The protection of intellectual property in 21st century has become important not only in the field of IT industry, but for all businesses that invest in innovation, creativity and development of their products and services and that want to protect the investments in question. Therefore, there is more and more buzz in Serbia about the protection of brands, trade secrets, patents, designs and everything that can be classified as intellectual property. However, the launch of ChatGPT and other language models based on artificial intelligence, once again highlighted the importance of intellectual property protection and showed that in the future there will be a large number of debates and disputes regarding respect for human creativity, i.e. intellectual property. The number of these disputes is still significant today, but now the question arises whether these language models, that have been trained on content that has been generated for years on the Internet, have the right to use such content and to process it and economically exploit it (this also applies to this article :J). Therefore, the issue of precise definition and protection of intellectual property became much more complex than it was just ten years ago, which is why there are numerous initiatives to redefine these rights. On the other hand, the creators of innovation and creative content have already launched initiatives to limit the scope of influence of artificial intelligence as well as to ban the work of these language models in certain industries (as is the case with screenwriters in Hollywood ). Because of all of the above, we have prepared this article to introduce you to the basics of intellectual property protection and the basic types of intellectual property rights such as trademark, patent and copyright, as the first step to understanding the world of intellectual property.
Introduction to Intellectual Property Law and its importance for your business
Intellectual property law is a collective name for a group of rights that, simply put, provide protection to the creations of the human mind. However, it should be borne in mind that the concept of intellectual property does not include every type of human creation (e.g. an idea does not enjoy legal protection), but only those forms of human creativity that are covered by the legal framework and only to the extent prescribed by the regulations in the field of intellectual property.
Types of intellectual property
In this regard, we can distinguish two main groups of intellectual property rights, namely:
- Copyright and related rights on the one hand, and
- Industrial property rights on the other hand.
The first group, in addition to copyright, consists of related rights, i.e. the rights of interpreters (performers of an author’s work – translators, actors, etc.), the rights of producers of phonograms (audio recordings of music), videograms (film), the rights of producers of broadcasts, databases, and the first publisher of a free work. and publishers of printed editions for a special fee. On the other hand, industrial property rights include trademark rights, patents, industrial designs, geographical indication rights, plant variety protection rights, integrated circuit topography rights.
In addition to these two basic groups of intellectual property rights, often in the area of intellectual property, under the category of “soft” intellectual property rights, the right to protect business secrets (know how) and Internet domain names.
Intellectual property law in Serbia
Intellectual property law in Serbia, contrary to the prevailing opinion, is not a new branch of law, but has a tradition of more than 100 years, when the Directorate for the Protection of Industrial Property was founded. Therefore, since the beginning of the last century, our legal system has been harmonized with the world acquis in this area, and it can be said that this area has achieved the highest degree of harmonization.
Thus, our country is a signatory to numerous international agreements in the field of intellectual property, namely:
- Berne Conventions for the Protection of Literary and Artistic Works;
- International Conventions on the Protection of Performers, Producers of Phonograms and Broadcasting Institutions ( the so-called Rome Convention )
- WIPO Copyright Treaty
- Phonograms Agreement
What forms the basis of the legal framework in Serbia, in addition to the relevant international conventions, is the Law on the Protection of Copyright and Related Rights, as well as individual laws for each industrial property right. What is important for companies and entrepreneurs operating in Serbia is how they can protect their intellectual property, as well as how to ensure that they do not violate other people’s rights when performing their business activities. Given that in practice most questions are asked about copyright on the one hand and trademark rights or patents on the other, below we briefly explain the basic characteristics of each of these branches of intellectual property rights.
Why invest in the development and protection of intellectual property?
