Intellectual Property – USA perspective
This article titled ‘Intellectual Property – USA perspective.’ is written by Adv. Nikita Pandit and discusses the laws related to Intellectual Property in the USA. I. What is Intellectual Property? Intellectual Property is something that a person owns as an asset. Example: brand, design, invention, art, photo, video It is something that a person makes by using his… Read More »
This article titled ‘Intellectual Property – USA perspective.’ is written by Adv. Nikita Pandit and discusses the laws related to Intellectual Property in the USA.
I. What is Intellectual Property?
Intellectual Property is something that a person owns as an asset. Example: brand, design, invention, art, photo, video It is something that a person makes by using his creative mind and has a right to deal with his creation. According to World Intellectual Property Organization, the meaning of Intellectual Property is something that is created by the human mind.
artistic work, literary works like books, articles, journals, designs having various patterns and colours, symbols, names, photographs on which there is an ownership right.
1. Types of intellectual property:
- Geographical Indications and many more.
Intellectual Property Rights strike a balance between the financial benefits for the maker of the work on one hand and the development of the society on the other hand. The main intention is to make sure that the creators of different works receive the economic benefit and are encouraged to create more works progress of the society. It also ensures security so that more people engage themselves in the creation of new works.
II. IP in the USA
The U.S.A. have a similar concept of Intellectual Property as perceived by the other countries.
A patent gives the inventors the right to use, sell, distribute and transfer their invention. The invention is defined by Britannica as an act where the ideas or objects are brought together in a new/novel manner and it creates something which never existed before.
- Tesla coil, invented by Nikola Tesla– an invention for alternate current transmission.
- The computer, invented by Charles Babbage.
- The telephone, invented by Alexander Graham Bell.
Copyrights protect written work or artistic works like books, paintings, sculptures, photos, movies, songs, multimedia and similar works. The artist uses his labour, skill and capital to make something creative.
Trademark is said to be a sign which helps to identify and distinguish the products or services of one enterprise from the other. For example, a trading name or a logo.
4. Industrial designs
This involves protecting the patterns and combinations of patterns. Design is an aesthetic feature of a subject that is visible to an eye. It is ornamental, which means it represents the visibility of the product or subject. The examples are lines, curves and other two-dimensional features, background, colour, shape, size.
5. Geographical Indications
Geographical Indications protect the sign that shows where the goods originated from and the existence of that product is associated only because of originating in a particular area. In the USA, the protection to the GI is similar to that of a trademark as they represent the owner of the GI like a trademark.
The main intention of the USA was to protect the innovation, creativity and development of their economy and wanted to promote the interests of the consumers and the industries which gave momentum to the development of Intellectual Property Laws in the USA.
III. Constitutional Provision
The Intellectual Property Rights in the USA have their source in the constitution of the USA. Article 1 Section 8 Clause 8 gives power to the USA Congress to do all such acts necessary for promoting science and useful art by giving exclusive rights to the creators of the work and inventors with respect to their creation for a limited period after which the work falls in the public domain.
IV. Legal Provisions
In the case of the patents, the USA, had for the first time granted patents to the inventors for a period of 14 years by the Statute of Monopolies Act, 1624.
Copyright Law was inspired in the USA by the Statute of Anne, 1710.
These laws in the USA were inspired by the laws of England. However, the monopoly of exclusive rights granted to the owners, was for a restricted period of time as given by the statutes. As per the terms of this provision, the terms exclusive rights connoted that the right would be for a limited period.
In the case of Eldred v. Ashcroft, the Supreme Court of the USA upheld that though there is a limitation on the time period for which the right is given to the creator or the inventor, the legislature has the power to extend the limit even after the lifetime of the creator or inventor so that the rights of the assignees and the purchasers of the work are protected and not violated by others and it was within the Constitutional power given to the congress to increase the time limit as it mentioned “Doing all acts to promote science and useful art”.
The USA is a member of the World Trade Organization and has also followed all the terms and conditions of Intellectual Property Protection as laid down by it.
V. Treaties and Conventions
In order to protect Intellectual Property, the USA has the membership of various international treaties and conventions:
The USA is a member of the Paris Convention (1883) which incorporated patents, Industrial designs and trademarks. It gave the right of priority for obtaining intellectual property registration all over the member countries giving them priority over the subsequent applications which were filed after them.
The USA is a member of the Patent Cooperation Treaty (1970) under the World Intellectual Property Organization which ensured that the inventor gets the registration of the patent in multiple countries by a single application.
The USA is a party to the Hague Agreement (1925) which was also under the provisions of WIPO for the management of the industrial designs which widened the jurisdiction to multiple areas by a single application.
The USA became a party to the Madrid protocol where the trademark application for registration could be filed by a single application. It also developed an online system to file this application called
For the purpose of Copyright, the USA is also a party to the:
- WIPO Copyright treaty (1996): Protection to the authors of computer programs and data compilation, i.e., databases
- WIPO Performance and phonograms treaty (1996): Protection of the rights of the Performers like the actors and singers and the phonogram producers responsible for production and engineering of sounds.
Marrakesh treaty (the USA – 2013) to promote the creativity of the visually impaired or blind people who have problems of vision or who cannot perceive the print media. This was adopted by all the member states of WIPO on this date.
Bejing treaty (2012) came into force in 2020. It was for the protection of the rights of the audio-visual performances. Audio-visual is the media that can be heard as well as seen. Usually, it is used for the purpose of teaching and learning like this very presentation. Movies are also an example of audio-visual media.
The USA became a party to the TRIPS agreement which laid the basic standards to be followed in establishing the laws related to intellectual property rights which should not be contravened.
Berne Convention of 1994 granted the minimum protection to the authors of various works such as music, art, poems, paintings. The authors were given control over their work.
The USA became a member of the Geneva Phonograms Convention of 1971 and this convention ensures protection of the rights of the producers of the sounds and sound engineering called phonograms
Universal Copyright Convention of Geneva (1952) and Paris (1971) for protection of the copyright in literary work, scientific work and artistic work for the respect of the creations by the persons and protecting their rights in their works.
Brussels Satellite Convention (1974) for protection from unauthorized use, without permission of the owner of the copyright of the programs that carry the signals by the satellite.
The USA has a Copyright Office in 1870 and since then it has had all the responsibility of registration and management of copyright. The United States Patent and Trademark Office is responsible for granting the patents and registering the trademarks.
These are the important provisions that provide protection to Intellectual Properties in the USA.