Commercial aspects of intellectual property

This article discusses the trade-related aspects of intellectual property rights of the European Union. Being limited rights it exists only within the framework of a particular state, «intellectual property» acquired the status of sold services, creating a market for a durable economic institute. 

 Intellectual property is not a physical property. This may be ideas, and scientific process, trademarks, and music, design, software or texts books. All these things have value, but lacking the physical presence of [1, c.353].

Intellectual property law is the right to control these abstract things, comparable to ownership of ordinary goods. Typical intellectual property rights are patents, copyrights, trademark rights. They give their owners the right to control how you use the patented invention, artistic copyright or trademark [1, c.354].

The concept of "intellectual property" was introduced in the international legal documents in 1967 at Stockholm Convention establishing the WIPO World Intellectual Property Organization (but the term “intellectual creations “was used in the Berne Convention for the Protection of Literary and Artistic Works on September 9, 1886). In accordance with Art. 2 of this Convention, the term intellectual property include all the rights concerning intellectual activity in the industrial, scientific, literary or artistic fields. Thus, the bases of intellectual property are the copyright and patent law [2].

Therefore, historically, the intellectual property rights are organized by country. If intellectual property is protected by a patent in one country or industrial design rights, other countries, or the patent right does not protect it. The inventor has to buy the national law in each country where it wishes to exercise its rights. It applies not only to the countries where it wants to manufacture or sell the product, but also to  those for which it is undesirable that other manufactured or sold its product [1, c.355].

So, the creation of European intellectual property rights is a necessary step in society. In Munich, the European Patent Office is working, and in Alicante European Trademark Bureau, both of which can grant rights, valid for the entire territory of the EU. It means that to obtain such rights it is necessary to submit more than one application. However, in the case of patent rights granted this is not the right one, and a set of national rights national patents, each of which will be issued in accordance with relevant national legislation [1, c.355].

EU member states based on a system of alliances and agreements in the field of protection of intellectual property created over the years on the basis of European legal traditions: the Paris Union for industrial property, Berne Union on copyright. In 1893, on the basis of these conventions have been established the United International Bureau for the Protection of Intellectual Property. On the basis of the United bureau was formed World Intellectual Property Organization. Convention for its establishment was signed in 1967 in Stockholm and inured in 1970. [3] Currently, a number of international treaties, which performs administrative duties World Intellectual Property Organization (WIPO), UNESCO, the World Trade Organization (WTO), are included [4, c.67].

By the above treaties such regulations as the World Copyright Convention (revised at Paris July 24, 1971), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961, the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms 1971, the Convention on the distribution of program-carrying signals transmitted by satellite in 1974, the WIPO Copyright Treaty (WCT) in 1996 [4], the WIPO Performances and Phonograms Treaty (WPPT) 1996, the Treaty on the Law of Trademarks (TLT) in 1994, the Patent Law Treaty (PLT) in 2000, the TRIPS Agreement, and others are included. [5].

Since the 80s European Union, as well as America began to use the tools of impact in order to protect their intellectual property outside the EU. The EU directive, adopted in September 1984, called for the adoption of measures against states that applies unauthorized trading activities. Firms, corporations, business associations and the EU Member States were given the right to submit an application to the European Commission. After receiving confirmation of the validity of the complaint, the European Commission as one of the EU's legal arm, used special measures, such as the abolition of trade privileges, increasing rates of customs duties, quantitative restrictions on imports of its products. [6]

Since meeting with the trade representatives of South Korea passed unsuccessfully, in December 1987, EU made decision to stop a trade privileges within the framework of the General system of tariff preferences. EU put the problems of defense of intellectual property on multilateral negotiations with the third countries, for example, within the framework of Lome convention, concerning "Agreement of exporters of natural fibers"[6].

Intellectual property is partly regulated at the internal market and is an only limit degree of harmonization. Thus, the different levels of intellectual property reflects the different levels of adjusting of intellectual property at the internal market[7]. 

Intellectual property rights exist only within the framework of a particular state (as opposed to, for example, of the ownership of material objects), the need was in total contradiction with the objectives and tasks for the European countries, naturally constraining achievement of the main objectives of the EU the creation of a fullscale functioning intra comminatory economic market. Out of this situation, with all its complexity and the reluctance the EU member states give up at least part of its law-making powers in the field of legal protection of intellectual property. It has been found in the expansion of the "territorial limitations" intellectual property rights from the territory of a particular Member State to the extent of the entire European Union, which is reflected, socalled principle of "communitarian exhaustion of rights to intellectual property." According to this principle, the legal owner of a protected result of intellectual activity at the time of initiation of the first object he owns a commercial (business) market by selling anywhere in the EU is losing its right to control the further spread of this result in the whole of the European Union [5, c.87].

Thus, the protected subject of intellectual property is in the unobstructed circulation in the EU.

