Primer on Intellectual Property

Copyright – what is it?

General concept

Copyright gives certain rights to creators of literary and artistic works like books, drawings and paintings and also computer programs, maps, images and databases. Copyright protects the specific form of expression of an idea or method and not the idea itself. Copyright is granted automatically as soon as a work is finished – no application has to be filed and also no sign to be put to make a work copyrighted. The rights that are assigned via Copyright are the right to control reproduction, which prohibits copying, and control of translation, which requires the authors agreement. The duration of copyright protection varies between lifetime of the author plus 50 years and lifetime of the author plus 70 years, depending to the jurisdiction.

Open source / Copyleft

Claiming that information or software is copyleft the author still retains certain rights over the material, such as requiring acknowledgment for its use. At the same time users have the possibility to use, copy, share, change and distribute the work. Creative commons licenses use such a “some rights reserved” framework in offering licenses that clearly allow for certain uses, e.g. non-commercial uses and thus does not require contacting the copyright holder anymore.

Copyright in Agriculture

Publications – Public disclosure makes information publicly available. Public disclosure does not remove Intellectual Property Rights, Copyright remains valid, but as Copyright protects only the form of how an idea is published, not the idea itself, it reduces the possibility of subsequently obtaining a patent.

That copyright does not protect published ideas can be a problem when Traditional Knowledge is published. The criteria of novelty and invention do not apply to Traditional Knowledge in today’s interpretation, so that Indigenous People can’t seek e.g. patent protection. Appropriation of Traditional Knowledge is thus possible. It is therefore important to keep in mind who gets access to research and under what conditions. Moreover there is the issue if a PRO wants to publish its articles in open access journals or in conventional journals, where users have to pay for access. Some Journals allow the simultaneous use of the copyrighted material but in other cases the author might give up the right to use the article for such purposes.

Databases. To become copyrighted, raw data must be presented in a specific manner such as graphs or tables, that require an intellectual input. Raw data per se are not protected. Databases like e.g. encyclopedias and anthologies which “…by reason of their selection and arrangement of their contents, constitute intellectual creations…” (Berne Convention, Article 2), can become copyrighted. Copyright is a primary means of protecting Intellectual Property of Spacial Data. Questions of who owns copyright on the data arise when several parties bring in copyrighted data, when special data are corrected or when data are purchased for analyzation.

Documentation of field work The copyright status of the documentation of field work may be open to interpretation as field notes, interviews and pictures are probable to be mixed and single facts might be still possible to be taken out and published separately. The threshold for copyrightable originality is very low and thus the risks of infringement are high, so users should presume that the material is copyrighted.

Software

Information about software copyright will shortly be available here.

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Patents – what are they?

A patent provides protection for an invention to the owner of the patent for a period of usually 20 years. To obtain patent protection, an application must be filed. An invention in order to be protectable must fulfil 3 criteria: it must be of practical use, it must be novel, so show new characteristics, which cant be found in the body of existing knowledge (called prior art) and there must be an inventive step that could not be deduced by a person with average knowledge in the field. These criteria can cause problems in their interpretation. There can be discussions what knowledge forms the body of existing knowledge for example songs and tales do not apply for IPR protection. Also it might be unclear sometimes what is an invention and what is a discovery.

Alternatively innovations can also be protected without patenting by keeping them confidential. Confidential business information which provides an enterprise a competitive edge may be considered a trade secret. The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. But this requires the establishment of confidential disclosure agreements under which the party that receives the patentable technology assures that it will not disclose the innovation to third parties.

Patents in Agriculture

Biotechnology In the past living organism have been excluded from patenting – this changed in 1980 when a court decided that a strain of bacteria that had been modified by the insertion of new genes was patentable because it was not naturally occurring. Patents have to fulfil the criteria of novelty and the inventive step. Therefore pure natural products do not qualify for patenting but a synthetic form of a naturally occurring compound and the process by which the compound is synthesised may be patentable, because the synthetic form is not technically a product of nature. Thus, any part of a plant that can synthetically be produced is prone to patenting.

Filing a patent is costly and only advisable when commercialization of the innovation is planned. But patentable material for that no patent so far has been filed is threatened to be appropriated by others. When e.g. a university is working with a visiting scientist and has not taken care of a proper confidentiality agreements under which information should be disclosed or when this university is transferring material to partner and has not fixed the terms under which this material can be used, the innovation is threatened to be appropriated by other people.

FTO As processes, materials and methods can be protected via patents, it is likely that research inputs for the development of e.g. a new variety can be protected. An example for this is the story of the development of Golden Rice. When the development of this new, vitamin A enriched rice species was finished it turned out, that a considerable number of research inputs that were necesesary to develop this species were patented. With patented inputs there are two possibilities: the first is that the patent holder nachträglich agree that their patents were used and thus the new variety can commercialized despite the actual patent infringement. This is what happened in the Golden Rice case.

The other possibility is that the patent holders don’t agree with the use of their patents and can than enforce that the new development is not commercialized and has to be destroyed. Therefore, a freedom to operate search should be done for the different inputs in the research, assuring that there is freedom to operate.

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Geographical Indication - what is it?

Our apologies, our web site is currently under construction. Information about Geographical Indication in Agriculture, and how it applies to agriculture, will shortly be available here.

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Trademarks – what are they?

Our apologies, our web site is currently under construction. Information on how trademarks apply to scientific work (Trademarks in Agriculture) will shortly be available here.

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Plant Breeders Rights

Plant Breeders Rights are a form of intellectual property rights that are designed for the protection of new plant varieties. Plant Breeders Rights are exclusive rights that are granted to the breeder of a new variety. The UPOV, which is the NGO that sets the framework of the plant protection scheme, defines the terms of breeder and variety more specific.

Plant Breeders Rights can be obtained when the new variety is Distinct, Uniform and Stable. On the Australian IP (www.ipaustralia.gov.au/pbr/dus.shtml) site there exist detailed guidelines on how there criteria have to be interpreted. Plant Breeders Rights are granted to promote innovation in plant breeding through the grant of a limited time span of a commercial monopoly to breeders of new varieties. Thus breeders will have the right to exclude others from using the variety without the breeders agreement. PBR are granted for a period of twenty five years for trees and vines or twenty years for all other plants.

The specific rights that are assigned to breeders under this regime are of exclusive nature: they can prevent others from doing certain specified acts in relation to the propagating material of a variety, ie, production, reproduction, conditioning, sale, import, exports and stocking of the material. Plant Breeders Rights do not apply when a protected variety is used in research or further breeding. This excemption does not hold when a patent is involved in the specific plant. Additional forms of protection that can be obtained for new varieties are Trade Marks and patents. Trade Marks can be obtained for words or symbols that differentiate your product from other products. Patents can be filed for genetic material of a new variety as well as for processes that are needed for the production of a new variety.

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