UNIVERSITY OF LUSAKA

SCHOOL OF LAW
L340 – IP LAW
UNIT 1: INTRODUCTION TO IP
George Mpundu Kanja
 Structure of Presentation
• Introduction
• What is IP
• IP as “Property”
• Types of IP
• Justification for IP
• Criticism for IP
 Introduction
• Intellectual property is term increasingly in use today,
but still little understood.
• To many people it remains a mystery, some obscure
legal concept of little relevance to every-day life.
• However, every activity we do in our daily lives is in
one way or another affected by intellectual property.
• From the moment we wake up each morning, our
lives are in some way affected by the works and
products of intellectual property.
 Introduction
• The clothes we wear, the breakfast we have, the
newspapers which we read, the news transmitted
via satellite on our television, the car and music on
the radio as we commute to school or work, the
correspondences, research materials we come into
contact with or refer to in the course of our study
or work, the computers, phones and the very office
building or library in which we spend most of our
time, are all products of intellectual property.
 Introduction
• Besides, many of the joys and activities of after office or
school hours equally emanate from the creativity of the
human mind and are therefore subject of intellectual
property protection.
• The movies, videos, television, cable or radio programs,
music in the discotheques, the night clubs, pubs, bars, the
beers we drink, the exercise music and equipment in the
fitness centre.
• For others, the quiet joy of reading a book or magazine or
the excitement of surfing on the net (facebook, whatsup) all
form part of intellectual property creativity and protection.
 Introduction
• In case we are sick, the equipment used in
diagnosing our illness and the medicine used
to treat us are all part of intellectual
property.
• And finally, as you lie down to sleep, the
designs of your bed and beddings may well
also be the subject for intellectual property
creation and protection.
 What is IP

• Intellectual property is a term that refers to

the legal rights which results from
intellectual creations in the industrial,
scientific, literary and artistic fields.
• Intellectual property comprises of creations
that result from the creations of the mind,
the human intellect.
 What is IP

• The Convention Establishing the World

Intellectual Property Organization (WIPO),
concluded in Stockholm on July 14, 1967 defines
intellectual property to include rights relating to:
• literary, artistic and scientific works,
• performances of performing artists,
phonograms and broadcasts,
• inventions in all fields of human endeavour,
 What is IP

• scientific discoveries,
• industrial designs,
• trademarks, service marks and commercial
names and designations,
• protection against unfair competition,
• and all other rights resulting from intellectual
activity in the industrial, scientific, literary or
artistic fields.
 What is IP

• The above non-exhaustive definition of

intellectual property is important in that it
allows member States of WIPO to add to the
said list those rights they may feel qualify to
be protected as intellectual property rights.
• e.g. Should Traditional Knowledge be
protected as Intellectual Property Rights?
 IP as “Property”
• In order to appreciate and gain a fuller
understanding of the term “intellectual property,” it
is useful to approach it in terms of the notion of
“property” in general.
• The most important feature of property is that the
owner of the property may use it as he wishes, and
nobody else can lawfully use his property without
his authorization.
• The owner of the property may be a human being or
a legal entity, such as a corporation.
 IP as “Property”
• Generally speaking one can classify property into three
types. The first type is property consisting of movable
things, such as a car, a book or furniture in a home. In
some legal systems this is known as “movable property.”
• No one except the owner of the car, book or furniture can
use these items of property. This legal right is referred to as
“exclusive,” because it gives the owner the “exclusive”
right to use his property.
• Naturally, the proprietor may authorize others to use the
property, but without such authorization, use by others is
illegal.
 IP as “Property”
• The second type of property is immovable
property, or as it is sometimes known, real
property. Land and things permanently fixed on it,
such as houses, are immovable property, as they
cannot be lifted or moved.
• The third type of property is intellectual property,
which protects the creations of the human mind,
the human intellect. This is why this kind of
property is called “intellectual” property
 IP as “Property”
• Intellectual property establishes the property
rights that give the owner to do certain
things in relation to the subject matter.
• For instance, if the right is copyright and the
subject matter is a piece of music, the owner
of the copyright has the exclusive right to
make the copies of the sheet of music and to
control the performance of the music.
 IP as “Property”
• In addition the owner also has the negative right
to prevent others from doing certain things in
relation to the music such as playing in pubs
when he intended that it should only be played
in churches and homes when he wrote it.
• Like any other type of property, intellectual
property rights can be assigned, mortgaged,
licensed or transmitted under the operation of
the law.
 TYPES OF INTELLECTUAL PROPERTY

