Introduction and background
Freedom of movement is important to the economic sector of any country because it ensures the movement of goods and services from one point to another. The freedom of movement of humans is also crucial to the success of business transactions because humans are the operational entities of all business transactions. Movable goods and services are usually more advantageous than immobile ones as movable goods can access distant markets while immobile ones cannot (Lall, 2000).
Freedom of movement of goods and services, business people, competitors, and consumers enhances connectivity and the sharing of ideas in the business sector (Cowell, 2006). Links that include transport, distribution, advertisement, and marketing procedures are improved by the freedom of movement. This study will focus on assessing the reliability of the rules governing the movement of goods and intellectual property and the significant impact of the rules in safeguarding the interests of key stakeholders (Stewart, 2010). Intellectual property by definition refers to innovation, creativity, and artistic quality of symbols, names, and designs employed in commerce. Intellectual property can be grouped into industrial and copyright property. Industrial property involves patents, designs, source indicators, and trademarks (Reading, 2005).
Copyright property involves literature and art. It focuses on music, drama, photography, novelty, architectural and sculptural features. The rights that are linked to copyright property involve the freedom of performing artists, producers, and broadcasters of both television and radio stations (De Wit & Meyer, 2010). A big difference exists between the freedom of movement of goods and services. The freedom of movement of goods refers to a situation in which the market is not interfered with through restrictions in cases of transport, marketing, and consumer interactions (Whigham,2007). The products or services can move from one link of a chain to the next with minimal barriers involved. Free goods refer to products imported without being subjected to duty payment (Armson & Ison, 2003).
They are expected to be free from taxation and disengaged from legal and economic changes. Free movement of goods involves both the “free” and the taxed goods. Intellectual property also involves the creation and innovation of indigenous societies. Intellectual property can be termed as a non-environmental mechanism that is a derivative of the business culture in the society (Plunkett, 2008).
The history of intellectual property and free movement of goods dates back to 500 B.C.E. Bruce Bugbee evaluated intellectual property by investigating 3 references. The first case involved Vitruvius who claimed to have discovered intellectual property theft in a literary performance in Alexandria (Moeller, 2007). Acting as a judge in a given property case, the judge, Vitruvius, revealed the existence of a poet who was an impostor who had come for a performance with someone else’s work.
The culprit was convicted and sentenced to prison for the offense. This occurrence happened in 257-180 B.C.E. Even though there was no Roman law known to safeguard intellectual property, Roman jurists accorded special regard to literary piracy and punitive actions were taken against the perpetrators of the copyright crimes. It was known that no organization dealt with safeguarding intellectual property in Rome or ancient Greek. The situation had been consistent since Roman times up to the period of the creation of the Florentine Republic. It is however recorded that there were several favors, privileges, and franchises given to certain citizens in Rome in respect to intellectual property rights.
Bugbee brought out the difference between the intellectual property system and franchises. According to him, franchises were limited to intellectually endowed individuals in the society who performed and used public facilities. They exploited public property for their good. The intellectual systems deprived the public of access to all the property that existed before the inventory system.
The intellectual property domain
The subject of intellectual property is confined to the copyright law and patent of the Anglo-American system. The system provides a basis for comprehending intellectual property and the free movement of goods. The copyright protection device includes authentic performance in authorship attached to a solid medium. Copyright work includes music, literary work, art, maps, cinematography, and computer software. The domain stipulates that for any work to be protected, it has to be authentic and original. Another stipulation requires the work to be nonfunctional and non-utilitarian. Utilitarian products are necessary and relevant only when they perform well in the market. Their use is limited to the copyright domain (Richard, 2010).
Copyright owners enjoy a variety of rights that include the right to reproduce their work, display their goods and services in public, alter their work, disseminate the work, and perform in public. The five copyright rights mentioned expiring after the death of the author. The law extends an additional period of 70 to 95 years in which a given publication is not supposed to be altered. Copyright laws, therefore, govern the free movement of intellectual goods and services, the artists and authors. They ensure that the publishers and clients are assured of a transparent and appreciative regime and consumer networks. However, due to fraudulent activities especially concerning modern technologies, many people have not realized the benefits attached to copyright laws.
