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The Legislation on the Intellectual Property

Abstract

Intellectual property is a result of an intellectual and creative activity of one person (author, artist, inventor, and others.) or several persons. Intellectual property protection promotes the use and further development of inventive and creative talents and achievements, maintains and preserves the national potential of intellectual activity, and attracts investments, stabilizing the economic situation so that both domestic and foreign investors can be confident that their rights will be respected. The process of uniting computer technology with intercourses has begun long ago. Nowadays, the Internet is a huge storage of information, including data representing intellectual property. As a result, intellectual property has now migrated to the Internet. Therefore, this paper explores the international legislation on intellectual property, the legislation of the UAE on copyright, particularly on the Internet, as well as infringement of intellectual property in traditional and Internet contexts to examine today situation with the protection of intellectual property rights.

International Legislation

Multilateral and bilateral international agreements concluded in the process of cooperation between the countries in the area of international legislation should be attributed to the sources of the intellectual property rights. Their adoption is due to the inapplicability of the national legislation in cases when the holder implements its intellectual rights or protects them from violations in another country. In this case, the person can use both the provisions of the international convention and the provisions of the legislation of the country where protection is required. The main condition for this is a participation of the country-user of the object and the person’s home country in the international agreement on the protection of intellectual property.

International agreements can also include provisions on cooperation in efforts to identify and eliminate violations of intellectual property rights of citizens of the member countries, on the mutual recognition of security documents, on the interaction of organizations managing property rights on a collective basis, on the cooperation in official registration of intellectual rights of foreigners in authorized state agencies, etc.

International treaties and agreements, administered by World Intellectual Property Organization

WIPO, established in 1967, is a specialized agency of the United Nations from 1974 for cooperation between governments in matters concerning patents, trademarks, copyright, and transfer of technology between countries. Its headquarters are in Geneva, Switzerland. WIPO currently includes 185 member states, which is 90% of all countries. 69 intergovernmental organizations and 295 non-governmental organizations are accredited as observers at WIPO meetings (Inside WIPO, n.d.).

The Convention that establishes WIPO is applied to the international treaties administered by it. The number of agreements administered by WIPO is 24 along with the three groups of treaties as well as International Convention on the Protection of New Varieties of Plants and TRIPS (WIPO-Administered Treaties, n.d.).

The first group is treaties on the protection of intellectual property. This group determines internationally recognized basic standards of intellectual property protection in each country. It includes Beijing Treaty on Audiovisual Performances; Berne Convention; Brussels Convention; Madrid Agreement on Indications of Source; Nairobi Treaty; Paris Convention; Patent Law Treaty; Phonograms Convention; Rome Convention; Singapore Treaty on the Law of Trademarks; Trademark Law Treaty; Washington Treaty; WCT; WPPT.

The second group is agreements on the global system protection. This group of treaties provides that each international registration or filing of application is valid in any relevant country that has signed an agreement concerning the object of that proposal. Services provided by WIPO under these treaties simplify and reduce the costs of preparing and submitting applications in all countries where protection is claimed regarding specific intellectual property rights. The group includes Budapest Treaty; Hague Agreement; Lisbon Agreement; Madrid Marks Agreement; Madrid Protocol; РСТ.

The third group is agreements on classification. This group of treaties creates classifications systems that organize information on inventions, industrial designs, and trademarks in an indexed and managed structure to facilitate the search. The group includes Locarno Agreement; Nice Agreement; Strasbourg Agreement; Vienna Agreement.

On the basis of these treaties, there is a classification of international agreements in the field of intellectual property, given that the objects of intellectual property rights are referred to in these treaties.

Group of treaties relating to the protection of industrial property

1. Paris Convention for the Protection of Industrial Property

It was adopted in Paris on March 20, 1883. There are 174 member states (2012). The main objective it to create the Union for the Protection of Industrial Property and establish common rules for member states to provide legal protection of industrial property. The Convention is aimed at maximizing simplification of procedures to provide international legal protection of industrial property on applications submitted in the participating countries. Objects include patents utility models, industrial signs, trademarks, service marks, trade names, indications of source or appellations of origin, and repression of unfair competition (Chapter 5. International Treaties and Conventions on Intellectual Property, n.d.).

