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01 June 2010
Even though the different branches of IP law have common objectives - for example, to encourage innovation and creativity by allowing IP owners to participate in the benefits that their creations produce for society - they have evolved in considerably different ways.
While some of these rights (eg, trademark rights, patent rights and copyrights) go back many centuries, others have been acknowledged only more recently (eg, scientific data rights, plant breeders' rights and database rights). This is closely related to the technological revolution that took place in the second half of the 20th century.
Scientific data legal protection is one such category among IP rights (for further details please see "Scientific data protection: a new and autonomous IP category"). This update looks at two other results of the technological revolution: the legal protection of plant breeders' rights and software or computer programs (the latter of which is included under the Argentine rules for the protection of copyrights).
Plant breeders' rights are recently acknowledged rights whose importance has developed concurrently with the biotechnological revolution and plant improvement techniques. They are rights related to innovations obtained in plant varieties (eg, new varieties with increased resistance to pests or weather, or with enhanced nutritional capacity).
Plant breeders' rights have similarities with patent law and also share the aim of encouraging new investment in research and development activities. However, despite these similarities, within the Argentine legal framework plant varieties are not patentable. Article 6(g) of the Patent Law (24,481) establishes that "all kinds of live material and pre-existing substances in nature" are not considered invention, thus excluding the possibility of patenting them. Furthermore, in many cases the obtaining of new plant varieties does not, strictly speaking, mean the creation of an invention, but rather the result of relatively gradual and mechanical stages or steps.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) specifically refers to this matter in Article 27.3(b), which establishes that:
"Members may also exclude from patentability:
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof."
In Argentina, plant varieties can be protected under the Seeds Law (20,247) and the International Union for the Protection of New Varieties of Plants (UPOV) Agreement 1978 (Argentina has been a member of UPOV since 1994).
The Seeds Law and Regulatory Decree 2183/91, which adapts the Seeds Law to the requirements of the UPOV Agreement and was approved in Argentina by Law 24,376, establish the protection of rights over plant varieties.
Section 17 of the Constitution establishes that "every author or inventor is the exclusive proprietor of his work, invention, or discovery for the period of time established by law". Consequently, in Argentina, an author's rights to his or her work enjoy constitutional protection.
Software or computer programs represent intangible assets which have considerably increased in economic and social importance over the years, thereby intensifying the need to protect such creations properly in case of misappropriation and non-authorized reproduction.
Without such adequate protection, incentives for creators will diminish - particularly in a highly technological environment which facilitates acts of copying and piracy.
Protection as literary work
The placing of software among IP assets in order to protect it legally initiated a heated debate at both international and domestic levels. Since TRIPs came into effect and was approved in Argentina by Law 24,425, computer programs (source programs or object programs) became protected as literary works by virtue of the Bern Convention 1971 (Section 10 of TRIPs).
Pursuant to Section 75(22) of the Constitution, TRIPs is an integral part of Argentine law. Consequently, and since the enactment of Law 25,036, computer software protection is expressly included under the scope of the Intellectual Property Law (11,723), which protects scientific, literary and artistic property.
Term of protection
The protection term endures for the author of the work's lifetime and for 70 years thereafter. The law and the courts have established that in order to be protected, a work must contain some degree of originality.
In recent years statistics have shown that in Argentina (as in the rest of the world), there has been continuous growth in piracy related to protected works, including computer software works, thereby increasing the importance of adequate legal protection of copyrights. Thus, it is important that the Intellectual Property Law provides for criminal penalties and injunctions in cases of infringement.
For further information on this topic please contact Carlos O Mitelman or Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100), fax (+54 11 4311 5675) or email (email@example.com or firstname.lastname@example.org).
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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