General Information on Intellectual Property Rights
Intellectual Property is the set of exclusive rights granted to administer or use certain intellectual creations. It is divided into two branches:
- industrial property, which includes inventions (patents), utility models, trademarks, industrial designs and designations of origin;
- copyright, protects the form of an original expressive work (literary, artistic or technical) and covers literary and artistic works, mathematical algorithms, theories, software and electronic databases.
- Economic law – this refers to the exploitation right of the work / invention: control over the reproduction of the work, communication / publication of information to the public, translation, adaptation, distribution and resale of the creation.
- Moral rights – to be recognized as the author / inventor of your original work, the right to preserve the integrity of the work, preventing its modification, distortion or damage.
The rights can belong to a person or a group of people, a public or private institution.
Industrial property rights can only be protected by registering the product / invention with an accredited institution. Rights are considered territorial, protection is granted from country to country. There are international conventions that contain rules applicable to countries around the world, they set certain minimum standards for the protection of industrial property rights.
In Romania, this institution is called OSIM – the State Office for Inventions and Trademarks.
EPO – European Patent Office is an EU-wide organization that provides protection in the territory of countries that have accepted the standards proposed by EPO (non-EU countries are also included).
WIPO – The World Intellectual Property Organization is a peer-to-peer institution that offers extensive protection across several countries around the world.
The rights are protected for a limited period of time (eg the patent provides protection for a period of 20 years, the trademark provides protection for a period of 10 years) with the possibility of prolonging the protection, if deemed necessary.
Each form of protection must meet a minimum number of criteria established by law. As a general rule, these rights cannot be obtained for: creations that have no application in any technological field, creations that are already public, if the author cannot prove that the work / invention / product belongs to him, mathematical theories and formulas. Also, inventions whose commercial exploitation is contrary to public policy or morality, including those harmful to the health and life of persons, animals or plants, and which are likely to cause serious harm to the environment (each aspect being defined by the legislation in force).
Copyright protection exists from the moment a work is created, regardless of the fulfillment of any formalities. Copyright is territorial and protection is granted from country to country. There are also international conventions that contain rules applicable to countries around the world, set certain minimum standards for copyright protection.
In the EU, protection is provided throughout the life of the author, plus 70 years after his death.
In Romania, ORDA – the Romanian Copyright Office offers the possibility to register a work. The document that was issued by this institution may be useful for the purpose of providing evidence, as it may help to prove that the work existed at a certain date.
Related rights protect specific contributions that are important to the dissemination of protected works, such as changes made by performers, people involved in film productions, and so on.
Copyright does not apply in the following cases: reproduction of a work for private use, use of short quotations from a work for critical purposes or for reviews, or use of excerpts for illustration for teaching or scientific research.
Any computer program is automatically protected by copyright. A computer program can be protected by a Patent if it contains elements with application in a technical field, and is a patentable invention.
Any product, process and / or method, as well as a group of inventions (for all technological fields) provided that it is new, involves an inventive step and is susceptible of industrial application. (Law no. 64/1991)
- new invention: not included in the prior art (not yet published),
- inventive step: if for a person skilled in the art, the invention does not obviously result from the knowledge of the prior art,
- industrial application: the invention can be manufactured or used in an industrial field, including agriculture.
The filing date of a patent application, trademark, utility model, etc., is the date on which all documents necessary for the granting of intellectual property protection are filed. Filing date means the date on which legal protection begins.
- Long-term obtaining – although protection starts from the filing date, the patent itself is obtained within a few years (2-4 years, sometimes longer).
- Publication of technical data before obtaining the Patent – the process of filing the patent application involves the publication of technical details, so the disclosure of the secret of the invention.
- Cost – the patent provides protection for 20 years, and the maintenance fees must be paid annually.
- The patent does not guarantee the success of the product – the patent is proof that the product / method is applicable in industry, but does not describe the degree of maturity of the technology or whether the product has been validated under relevant operating conditions in the industrial environment.
A license is a legal contract used to determine the conditions under which an application may be used. It also has the role of defining the rights of the manufacturer / inventor as well as the user.
- Proprietary software – gives the user the right to use one or more copies of the application, but ownership of these copies remains with the company.
- GNU General Public License – applies in most cases to open-source software, and offers the freedom to modify and reproduce the program, paying only the usage fee.
- EULA (End-User License Agreement) – this type of license contains a set of conditions that must be met in order to use the program.
- Exclusive license – licenses that are offered to a single user.
- Multipurpose license – these may be open or limited in scope to certain industrial sectors or geographical areas (eg franchise agreements)
- Time-dependent license – instead of being purchased, the software is rented for a certain period of time.
This is a contract that transfers ownership of all IP rights (patent, trademark, copyright, etc.) by assigning / transferring / selling the intellectual property. Once the assignment contract has been completed, there is no longer any liability in respect of the intellectual property in question (for example, in respect of the payment of renewal fees) and no benefits can be derived from the possible commercial success of the product or service in question.
It is valuable information about technology or other aspects of the business, protected in the form of a trade secret, as long as the following conditions are met:
- the information is not known to the general public or experts in the field,
- the information has commercial value,
- Steps have been taken to keep the information secret: for example, it is stored in a secure place and non-disclosure agreements have been signed with those who have access to trade secrets.
This information cannot be protected by any other form of protection of intellectual property rights, such as: inventions in the early stages, manufacturing processes, lists of suppliers and customers, etc.
Romanian institutions involved in the protection of intellectual property
International institutions involved in the protection of intellectual property
Romanian legislation on copyright protection (information taken from ORDA)
Romanian legislation on the protection of inventions (information taken from OSIM):
LAW no. 64 of October 11, 1991 * on patents, published in the Official Gazette, Part I, No. 613 of 19 August 2014
HGnr. 547 for the approval of the regulation for the application of Law 64/1991 on patents published in the Official Gazette. no. 456/18 June 2008
LAW No. 83/2014 on service inventions, published in the Official Gazette, Part I, No. 471/2014
Multilateral agreements and treaties on copyright – information taken from ORDA
Berne Convention of 9 September 1886 for the Protection of Literary and Artistic Works (last revised on 28 September 1979)
Multilateral Patent Agreements and Treaties – Information Retrieved from OSIM and EPO)
Convention on the Issue of the European Patent adopted in Munich on October 5, 1973 (pdf format), and its Revised Act adopted in Munich on November 29, 2000 (pdf format) to which Romania acceded by Law no. 611/2002 – M.Of .nr.844 / 13.11.2002
Strasbourg Agreement on the International Classification of Patents of March 26, 1971, as amended on September 28, 1979, to which Romania acceded by Law no. 3/1998 – Official Gazette no. 10 / 14.01.1998
Marrakesh Agreement on the Establishment of the World Trade Organization – Annex 1C. Agreement on Trade-Related Aspects of Intellectual Property Rights Concluded in Marrakech on April 15, 1994 (pdf format), ratified by Romania on December 22, 1994 by Law No. 133/1994 – Official Gazette No. 360 / 27/12/1994 (pdf format)
European Agreement establishing an association between Romania, of the one part, and the European Communities, and their Member States, of the other part, signed in Brussels on 1 February 1993, ratified by Romania by Law no. 20/1993 – Official Gazette no. 73 /12.04.1993