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Céline Bondard, 01-14 1

Maître  Céline  Bondard  Sciences  Po  Paris    cb@bondard.fr      

Intellectual Property

Seminar 1: Introduction

January 2014

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I. Introduction – Map of seminars

1. Intellectual property: an introduction Economics / Different types of protection available 2. Copyright law and related questions Author's rights / Exceptions to copyright law / Personnality rights

3. Enforcement of IP rights and Infringement issues Types of enforcement of IP rights / Copyright infringement 4. Workshop: on copyright law and related questions 5. Agreements How to draft a contract / Important intellectual property clauses 6. Workshop: on agreements 7. Creative Commons / Questions related to social networks What is creative commons and how to use them / Popular social networks and intellectual property clauses 8. Internet law and related issues Terms of use, responsability of intermediaries / Personal data

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I. Introduction - A. Why create IP rights?

1. Why create IP rights: economic considerations

è To create an incentive to innovate and promote technological or cultural progress (patents or copyrights).

èTo preserve the information of consumers as to the origin of products (trademarks). « Certainly an inventor ought to be allowed a right to the benefit of his invention for some certain time. It is equally certain it ought not to be perpetual; for to embarrass society with monopolies for every utensil existing, and in all the details of life, would be more injurious to them than had the supposed inventors never existed…How long the term should be is the difficult question. » Thomas Jefferson, 1807

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I. Introduction - A. Why create IP rights?

2. Why create IP rights: practical considerations

è To find a balance between keeping our project confidential and developing it. èTo better protect our intellectual works. èTo put a value on intangible works. US businesses invests about $1 trillion in IP - as much as they invest in creating tangible assets. èTo better negociate and draft contracts with our partners.

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I. Introduction – A. Why create IP rights?

Confidentiality •  Confidentiality contracts and other precautions: shhh!

External Partnerships

•  Licensing contrats, •  Franchising contracts, •  Distribution contracts…

Internal Partnerships

•  Letter of intent / MOU / partnership contract: why signing a contract is key

Financing •  Valuation of intangible assets -> protect your intangible assets with copyright, trademarks, designs and models, patents

3. So you have a project

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I. Introduction – B. Types of IP rights

Définition: Exclusive rights

given to creations of the

mind to the author of such

creations.

Industrial property in France: (i) industrial works such as patents, (ii) distinctive signs such as trademarks and domain names, (iii) designs and

models: registration creates a monopoly.

Literary and artistic property: intellectual works, author’s

rights (France) / copyright (US), and related rights: no

registration, no monopoly.

1. What is intellectual property?

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I. Introduction – B. Types of IP rights

•  Article L 111-1 of the IP code: « The author of a work of the mind shall enjoy, in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons This right shall include attributes of an intellectual and moral nature as well as attributes of an economic nature. »

Author’s rights: 70 years after the author’s death

•  Art L.711-1 of the IP Code: «a trademark is a sign that may be represented graphically and which serves to distinguish products or services of a physicial or personal or moral entity. »

Trademarks: perpetual rights (renewal possible every 10 years)

•  Article L.511-1 of the IP Code: «May be protected by design and models rights the appearance of a prodct (…) caracterized in particular by its lignes, contours, colors, shape, texture or materials (…). »

Design and models rights: 25 years

•  Article L.611-1 of the IP Code: «Every invention may obtain an industrial property title delievered by the INPI director, who gives its owners an exclusive right of exploitation (…). In exchange, the invention shall be divulged to the public. »

Patent law: 20 years in most cases And Coca-Cola?

2. The Main Rights

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I. Introduction – B. Types of IP rights

•  Gathering of information, whether under electronic form or not, individually accessible. Offers a double protection: •  Copyright: appearance, architecture. Condition for protection: originality. •  « Sui generis » right: content of the database. Condition for protection:

economic value: financial, time or investment in ressources. Duration: 15 years.

Databases: copyright; sui generis right (15 years)

•  Copyright: software architecture, object code and source code, documentation. •  Patents law: if the software allows for the realization of a product or process

(tangible effects). Elements that are not protected: Eléments non protégés: the program itself, its algorythms, the program langage.

Softwares: copyright; patents (20 years)

3. Special cases: databases and softwares

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I. Introduction – B. Types of IP rights

Example:

A Few Numbers •  Professional social network created in 2003 in California; •  Over 200 million users (vs. 50 million for Viadeo) in 2013; •  Company specialised in recruiting: 20% of benefits through memberships, 20% through

advertising, and 50% through recruiters / headhunters; •  Benefits second trimester of 2013: 363m$.

LinkedIn and the Value of IP WEBSITE / SOFTWARE

DATABASE

NAME: LINKEDIN

Copyright Trademark Design and models Patents

X ✓ ✓

✓ X X X X ✓ X X ✓

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II. Droit d’auteur – D. Conclusion

Conclusion: think IP, think contracts Things are never as simple as they seem when you start creating works of the mind, because: when you create intellectual works, you generate value -> when you generate value-> you generate potential conflicts. è You need to sign contracts with your partners; èYou need to be specific when it comes to what creations belong to who; èYou need to protect your creations by all means available (trade secrets, registrations, confidentiality agreements).

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II. Droit d’auteur – D. Conclusion

Maître Céline Bondard Attorney at Law, Paris & New York

Bondard & Partners

www.bondard.fr

elinebondard@hotmail.com