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Protection of Intellectual Property Rights in Egypt

	Protection of Intellectual Property Rights in Egypt Posted: Oct 28 2003 Tarek Ismail, Esq. I. Introduction. "The patent system added the fuel of interest to the fire of genius." - Abraham Lincoln ".. the very first official thing I did, in my administration - - and it was on the very first day of it, too - was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn't travel any way but sideways or backways". –Mark Twain The regulation of intellectual property rights in a society is governed by two opposing ideals – the need to foster innovation by means of rewarding intellectual products and the ability of society to benefit from and have efficient access to such products. While attempting to spawn the advent of new ideas and innovations, governments must also ensure that new inventions will be properly disseminated so that society may enjoy the advantages of said innovations. It is this attempt to properly balance the aforesaid competing objectives that colors the provisions of the Arab Republic of Egypt’s Law No. 82 of the Year 2002 on the Protection of Intellectual Property Rights (hereinafter referred to as “Law 82”) that took effect on June 3, 2002. Superceding all prior Egyptian legal conventions relating to intellectual property, Law 82 seeks to promulgate rules relating to patents, trademarks and copyrights. In doing so, its primary purposes lie in the “protection of the intellectual property rights” and the guarantee of societal access to said property against abuses, improper trade restrictions and/or technology monopolization by intellectual property holders. In analyzing the various provisions of Law 82, we will review its terms in accordance with the organization of the actual legal text while focusing most of our analysis upon the areas of (i) Patents for Inventions, (ii) Trade Marks and (iii) Copyrights. In particular, great emphasis should be paid to the methods by which the competing objectives of deference to author and protection of the general public are balanced against each other. II. Patents for Inventions. The first Book of Law 82 is devoted primarily to the rules and regulations governing the issuance of a patent for inventions. The attainment of such a patent instills within its owner the right to “prevent third parties from exploiting [a patented] invention by any way” through the attainment of a writ of protective measure issued by a court of competent jurisdiction, specifically delineating the measures preserving patented intellectual products. According to Law 82, a patent for inventions shall be granted to “each new industrially applicable invention representing a creative and inventive step, whether the invention is related to new industrial products, original industrial methods or a new application of known industrial methods”. Accordingly, requests for patents must satisfy three conditions – namely “newness, creativity and industrial applicability”. Law 82 further defines the “newness” criteria through its prescription that an invention shall not be considered new if (i) a prior request for the same invention has already been submitted, (ii) a patent for the same invention has already been issued in Egypt or abroad, (iii) the invention that is the subject of a prospective patent has previously been used or exploited in Egypt or abroad publicly, and (iv) the description of an invention to be patented has been expounded in a way that would enable people of experience to exploit it prior to the submission of a request for a patent of such expounded invention. In the event such conditions are met following a review of the patent request, the above protections and legal recourse are afforded to the patent holder for a period of 20 years from the date of the patent request submission. During such time, the patent holder is assured of either his ability to personally exploit his patented invention or to receive fair compensation for his efforts. Such protections extend even into the workplace where Law 82 codifies an inventor’s right to his inventions, granting him either fair wages for innovations created specifically pursuant to a contract, work or an employment bond or fair compensation for inventions that lie within the activity of his employer. In the event that obligatory licenses are granted to third parties in the interests of the society as a whole, the patent holder is entitled to receive fair consideration for his creative efforts, based upon the economic value of said invention. Thus, Law 82 engenders a system of protective devices in favor of individual inventors, thereby ensuring the rewards of innovation to inventors and fueling future intellectual achievements. The overall deference to inventors is tempered however by the overriding needs of society to protect itself and to ensure the rapid and efficient incorporation of inventions into the lives of the Egyptian people. Law 82 clearly sets forth certain inventions that are ineligible for patent protection. Among these circumscribed products are those affecting national security, public order or morals, the environment, and public health. In addition, certain discoveries are prohibited from receiving a patent to ensure the dissemination of such ideas into society to be expanded upon. Such ideas include scientific theories, mathematical methods, medical treatments and surgeries, and biological materials. In addition, even when a patent would be available to a new invention, certain instances and concerns, such as public utility, national security, proper and low cost supply of critical medicines, anti-competitive behavior by the patent holder, and the refusal to exploit the patent within four years of patent request submission, can cause the Patents Bureau to grant obligatory licenses to third parties for the exploitation of said invention. Moreover, certain ministries of the government retain the right to expropriate both original patents and obligatory licenses for reasons of national security or extreme necessity. Thus, the general public is assured of its ability to maximize its benefit from inventions and enjoy such advantages in the most efficient and cost-effective manner. Despite the strict nature of the