The patent system and its effects on the owners and consumers
The consumers in this respect refer to the general public, the audience watching a play or listening to a live performance, or a student sitting in class reading a novel. The principles that guide the application of the patent law are linked to procedures, legislative policies, and manufacturing guidelines. The patent law applies to three groups of patents which are design concept, utilitarian and plant patents. The design patent assesses original ornamental principles of manufacturing. The utility patent is used as a regulatory mechanism for goods of different nature especially mechanical devices. It is believed to be the strongest patent in intellectual property protection.
The utilization of these patents ensures that any new product in the market has to be authenticated and registered. Free movement of the products has to consider the safety of the consumer and all the links involved in its distribution. The patent also acts as a measure of credibility in appreciating a particular owner of a work. This fact encourages the competitors and aspiring business people to work diligently to achieve similar or improved results.
Protection, as applied in the copyright domain, is also relevant to the patent system. The US Patent Act ensures the protection of business entities by establishing basic statutory standards that must be adhered to by all stakeholders. The usefulness factor is deemed to be satisfactory when the inventor has achieved at least a single intended purpose. The Patent Act gives the original owner the right to sell, make and direct others to trade the patent item (Stewart, 2010).
The trademark and its effects on the owners and competitors
The domain of trademark defines the good nature and will policy of the company. The mark is used in identifying the amount of free movement of goods in circulation within the economy.
The restrictions towards the use of trademarks depend on the trademark language and culture. An example is a word; aspirin whose usage lapsed just as the name had become common thereby denying the manufacturer the right to the trademark. The owners of a given trademark can delegate to the property owners the right to utilize a specific symbol and the right is limited in scenarios when the symbol ceases to portray the company’s interest or the consumers and the right to eliminate other competitors.
The time frame of action of the trademark right is limited in scenarios where the symbol stops to portray the company’s interest and conforms to the commonness of the culture. The aspect of trade secrets is limited in the case of subject matter and depends on private initiatives rather than in operating a business or an enterprise. It is valuable in precipitating an economic advantage. Any intellectual performance cannot be a secret if the work is known by the public or by the target market and industry before its introduction.
The trade secret gives the owners the right to management and they are sheltered against misappropriation. Accurate management systems should guide how trade secrets are handled specially in the UK as this fact forms the core of intellectual property governance. This study has evaluated the issue of trademarks and confirmed that most European countries do not adhere to strict legislation governing their use. The study recommends that ownership of trademarks and their time frames should be based on a specific management system that uses modern technology.
In the case of free movement of goods, it is important to keep the information a secret until the product has gone through all the legal verification, analysis and testing, procurement of permits as all legal documents are subjected to verification measures to ensure transparency in the art sector and literary production and consumption.
Free movement of goods and intellectual properties in respect to the law
Apart from the systems of copyright, trademarks and trade secrets, patents, and other acts, there are a set of case laws that allow the subjects to safeguard small and minute ideas as private property. This system is referred to as the law of ideas. In transit of free goods, the validity of compensation is a necessity according to case laws and in as much as there is the advantage of duty freedom, the prospects of EU case laws apply. Before making a verdict, the judges consider whether the author deserves the right of compensation or not. The court in this kind of scenario requires the claimer to present an original idea and one that is concrete and supportive.
If misappropriation is noted, compensation can then be invalidated. Improvements concerning intellectual property have been taken into concern and the EU is drafting relevant policies on the subject. Personality theories imply that intellectual property is an attachment of an individual’s attitude and potential. Hegel, a scholar in personality theories advanced the idea that all individuals have innate morals that are based on their behavioral characteristics. Authors, artists, and different personalities need to understand that they “own” their future. Literary, any decision in life whether commercial or social has the potential of engendering future outcomes.
People can define themselves better by how they behave and feel. In the movement of goods and services, the goals that a particular firm or company sets determine the credibility of its business outcomes. Both good and bad results are determined by the decisions made by the management of a given organization. The use of trademarks and patents serves to show the conformity of a particular organization to legal mechanisms enshrined in the law.
According to Hegel, the unfamiliar actualization of peoples’ aspirations is based on ownership of property. Hegel views property rights from two different perspectives. The first perspective is founded on domination and manipulation of tangible and intangible property. In this case, a person can define himself based on the power of his control and freedom. Freedom here applies to that of trade and movement of goods and services.