2. Group of agreements concerning inventions

a) Strasbourg Agreement on the International Patent Classification. It was adopted in Strasbourg on March 24, 1971. It involves 62 member states (2012). It is an internationally unified classification of patent documents for the orderly storage of patent documents, which facilitates access to the information available in them (Chapter 5, n.d.).

b) Patent Cooperation Treaty (PCT). It was signed on July 17, 1970 in Washington. It comprises 146 member states (2012). The parties involved compose a union for cooperation in the area of filing of applications for the protection of inventions, conducting a search and examination on them, as well as providing specialized technical services. Its main rules are to provide the international application, international search, international publication, international preliminary examination (Chapter 5, n.d.).

c) The Patent Law Treaty (PLT). It was ratified on June 1, 2000 in Geneva by 32 member states. The purpose is to harmonize and simplify the formal procedures relating to the national and regional applications and patents (Chapter 5, n.d.).

d) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure was adopted on April 28, 1977 by 78 member states. It defines and regulates the depositing procedures, duties, and rights, as well as determines the status of international depositary authority (Chapter 5, n.d.).

3. Group of agreements concerning industrial designs

a) Locarno Agreement on the Establishing of International Patent Classification was signed on September 28, 1979 by 53 member states. The purpose of the agreement is to adopt a common classification of industrial designs for inclusion in the official documents regarding the registration of samples in relevant publications and create a special union (Chapter 5, n.d.).

b) Hague Agreement on the International Deposit of Industrial Designs was ratified on November 6, 1925 by 60 member states. The purpose of the agreement is to facilitate the procedures for providing legal protection of industrial designs in different countries (Chapter 5, n.d.).

4. Group of agreements on trade marks for goods and services

a) Nice Agreement on the International Classification of Goods and Services for the Registration of Marks was adopted on June 15, 1957 by 83 member states. The aim is to create a classified structure of information array about trademarks to search for material relevant to the query. The countries to which this Agreement applies form a special union and establish a common classification of goods and services for registration of trademarks (Chapter 5, n.d.).

b) Vienna Agreement on the Establishing of International Classification of the Figurative Elements of Marks was signed on June 12, 1973 by 31 member states. The purpose of classification is to make the search of similar or identical marks for goods and services easier and avoid laborious reclassification when exchanging the documents at international level. Moreover, there is no need for participating countries to develop their own national classification or keep them updated (Chapter 5, n.d.).

c) The Nairobi Treaty on the Protection of the Olympic Symbol was ratified on September 26, 1981 by 50 member states. The agreement obliges the parties to refuse to register or recognize invalid registration as a mark and prohibit the use of such a trademark for commercial purposes of any designation with the Olympic symbol through appropriate measures.

d) Treaty on the Law of Trademarks was signed on October 27,.1994 in Geneva by 53 member states. The purpose of the agreement is to avoid divergences in the legislation of many countries and achieve the necessary harmonization. Under the treaty, the application for several goods or services is allowed. The proposal must be accepted and mark registered, even if the goods or services specified in the application belong to different classes of the classification. In this case, one registration is made (Chapter 5, n.d.).

e) Singapore Treaty on the Law of Trademarks was adopted on March 27, 2006 by 28 member states. The purpose of the agreement is to create common requirements, rules, and procedures for contracting parties on registration of marks consisting of signs that can be registered as marks under its law.

f) Madrid Agreement on the International Registration of Marks was signed on April 14, 1891 by 56 member states. The purpose of the agreement is to provide citizens of the contracting states with the protection of their marks already registered in the country of origin in other member countries of the agreement by submitting applications for such marks to the International Bureau of WIPO (Chapter 5, n.d.).

g) The Madrid Protocol was adopted on June 27, 1989 by 88 member states. The aim of the protocol is to make the system acceptable to more countries.

5. Group of agreements on designations of origin

a) Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods was signed on April 14, 1891 by 35 member states. Under the agreement, all goods with such geographical indications, provided that they directly or indirectly indicate one of the countries participating in the agreement or region in that country, shall be confiscated.

b) Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration was adopted on October 31, 1958 by 27 member states. The agreement protects appellations of origin that are the geographical name of the country, region, or locality that is used to denote a product originating from that country, the quality, and characteristics of which are explained exclusively or mainly by the geographic environment, including natural and human factors.

6. Washington Treaty on Intellectual Property in Respect of Integrated Circuits was ratified on May 26, 1989 by 4 member states. Under the agreement, each contracting party shall ensure throughout their territory the protection of intellectual property rights in relation to the original topologies of integrated circuits, regardless of the fact of inclusion of an integrated circuit in the device (Chapter 5, n.d.).

Group of treaties on the copyright

1. Berne Convention on the Protection of Literary and Artistic Works was signed on September 9, 1896 by 166 member states. The purpose of the convention is to protect the rights of authors on their literary and artistic works as effectively and equally as possible.