By above-mentioned, we should also add about innovation in the EU Treaty Article 229a, which allows to grant the responsibility for its ability to resolve disputes related to intellectual property rights. This innovation is designed to resolve disputes between private entities. This decision of the Board will come into effect only after it is ratified by member states. [8]

Nice Treaty requires significant changes and additions regarding the decision-making process of expanding the partnership between EU members. The required number of votes of the participating countries required to make a decision on enhancing cooperation, is eight, while the EU treaties provides a majority of the participating countries. [8]

Thus, the minimum number of votes required to expand the cooperation are decreased in with the entry of new countries into the union to less than one-third of the votes (as proposed by the Commission) [9]

The Commission of the internal market in the European Parliament adopted the agreement by a vote: 33 members voted in favor of such a measure, and three members opposed. [10] The aim is to improve the effectiveness of customs controls in order to prevent the importation of illegal or dangerous products on the territory of the European Council, at the same time laying down rules for the procedures of arrest and destruction. According to the Parliament, the import that violates intellectual property rights is a big problem for EU. To a large extent this can be attributed to the growing volume of goods that consume EU citizens in the social network, and which are imported from countries outside the EU. According to parliamentary statistics counterfeit and piracy cost European businesses 250 billion euros (336 million dollars) every year [10].

The new rules include a simple procedure that allows you to destruct goods without judicial intervention, in case if copyright owner agrees, and company isn’t engaged as an importer. It is also appointed a special procedure for the destruction of small consignments up to three kg, to speed up the destruction of counterfeit goods, as there are ten days, during which the importer may appeal against destruction. In accordance with national legislation currently, the subject of law will be able to try to get compensation from the offender or other persons, including intermediaries such as carriers. Consumers who buy goods in good faith abroad are irresponsible if they violate the intellectual property rights. This provision does not alter the rules governing the "violation of intellectual property rights." Non-commercial goods that are trafficked in the personal luggage of a traveler aren’t within the scope of its application. [11]

"The continuously growing trade in counterfeit goods threatens not only the growth of our economy and our jobs it also carries quite big risks to the health and safety of consumers," said the leader of the European Parliament Jurgen Kroyttsmann [11]. "Customs officers at the external borders of the EU are in a relatively good position to stop the importation of goods before they reach the internal market [11].

This agreement will allow them to perform their duties much more productive. It will be necessary to have a final plenary approval on second reading, without making any changes to the text no sooner as the Parliament receives confirmation of the Council's position. The norm will be applied in all member states from January 1, 2014.[11].

Special attention is given TRIPS agreement. This Agreement sets out the minimum standards for the recognition and protection of intellectual property objects. The agreement was reached during the Uruguay Round of the GATT in 1994. The conclusion of the TRIPS Agreement aims to create minimum standards for intellectual property rights (IPR; see Appendix 11.1 and 11.1 inset). The structure of the agreement consists of three common components. In the first component sets out the general content, goals and objectives of the agreement. WTO members commit themselves to establish minimum standards for the protection of all types of intellectual property that applies to all the technologies that are used to create products and processes.Intellectual property includes copyrights, trademarks, geographical indications, industrial designs, integrated circuits, patents, trade secrets [12].

Thus, the economic rationale for the protection of intellectual property is the defects of the market. According to other public goods, skills and abilities in the field of education characterized by uncompetitive (and therefore their number does not decrease) and non-excludability (they are easy to reproduce), but the initial cost of acquiring knowledge are extremely high. Accordingly, in the absence of intervention by the state , the knowledge production comes short of their needs. The intervention may take various forms. The state can either produce knowledge or finance their production; it can subsidize the activities of private companies involved in the production of knowledge, or provide temporary ownership of the produced knowledge. As is customary, to increase the amount of knowledge these measures are used in the complex. In order to provide temporary ownership it is required a system of legal protection of intellectual property rights, ensuring these rights and regulating their use. The TRIPS Agreement is an attempt to strengthen the system at the international level [13].

Reference: 

1. Davies G. The right of the internal market of the European Union.: Manual: Translation from English. K.: KnowledgePres, 2004. 422p.
2. Intellectual property // Electronic resource: http://www.kribel.ru \
3. Bohuslav M.M. The participation of the Soviet Union in the international protection of copyright / M.M. Boguslavskiy. Jurid. literature, 1974.
4. Samuelson P. Challenges for the World Intellectual Property Organization and the Trade-related Aspects of Intellectual Property Rights Council in Regulating Intellectual Property Rights in the Information Age // European Intellectual Property Review. 1999. № 11
5. Abdullin A.I. "Intellectual property rights in the European Union: Genesis, unification and development prospects" dissertation for the degree of Doctor of Juridical Sciences, Russian Academy of Justice, Moscow, 2006 // Electronic resource: law.edu.ru / script / cntSource.asp? cntID = 100119390
6. Protection of intellectual property. International economic aspects / / Electronic resource: http //works. tarefer.ru/99/100801 /index. html
7. Angelos Dimopoulos, L L.M. (Cantab),M.L.E. (Hannover). DRAFT.The Common Commercial Policy after Lisbon: Establishing parallelism between internal and external economic policy?
8. Nice Treaty // Electronic resource: http//www.ruseu.org/article.p hp? id=27
9. Institutional bodies. Non institutional bodies. Highest European Union Special Representatives // Electronic resource: http://forexaw.com/TERMs Public_institutions/Public_institutions_EU/P an_European_institutions/
10. European Union: Education // Electronic resource: http//polpred.com/?ns=1&ns_id=748639&c nt=53&sector=18
11. New EU customs regulations for the protection of intellectual property rights // Electronic resource:
12. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) // Electronic resource: skachate.ru/geografiya/92/index
13. Electronic resource: http://trade.ecoaccord.org/mgt/glava11.