People can use their intellectual and physical property to conceal their personal lives from the scrutiny and evaluation of the public and necessitate the operation of long-life fraudulent projects. Four major problems are facing intellectual property and free movement of goods and services in respect to personality determination. Personalities are not analyzed after being attached to tangible or intangible facilities. Misrepresentation of an intellectual performance is capable of changing the perception of people in consideration of the personality of the author. Thirdly, even if an assumption is drawn concerning certain morality claims in respect to a given personality, an argument may be required to justify the rights of the property. Several intellectual innovations lacking evidence of the authors’ personality have been presented in court in the past.
The EU’s (European Union) case law impact on the trademark’s owner, competitors, and the commercial industry
The rights of intellectual property within the EU depend on the right relationship within the society and the fundamental principles involving the Roman Treaty which are enhanced by the European Community.
The treaty calls for non-impediment on trade and production of both goods and services involving the member states. It calls for the withdrawal of abusive participation and competition from the dominant parties.
David Keeling in his book entitled, intellectual rights in EU vol. 1 addresses the problems affecting the EU’s policies on the free movement of goods and services alongside the intellectual property. He discusses the need to make intellectual property rights. He mentions the need to match intellectual right to property within a linked jurisdiction of the affiliated states as a move to negotiate freedom of the movement of “free goods” within the capacity of the law. The analysis of the volume is achieved by evaluating the approaches supported by the EU’s Court of Justice.
The European Court of Justice has constantly maintained that without harmonization of the community’s institutions, the national laws must determine the conditions or procedures designing the submissions of rights of intellectual property. It is clear that without community legislation on a specific matter, the relevant procedures should be determined by national law. This fact is subjected to compliance with the treaty’s stipulation on the movement of goods under the principles of community law; for example, the non-discrimination principle. In this aspect, intellectual property is related to other systems regulated by law like technical standards used in the production of rules concerning the constitution of animal feeds.
The EU organization was formed by several countries from Europe targeting economic, social, political, and military goals. The member countries include France, England, Italy, Spain, Romania, Greece, Portugal, Netherlands, Belgium, Sweden, Australia, Czech Republic, Bulgaria, Slovakia, Slovenia, Finland, and Denmark among others. The European law is a unit composed of treaties, court judgments, and other laws that are relevant to the EU member states.
The law is respected for its economic, social, political, and military influence. It is classified into three types which are primary, secondary, and supplementary laws. The primary law is typically derived from the various treaties that form the EU like the Lisbon, Madrid, Paris, patent law treaties, Nice Agreement, European Patent Communication, and European communication. According to the treaty, patents include different symbols accepted by the countries’ laws in the union. The patents include importation and improvement patents and certificates. The treaty continues to explain that the states within the union require an individual to submit priority declarations and be able to produce a duplicate that shows that the individual is certified as genuine (Depken, 2005).
Petitions can be filed in the absence of a charging fee at any particular time within a three months subscription. For the procurement of the free goods and services, the union members agree to connect reciprocally through the International Bureau Intermediary. The trademark covered by the treaty cannot be denied registration or be invalidated (Ballet & Carimentrand, 2010). The Nice Agreement is established as a descriptive classification of various goods and services for trademark registration purposes alongside the service mark. The trademark offices of all the states in the contract should indicate in the formal publication the new number and class that the goods and services bearing the registered mark belong.
The classification system according to this treaty involves 34 categories of goods and 11 for services (Caldwell, Roehrich & Davies, 2009). 83 states are signatories of the Nice Agreement with 147 states using the classification systems. They include the International Bureau of World Intellectual Property Organization (WIPO), Benelux Organization for intellectual property (BOIP), African Intellectual Property Organization (OAPI), and Office for Harmonization in Internal Market (OHIM).
The Nice Treaty formed a committee that brought together members that were earlier signatories of the Geneva and Stockholm Acts. The agenda of the committee involved the integration of business ideas and the formation of a financial plan. The Lisbon Treaty was signed in 2007 in Lisbon, Portugal as a signatory to the EU member states. The treaty paid deposit fees to the Italian government and involved 23 EU languages. It was initially called the Reform Treaty as it amended the two treaties created by the EU constitution. The amended treaties were the Maastricht Treaty and the Rome treaty (Boardman, 2006).