2. The WIPO Agreement on the Copyright was ratified on December 20, 1996 by 90 member states. The agreement specifies that copyright protection extends to the form of expression and not to ideas, processes, methods of operation, or mathematical concepts as such (Chapter 5, n.d.).

Group of treaties on the neighboring rights

1. International Convention on the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations was adopted on October 26, 1961 in Rome by 91 member states. The purpose of the convention to protect the related rights. It is the first international agreement of this type.

2. Convention on the Protection of Producers of Phonograms Against an Unauthorized Duplication of Their Phonograms was signed on October 29, 1971 by 77 member states. Each party undertakes to protect producers of phonograms who are nationals of other states from producing copies of phonograms without the consent of the producer and from importing such copies every time when it is done for the purpose of distribution to the public, as well as from distribution of such copies to the public (Chapter 5, n.d.).

3. The WIPO Agreement on Performance and Phonograms was ratified on December 20, 1996 by 91 member states. The peculiarity of this agreement is that it provides protection for moral rights of performers.

4. The Brussels Convention on the Propagation of Signals that are Transmitted by Programs and via Satellite was adopted on May 5, 1974 by 35 member states. The convention provides for the obligation of each party to take appropriate measures to prevent the unauthorized distribution on its territory or from its territory of any signal that carries a program that is transmitted via satellite.

5. Beijing Treaty on Audiovisual Performance was suggested on December 1, 2012 and has no members. The purpose of the agreement is to support the protection of the rights of performers on their audiovisual performance. According to the agreement, the protection does not apply to the performers of the audio-visual records (Chapter 5, n.d.).

International Convention on the Protection of New Varieties of Plants was signed on December 2, 1961 in Paris by 114 member states. The purpose is to ensure the recognition by member states of the union of achievements of the breeders engaged in the creation of new plant varieties by granting them an exclusive property right on the basis of a number of single and clearly specified principles (Chapter 5, n.d.).

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The purpose of the agreement is to develop and harmonize principles of creating the legal framework for the liberalization of international trade relations, establishment of standards of protection of intellectual property rights, and procedure for their enforcement.

1. The TRIPS aspects on the industrial property

a) Aspects of TRIPS on inventions. Patents shall be available for any inventions, regardless of whether they are products or processes in all fields of technology or not, provided that they are new, involve an inventive level, and are capable of industrial application (Ramcharan, 2013).

b) Aspects of TRIPS on industrial designs. State parties should ensure protection of independently developed industrial designs that are new or original.

c) The TRIPS aspects on trade marks. The protected object is any marking or a combination of signs by which the goods or services of one company can be distinguished from goods or services of another company, or a trademark that has a right to be registered as the one.

d) The TRIPS aspects on geographical indications. According to the agreement, geographical indications define a product as originating from the territory of state parties, region, or locality on its territory when given quality, reputation, or other characteristic of the good is largely related to its geographical origin (Ramcharan, 2013).

e) The TRIPS aspects on the protection of undisclosed information. State parties shall ensure effective protection against unfair competition. State parties should provide protection of undisclosed information and data provided by government and government agencies.

f) Aspects of TRIPS on the control of anti-competitive practices in contractual licenses actions. State parties agree that some licensing practices or conditions pertaining to intellectual property rights that restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.

2. The TRIPS aspects on the topographies of integrated circuits. State parties shall consider the following actions as unlawful when they are undertaken without permission of the right holder: importing, selling, or distributing in any other way of integrated circuits with protected topographies for commercial purposes, or products that contain such integrated circuits, only until it contains the unlawfully produced integrated circuits.

3. Aspects of TRIPS on the copyright. According to the agreement, a computer software in source or object code is protected like the literary works under the Berne Convention.

4. Aspects of TRIPS on the related rights. Regarding the recording of the performance on a phonogram, the performers have the opportunity to prevent broadcasting or direct live public broadcasting of their performances if the recordings were made without their permission (Ramcharan, 2013).

UAE Legislation

The UAE government is well-aware of the need of serious protection of intellectual property and copyright for the development of business in the country. Today, the protection of intellectual property in the UAE is regulated by a set of laws, and the state pays unprecedented attention to the Arab world and this issue. The compliance with the law is monitored by a special body, the Department of Copyright.