One can justifiably ask why invest in new ideas and solutions at all if it creates additional costs for you and your business in the form of taking the necessary legal measures for the protection of intellectual property. Perhaps the best example that gives an answer to the question in question is the fact that according to the research of the World Bank in 1978, the value of intangible assets in relation to the total assets in companies amounted to only 5%. Today, intangible assets (that is, intellectual property) amount to more than 75% of the value of company assets . Also, when looking at the Forbes report for the year 2023 for the top ten largest companies in the world, it can be said that the value of at least six companies from this list is based almost exclusively on the value of their intellectual property.
Patents: Protection of Innovations and Technical Solutions
A patent is a right that protects an invention from any field of technique or technology.
An invention
Although at first glance we would think that any invention can be protected by patent law, the law sets out the conditions that an invention must meet in order to enjoy patent protection. Those conditions are that the invention is:
New
An invention is new if it is not covered by the prior art. State of the art, consists of:
1) everything that is available to the public before the date of filing the invention application, by written or oral description, use or in any other way;
2) content of all patent applications for inventions filed in the Republic of Serbia.
Existence of inventiveness of the invention
An invention has an inventive step if, for a person skilled in the relevant field, it does not follow from the state of the art in an obvious way.
Industrial applicability of the invention
An invention is industrially applicable if the object of the invention can be produced or used in any branch of industry, including agriculture.
The Law on Patents explicitly stipulates that, even if the invention meets the above conditions, it will not be considered under a patent:
1) discoveries, scientific theories and mathematical methods;
2) aesthetic creations;
3) plans, rules and procedures for performing intellectual activities, for playing games or for performing tasks;
4) computer programs;
5) display of information.
One of the frequent questions that is addressed to our law office is the question of whether software can be protected by a patent. This answer depends on where you want to protect your software. If it is the territory of the EU or Serbia, bearing in mind the above provisions, the computer program or software cannot be protected by patent law. On the other hand, if you would like to protect your software on the territory of the USA, you can do so. However, in certain situations, it is possible through the protection of a “physical” invention to protect the software that is functionally related to the invention so that they form a unique entity (the best example for this is ABS brakes).
The inventor
The inventor or the employer has the right to protect the invention. If several inventors came up with the invention through joint work, they have a common right to protection. The rights of the inventor who created the invention in the employment relationship and the rights of the employer where the invention was created are determined on the basis of general acts or a contract between the employer and the employee, which is why, in case you are involved in the development of new technologies, it is necessary to have your internal acts in detail the way you regulate the issue of protecting your intellectual property and the relationship with employees.
The right of patent protection provides the possibility of protecting the right holder for a period of 20 years. This right guarantees the inventor that competitors cannot economically exploit the subject invention, but only the inventor or a person authorized by him has a monopoly over its economic exploitation. The protection procedure itself is carried out before the Intellectual Property Office and involves the engagement of both a lawyer who specializes in the protection of intellectual property and an expert in the field of the state of the art to which the invention relates. Patent law is also a territorial right, so it is exercised only in those countries where it is registered.
Copyright: Protection of Creative Works
An author’s work is an original spiritual creation of the author, expressed in a certain form, regardless of its artistic, scientific or other value, its purpose, size, content and manner of expression, as well as the permissibility of public communication of its content. In order for an author’s work to enjoy legal protection, it needs to be published, i.e. when, in any way and anywhere in the world, it is communicated to the public for the first time by the author, i.e. a person authorized by him.
What is most often considered an author’s work?
In particular, the following are considered works of authorship:
1) written works (books, brochures, articles, translations, etc.)
2) spoken works (lectures, speeches, sermons, etc.);
3) dramatic, dramatic-musical, choreographic and pantomime works, as well as works originating from folklore;
4) musical works, with or without words;
5) film works (cinematic and television works);
6) works of fine art (paintings, drawings, sketches, graphics, sculptures, etc.);
7) works of architecture, applied art and industrial design;
8) cartographic works (geographical and topographical maps);
9) plans, sketches, models and photographs;
10) theater direction.
Is it necessary to register the author’s work?