• Intellectual property is traditionally divided into

two branches, namely, Copyright and Related
Rights and Industrial Property.
• Literary, artistic and scientific works belong to
the copyright branch of intellectual property.
• Performances of performing artists, phonograms
and broadcasts are called “related rights,” that is,
rights related to or neighbouring to copyright.
 TYPES OF INTELLECTUAL PROPERTY

• The industrial property branch of intellectual

property covers inventions and industrial designs.
• Inventions are new solutions to technical problems,
and industrial designs are aesthetic creations
determining the appearance of industrial products.
• Furthermore, industrial property includes
trademarks, service marks, commercial names and
designations, geographical indications (indications of
source and appellations of origin), and the protection
against unfair competition.
 TYPES OF IPRs IN ZAMBIA

•COPYRIGHT (LITERARY, ARTISTS, INDUSTRIAL PROPERTY

MUSICAL AND DRAMATIC WORKS) •PATENTS (PRODUCT & PROCESS)
•RELATED RIGHTS (PERFORMANCES OF •TRADEMARKS
PERFORMING ARTISTS, PHONOGRAMS,
BROADCASTS) •INDUSTRIAL DESIGNS
•MERCHANDISE MARKS

•PLANT BREEDERS RIGHTS ACT, ACT NO. 18 OF 2007

•BREACH OF CONFIDENCE, TRADE SECRETS
 TYPES OF INTELLECTUAL PROPERTY

• It is also imperative to note that though intellectual property is

divided into two branches, more often than not a product or
work of intellectual property is protected by both branches of
intellectual property or multiple of intellectual property rights.
• A good example would be a mobile phone.
• The innovative technical features are protected by a patent or
series of patents; the aesthetic design or the shape of the
mobile phone is usually protected as an industrial design; the
brand used to market the mobile phone is protected by
trademark; and the ring tones or games on the mobile phone
are protected by copyright.
 TYPES OF INTELLECTUAL PROPERTY

• In addition, the manufacturer of the mobile phones

may hold a number of trade secrets ranging from
their customer list to some of the manufacturing
processes or to other confidential information that
he would not want to disclose to its competitors.
• The inventors of innovative products such as mobile
phones, can obtain exclusivity to use or prohibit
others from using each of these elements through
intellectual property protection.
 Justification for IP

• There are a number of reasons that have been advanced to justify

the existence of intellectual property rights, and these include the
following:
• (a) Creative Incentive 
• To develop or produce intellectual property products or works calls
for investment of money, skill and time. In order to encourage
creators, inventors or innovators to take a risk of investing their
capital, skill and time they must be rewarded by being granted
exclusive rights to control the use or exploitation of their inventions,
innovations, creations or works. They must therefore be protected
from free riders who might copy or reproduce the inventions,
innovation or work at minimal costs or no cost at all.
 Justification for IP

• (c) Promotion of the Economy

• Intellectual property encourages the
publication and dissemination of information
and widens the store of available knowledge.
For instance, details of patents are published
and are available for inspection. In due course,
when the patent expires, anyone is free to
make the product or use the process, as the
case may be.
 Justification for IP

• In the USA, for example, copyright industries in 2007

contributed $1.52 trillion or 11.05% of the USA Gross
Domestic Product (GDP), and employed 5,577,900
representing 4.05% of the total USA workforce. In the
period 2006-2007 the USA copyright industry alone
contributed 43.06% to the real USA annual growth.
• The contribution of copyright industries only to the
USA economy in 2007 was more than three times the
total combined GDP of COMESA which stood at $345
billion with a population of 416 million.
 Justification for IP

• (b) Reward for Labour

• Intellectual property provides the means for the
authors or inventors of intellectual property
products or works to obtain reward for the time,
skill, money and patience which they have invested
in production of intellectual property. The reward
for labour is based on the participation principle
that allows the author or creator of a work to
participate in all economic benefits realized from the
use of his work.
 Justification for IP

• (d) Prevention of Piracy and Counterfeit 

• Piracy and counterfeit are a disincentive to the developing and creation
of intellectual property products and works. It may also present a
serious danger to the public especially if the counterfeit goods are food,
medicines or cosmetic products or spare parts. Where intellectual
property is weak or not enforced so as to allow piracy and counterfeit to
flourish, foreign owners of intellectual property rights stay out of the
country and development of local industries is impeded. Furthermore,
local intellectual property owners or authorized dealers of intellectual
property rights cannot make a living from their work nor recoup their
investment. Also local markets are flooded with inferior illegitimate
products and technology is not incorporated in the country's base and
infrastructure. Besides government loses revenue as no taxes are paid
where there is rampant piracy and counterfeit.
 Justification for IP

