Legal Protection for Human Creations. The Impact of Intellectual Property in Development

One of the essential characteristics of being human is wit. Thanks to wit and creativity humans can solve immediate problems in order to survive and improve living conditions.

But human creativity is not limited to practical aspects. Creativity has allowed us to create and charge certain objects with subjective and emotional values that will later be understood, interpreted, and studied by other members of the group. As a result, and endless list of new ideas and creations emerges to inspire in those who have contact with them feelings and emotions that foster development in infinite creative networks. (Serrano Migallón, 2020).

Just as humanity evolves, the goods we value and the subjective and moral charges we assign to our creations also evolve. Formally, all these products fall within the legal classification of intellectual property, which can be of two types: copyright (authors rights) and industrial property.

While copyright focuses on the protection of literary, artistic, and other creations in the cultural sphere, valuing respect and acknowledgement for an individual in relation with their work as an author, industrial property addresses creations aimed to develop some technical issue, a tool or an innovative instrument that will allow progress or technical development, and that has as its priority the protection of the holder’s economic interests so that they can exploit the invention.

Intellectual property law became a variant of private property recognized by the States. However it is not an ordinary type of property, it has its own principles, characteristics, and variants, depending on the particular conditions of each case and of the country that recognizes its ownership in favor of the creator or author. While ordinary property law focuses on considering the use and enjoyment of goods; general intellectual property law focuses in protecting two great values: The ownership of the work or invention by its author or creator, i.e., that declaration by a competent authority which accredits the subject as the inventor of the object stated, and profit, which is the economic benefit that the author, inventor, or holder may obtain as a consequence of the exploitation of the creation.

In our days the protection of intellectual property rights has complex national and international legal frameworks, but the fact is that the recognition of this type of credit for creations and works in favor of their inventors dates back to ancient times. For example, in ancient Greece, authors, specially sculptors were acknowledged and received credit for their creations in addition to be protected by Maecenas or by Athens’ administration and were allowed to freely manifest their idea and to materialize it without any normative limit. That recognition of value and merit favoring creators and their works emerged only up to the moment when intellectual and professional functions reached a certain degree of maturity. Only then was it possible for cultural intermediaries to appear, as well as those who profited with the negotiation of works and inventions (Serrano Migallón, 2020).

The Protection of Works, Creations, and Inventions in Mexico
The first signs of regulation of intellectual property appeared during colonial times In a first stage, copyright was unknown in Spain, where the state favored a strict control that was executed by the crown and the Church to guarantee the fidelity and obedience of the subjects. Pragmatic law of king Felipe the Handsome imposed mandatory censorship and prior permission to take texts to the New World (Serrano Migallón, 2020).

After Independence and until the Constitution of 1857 was in force, there was no provision in Mexico’s supreme law related to intellectual property, but some general laws did incorporate its regulation. To set an example, in the industrial property realm the Law of Patents of Invention was issued in 1832, the Trademarks Law in 1890, and the Law for Patents, Privileges, and Trademarks in 1903. Copyright had its first signs of regulation in 1846, when President Mariano Paredes y Arrillaga ordered José Mariano de Salas to promulgate the Regulation of the Free Press (Serrano Migallón, 2020).

Unlike the Constitution of 1857, the one of 1917 did address intellectual property and copyright. The original text of its Article 28 stated that:
Currently, copyright is regulated by the Federal Copyright Law published in 1996, and industrial property by the Federal Law for the Protection of Industrial Property in 2020. Mexico has an institution in charge of the protection of authors’ rights, the National Copyright Institute (INDAUTOR), and another specialized in the protection of inventors’ and creators’ rights, the Mexican Institute of Industrial Property (IMPI).

The objective of the protection granted by both institutes is the same: to recognize the author or creator quality of a subject with respect to their work or invention, which implies a series of moral and economic rights in favor of the author. But in fact, due to the nature of the subjects, copyright mainly focuses on moral rights, while industrial property focuses on the economic rights that arise as a result of the exploitation of the goods stated.

Moral copyrights are a set of prerogatives of a personal nature that arise at the moment when the relationship between author and work is recognized. Within this category we find the right to disseminate the work, which implies the exclusive right of an author to make known or keep their work reserved for themselves; the right of attribution allows the author to be recognized at all times as the creator of the work; the right of integrity entitles the author to prevent any change or deformation that is intended to be made to the work, for example, when for some adaptation of a book in a staging the way in which the events occur in the story are modified, the author may oppose such changes; the right to change and retract implies that the author may at any time alter in whole or in part the content of the work, or may disavow something that has been written but does not match their current values or beliefs; and finally, the right of rejection that all persons have to oppose the attribution of the quality of author to a work they did not write.

Economic rights include: the right of reproduction, which is the power of the author to allow the reproduction of various copies of the work or of part of the work; the right of communication, public transmission, or broadcasting, which is the possibility to allow the publication, broadcast, or distribution of the work in different media; and the right of distribution that allows the author to make the work available to the public or to a specific group, either in part or in its entirety.

There are also rights connected to copyright, which are granted and recognized in favor of interpreters, artists, performers, book publishers, sound producers, video producers, and broadcasting organizations in connection with their activities related to the public use of authors’ works (Serrano Migallón, 2020).