The Maastricht Treaty is referred to as the EU treaty and the Rome treaty was formed to establish The European community (TEC). The Rome treaty was later called the Treaty on the Functioning of the European Union (TFEU) due to its influence in international trade.
The World Intellectual Property Organization is mandated by law to advance the creation of new knowledge that can revolutionize the social, cultural, organizational, and economic development of every state in the world by the adoption of an effective and efficient intellectual property model. It is dedicated to ensuring that there is freedom in trade, art, and other facilities in the commercial industry. It is involved in the utilization of intellectual properties which include copyrights, trademarks, and patents in stimulating creative innovations (Alberts, Audrey& Lisa, 2008). The use of WIPO ensures that individuals and organizations aiming at the share market are better placed in achieving their goals provided they maintain their motivation and interest. A free market is competitive only the determined can survive. WIPO promotes progression of IP systems through services, law, development and infrastructure.
The intellectual property service includes trademarks and patents employed in Madrid, design used in The Hague, arbitration of mediation center, domain name, dispute resolution and international classification (Birchall, 2006). Programs and activities involved in case laws include development standards’ band laws, copyright issues and traditional knowledge. The case law is an important system of addressing jurisdiction and attachment of free movement of goods, services and intellectual property.
The Office for Harmonization in the Internal Market (OHIM) plays an important trademark and design role for the EU. Registration offered by OHIM is necessary for Community Trade Mark (CTM) and Registered Community Design (RCD). The two are an important component of the European trade. The registration trademarks offer trademark and design safety over the EU which caters for 27 countries and about 500 million individuals (Akerlof, 1970). The EU should devise suitable ways of enhancing efficient movement of goods and services than the existing ones. The EU should direct monetary and human resources towards research based solutions other than political ones.
Patent rights continue to be violated especially in the European region even after integration and enforcement of stringent legislation. Business people in the entertainment industry have continued to lose money in Europe and other countries even after the signing of treaties between member states within the EU. The UK entertainment and publishing sectors have recorded serious infringements of the copyright laws. The solution lies in creation of dynamic mechanisms of fraud detection which cannot be realized unless adequate resources are channeled towards a researched based approach.
Through the internet, the stakeholders and OHIM have been able to communicate and keep contact with regard to free movement of goods. The link has been crucial in the efficient access to models and social trademarks for clients especially in Europe and other parts of the globe.
According to case laws, trademarks are recognized if they exhibit the uniqueness of goods and services provided. They differentiate one’s goods from another’s. On the other hand, they can be rejected if they are not distinctive or customary, if they show deception and if they appear offensive or immoral. A registered trademark is renewed after a given period of time. Brands are indicators of interest in respect to the owners’, competitors’ and consumers’ needs. A brand refers to a pledge of an experience to a particular consumer about the nature of the good or service to be supplied. The intellectual property rights offer legislative protection for brand aspects.
Conclusion
The achievement of a free market and free economy is a challenging process but a reliable one. The interaction of the three parties who include the owner, competitors and the consumers is important in the formation of a common business practice not only to facilitate liberty in trade but to also give the commercial benefit to those who deserve it. The EU legislature and the treaties that strengthen its operations have one goal in common and that is the creation of a free market (Begg, Fischer & Dornbusch, 2000).
Everyone would want to operate in a market that is free from restriction and government interference and one that supports the dreams and abilities of its members and other states. It is not easy to balance the interest of the owners who act as the producers, the competitors and the consumers because each of them wants a bigger share of the market opportunities (Schotter, & Caplin 2008). The EU’s case law and discrepancies have economic consequences in the European region its involvement is no doubt the best option in mediating these cases. It is the mandate of the three parties in addition to the EU to consolidate all efforts towards a free movement market system free from piracy and theft.
Legal frameworks should be drafted to deal with infringement on movement of goods and services. At the same time, governments should strengthen economic ties to allow enhanced movement of goods and services to improve trade by removing trade barriers and embargos (Aaker & McLoughlin, 2010).Regional trade will become the solution to global economic problems if free movement of goods and services is managed properly.
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