• (e) Encourages Foreign Direct Investment

• It is often argued that instituting a strong
protection of intellectual property will boost
or attract foreign direct investment in those
countries with weaker IP regime, especially
developing countries.
 CRITICISM OF IPRS

• There are a number of criticisms that have

been advanced against the intellectual
property rights by different scholars.
• (a) Abuse of Intellectual property
 CRITICISM OF IPRS

• The owner of an important and prominent item protected by

intellectual property law might be tempted to use his position to
control a market to the disadvantage of competitors and
consumers alike. He can prevent or deter potential competitors
from developing products similar to his own and he can charge a
high price for the product under the guise of recouping the money
and time invested in developing the product, brand or creating the
work.
• See, “Implications of the TRIPS Agreement on the Access to Cheaper
Pharmaceutical Drugs by Developing Countries: Case Study of South
Africa v. The Pharmaceutical Companies”, Harrison Mwakyembe and
George Mpundu Kanja, Zambia Law Journal, Volume 32, 2002, ISSN
1027-7862, pp. 111-147
 CRITICISM OF IPRS

• (b) Restrictions on Access to Works of the

Mind
• Intellectual property rights such as copyright,
perpetuates unjustified monopoly of denying the
public access to information which should be in the
public interest be freely available.
• It also, through the loyalty system, represents a tax on
knowledge and increases the price of the materials
such as books and music which are essential to the
promotion of education and dissemination of culture.
 CRITICISM OF IPRS

• (c) Intellectual Property Promotes the interests of the

Developed Countries
• Intellectual property is a means used by developed countries,
which are the net exporters of patents, trademark, designs and
copyright products, to extract money from developing
countries, which are the net importers of the said intellectual
property products.
• This argument is strengthened first by the trade threats and
sanctions that have at one time been imposed on some
developing countries such as India and Brazil which were
considered to deny adequate and effective protection of
intellectual property rights to United States traders.
 CRITICISM OF IPRS

• Secondly, developed countries refuse to allow traditional-based

innovations or traditional knowledge from being protected by
intellectual property thereby denying income or royalties to developing
countries that may result from the exploitation of traditional knowledge
by the developed countries.
• Under Special 301 the United States Trade Representative (USTR) is
required annually to identify ‘priority foreign countries’ which are
trading partners to USA, which deny ‘adequate and effective
protection of intellectual property rights’ or which ‘deny fair and
equitable market access’ to USA traders.
• The USTR is then obliged to place those countries on its watch list or
priority watch list, with a view to a fast track investigation, followed by
trade retaliation in the form of increased duties or import restrictions.
 Examples of IP Empowering
• People who have invested in or created IP
have become the richest persons on this
planet.
• Take for example, the world richest person is
Bill Gates worth $76 billion – what does he
own? - Microsoft which is IP product
protected by Copyright.
 Examples of IP Empowering
• Furthermore, IP has created the world youngest self-
made billionaires.
• Of the 1,426 world billionaires, 29 of this elite club are
under the age of 40 years old and come from the
technology sector or IP.
• For instance, Dustin Moskovitz became the world
youngest billionaire (US$3.8 billion) at the age of 28
when he co-founded “Facebook” with his roommate
Mark Zuckerberg, Co-founder, Chairman and CEO of
Facebook (who was only 8 days older than Moskovitz and
is now worth US$29.3 billion).
 Examples of IP Empowering
• Furthermore, these world billionaires have no
formal education or are drop-outs from
universities.
• For instance, the Co-founder of Microsoft, Bill
Gates, dropped out of Harvard College, Facebook
co-founder, Mark Zuckerberg, dropped out of
Harvard University, Apple co-founder, Steve Jobs,
dropped out of Reed College and Samsung Founder,
Gyeongju Lee, dropped out of Waseda University.
 Examples of IP Empowering
• Yet, these are the people that have come up
with inventions that we continue to use
today and which most of us cannot do
without.
• This is not to say that formal education is
irrelevant as these could be exceptional cases
but this could insinuate something about
formal education.
THANK YOU