Intelectual Property Rights
Intelectual Property Rights

Intellectual Property Rights, a crucial legal framework, serve as a shield for intellectual property and intangible creations of the human mind. These include inventions, literary and artistic works, designs, and symbols used in commerce. Intellectual property rights play a pivotal role in fostering innovation and economic growth by significantly enhancing the incentive to create, invest in research & development, or build a strong brand.

TYPES OF INTELLECTUAL PROPERTY RIGHTS

Copyright and Related Rights: This protects original works of authorship, such as literary works (books, poems), artistic works (paintings, sculptures), musical compositions, films, and computer software. It grants the creator exclusive rights like reproduction, distribution, display, and derivative works (adaptations) for a specific period.  Related rights include the rights of performers, producers of sound recordings, and broadcasters.

Industrial Property:  This protects creations used in industry and commerce. It encompasses patents, trademarks, industrial designs, and trade secrets.

Patents: Grant exclusive rights to inventors for their inventions, which can be new machines, processes, compositions of matter, or improvements on existing inventions. Patents provide inventors with a time-limited monopoly on their creation, allowing them to recoup their investment in research and development.

Trademarks: Protect words, phrases, symbols, designs, or sounds used to identify and distinguish the source of goods and services of one party from those of others. Trademarks help consumers know who makes a particular product and ensure they get what they expect.

Industrial Designs: Protect the ornamental design of an article, such as the shape or configuration of a product.

Trade Secrets: Protect confidential business information that gives a company a competitive advantage. This can include formulas, designs, processes, customer lists, or any information that is not generally known and offers a commercial advantage. Unlike patents, trade secrets can be protected indefinitely as long as they are kept confidential.

IMPORTANCE OF INTELLECTUAL PROPERTY RIGHTS

  • Intellectual Property Rights are not just legal protections but powerful tools that incentivize innovation and creativity. By providing creators and inventors with exclusive rights to their creations, they encourage the investment of time, resources, and effort into innovation, leading to a more vibrant and competitive marketplace.
  • Intellectual Property Rights promote commercialisation. By protecting inventions and creative works, IP rights allow creators and businesses to benefit financially from their innovations, encouraging them to bring their ideas to market.
  • Intellectual Property Rights ensure a level playing field. These rights play a crucial role in preventing others from copying or free-riding on the efforts of creators and inventors. By doing so, they promote fair competition, ensuring a level playing field in the marketplace.
  • Intellectual Property Rights foster knowledge sharing and technology transfer. These rights, particularly patents, serve as a catalyst for the disclosure of inventions through the registration process. This leads to knowledge sharing and advancements in various fields, enriching the intellectual landscape.

Over the decades, Ghana has made strides to improve the nation’s intellectual property framework.

 

PROTECTION AGAINST UNFAIR COMPETITION ACT, 2000 (ACT 589)

An act to provide protection against unfair competition and related matters was assented on 19th December 2000 to be enacted by Parliament. It aims to create a fair playing field for businesses by prohibiting practices that mislead or damage competitors.

Protection

The Act focuses on preventing various forms of unfair competition, including:

  • Causing confusion with another company’s products, services, or business activities (e.g., imitating their brand name or packaging).
  • Damaging the reputation or goodwill of a competitor through false or misleading statements.
  • Misleading the public about the nature, quality, or origin of goods or services.
  • Discrediting a competitor’s products or business activities.
  • Unfair use of secret information obtained through industrial or commercial espionage.
  • The Act protects both registered and unregistered trademarks to some extent.
  • It also includes a broad “catch-all” provision prohibiting any act contrary to honest practices during industrial or commercial activities.

Who Can Take Action?

Any person who is damaged or likely to be damaged by an unfair competition can bring legal action under the Act.

Available Remedies

The Act empowers courts to grant various remedies, including:

  • Injunctions to stop the unfair competition
  • Awards of damages for financial losses
  • Orders to remove misleading information

INDUSTRIAL DESIGNS ACT, 2003 (ACT 660)

Objective

The Act protects the visual design of an article, not its technical function. It grants a registered owner exclusive rights to control the making, importing, selling, or renting of articles incorporating the registered design.

Registrable Designs

The Act defines what can be registered as an industrial design. Designs must be new and original, not dictated solely by the article’s function.

Registration Process

The Act outlines the process for applying to register an industrial design with the Registrar of the Industrial Designs Office.