Copyright legislation

The first copyright law of the UAE was presented by the Federal Law No. 40 of 1992 on the Protection of Intellectual Works and Copyright. Now, it is canceled, and the valid copyright legislation of the UAE is presented by the Federal Law No. 7 of the Year 2002 Concerning Copyrights and Neighboring Rights. This law protects the copyright for such works as books, articles, software, databases, lessons, speeches, music, audio and video, architectural works, drawings, paintings, sculptures, photographs, illustrations, geographical maps, derivatives, etc. However, protection does not include ideas, methods, courses of action, conceptions, notions, and simply facts (United Arab Emirates. Federal Law No. 7 of the Year 2002 Concerning Copyrights and Neighboring Rights., n.d.). The protection is granted for 50 years of the author’s life and 50 years after his death. For works of applied art, the term of protection is 25 years, and 20 years for broadcasting material. The copyright is protected regardless of registration in the Ministry of Economy. A person that infringes the copyright can be penalized by imprisonment for not less than two months and by a penalty of not less than ten thousand Dirhams and not more than fifty thousand Dirhams, or either of both penalties (United Arab Emirates. Federal Law No. 7 of the Year 2002 Concerning Copyrights and Neighboring Rights., n.d.).

In addition, the following laws on the copyright are valid on the territory of the UAE: the Ministerial Decision No. 133 of 2004 on Collective Management of Copyright and Related Rights; the Ministerial Decision No. 411 of 1993 on the Control of Protected Works in Accordance with the Provisions of the Federal Law No. 40; the Federal Law No. 5 of 1985 regarding the Civil Code; the Federal Law No. 5 of 1985 regarding the Promulgation of the Civil Transactions Law as amended by the Federal Law No. 1 of 1987; the Federal Law No. 3 of 1987 regarding the Penal Code; the Federal Law No. 10 of 1992 regarding the Law of Evidence in Civil and Commercial Matters; the Federal Law No. 11 of 1992, regarding the Code of Civil Procedure; the GCC Unified Customs Law No. 10 of 2003; the Customs Law Implementing Regulation No. 200 of 2003; the Customs Instructions No. 50 of 2003 (World Anti-Piracy Observatory. United Arab Emirates, 2009).

Moreover, the UAE is a party of such an international treaty as the WIPO Copyright Treaty, and the country fulfills the liabilities on it. The WIPO Copyright Treaty is a special agreement concluded in the framework of the Berne Convention that concerns the protection of the works and their authors’ rights in the digital environment. In addition to the rights mentioned in the Berne Convention, the treaty gives the authors some property rights. Moreover, the agreement covers two objects protected by copyright: computer programs and collections of data or other information.

The UAE is also a party of such international treaties on copyright as Berne Convention for the Protection Literary and Artistic Work; the TRIPS agreement; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the WIPO Performances and Phonograms Treaty; the Arab Agreement for the Protection of Authors’ Rights (World Anti-Piracy Observatory. United Arab Emirates, 2009).

Copyright legislation on the Internet

In the UAE, the copyright on the Internet is protected by the Federal Legal Decree No. 5 of 2012 on combating cyber-crimes. It contains the amendments to Federal Legal Decree No. 2 of 2006 on cyber-crimes. It provides the legal defense of privacy of all online information, particularly credit card numbers and information, bank account numbers and details, as well as payment methods. The regulation makes penalties for anyone using network or any information technology tools for an unauthorized infringement of the privacy of other people through overhearing, catching, recording, or using conversations, audio and video material; taking photographs of other people, creating electronic photos of other people, revealing, making copies, or saving them; publishing news, photographs or films, annotations, data and information even if they are original (New UAE cyber-crime laws: Jail for indecent posts, 2012).

Moreover, the copyright on the Internet is protected by the Federal Law No. 7 of 2002 Concerning Copyrights and Neighboring Rights. Due to this law, using, copying, and downloading software, downloading materials from websites on the Internet, or distributing any material in any manner for any purpose, commercial or personal, without the author’s written permission, is illegal. It will be punished by imprisonment for a period not less than two months or by payment of penalty not less than ten thousand Dirhams and not more than fifty thousand dirhams, or by both penalties.

In general, the copyright on the Internet is protected by all laws on the copyright.

Infringement in the traditional context

1. Patent infringement

A patent owner has the prerogative to use the invention. Only a patent holder can hinder others from producing, utilizing, retaining, selling, or importing the patented product or process, or a product obtained with the help of the patented process.

The civil courts resolve the patent infringement issues. There are federal courts in the United Arab Emirates, but Dubai and Ras Al Khaimah have their own courts. The Dubai International Financial Centre courts have the right to resolve infringements arising in the free zone (Dowle, 2014).

The use of patented product for academic research and that which is not an industrial or commercial use, for carriage, when the patented product or process is imported for a short term into the UAE as part of a vehicle, and in cases of a counterclaim for invalidity, it is not an infringement.

Previous measures to keep the evidence can be made by a Court of Urgent Matters. Damages and perpetual court prohibition and destruction orders can be made in full, substantial proceedings (Dowle, 2014).

