How Adequately Intellectual Property Rights Protect the Position of the Creator

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This essay will consider the topic of how adequately intellectual property rights protect the position of the creator, with whom those rights may reside.

The essay will deal with four specific areas of this topic – (i) intellectual property patents; (ii) copyright; (iii) trade marks and (iv) industrial design law. The essay will deal with the nature of intellectual property rights, their scope and efficacy.

Intellectual property rights, and their various forms

These rights accrue where something is created, such as where a scientist invents a machine that performs a certain function. Intellectual rights are legal rights, and they give the creator a right to ensure that a creation is not reproduced, without the authorisation of the creator. The intellectual property right therefore protects the creation, since the creation can, and usually is a saleable commodity. By extension the rights of the creator are also protected, because the creator may enforce these legal rights against any third party who attempts to reproduce their creation without authorisation. Thus a creation attracts a range of legal protections that a creator can enforce, thereby protecting the profitability of the creation. Intellectual property rights can be transferred, as the right of protection is tied to the creation, more than it is to the creator, and this frequently occurs, for example in relation to the intellectual property rights in drugs that are owned originally by a given scientist, but transferred to the company that may employ the scientist, and fund their research. Intellectual property rights are protected depending on the nature of the item that is to be protected, and these protections can take specific forms such copyrights, or patents depending on the actual nature, properties and characteristics of what is to be protected. A patent offers protection regarding the intellectual property rights in a new invention. Patent protection is more directed at the process through which a creation is created . It focuses on the process itself, thereby protecting how a creation is created. There are certain criteria that apply to distinguish a patent as opposed to another form of intellectual property protection. These are: the invention must be new, and contain an innovative step that is original. There must be scope for the creation to be used within industry. In order to be patentable, the creation must not be a scientific, or mathematical discovery, theory or method, a literary work or some form of performance, a way of presenting information or of doing business or performing, a variety of animal or plant, a diagnostic technique or medical treatment. Furthermore a patent must not offend public policy or morality. A patent, therefore is where intellectual property rights accrue within a certain set of parameters, such as where a timescale applies. An example of this is the intellectual property rights that accrue to drugs manufacturers – these are protected by patents, and international law provides that these last for a given length of time, which in turn enables third parties to reproduce the drug after the patent has expired.

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