Rights of a Registered Owner:

A registered owner has exclusive rights to control the use of the design for a specific period, renewable for additional terms.

Infringement and Remedies

The Act defines what constitutes an infringement of a registered design and provides remedies for rights holders in case of violation.

International Treaties

The Act acknowledges Ghana’s obligations under international treaties regarding industrial property rights, namely, The Harare Protocol on Patents and Industrial Designs (1982), the Paris Convention for the Protection of Industrial Property, The Hague Agreement Concerning the International Deposit of Industrial Designs, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), etc.

GEOGRAPHICAL INDICATIONS ACT, 2003 (ACT 659)

Protection

  • The Act protects geographical indications (GIs), which are names or signs that identify a product as originating from a specific geographical area and possessing qualities or reputation linked to that area. Examples include Brong Ahafo pineapples or Ashanti batik.
  • Protection is available for registered GIs and even unregistered ones, as long as they aren’t misleading.

Registration

  • The Act establishes a register maintained by the Registrar-General.
  • Anyone can apply to register a GI.
  • The GI is only registered if it meets specific criteria, including a link between the product’s characteristics and its geographical origin.

Right to Use

Only producers who operate within the designated geographical area can use the registered GI for the specified products, provided their products meet the defined quality standards.

Enforcement

  • The Act prohibits the unauthorised use of GIs, including the misleading use of geographical names.
  • The Registrar can cancel or rectify registrations.
  • Provisions exist for appeals and legal action against misuse.

PATENTS ACT, 2003 (ACT 657)

This act is the main legislation governing the issuance and protection of patents in the country.

Protection

The Act grants patents for inventions that are:

  • New (not previously disclosed)
  • Involve an inventive step (not obvious)
  • Industrially applicable (can be made or used in industry)
  • Utility model certificates for less complex inventions with a shorter protection period.

Registration

  • Anyone, including individuals, companies, or educational institutions, can apply for a patent.
  • Applications are filed with the Registrar of the Patent Office, with details regarding the invention:
    • A description of the invention
    • Claims that define the scope of the invention
    • Drawings, if necessary
    • An abstract summarising the invention.
  • Fees are required for filing and maintaining the patent.

Rights of a Patent Holder

  • A patent holder has the exclusive right to:
    • Make, use, import, sell, or offer to sell the invention.
    • License others to do the same.
  • The patent holder can take legal action against infringement, which is the unauthorised use of the patented invention.

Provisions

The Act provides mechanisms for:

  • Challenging the validity of a patent
  • Granting compulsory licenses under certain circumstances

TRADEMARKS ACT, 2004 (ACT 664)

This act is the legal framework for registering and protecting trademarks in Ghana.

Protection

  • The Act protects trademarks, which are signs that distinguish the goods or services of one undertaking from those of others. These signs can include:
    • Words (including names)
    • Logos
    • Slogans (if not too common)
    • Symbols
    • Shapes (with limitations)
    • Combinations of these elements
  • The Act acknowledges well-known trademarks, even if not registered in Ghana.
  • The Act prohibits registering trademarks that are:
    • Deceptive or misleading
    • Contrary to public order or morality
    • Generic names for goods or services

Registration

  • The Act establishes a register of trademarks maintained by the Registrar of Trademarks.
  • Anyone can apply to register a trademark.
  • The application is examined to ensure it meets specific criteria, including:
    • Being distinctive (not descriptive of the goods or services)
    • Not conflicting with existing trademarks
  • Upon approval, the trademark is registered for a period of ten years, with the option for renewal.

Rights of a Trademark Owner

  • A registered trademark owner has the exclusive right to use the mark for the specified goods or services.
  • The owner can take legal action against infringement, which is the unauthorised use of a similar mark that will likely cause confusion with the registered trademark.

Provisions

The act provides provisions for:

  • Opposition to trademark applications by others
  • Cancelling registrations for non-use or other reasons
  • Licensing trademarks to others

2014 Amendment

The Trademarks Act was amended in 2014 by the Trademarks (Amendment) Act, 2014 (Act 876). This amendment introduced changes such as:

  • Aligning renewal periods with international standards
  • Enabling the registration of international trademarks through the Madrid Protocol

LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS ACT, 2004 (ACT 667)

This Act protects the intellectual property rights associated with integrated circuits (ICs) design and layout.

