buy things which were previously reserved for a small, but very wealthy minority. This growing group of consumers paved the way for economic growth and further technical development. At the time, national legislators granted a monopoly for inventions, works of art and some commercial marks, such as iron stamps and wooden stamps. The problem was that the protection was only national; the works of foreign inventors, artists and entrepreneurs were fair game. Industrial espionage flourished between the countries and “legal” pirate copying was a major industry in some European countries. When the Vienna World Exhibition of 1873 was boycotted by foreign delegates due to a fear that their ideas would be stolen and commercialised in other countries, work was begun to establish international agreements in order to tackle the problem. In 1884, the Paris Convention for the Protection of Industrial Property entered into force (patents, trademarks, industrial design) and two years later the Bern Convention (copyright) was signed. Both of these conventions are based on the fundamental principle that member states undertake to afford the citizens of other countries protection which is at least as good as they give their own citizens.
Member states in the World Trade Organisation (WTO) are also bound by the so-called TRIPs Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights), which requires the provisions in the intellectual property legislation of the countries concerned to be formulated uniformly.