Principle or exception?
A cross-cutting issue provides food for thought on the proprietary notion of the intellectual property right. Is it a right in principle, or a particular right, of exception? In other words, is it possible, in principle, every time we create something, to prohibit third parties from taking hold of it? Or does this exclusivity rather exist only from the moment when the legislator grants a right by giving it a name (copyright on works, patent rights on inventions, etc.)? And when there is no case provided by a statute, does the exclusive right still hold?
Currently, in Belgium, it is recognised that the principle governing intangible creations is that of freedom. Intellectual property rights, as broad as they are in some cases, would therefore be exceptional, the basic rule of free competition remaining. We therefore define the rules of property in a scope of freedom. However, some authors argue that the legislator's intervention should not be a conditio sine qua non for intellectual property. These authors believe that rights do not need to be named, or organised by a statute, to exist. The controversy is fraught with consequences. “Specifically, the issue is raised primarily in relation to what is called parasitism, or parasitic competition, the wrongful nature of which is questioned. In the competitive battle, dishonest practices, like theft, breach of trust, misappropriation and counterfeiting, are not permitted. Some case law goes beyond this, and holds that slavish imitation of products, services or advertisements, and thus the misappropriation of the efforts and investments of others, is unfair per se. It is a behaviour that could be brought to an end before the courts. If we do not place any limits on this case law, an action in unfair competition in the event of parasitism would offer a kind of innominate intellectual property right to the person who institutes such action. What is at work here is the logic of an automatic appropriation of intellectual productions, as a principle.”
Origin, variation, extinction; cessions et licences
The thinking outlined in the first part allows the author to specify the nature of intellectual propety rights. He concludes, as stated above, by drawing a connection between two characteristics that appear to be their own. Intellectual rights are particular exclusive rights and are nearly always possessions (except in certain cases, particularly that of the moral rights of authors and performers). Because of this dual consideration, the author could develop the second and third parts of his thesis. In these chapters, he compares, as regards a specific case, the intellectual rights with the principles of property law and contract law as provided by the Civil Code.
Given that intellectual property rights grant to their holder specific exclusive prerogatives in relation to an intangible product, and not a general right to enjoy a tangible object, they are governed by the formalities and laws specifying under what conditions they can be acquired,and how they lapse. The second part of the research aims to map, describe and understand these different processes, which vary according to the nature of the right. For example, pieces of music, inventions and software programs are not protected in the same way. They are not all governed by the same laws. There are specific ways of acquisition. For an author, the simple fact of the creation is enough to result in protection. And this protection – copyright – will last up to 70 years after the author's death. In other cases, the fact of using is enough. For example, if a restaurant owner places a sign on his establishment, this simple gesture will prevent all competitors from opening a restaurant with the same name directly across from the original. However, some creations require formalities of filing, publication and registration prior to intellectual rights being granted. This is the case for patents in particular. “In these cases, provision is made for a monopoly over exploitation reserved for the holder of an invention. But the secrets must be revealed to his peers, the author explains. “And once the monopoly lapses, any one may use the said invention.”
The patenting system, while protecting the creator (or the “successor in title”, the employer, for example) for a given time, is also intended to give notice to third parties, to provide extensive publicity for the invention. This is how Alexander Graham Bell, for example, was able to make economic use of the invention of the telephone for twenty years before competitors could in turn develop the technology. But it isn't only these inventions that require very precise formalities to be protected. Marks (words or logos) also need to be registered, etc. “There are very specific means of acquisition determined by the nature of the intellectual property and described in the laws related to this matter,” Bernard Vanbrabant sums up.