Protection

  • The Act protects original layout designs of integrated circuits. These are the arrangements of the various components (transistors, resistors, etc.) and their interconnections within an IC.
  • Even unregistered layouts with proven originality can receive some protection under the Act.
  • The Act prohibits the commercial exploitation of a layout design if it has already been commercially exploited elsewhere in the world for more than two years before filing for registration in Ghana.

Registration Process

  • The Registrar does the registration.
  • Registered layout designs are protected for a period of ten years from the date of filing.

Rights of the Creator

  • The creator, or their assignee, has exclusive rights to:
    • Import, sell, or commercially exploit the layout design.
    • License others to do the same.
  • The Act allows legal action against infringement, which is the unauthorised use or reproduction of a protected layout design.

Administrative Bodies of Ghana’s Intellectual Property Rights

The Ministry of Justice and the Attorney General’s Department administer intellectual property rights in Ghana.

  • Copyright Office for copyright and related rights
  • Industrial Property Office (The Registrar General’s Department) for patents, industrial designs, trademarks, geographical indications and the layout designs (topographies) of integrated circuits)

COPYRIGHTS ACT, 2005 (ACT 690)

This Act is the primary legislation governing copyright protection in Ghana.

Protection

The Act protects original literary, artistic, and scientific works. This includes a wide range of creative expressions such as:

  • Written works (books, articles, poems)
  • Musical compositions
  • Films and audio-visual works
  • Photographs and sculptures
  • Software
  • Architectural designs

Copyright Ownership

  • The general rule is that the work’s author or creator is the copyright’s first owner.
  • In some cases, employers may own the copyright for works created by their employees within the scope of their employment.

Rights of Copyright Owner

The Act grants copyright holders a bundle of exclusive rights, including the right to:

  • Reproduce the work
  • Distribute copies of the work
  • Create derivative works (adaptations)
  • Perform the work publicly (if literary, dramatic, or musical)
  • Broadcast the work (if literary, dramatic, or musical)
  • Make the work available online (if literary, dramatic, or musical)

Duration of Copyright:

The duration of copyright protection varies depending on the type of work. In general, it lasts for the author’s life plus 70 years after their death. The protection period is calculated differently for certain works, such as films and sound recordings.

Fair Use and Exceptions

  • The Act acknowledges fair use provisions that allow the limited use of copyrighted material without permission for purposes such as criticism, research, or education.
  • There are also specific exceptions for educational institutions, libraries, and religious organisations.

Registration

Although registration of a copyright is not mandatory in Ghana, it provides certain advantages, such as facilitating enforcement actions in case of infringement.

Enforcement

The Act outlines remedies against copyright infringement, including:

  • Injunctions to stop infringement
  • Damages for financial losses
  • Seizure of infringing copies
  • National Folklore Protection: A unique aspect of the Act is the establishment of a National Folklore Board to safeguard and manage Ghana’s rich folklore heritage.

GHANA’S NATIONAL INTELLECTUAL PROPERTY POLICY AND STRATEGY (NIPPS)

NIPPS was launched on January 21, 2016. The policy aims to:

  • Strengthen the legal framework for protecting, administering, and enforcing intellectual property rights (IPR).
  • Promote innovation and awareness.
  • Bring Ghana’s IP system in line with its international commitments and best practices.
  • Create favourable conditions for entrepreneurship, innovation, and technology transfer.
  • Ensure that innovators, creators, users, and consumers benefit from an improved intellectual property environment.
  • Make Ghana one of the leading countries using intellectual property for rapid national development.

Challenges of NIPPS

  • Lack of funding for initiatives outlined in the NIPPS.
  • Need for more human resources and expertise within the Ghanaian IP Office.
  • Need for more adequate public awareness about IP rights and their benefits.

International Considerations

Intellectual property rights are recognised internationally through treaties and conventions like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) administered by the World Intellectual Property Organization (WIPO). This helps ensure creators and inventors have some protection for their works across different countries. Additional treatises include, but are not limited to:

  • Hague Agreement on International Deposit of Industrial Designs
  • Madrid System on International Registration of Marks
  • The Lusaka Agreement.
  • The Paris Convention for the Protection of Industrial Property
  • The Berne Convention for the Protection of Literary and Artistic Works
  • The Patent Cooperation Treaty (PCT)
  • The WIPO Copyright Treaty (WCT)

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