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• outline the different forms of IP that are found in most business…

- - - - fgigure 5.1 and table 5.1
- - - - Laws usually apply at the national or country level, but as IP easily transfers across borders, it is very important that IP rights and protections are able to do the same. The need for intergovernmental cooperation is crucial, and many bodies work together to harmonise practice by standardising processes to create and protect rights, as well as by mutual recognition of laws between countries (WIPO 2004).
    - - an interesting counter view is that such rights may damage competition, innovation and productivity.
      - . Allowing an organisation to exercise monopoly power over an important area of an economy can be risky. For example, individuals, organisations and countries may be prevented from using important discoveries for public health and economic growth.
      - However, to eliminate these issues by removing protection of IP rights would be unwise. A significant expense is usually incurred to create new inventions, especially software, pharmaceuticals and electronics. If there were no opportunity to exploit creations commercially, few organisations would be willing to invest in such research and investigation.
      - From a policy-making perspective, it is therefore important to find a balance that stimulates innovation and the economy, while protecting rights and public interests.
        
        Mechanisms for achieving this balance may
        
        include refusing to acknowledge or allow patents (as India did with pharmaceuticals up until 2005), or forced licensing, where an owner is required to license the IP to third parties but is compensated for this at commercial rates.
        
        However, such mechanisms could slow innovation and economic progress. This is because it may limit the incentive for individuals and organisations to invest in research and development (R&D), which could lead to slower growth in productivity and standards of living.
      - WIPO
        
        The mission of WIPO is focused on contributing ‘to a balance between the stimulation of creativity worldwide by sufficiently protecting the moral and material interests of the creators on the one hand, and providing access to the socio-economic and cultural benefits of such creativity worldwide on the other’
      - extreme protection
        
        ‘evergreening’
        
        which involves extending the life of a patent through minor changes or modifications.
        
        pay for delay’
        
        A more malicious approach is to pay (sometimes secretly) competitors not to produce cheaper alternatives. This approach is called ‘pay for delay’ and can infringe on anti-competitive legislation.
- - - - Economic rights are initially held by the creator and they provide the holder with the ability to restrict others from using the IP. This, in turn, allows the holder to license the use of the IP to other parties and to receive payment (often called royalties) in return for giving permission to use the IP.
      - The life of economic rights depends on the type of IP and the way in which they have been protected.
      - The creator is permitted to sell these rights, and so the subsequent owner will have these economic rights upon purchase from the creator
    - - Moral rights attempt to protect the creator’s reputation. They refer to the right of the creator to be recognised as the creator (also known as the right of paternity).
        
        They also refer to the right to object to distortions, modifications or derogatory action in relation to the work (also known as the right of integrity). For example, internet website and video ‘mash-ups’
        
        When published without the permission of the creator, or where it damages the author’s honour or reputation, such mash-ups may infringe the creator’s moral right of integrity.
      - The treatment of moral rights attaching to IP differs between jurisdictions in a number of ways:
        
        • some may be retained by the creator forever (in perpetuity), even where the economic rights to that property have been sold, whereas others may only be protected for the life of the creator, or the economic life of the property;
        
        • some may not be transferred (i.e. they are inalienable), whereas others may be sold or waived;
        
        • some may not be recognised at all (e.g. sound recordings), even though other types of IP (e.g. visual arts) are recognised.
  - - - then
        
        The four methods of enforcing rights are as follows: CPCS
        
        civil and administrative procedures and remedies;
        
        criminal procedures and sanctions;
        
        conservatory or provisional measures; and
        
        special requirements related to border measures.
        
        defences
        
        With a trademark, the defendant may argue that the mark has not been used for the last three years and therefore should be deregistered.
        
        Another possible defence is that the defendant has designed around a particular right, such as a patent.
        
        A defence that is used against these approaches is opposition to the validity of the right.
        For example, attempts may be made to have the patent disallowed because it is either not new, or does not have an inventive step.
        
        Civil and administrative procedures and remedies
        
        In these situations, the plaintiff (owner of the IP rights) will outline the nature of the claim against the defendant (the infringer of the rights) and will outline the desired remedies.
        
        remedies
        
        Remedies usually include an injunction to stop the infringer from continuing the infringement.
        
        They may also include an account for any profits that have been received as a result of the action.
        
        Damages and compensation may also be requested as a result of estimated losses caused by the defendant’s actions. There may also be a declaration or order for the infringer to destroy any products or material that infringe on the IP rights of the plaintiff.
        
        Criminal procedures and sanctions
        
        Criminal penalties may arise from large-scale counterfeiting of goods and piracy of music and films.
        
        In addition to penalties, the seizure and destruction of the illegal copies, as well as the machinery and equipment used to produce it, may occur.
        
        Conservatory or provisional measures
        
        A conservatory or provisional measure describes a situation of rapid action that is used to conserve or capture the specific situation so that it can be reviewed and analysed properly.
        
        If an organisation that is infringing IP rights is alerted to the fact that its actions are being monitored, it may decide to destroy all evidence of its behaviour.
        
