Benchmarking National - PRO INNO Europe

In contrast to arrangements for patents, a community wide registered design (the
registered community design, abbreviated CD) was implemented. Since January
2003, firms are able to register the design at O.H.I.M. (Office for Harmonization in
the Internal Market (Trade Marks and Designs)) in Alicante, Spain. A design
registered at this office is automatically valid in all member states of the European
Union – no further validation or translation is needed. OHIM also administers the
Community Trade mark, which implements structures similar to the CD for trade
marks.
Copyrights comprise the fourth large pillar of the IPR system. Work protected by
a copyright may not be legally reproduced, distributed and communicated to the
public without the consent of the owner. Furthermore, the owner has to give
permission to publicly lend, rent or perform the work under his/hers copyright. The
copyright is an example of an IPR instrument of lesser legal formality, because it
does not need to be registered. It arises automatically, once it is “fixed” in some
way (e.g., on paper, on film, on recordings, by using files on servers in the internet,
etc.).
The copyright covers the way ideas are expressed, but not the ideas themselves.
For example, Dan Brown’s book “The Da Vinci Code” was cleared of charges that
it would infringe the copyright of an earlier book which already contained many of
the theories written in “The Da Vinci Code”. Using ideas from copyrighted work for
one’s own work is thus not considered to be a copyright infringement. Exceptions
to this rule have been, however, put in place for two cases: (1) if transaction costs
for clearing rights are too high (e.g., for book reviews or for copying for noncommercial
private research under library privilege); and (2) in order to account for
equity issues (e.g., translation of texts into Braille or copying for preservation).
Besides the four main IPR instruments above, there are also other IPR instruments
which have been developed to cope with specific types of inventions. Examples
include plant varieties, semi-conductor topographies, geographic indications or IPR
titles for databases. These types of IPR are summarised as “sui generis rights” (as
opposed to primary IP rights).
A last noteworthy type of IPR is the utility model. The utility model was
introduced as a cheaper but simpler alternative to patents, especially with the
needs of SMEs in mind. It is available only in a limited number of countries – in
particular, in some European countries (Austria, Germany, France, Finland, Italy,
Spain, Portugal, Poland) and, for example, in Japan, Taiwan and China. The utility
model can be best described as a “patent light”: It has less stringent patentability
requirements, a shorter maximum life time and it is not substantially examined
upon registration (in terms of prior art search), but it enjoys also a smaller degree
of legal protection. Legislation varies from country to country, but the basic
concept is the same.
3.2.2 Informal IP protection mechanisms
The formal IPR system provides a framework for protecting the intellectual property
of a firm. As stated in section 3.1, the system can be considered to facilitate specific
deals between society and inventors: The inventor receives some form of defensible
exclusivity in exchange for making otherwise secret information available to the
public. The aim of the system is to maximise welfare and innovation output, taking
into account both the interests of the original innovator and that of follow-on
innovators.
For the profit-maximising firm, it is, however, important to know that it can also
use mechanisms and/or engage in behaviours outside the IPR system in order to
protect its intellectual property. Such informal IP protection practices are extremely
varied (Kuusisto, 2007; Kitching & Blackburn, 2003: 21). Examples include building
specialist know-how into products to restrict the possibility of re-engineering,
regulating access to information or, as an alternative, disseminating knowledge
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SMEs IN THE IPR WORLD