protection of the societal good, Law 82 makes allowances for the provision of fair compensation to the patent holders in the event of an expropriation or obligatory third party licensing. Such consideration is further evidence of Law 82’s balancing of concern for the authors of inventions and for the general public who are the ultimate beneficiaries of such achievements. III. Trade Marks. The second book of Law 82 is devoted primarily to the registration of trade marks as relates to the characterization of a product and its geographical designations. The attainment of a trade mark is not only predicated upon proper registration before the Trade Registration Department but also upon its use within five years of said registration. Once obtained, the holder of a trade mark is entitled to protection from misappropriation of said trade mark for a period of ten years, including recourse to remedies such as having the violating party face imprisonment and fines, the seizure of offending products as well as the profits made thereon and/or the closing of the criminal establishment. The benefits of trade mark registration are even extended to those with a famous and well-known trade mark even if such mark has not been registered within the Arab Republic of Egypt. Thus, the creator of a trade mark is afforded substantial safeguards regarding its own marks. The aforesaid protections favoring the trade mark holder as with other intellectual property rights codified in Law 82 are however tempered by the government’s need to both protect society and allow for the continued development of new depictions “discernible to sight”. For instance, certain marks are ineligible for trade mark registration, such as those disturbing public order and morals, those attributable to public or international institutions, those pertaining to third parties, those without original characteristics and those professing misleading geographical indications. In addition to these precluded marks, Law 82 seeks to protect the general public in its insistence that commercial statements of data and geographical indicators are accurate when used in displaying the products to the public so as to not be misleading. In the case of commercial representations of data, Law 82 provides that it must conform to “reality in all respects” and include such data essential to allowing the public to accurately “estimate” the value of the products. Likewise, trade mark registration comprising geographical indicators must accurately depict the origins and place of continuous manufacture of a product. Such prohibited acts even extend to representations of prizes or awards for a product or its manufacturer that are untrue or correspond to the achievements of another. Violators of these public safeguards face similar periods of imprisonment and fines to those transgressors of the more traditional trade mark rules set forth above. Thus, Law 82 succeeds in finding a balance between the rights of the proprietors of trade marks and the general welfare of the Egyptian people. IV. Copyrights. The final book of Law 82 is comprised primarily of copyright protection for the authors, performers, producers and broadcasters of compilations. In particular, Law 82 earmarks various works as eligible for copyright designation including (i) books, booklets, articles, publications and other written compilations, (ii) computer software, (iii) databases, (iv) lectures, speeches, and sermons, (v) drama compilations, (vi) musical compilations, (vii) audio-visual compilations, (viii) architecture compilations, (ix) drawing compilations, carvings and prints, (x) photographic compilations, (xi) applied and plastic art compilations, (xii) illustrative figures, geographical charts, sketches, and three-dimension compilations, and (xiii) derived compilations solely to the extent of the derivations from the original compilation. The attainment of copyright protection for a particular compilation grants the author the “exclusive and monopolistic right in licensing or in preventing any exploitation of his compilation in any manner, particularly by copying, broadcasting, re-broadcasting, public diction and performance, public transmission, translation, editing, lending, loaning, or making it accessible to the public, including its accessibility through computers, the internet, the data networks, or communications networks, and other methods”. In addition, the author is given certain non-prescriptive and unalienable rights on his protected compilations that cannot be disposed of, such as the right of first distribution to the public, the right to relate the work to himself, and the right to prevent the distortion or misrepresentation of such compilation through amendments thereon. The copyright protections of Law 82 delve into the arena of the author’s financial rights as well. Specifically, Article 149 states that an “author may transfer to third parties all or part of his financial rights”, provided that such disposition be in writing and detailed with regards to extent, purpose, duration and place. Such transfer can be effectuated in exchange for a monetary or corporeal charge amounting to a fixed percentage of revenue taken in on the compilation in question, a gross amount or a combination thereof. Moreover, recognizing the possibility of exploitation, Law 82 codifies certain protections regarding an author’s financial rights, including a protective period for such rights lasting until 50 years after the author’s death, the right to block publication of a compilation even if the financial rights have been sold, and an absolute prohibition against a complete transfer of his “total futuristic intellectual production” often associated with financial rights transfers. As with Authors of compilations, Law 82’s protective provisions also extend to dictation and performance artists, producers of sound recordings and broadcast authorities. For those individuals acting, singing, playing a musical instrument or dancing in a protected compilation, Law 82 grants them various exclusive and monopolistic rights over (i) the transmission of their diction and performance to the public, (ii) the authorization of public availability, renting or loaning of the original recording for diction or copying, (iii) the prevention of