Intellectual Property & Policy FAQs
What is intellectual property?
The World Intellectual Property Organisation defines intellectual property as: Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. IP is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.
How do intellectual property laws work?
For a comprehensive introduction to the policy, law and use of IP, download the WIPO Intellectual Property Handbook.
Who is responsible for creating intellectual property laws?
The development of international intellectual property laws is one of the responsibilities of the WIPO through the coming into force of treaties and conventions. Domestic intellectual property laws are created by the legislature of each jurisdiction, either independently or by the local adoption of an international treaty.
What is a patent?
A patent is an exclusive right granted for an invention which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. A patent provides protection for the invention to the owner of the patent. It provides the right to exclude others from making, using, selling, offering for sale, or importing a patented invention for a term, which is usually a minimum of 20 years from the patent application filing date.The criteria that must be fulfilled to gain a patent are novelty, inventiveness and industrial applicability or usefulness. Patent licensing agreements are contracts in which the patent owner(the licensor) permits the licensee(the license taker) to use the invention. Enforcement is only in national jurisdictions where the patent rights have been awarded for a particular invention.Patents are the instrument most relevant to the conservation of genetic resources. Some countries permit the patenting of plant varieties. Many other countries do not allow patents to claim varieties but may nevertheless allow other groupings of plants to be patented. In addition, gene sequences can be covered, particularly in instances where the inventor has discovered a specific function of the gene.
What are trademarks and service marks?
Trademarks and service marks are distinctive signs which are used by a business to identify itself and its products and services to consumers. Conventionally, a trademark or service mark comprises a name, word, phrase, logo, symbol, design, image, or a combination of one or more of these elements. In some countries, a trademark used to identify a service rather than a product is called a service mark.
What is a copyright?
A copyright is a set of exclusive rights to regulate the use of a particular form, way or manner in which an idea or information is expressed. These include literary works, movies, sound recordings, photographs and software.
What is a trade secret?
Confidential information held by you or another party. It can be a confidential practice, method, process, design, or other information that gives the owner an opportunity to obtain an advantage over competitors who do not know or use it. Trade secrets are not protected by law in the same manner as trademarks or patents. A trade secret is protected without disclosure of the secret. Disclosure of a trade secret can result in criminal prosecution. Enforcement of trade secret laws is very much dependent upon national law, although the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) has set some minimum standards.
What is the World Trade Organisation Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS)?
TRIPS is a global agreement that enables recognition of intellectual property rights (IPRs). It came into effect in January 1995, and is to date the most comprehensive multilateral agreement on intellectual property. It has a broad scope but specifically for genomic research, has increased the spread of private rights over products and processes used.
The agreement establishes minimum legal standards that WTO member countries must adopt regarding several forms of IPR including copyrights, trademarks, geographic indications, trade secrets and patents. For more information, click on Agreement on Trade Related Aspects of Intellectual Property Rights.
What is a license in relation to intellectual property?
A license is a legal permission from a patent owner to use an invention. It is a contract which allows the licensee (the one obtaining the license) to use particular IP.
What is a material transfer agreement?
A Material Transfer Agreement (MTA) is a contract that governs the transfer of tangible research materials between two organizations, when the recipient intends to use it for his or her own research purposes. The MTA defines the rights of the provider and the recipient with respect to the materials and any derivatives. Biological materials, such as reagents, cell lines, plasmids, and vectors, are the most frequently transferred materials, but MTAs may also be used for other types of materials, such as chemical compounds and even some types of software. An MTA typically provides that the material remains the property of the party who provided it, and that the material can only be used for certain purposes. Strictly speaking, the ownership rights over materials that a provider retains under an MTA are not ‘intellectual property rights', but the practical effect of those rights can be as significant as any patent or other intellectual property right. Often, an MTA provides that the material may be used for research purposes only, or that the material may not be transferred to another person without the owner's consent. Even though these kinds of restrictions are common, researchers should know that agreements of this nature can render research - and the ultimate development and deployment of the products of research - extremely difficult and sometimes impossible. Many research institutions have devoted years of work and large sums of money developing products from materials received under a ‘research only' MTA, only to find that when they wish to proceed to product deployment, the provider of the materials refuses to lift the research only restriction. Researchers who need to access materials from third parties should therefore investigate whether it is possible to do so without major restrictions on the use of the materials.
What is traditional/indigenous knowledge?
Traditional knowledge (TK), indigenous knowledge (IK), traditional environmental knowledge (TEK) and local knowledge generally refer to the long-standing traditions and practices of certain regional, indigenous, or local communities. Traditional knowledge also encompasses the wisdom, knowledge, and teachings of these communities. In many cases, traditional knowledge has been orally passed for generations from person to person. Some forms of traditional knowledge are expressed through stories, legends, folklore, rituals, songs, and even laws.
