Analysis: From Kylie Minogue perfume to Waterford blaas, an explainer on copyrights, trademarks and patents

Over the last few decades, the importance of intellectual property (IP) has grown as a means to facilitate economic growth. At the same time, and perhaps as a result, the concept of IP has entered the public sphere, though this has often combed or conflated the different elements. The purpose of this article is to shine a light on these elements, how they operate and how they can apply in day to day life.

Copyright

This is one of the traditionally recognised elements of IP. Broadly speaking, copyright relates to the rights given to the author or creator of a certain work regard control over the exploitation and use of the work. The protection afforded to copyright relates to the actual expression of the idea, not the idea itself. The question of the work is not restricted to any media. Rather it just requires the expression of the idea.

From RTÉ Radio 1's This Week, IMRO chief executive Victor Finn and Matt Carthy MEP on proposals that could impact how digital content is shared by internet users

However, there are some limits in place about what can be protected. The question of authorship and use of the work is subject to significant debate. This is particularly evident in relation to online activities and how work can be shared. The question of authorship is further complicated when a work is taken and transformed or altered, who can claim authorship of the new work.

A classic example of creating new work is seen in relation to music and music samples, where existing music is used to create something new. Since the 1980s, the majority of music samples are approved and credited to the original author. However, this was not always the case. At the same time, copyright protection allows the use of the work for review or information-based reporting without running afoul of the protection.

Copyright protection is not indefinite protection. It applies to the life of the author plus 70 years to allow their heirs to profit from the work. Once this period has expired, the work enters the public domain and is available for anyone to make use of the work. While there are ongoing issues relating this duration, there is no easy answer to this.

Trademark

From RTÉ 2fm's Dave Fanning show, journalist Valerie Loftus on celebrity trademarks

One of the traditionally recognised elements of IP, trademarks relate to the protection afforded of a visible mark, image and combination. However, this must be presented as a distinctive element or combination of elements to create the trademark. Irish and EU courts have accepted a broad definition of what can amount of this distinctive element. In the past, this has included shape, colour, sound, and musical notation. A more recent and high profile example involving Kylie Minogue relates to the use of the individuals' name as a distinctive element.

Due to the nature of trademark, it is linked to the branding of a business. Often their products are trademarked to protect the brand to prevent its use by rivals. However, this is not an absolute protection as rivals may use the protected trademark for comparative advertisement. Additionally, the protection of trademarks does not automatically prevent the rise of imitating products.

As trademarks are more economically linked than other IP elements, it is required to be in use for the duration of the protection and this must be done in good faith. A trademark will not be granted or allowed for the sake of just holding the trademark and the holder must actively use the trademark in the course of their business. This gives rise to significant risk, where the trademark protection is pursued on less than good faith grounds. In such cases, the trademark may be revoked

Patent

Similar to trademark protection, patent protection is strongly linked to the economic development aspects of IP. Briefly, patents provide protection to the innovation process for a period of 20 years. The grant of a patent protects how the product in question actually works based on submitted blueprints or schematics.

From RTÉ Archive, a 1985 RTÉ News report by Jim Fahy on moves by an American firm to patent the word "Claddagh"

The purpose of this protective period is to allow the inventor (or holder of the patent) to recoup the research and development cost of the innovation. The 20-year period is to ensure that the innovation is not permanently removed from the public domain. Over the last two decades, there has been a significant development in relation to medical patents and how pharmaceutical products are protected. However, this raises many questions about access to generic version of medicines and the impact of overly restrictive protection.

Geographical indications 

A relatively recent form of IP protection, Geographical Indications protect place-names associated with products. Often, as a result of these products, there is a perception of quality associated with the product in question.

From RTÉ News, a report on how Waterford's blaa has been granted EU protection

The majority of such products are food and drink related and the most famous example would be the Geographical indication for Champagne, in that it can be only referred to Champagne if it is from the region in France. Nearly every country will have different geographical indications for a variety of products. Ireland famously applies this protection on Irish whiskey and its brewing requirements, but equally protects the Waterford blaa (though there is a dispute regarding its use in Kilkenny along the Killkenny-Waterford broader) 


The views expressed here are those of the author and do not represent or reflect the views of RTÉ