2. Trademark infringement

A trademark infringement action can be made against another’s use of a mark where there is a probability of muddle over previously registered or custom rights.

The civil courts resolve the trademark infringement issues.

The Trade Mark Law does not include special provisions concerning the defense of trademark infringement issues. A defendant can dispute that the statement of infringement is not correctly made. A defendant can also cause other proceedings trying to cancel the trademark relied upon (Dowle, 2014).

The person who has utilized a trademark identical to a legally registered trademark or who has falsified it can be punished through imprisonment, by a penalty of not less than five thousands Dirhams, or by closing offender’s premises for a period of not less than 15 days and not exceeding six months. Damages can be declared in a civil case. Customs or border measures are also available (Dowle, 2014).

3. Copyright infringement

Unwarranted making of copies, reconstitution, spread, or publication of the copyrighted work are the infringement actions. The tools designed to infringe copyright are also considered as offenses by the Copyright Law.

The criminal and civil courts resolve the copyright infringement issues. At first, the issue must be brought to the Court of First Instance. (Dowle, 2014).

According to the law, making a single copy of a work for non-commercial personal use, quoting passages for critique or discussion, making a copy for education or training, and other fair-use exceptions are not an infringement.

Previous measures are available to conserve evidence. Customs or border preventive measures are also available. Criminal penalties are used for some copyright infringement offences. Civil remedies include damages and the court’s right to order the equivalent of an irrevocable injunction and destruction (Dowle, 2014).

Infringement in the Context of the Internet

The rise of the Internet has enlarged the problem of copyright infringement in the majority of countries due to the fact that to copy the copyrighted material from the Internet is easy and fast, regardless of the method. Making a protected work, recording, or broadcast program free to the public through computer networks, the Internet, information networks, communication networks, and other remedies and without the previously written permission of the author is the infringement in the context of the Internet (Fitzgerald & Olwan, 2009).

The authors can prevent infringement of their work by dealing with an infringement issue in a civil court. When the author has information about the websites that contain the infringed material, he or she can search through “whois” for database queries and information on domain names and IP addresses. After finding the details, he or she may send the infringer a notification, asking to stop and abstain from infringing his or her rights. It is recommended to provide a deadline. The author may also write to the Internet Service Provider (ISP) that services the infringing website and require the ISP to remove his or her work (Ababneh, 2011).

The civil courts resolve the infringement concerning the Internet issues. Penalties for infringement are provided by the law.

There are two cases of penalties for copyright infringement on the Internet. In the first case, the creator of the website spreading the prepaid television programs was sentenced to a fine of $1 million (McGinley, 2011). In the second case, the seller of hacked game consoles, which could operate the hacked games, was sentenced to 3 months in prison (Local authorities in the UAE sentence Internet pirate to imprisonment, 2011). However, it is not known if these two sentences were enforced. There is also no case known to punish ordinary users that download files subject to the copyright.

Conclusion

In conclusion, the international legislation on intellectual property is needed when the national legislation is not suitable in cases when the owner uses its intellectual rights or protects them from infringements in another country. The World Intellectual Property Organization administers 24 international treaties. There are several groups of international treaties: on the protection of industrial property, on the copyright, on the neighboring rights, as well as the International Convention on the Protection of New Varieties of Plants, and the Agreement on the TRIPS that protect intellectual rights.

Today, the protection of intellectual property in the UAE is regulated by a set of laws. The copyright legislation of the UAE is presented by the Federal Law No. 7 of the Year 2002 Concerning Copyrights and Neighboring Rights. In addition, there are valid Federal Law No. 5 of 1985 regarding the Civil Code, the Federal Law No. 5 of 1985 regarding the Promulgation of the Civil Transactions Law as amended by the Federal Law No. 1 of 1987, the Federal Law No. 3 of 1987 regarding the Penal Code, and others. The UAE is a party of such international treaties as the WIPO Copyright Treaty, the Berne Convention for the Protection Literary and Artistic Work, the TRIPS agreement, and others. The copyright legislation on the Internet is presented by the Federal Legal Decree No. 5 for 2012 on Combating Cyber-Crimes, and others.

The infringement of intellectual property in the traditional context can be performed in regard to patents, trademarks, and copyrights. The civil courts resolve these infringement issues. These infringements are punished by different penalties and imprisonment. Making a protected work, recording or broadcast program free to the public through computer networks, the Internet, information networks, communication networks, and other remedies and without the previously written permission of the author is the infringement in the context of the Internet. The civil courts resolve the infringement in regard to the Internet issues, and it is also punished by the law.

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