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What’s in a name?

August 13, 2010

BY LUIS C. SCHMIDT
PARTNER
COPYRIGHT WORLD ISSUE #185, NOVEMBER 2008

This note refers to certain terminology in Intellectual Property Law. It is particularly intended to explore existing differences in the manner that Anglo-Saxon and Roman systems designate the subject of intellectual property. Inventions, trademarks and works-of-authorship have all become the subject-matter of a legal discipline having in common the protection factor of human creativity in every field of “utilitarian” or “artistic” knowledge, like science or technology, marketing or culture. Most countries and regions have generally called “Intellectual Property” the field comprising patents, trademarks and copyrights, altogether, and “Industrial Property” the subject that encircles patents and trademarks.

Copyright has been designated in different forms, depending on each legal regime, and especially if protection is emphasized on the rights of authors or on the right to disseminate a work. Author’s rights systems enhance the traditional and somewhat romantic notion of the flesh and blood person that creates by relying on her talent or sensibility and by utilizing tools in a workshop and making everything with her hands. On the other hand, copyright systems principally seek a balanced solution between the author and the entities that deliver the artistic content to the public. In copyright systems society plays an important role as the recipient of culture and ultimately, it has been society who would agree in protecting a work in order to have access to learning.

SPAIN V THE REST OF THE WORLD

Notwithstanding the above, in a number of jurisdictions in the Hispanic world, certainly led by Spain, the IP community has employed the term “Industrial and Intellectual Property Law”, instead of what the rest of the world designates just as “Intellectual Property”. In their view copyright – or better to say “author’s rights” – and intellectual property are synonym and equal terms. The expression “intellectual property” has been exclusively associated with the ideas of authorship and artistic creativity, while “industrial property” has been with inventive or mercantile expressions. Intellectual Property utilized as an inclusive name for copyright and industrial property, has had a meaning and value in the Anglo-Saxon world only, where the figure of the author has fainted just as it has happened in connection with the figure of the inventor.

Paradoxically, it was not an Anglo-Saxon who first developed the notion of “Intellectual Property” and who worked on the legal systematization of human intellectual creations. In the XIX Century, Edmond Picard, a Belgian, regarded by many as the father of modern intellectual property law, devoted his academic life to conceive a systematic study, to convince about the existence of a field of law, substantively distinct from civil law, dealing with intangible goods triggered from human creativity, not only in technology, but in literature and arts as well. That field of law was to be called “Intellectual Law” or “Intellectual Property Law”, and despite the fact that it was arguable whether “property” is applicable to intangible goods – as opposed to tangible property – there has been no doubt that inventive and artistic creativity classifies as “intellectual”.
Contrary to what systems in the Hispanic region have suggested, there are arguments to consider that “Intellectual Property” is a better name that “Industrial and Intellectual Property”. Firstly, establishing a division between artistic and industrial property can be ambiguous. Nowadays, the romantic idea of the artist handcrafting in a workshop has been substituted for methods of producing works, of major complexity, and in which entrepreneurship plays a relevant role. Secondly, the notion of “Intellectual Property”, not restricted to copyright, is better suited to address creative figures, as it is the case of designs, having an ambivalent nature, and that cannot be categorized just as inventions, trademarks or works-of-authorship. Thirdly, in Spanish the law that protects authors is called “Derecho de Autor”, as in French it is called “Droit de Auteur”, in Italian “Diritto de Autore” or in German “Urheberrecht”. Given that the Spanish language provides a meaningful expression, why utilize it as an equivalent term of another connotative expression and thereby producing a conceptual –not merely a semantic- confusion?

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