The main advantage of author’s works in relation to intellectual rights that belong to the group of industrial property is the fact that in order to enjoy legal protection you do not need to go through a complex registration process, but you enjoy these rights by publishing them. The author enjoys moral and property rights regarding his author’s work from the moment of creation of the author’s work. The author’s property rights last for the author’s lifetime and 70 years after his death, while the author’s moral rights last even after the author’s property rights expire.
Trademark: Identity and Branding
Recognition in the business world is extremely important for achieving significant business success. A trademark is a right that protects a sign that serves to distinguish the goods or services of one natural or legal person from the same or similar goods or services of another natural or legal person. With that, it can be said that a trademark or a brand in business has several extremely important functions, the most important of which are its advertising function, the function of distinguishing it from the competition, and the function of guaranteeing a certain quality of goods and services marked with a specific trademark.
Types of trademarks
The mark can be individual, collective or guarantee mark.
A collective trademark designated as such in a trademark application is a trademark of a legal entity that represents a certain form of association of producers, i.e. service providers, which have the right to be used by entities that are members of that association, under the conditions prescribed by this law.
The collective trademark serves to distinguish the goods or services of the members of the legal entity that is the bearer of the collective trademark from the same or similar goods or services of another natural or legal entity. The user of a collective trademark has the right to use that trademark only in the manner provided by the general act on the collective trademark.
The guarantee mark marked as such in the trademark application serves to distinguish goods, or services certified by the trademark holder, from the same or similar goods, or services of another natural or legal person that are not certified.
A guarantee mark used by several persons under the supervision of the mark holder serves as a guarantee of the quality, materials, method of production of goods or provision of services or other common characteristics of the goods or services protected by that mark. The holder of the guarantee mark must allow the use of the guarantee mark to any person for goods or services that have common characteristics prescribed by the general act on the guarantee mark.
Duration of trademark protection rights
The right to a trademark is realized only by registering the sign before the Intellectual Property Office. In addition, by registering a domestic trademark, only protection is achieved in Serbia, while in the event that the trademark in question wants to be protected abroad, it is necessary to perform an international trademark registration.
The right lasts for ten years, counting from the date of submission of the application, while its validity can be extended an unlimited number of times upon submission of a request and payment of the appropriate prescribed fee.
Judicial and administrative protection of intellectual property rights
Bearing in mind the above, we believe that investing in innovation and creativity in your business is one of the prerequisites for achieving business success. Therefore, it is necessary to establish internal mechanisms of intellectual property protection within your company with experts in the field of intellectual property protection. However, in addition to the measures you will take in your company in the event of a violation of your intellectual property rights, there are several state institutions at your disposal before which you can protect your rights:
Criminal legal protection
Using someone else’s intellectual property is a criminal offense punishable by imprisonment. Also, some of these crimes fall under the jurisdiction of the special Prosecutor’s Office against high-tech crime.
Protection in the form of inspection supervision
The inspection bodies of the Ministry of Trade, Health, Education, Science and Technological Development are competent to supervise the protection of intellectual property rights upon application or official duty and take the necessary measures to eliminate violations.
Protection in court proceedings
The Commercial Courts and the High Court in Belgrade are competent to consider issues of infringement of intellectual property rights, so before court you can request the cessation of infringement of your rights as well as compensation for material and non-material damage.
Protection in the customs procedure
Customs authorities take measures within their jurisdiction to prevent the import or export of counterfeit goods, or goods that infringe the intellectual property rights of their holders.
Taking into account all of the above, we strongly believe that investing in innovation and the development of new ideas and products can be multiple times profitable for your business. However, investment in research and development must be accompanied by investment in the protection of those rights by lawyers who specialize in providing legal protection in the field of intellectual property rights so that your competitors do not take over your ideas and innovative solutions.
If you need advice and help to protect your ideas and innovations, you can contact us via our contact form.
This article is for informational purposes only and does not constitute legal advice. If you need additional information regarding the topic in question, please feel free to contact us by email at office@ncrlawyers.com or by phone at +381677049551.
