The Intellectual Property Committee at the Beirut Bar Association presided by Dr. Charbel Nassar organized a symposium on 17th June 2015. Speakers were Dr. Nassar, Judge Zalfa Al Hassan (judge of summary proceedings of Beirut), Judge Yehya Ghabboura (unique penal judge of Beirut), and Dr. Pierre Khoury.
Dr Nassar intervention focused on three main characteristics of Intellectual Property. He said:
The first characteristic concerns the scope of this domain. The jurist that may deal with intellectual property issues needs to understand the world of the artist and the logic of the inventor as well as the area of the author, writer and poet. He shall take also into account the needs of the businessman and the considerations of the investor.
It is true that, practically, it is impossible for the jurist to be an artist, inventor, author, investor and businessman at the same time, however, the jurist needs to go deeply into the world of these persons and adapt the legal concepts with the technical issues and the basic criteria that determine the domain of each of them.
By way of example, how would a jurist confirm that a melody is original without verifying if such melody is distinct as to the musical phrases and the rhythm adopted and the combination between them which represents effectively the touch of the creator?
This applies also to the author that shall be creative not only regarding his ideas but also in the manner he presents these ideas as to the plan, way of expression, wording, design…etc.
From another side, it is true that the administration or the competent authorities play a vital role in the examination of a patent application, but the jurists shall also be aware and try to understand the technicalities (at least in whole) of the Patent to be able to act when needed i.e. to apply for ownership, nullity, claim for specific rights…etc.
We have also the software issues with all specifications related thereto. The issue would be more complicated if the software is created by the collaboration of many persons. What if one of them alleges the full ownership of the software? Here, we shall enter deeply into the role of each contributor in order to verify the nature as well as the volume of his contribution. There is a difference between the technical person who performs exclusively and purely a technical task and the person who decides the development, the methodology and determines the links between the different information that the software may include. All of this requires the jurist to develop an optimum knowledge about the intellectual works created by authors and inventors.
The second characteristic related to the logic adopted in each branch of the intellectual property domain.
The logic adopted in the Patent Law is different of the spirit related to the Author’s Law. While the main criterion for protection under the Author’s law is originality, protection is not granted under Patent Law without the invention being new, including inventive activity and able to industrial application.
It is noteworthy that there were many discussions related to the comparison between the concepts of originality and novelty to show the divergence or the convergence between them. It is confirmed that the invention shall be new which means that it shall not exist in the technical field before the patent application. However, for the protection of literary or artistic creation, the work shall reflect the personality of the author and his personal touch and style regardless the fact that the same subject or idea might have been used by other persons.
The third characteristic relates to the economic character of the intellectual property provisions and the reciprocal influence of the intellectual property provisions and the economic factors. It is well known that the protection of the intellectual property contributes to the protection of the economy of a country. Many trademarks, inventions or other works (artistic for example) may have high economic value. The protection of their IP rights serves positively the enterprises and those working on behalf of them and collaborating or dealing with them. For this reason, and in order to protect the investment used in producing the intellectual works, the economic factors are progressively impacting the legislation related to intellectual property. This is more obvious in the provisions related to Author’s rights system which, unlike copyright system, provides, traditionally, more importance to the special association between the author and his work. The impact of the economic factors reveals in some provisions that give the priority no more to such special association but to the protection of the investment and the investors.
Work made for hire may be a typical example, in which, and unlike the general norm providing ownership to the creator, the employer would be, under some conditions, the owner of the work instead of the creator/ employee.
Another example would be the collective works where the investor, under specific conditions, acquires the ownership of the intellectual property rights.
Based on the foregoing, we look to the vital role that the competent courts may have in the protection of the rights whether related to the author, inventor or investor. The judge of summary proceedings may have a special role in preventing damages related to violation of these rights before the merits of the dispute being examined by the competent courts. Furthermore, the penal courts contribute extensively in preventing piracy or other criminal acts in the intellectual property domain.