On the other hand, industrial property focuses on the rights arising from the relationship of a subject as creator or inventor with their certain creation or invention, which may be classified as a proper invention, a trademark, an industrial design, or any other element of technological innovation which may be commercially identifiable.

In the same way as copyright, industrial property recognizes economic rights that are focused on the exclusive exploitation of the good that is protected. The holder or author has the right to prevent third parties from using their invention or trademark without consent or to grant licenses for third parties use, and to request compensation in case third parties use their product without permission, as well as to request the withdrawal of the product from the market.

The elements that can be protected under the industrial property Law include inventions, patents, trademarks, distinctive signs, designs, and industrial secrets.

Institutes focused on intellectual property in Mexico perform multiple functions. For example, during the results report of INDAUTOR’s activities for 2023, a total of 62,968 applications for the registration of works were processed. On the other hand, during the same year, IMPI received 20,127 applications for the registration of invention patents, of which 13,652 were granted.

Figure 1. Number of applications processed during 2023 before INDAUTOR and IMPI

Prepared by the authors with information from INDAUTOR (Institutional results, activities and achievements report 2023) and IMPI (IMPI in figures, 2023).

International Regulation on Intellectual Property
Relevance of intellectual property goes beyond the local level. At the international level there is also a persistent concern to regulate and protect the rights of authors and creators. The standardization of criteria and the universalization of protection have always been the subject of debate, since there is no agreement among countries to state to which rights should be recognized and to whom and under what conditions. However, there have been multiple attempts, which have resulted in the creation of global instances which receive countries subscriptions in order to regulate and protect, at least among the signatories, creators and authors with respect to their rights over their work or invention. 

Some examples are: the Berne Convention for the Protection of Literary and Artistic Works, the Geneva Phonograms Convention, the WIPO Copyright Treaty, and the North American Free Trade Agreement. All these instruments refer to some extent—or entirely—to the protection of intellectual property rights. 

As it regulates the products of human creativity, intellectual property is one of the branches of law that most needs to be updated so to address the constant axiological changes (both technological and social) resulting from the progress of humanity. This need to adapt to the technological progress of humanity is, perhaps, one of the greatest problems faced by institutions today, especially when there are no precedents about how to address the subject. 

As a consequence, there is a high demand for the services of registry offices, another conflict faced by institutions dedicated to intellectual property. An example: in 2022 the World Intellectual Property Organization (WIPO) received three and a half million patent applications globally, three million utility model applications, fifteen and a half million trademark applications and one and a half million industrial design applications. Of all the applications for registration, the Asian region had the highest percentage (Figure 2).

Figure 2. Percentages of intellectual property title registration by region in 2022 

Source: Organización Mundial de la Propiedad Intelectual, Datos y cifras sobre PI (2023)

Meanwhile, Mexico had a patent application rate that amounted to 16,605 in 2022, 2.7 percent more than data recorded during 2021, only surpassed by Brazil within the category of patent applications presented to offices of low- and middle-income countries.

Figure 3. Patent applications filed in low- and middle-income countries

Source: Organización Mundial de la Propiedad Intelectual, Datos y cifras sobre PI (2023). ARIPO es la Organización Regional Africana de la Propiedad Intelectual, EAPO es la Organización Eurasiática de Patentes y OAPI es la Organización Africana de la Propiedad Intelectual.

Problems for Intellectual Property Rights Today 
The high demand for registration services is not even the most serious problem that intellectual property faces nowadays; there are two big conflicts that have not been solved: unauthorized copying and distribution of protected content or creations without due recognition and payment to the original authors and creators. These two problems have worsened with the development of the digital era and the access, often uncontrolled, to resources that are subject to protection by intellectual property authorities. 

It might seem contradictory but another conflict that intellectual property is facing is that it has an extremely complex regulatory framework, both nationally and internationally, which requires simplification and updating without losing its essence. 

Finally, technological innovation has generated great progress in recent times, but, simultaneously, doubts keep rising, especially in respect of intellectual property and artificial intelligence (AI). In order to establish a basis for operation and regulation, the European Union and other countries have signed the Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law, which establishes that the operation of AI must comply with the principles of respect for human dignity, non-discrimination, as well as the protection of personal data and access to information. 

Although this initiative represents a step forward in the regulation of AI, the truth is that, speaking of intellectual property, there are still some specific points of doubt that have not found a standardized answer at a global level to this day. For example, when an AI creation is configured, who should the creator’s rights be awarded? 

Final Thoughts
Human beings create all the time; we use our wit and creativity to solve problems of our daily life. But this creativity is also applied to solve problems on a macro scale. 

The generation of new knowledge, new arts, and new technologies must be protected, and this task corresponds to intellectual property law, a variant of law that focuses on the two main branches of copyright and industrial property.

As part of a law dedicated to the protection of human works and creations, it must be constantly updated to keep pace with new social demands, axiological changes, and the technological progress of humanity. It is true that intellectual property and copyright face a great number of challenges today, but it is also true that it continues to be functional, constantly adapting and always at the service of society to maintain the results that distinguishes us as a species: creativity and wit.

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