        Regulations may therefore permit property to be seized, without prior notice, to prevent its destruction. To avoid abuse of these measures, the accuser must usually lodge a bond and may be liable for costs if no breach is proved.
        
        Special requirements relating to border measures
        
        As such, enforcement options are also available to customs officials who may be allowed to seize, conserve or destroy such items.
    - - Some of these new IP protection methods include:
        • using digital watermarking and holograms to identify legitimate products;
        • using markers that can only be seen under certain conditions (e.g. special ink under ultraviolet light);
        • installing electronic tags equipped with radio-frequency identification allowing the product to be identified as authentic; and
        • inserting genetic markers or allowing for DNA testing for biological products—these are very powerful (but expensive) approaches to protecting IP.
      - Significant investment is also being made in copy-protection and encryption systems for items such as documents, music files and even radio frequencies. These systems prevent users from copying or decoding protected items, or they significantly reduce the quality and usability of the copied or decoded item.
      - In addition, the enforcement provisions protect IP by enabling legal action to be taken against those that develop and distribute technical devices that counter these physical protections (i.e. they enable copying, receiving or decoding) (WIPO 2014b).
      - Other methods to protect IP involve building strong, personal relationships with existing and potential customers.
        
        For example, the incentive to download an online game or training program illegally might be significantly reduced if that game or training program interacted with the user’s other gaming results, or if it led to personalised feedback on the learner’s progress.
      - but argument that businesses are using outdated business models and methods to detect piracy are intrusive and ineffective, prices for content are higher in australia and get delayed content from USA
        
        A survey published by consumer advocacy group Choice found that price was the most common reason for people violating copyright. The other two most commonly cited reasons were the timeliness of content being available in Australia (41%) and convenience (28%) (Pearce 2014a).
    - - costs of enforcing IP rights can be significant.
        
        IP insurance may help to safeguard against drawn out legal costs. These policies are designed to cover damages as well as the legal costs involved in pursuing a breach of IP rights, or in defending against such an accusation.
        
        Protecting IP can cost many thousands of dollars—including patent lodgement fees and charges, ongoing patent fees, fees from patent attorneys and the cost of defending patents in court.
        
        It may be more appropriate to sell or license the patent to a third party in a better position to exploit the patent’
        
        There is, after all, only one test for whether a patent is worthwhile or not: Does your company have the money to defend it?
- - - - Resourcing
        
        Relevant questions: ROLS
        • Is there IP already created that you can license instead of developing your own? –– What are the advantages and disadvantages of doing this?
        • Will you develop it in-house or outsource the development?
        • Do you have the staff to develop the IP?
        –– Do they have the technical skills to do the development?
        –– Do you have someone with the skills to manage the development process? –– Do you need to hire anyone to supplement their existing skill sets?
        • If existing staff work on developing the IP, how will you cover their current roles to free them to do this?
      - Funding
        
        One way of doing this is to divide the project into sections with ‘gates’ through which the project must pass at different stages to receive further funding.
        
        funding gates!!!!!
        
        Relevant questions: BSCG
        • How much will developing the IP cost?
        • How will you manage the costs and keep them within budget?
        • Can you stage the development of the IP and only fund future milestones when preliminary milestones have been completed and the IP is shown to merit further development?
        • Are you eligible for government (or other) grants to help with funding?
      - Commercialisation
        
        Relevant questions: SAP
        • Do you have a plan to commercialise the IP?
        • What specific advantages will the development of this IP give to your company?
        • How does the IP development fit in with your overall strategy?
      - protection
        
        Relevant questions: FCCL
        • What is the best form of protection for the IP?
        • How will you keep the IP confidential during the development process and while filing for IP protection?
        • In what countries does the IP need to be registered to protect the company’s rights?
        • Do you have a good IP lawyer to advise you?
      - Ownership
        
        Relevant questions: CH
        • Do you have contracts in place to ensure that the IP developed by employees or outsourced
        staff is owned by the company?
        • What is the best way to hold the IP?
        –– In your current legal structure? In a separate company?
        –– In another vehicle?
        –– What are the legal and strategic implications of each alternative?
- - - - industrial property’
        
        which includes inventions (patents), trademarks, industrial designs and geographic indications of source (e.g. Champagne). These typically require formal registration to protect the IP rights (see Figure 5.3 for the volume of filings in 2013).
      - ‘related rights’ or ‘copyright’
        
        which includes literary and artistic works such as architectural designs, novels, drawings, paintings, photographs and sculptures as well as software code. Related rights arise upon creation of the IP and so do not require formal registration.
    - - • Assets that give the company power in the marketplace—trademarks, customer loyalty, repeat business.
        • Assets representing property of the mind—patents, trademarks, copyright.
        • Assets that give the organisation internal strength—corporate culture, management and business processes, IT systems.
        • Assets derived from the people who work in the organisation—knowledge, competencies, work-related know-how, networking capability (Brooking 1997).