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  • Print publication year: 2008
  • Online publication date: June 2012

1 - Introduction

Summary

The nature of intellectual property

Intellectual property is now a term that is widely used within both the legal professionandsociety at large. Despite this extensive use,acomprehensive definition of the term remains elusive, especially as some forms of ‘intellectual property’ such as ‘sweat of the brow’ copyright are not intellectual and others, such as confidential information, are very arguably not property. On the other hand, most forms of intellectual property are clearly regarded as just that – forms of property that are recognised as flowing from the exercise of intellectual activity. For example, patents, designs, plant breeder's rights, copyright and registered trade marks are expressly stated by legislation to be property. In addition, various statutory requirements evidence the need for the exercise of intellectual activity to obtain that property status. For example, patent applications must demonstrate an inventive step before they acquire registration and literary, dramatic, musical and artisticworks must be original in order to qualify for copyright protection.

In the absence of a satisfactory exhaustive definition of intellectual property, probably the best that can be done is to rely upon an inclusive list of categories of legal rights that are generally recognised as constituting intellectual property. Article 2(viii) of the Convention Establishing the World Intellectual Property Organization states that:

‘intellectual property’ shall include the rights relating to:

– literary, artistic and scientific works,

– performances of performing artists, phonograms, and broadcasts,

– inventions in all fields of human endeavor,

– scientific discoveries,

– industrial designs,

– trademarks, service marks, and commercial names and designations,

– protection against unfair competition,

and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

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