What is bioprospecting and how does it relate to biopiracy?
Bioprospecting is an umbrella term describing the discovery of new and useful biological samples and mechanisms, typically in less-developed countries, either with or without the help of indigenous knowledge, and with or without compensation. In this way, bioprospecting includes biopiracy and also includes the search for previously unknown compounds in organisms that have never been used in traditional medicine.
Biopiracy is a situation where indigenous knowledge of nature, originating with indigenous people, is exploited for commercial gain without permission from and with no compensation to the indigenous people themselves.Detractors of use of natural knowledge, claim these practices contribute to inequality between developing countries rich in biodiversity, and developed countries hosting companies which engage in 'biopiracy'.
Bioprospecting contracts lay down the rules, between researchers and countries, of benefit sharing and can bring royalties to lesser-developed countries. However, the fairness of these contracts has been a subject of debate. Unethical bioprospecting contracts (as distinct from ethical ones) can be viewed as a new form of biopiracy.
What are plant breeders rights?
Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give him exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years.With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others. In order to qualify for these exclusive rights, a variety must be new, distinct, uniform and stable. A variety is new if it has not been commercialized for more than one year in the country of protection. A variety is distinct if it differs from all other known varieties by one or more important botanical characteristics, such as height, maturity, color, etc. A variety is uniform if the plant characteristics are consistent from plant to plant within the variety. A variety is stable if the plant characteristics are genetically fixed and therefore remain the same from generation to generation, or after a cycle of reproduction in the case of hybrid varieties. The breeder must also give the variety an acceptable "denomination", which becomes its generic name and must be used by anyone who markets the variety.Typically, plant variety rights are granted by national offices, after examination.
At the international level, plant breeders rights are protected by the Union Internationale pour la Protection des Obtentions Végétales (UPOV - The International Union for the Protection of New Varieties of Plants), an intergovernmental organization with headquarters in Geneva (Switzerland). UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 (and revised in 1972, 1978 and 1991) to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society. More information on the convention is available at the UPOV Website.
What is an open source software license?
An open-source license is a copyright license for computer software that makes the source code available for everyone to use. This allows end users to review and modify the source code for their own customization and/or troubleshooting needs. Open-source licenses are also commonly free, allowing for modification, redistribution, and commercial use without having to pay the original author. Some open-source licenses only permit modification of the source code for personal use or only permit non-commercial redistribution. All such licenses usually have additional restrictions such as a requirement to preserve the name of the authors and a copyright statement within the code.
What is the Convention on Biological Diversity?
Signed by 150 government leaders at the 1992 Rio Earth Summit, the Convention on Biological Diversity (CBD) is an international treaty that entered into force on 29 December 1993 and is dedicated to promoting sustainable development through the conservation of biological diversity, the sustainable use of the components of biological diversity and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. Details on the convention are available at the CBD website.
What is The International Treaty on Plant Genetic Resources for Food and Agriculture?
The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is a comprehensive international agreement in harmony with the Convention on Biological Diversity, which aims at guaranteeing food security through the conservation, exchange and sustainable use of the world's plant genetic resources for food and agriculture (PGRFA), as well as the fair and equitable benefit sharing arising from its use. It also recognises Farmers' Rights: to freely access genetic resources unrestricted by intellectual property rights; to be involved in relevant policy discussions and decision making; and to use, save, sell and exchange seeds, subject to national laws. The treaty has implemented a Multilateral System (MLS) of access and benefit sharing, for a list of 64 of some of the most important food and forage crops essential for food security, among those countries that ratify the treaty. More information is available at the ITPGRFA website.
What is the Cartagena Protocol on Biosafety?
In January 2000, Parties to the Convention on Biological Diversity adopted a supplementary agreement known as the Cartagena Protocol on Biosafety. The Protocol seeks to protect biological diversity from the potential risks posed by living modified organisms resulting from modern plant biotechnology. The Protocol entered into force in September 2003 and over 140 countries are Parties. The Protocol specifically applies to the international movement (often termed ‘transboundary movement'), transit, handling and use of all living genetically modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity. It establishes an advance informed agreement (AIA) procedure for ensuring that governments are provided with the information necessary to make informed decisions before agreeing to the import of such organisms into their territory. A Biosafety Clearing-House with a single web-based global portal has been established to facilitate the exchange of information on living modified organisms, and to assist countries in implementating the Protocol. More information is available at the Convention on Biodiversity website pages dedicated to the Cartagena Protocol.