Accessing, Obtaining and Protecting
Elgar Law, Technology and Society series
Edited by Abbe E.L. Brown
Chapter 10: Intellectual property: property rights and the public interest
Intellectual property is recognized internationally as a property right (see the Preamble to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (‘TRIPS Agreement’)). It is a property right of a particular kind. Like property in land, it can have a term and be divided up into rights of occupation or use; and, also like property in land, its existence is not universally welcomed: The reason why legal systems provide intellectual property regimes has been articulated by the European Commission as being ‘to release the potential of European inventors and creators and empower them to turn ideas into high quality jobs and economic growth’. Some intellectual property rights come into existence entirely by the act of creation of a work (including copyright, unregistered design right, database right). Others are constituted by an entry in a public register (patents, registered design rights, plant variety rights). Still others, whether created by use or by registration, are enhanced by use and best defended by registration (trade marks). Secret technical information is an asset whose existence depends entirely upon the existence, scope and legal efficacy of measures and obligations designed to prevent disclosure of the secret. It is (by definition) unpublished. The secret, as such, is not an intellectual property right. That is why breach of a legal duty of secrecy, while it may be actionable as a breach of a voluntary or involuntary duty of confidentiality, is not an ‘infringement’.
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