any unauthorized exploitation of their diction or performance by any means, (iv) the leasing and loaning of the original diction or performance for realizing a trading purpose, and (v) the public availability of a recorded performance via broadcast, computer sets or other method. Moreover, such artists are afforded the non-assignable and non-prescriptive rights to relate the live or recorded performance/diction to themselves as well as to prevent any change, warping, or distortion in their performance/diction. Unlike the actual authors and artists, the producers of sound recordings and broadcast authorities are protected solely with regard to certain exclusive financial rights. For producers, Law 82 states that for a period of fifty years from recording or publishing, whichever is farther, they are entitled to make available to the public a sound recording by any means and to prevent any exploitation of their recordings by any means. Likewise, broadcast authorities can exclusively authorize the exploitation of its recordings as well as prevent the unauthorized transmission of recordings of their programs to the public by any method for a period of twenty years from the date of first transmission. Broadcasters are also instilled the right to broadcast compilations performed in a public place provided fair monetary or corporeal charges are given to the actual author. Violations of the aforementioned copyright protections contained in Law 82 makes available the following remedies to the injured party. A finding of encroachment upon one’s intellectual property allows a court of competent jurisdiction to (i) discontinue the publication, display, copying, or manufacture of an infringing compilation, diction, performance, sound and tape recording, or broadcasting program, (ii) levy an attachment on such works, and (iii) levy an attachment on all revenue generated from the unlawful exploitation of the infringed material. Furthermore, actual violators of copyright protections face imprisonment and fines for (i) selling or renting a compilation, diction, performance, sound and tape recording, or broadcasting program without the author’s consent, (ii) imitating and then selling copyrighted material, (iii) publishing a compilation, diction, performance, sound and tape recording, or broadcasting program through computers or the Internet, (iv) removing with ill will any technological protection such as coding, and (v) encroaching on any literary or financial right of the author. In each of these cases, the court shall confiscate all infringing property as well as the equipment used in its perpetration and may close down the infringing establishment. Thus, Law 82 succeeds in providing substantive protection for authors, artists, producers and broadcasters. The protective spirit of Law 82’s copyright prescriptions is however tempered by the government’s need to safeguard society as well as to allow for the continued development of the artistic and cultural mediums of the nation. Rather than grant the innovator of a particular artistic expression the right to control all possible derivations therefrom, Law 82 ensures that certain works are prohibited from copyright designation. In particular, copyright protection “shall not cover the mere concepts, procedures, methods of work, modes of operation, connotations, principles, discoveries, and data, even if they are expressed, explained, indicated, or included in a compilation”. Such prohibitions further include the copyrighting of news accidents and current facts constituting press news as well as official instruments such as laws, international conventions and judicial rulings; provided, that, protection can be granted if the information is original in its order or display. Manifestations of national folklore are also ineligible for copyright protection and are instead deemed to be within the purview of the state. The balance between author and public is further evident from the inability of an author following publication of his protected compilation to stop certain third party works. Such prohibitions are based upon the legitimate uses for properly acquired works on the part of the general public. For instance, making a single copy of a compilation for the copyist’s personal use is permitted as is making a backup of computer software to protect against loss or damage to the original. In official settings, copying from compilations for teaching purposes, for use in judiciary or administrative procedures, or for storage in a public library or archive are expressly allowed by Law 82. To ensure the proper dissemination of existing knowledge and current events within Egyptian society, further activities are precluded from copyright protection. Article 172 of Law 82 specifically precludes an author from preventing the press, periodicals, or broadcasting authorities from (i) publishing extracts of his compilations that were made public or that deal with public opinion, (ii) publishing speeches, lectures, seminars and talks related to delivered publicly in parliamentary councils, administrative authorities and judiciary pleadings, and (iii) publishing extracts from an audio, visual or audio-visual compilation available to the public in the course of news coverage of current events. In doing so, Law 82 creates a legislative scheme, allowing for adequate copyright protection while ensuring that society can utilize and extrapolate from new ideas and information as it unfolds. V. Conclusion. The examination of the provisions of Law 82 has sought to elucidate the debate inherent to the protection of intellectual property rights in a society. On the one hand, it is important to create a framework whereby authors, inventors and corporations alike are able to equitably reap the financial rewards of their innovative intellectual capital. Law 82 succeeds in this regard at providing ample protection in the areas of patent, trade mark, and copyright law. At the same time, it ensures that society is able to efficiently benefit and utilize novel ideas and concepts for its own evolution and development. To that end, the elimination of anti-competitive behavior and the curtailment of certain protections serve to provide a proper balance between the needs of the author and the needs of the public. Go Top