Best way to nourish creativity

Each year, on April 26, governments and organisations around the world join WIPO in celebrating World Intellectual Property Day. The theme this year is encouraging creativity.

For many people, the connection between intellectual property and creativity is far from obvious. The word creativity conjures a world of artists and music makers, of poets and problem solvers. Whereas intellectual property all too often summons images of grey-suited lawyers, locked in litigation. But look more closely, and it quickly becomes clear that it is the intellectual property system itself that sustains and nourishes those creators. - extract from the message by Kamil Idris, director general of the World Intellectual Property Organisation.

The urge to be creative has been ingrained in man since the dawn of time. Evidence of this can be found all over the world. Malta is no exception. Malta boasts the oldest free-standing structures in the world. The ingenuity of our ancestors who could, without modern-day technology, erect the megaliths known as Hagar Qim still mystifies all those who behold them. Malta has come a long way since then.

Literary, musical, artistic and audiovisual creations surround us wherever we go. The choice is endless. Not only do we have access to works of Maltese origin but also to works from all over the planet. However, the technology that has assisted so much in the creation and dissemination of works, has contributed to facilitating widespread illegal copying to the detriment of artists, authors and musicians alike.

The intellectual property rights system with all its shortcomings has for many years contributed towards encouraging creativity through the vesting of rights on creators and the inflicting of penalties on defaulters. While the punishment of transgressors falls within the joint remit of the judiciary, the police and Customs, the Commerce Division within the Ministry for Competitiveness and Communications has the responsibility to see to it that Malta has IP laws that cater for the needs of the modern-day artistic creator.

Protection of IP rights is not something that was introduced in Malta recently because the vesting of rights to IP owners has been possible in Malta since 1911 in respect of copyright and since 1889 in respect of inventions, trademarks and designs. The first trademark registration in Malta actually took place in 1900, while the oldest trademark still in force today was registered by a multinational company in respect of food products in 1926.

Malta ratified the Berne Convention for the Protection of Literary and Artistic Works in 1964 and the Paris Convention for the Protection of Industrial Property in 1967.

In 1969, Malta ratified the Universal Copyright Convention and in 1977 joined the World Intellectual Property Organisation. In 1994, Malta became a founder member of the World Trade Organisation and, thus, was bound by the Agreement on Trade Related Aspects of Intellectual Property Rights as from 2000. That very same year the century old laws governing copyright, patents and trademarks were repealed and replaced by new legislation. In 2002, new legislation governing design protection was also introduced.

Accession to the European Union in 2004 was another landmark in the development of the intellectual property rights regime in Malta. Apart from the further upgrading of our national IP laws through the transposition of the relevant acquis, EU accession also enabled Malta to join the Community Trademark System. This was complemented by Malta's accession on March 1, 2007 to the European Patent Convention and the Patent Cooperation Treaty.

Among the upgrades to Maltese law one can mention the recent introduction of the following two pieces of legislation:

• Legal Notice 174 of 2006 entitled Artist's Resale Right Regulations, which transposed into national law Directive 2001/84/EC of the European Parliament and of the Council on the Resale Right For The Benefit Of The Author Of An Original Work Of Art.

• This legal notice provides visual artists with a share of revenue from sales of their work (graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs) after the initial sale of that work to a dealer or other buyer. This right relates to public (not private) sales and, therefore, it would apply to any resale of the original work of art conducted by art market professionals, such as auction houses, art galleries or any other art dealers.

• Act No. XX of 2006 entitled An Act To Regulate The Enforcement Of Intellectual Property Rights transposed into national law Directive 2004/48/EC of the European Parliament and of the Council on the Enforcement Of Intellectual Property Rights.

• This law covers infringements of all intellectual property rights (both copyright and industrial property, such as trademarks, patents or designs) that, under European law, have been harmonised within the EU. It concentrates on infringements carried out for commercial purposes or that cause significant harm to right-holders. The measures found in this law include, among others, injunctions to halt the sale of counterfeit or pirate goods, provisional measures such as precautionary seizures of suspected offenders' bank accounts, evidence-gathering powers for judicial authorities and powers to force offenders to pay damages to right-holders to compensate for lost income.

However, it should be noted that creative works do not only benefit from copyright protection.

If one were to take as an example, a ceramic ornament, this would have started its life on the potter's wheel and in the kiln. A digital camera would be used for pictures in promotional literature printed in a printing press. In addition, movie-making equipment would then be used in the making of an advertorial, which would be transmitted via satellite to our TV set or via the worldwide web to our PC. Through the telephone or a simple e-mail the ornament could be sitting on our shelf within days after having boarded several forms of transport. All items in bold, when first invented and when improvements were made would have been eligible for a patent. Their aesthetic features could have been protected through design registration. In addition, each product would have been assigned a trademark with a view to distinguish it from the similar products manufactured by competitors.

For creativity to prosper it is imperative that national offices, such as the Maltese Commerce Division of the Ministry of Competitiveness and Communications, to organise regular awareness campaigns urging artistic creators and entrepreneurs to use the IP system while the public at large be encouraged to respect IP rights.

Having embarked on an EU-funded campaign last year, the Commerce Division will repeat its efforts this year (again with EU funding assistance) targeting the student sector in particular. The campaign will be officially launched today to mark World IP Day.

This article was submitted by the Commerce Division's Industrial Property Registrations Directorate within the Ministry for Competitiveness and Communications. The directorate can be contacted at ipoffice@gov.mt.