Ideas, natural resources, and genetics have a price. For this reason, it is important to have the legal mechanisms to provide protection against any attempt of usurpation. Learn what these mechanisms are and pass the word.
Ecuador is one of the Latin American countries that have been particularly concerned about the development and protection of Intellectual Property rights in recent decades. The Government of Ecuador recognizes, regulates and guarantees Intellectual Property through a legal framework that embraces the local, community and international rules described below.
The rules and decisions originating from the Andean Community of Nations (CAN) – community rules – are of special significance. These rules are of a supranational nature, characterized for being autonomous and restrictive, and integrate national legal order. They have a direct effect on and prevail over local law. These rules include:
- Decision 351 - Common Provisions on Copyright and Neighboring Rights
- Decision 486 - Common Intellectual Property Regime
- Decision 345 - Common Provisions on the Protection of the Rights of Breeders of New Plant Varieties
- Decision 391 - Common Regime on Access to Genetic Resources
The main international instruments Ecuador adheres to are The World Intellectual Property Organization (WIPO) Agreement, as a World Trade Organization (WTC) country member, and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
The Agreement between WTC and WIPO, and the Patent Cooperation Treaty (PCT) are added to the above.
International Copyright Rules
- Berne Agreement for the Protection of Literary and Artistic Works
- Universal Copyright Agreement
- Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations
- Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms
- Multilateral Convention on the avoidance of double taxation on royalties from copyrights
- Inter-American Convention on Copyrights in Literary, Scientific, and Artistic Works
International Industrial Property Rules
- Inter-American Convention on Inventions, Drawings, and Industrial Models, Patents
- Paris Convention for the Protection of Industrial Property
- Inter-American Convention on Trademarks and Trade
International Rules on Plant Varieties and Breeders
- International Convention on the Protection of Plant Breeding
- Bilateral Conventions Ecuador executed with France, Spain, and Germany on the reciprocal guarantee in various aspects of Industrial Property.
Scopes comprising Intellectual Property
- Copyrights and associated rights
- Plant Breeding
- Industrial Property including, among other elements, the following:
- Drawings and industrial models
- Tracing patterns (topographies) for integrated circuits
- Industrial secrets
- Trademarks, trade brands, service marks and commercial slogans
- Trade dresses of businesses and business establishments
- Trade names
- Geographical indications
- Any other intellectual creation for use in agricultural, industry or business
The Constitution is not the only law that recognizes and guarantees Intellectual Property rights. The Government enacted Intellectual Property Law 83 (Official Gazette 320, May 19, 1998) on May 8, 1998. This law deals with the advanced steps Ecuador has taken to procure the protection and defense of intellectual property rights. The regulation of this law was published in Official Gazette 120 of February 1, 1999.
Because Ecuador adhered to the World Trade Organization (WTO), the treaty was immediately placed into effect and the normal term granted by the WTO was waived. Ecuador also ratified and immediately put into effect the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS).
The key objective of Law 83, which is stated in the recitals of the law, is to seek appropriate protection for Intellectual Property Rights. The Law exceeds the minimum protection levels considered in TRIPS.
Law 83 created the Ecuadorian Intellectual Property Institute as a public juridical person with its own equity and administrative, economic and operational autonomy. In addition, State organizations are prohibited from taking the funds that belong to the Institute or from diverting them to other purposes.
The Steering Council is the control and consultant body of the Institute. The council members belong to both the public and private sectors.
Appeal committees were also created to expedite and simplify the replacement, review, and appeal remedies the Law affords for disputes concerning this matter. In any case, the possibility of filing an administrative appeal before the appropriate courts without exhausting administrative channels is unaltered.
Law 83 created three national offices in charge of the administration and management of matters related to all fields of Industrial Property. These offices are the National Plant Breeding Office, the National Office of Copyrights and Associated Rights, and the National Industrial Property Office.
The greatest achievement of this law is the chapter on Administrative Tutelage contained in from Book V. The chapter states that the observance and compliance of Intellectual Property rights are of public interest. Through its national offices, the Institute will directly, or at the petition of a party, inspect, monitor and place penalties to deter and stop the infringement of Intellectual Property rights.
OFF THE BLACK LIST
As of April 30, 2001, Ecuador is the only South American country that has been removed from the "blacklist" of the U.S. Intellectual Property Office (USTR).
The USTR defines categories based on the degree of enforcement of intellectual property rights in each country. The countries with the worst enforcement are on the priority watch list and watch list.
Ecuador has been eliminated from the priority watch list and watch list. Our country has earned recognition because of its efforts to offer suitable protection to intellectual property rights.
Yet, there is still much to be done. Because the Intellectual Property Law has just come out, the future development of Intellectual Property in the country will depend on the advertisement and application of the law.
It is of extreme importance that judges, attorneys, and users know and apply all the rules mentioned above. National and international institutions periodically organize expert-led seminars to analyze the complex problems of intellectual property. The purpose of the seminars is to create a true IP culture.
Since May 7, 2001, Ecuador has placed in full effect the Patent Cooperation Treaty (PCT). Therefore, it is now possible to file international patent applications. This treaty is key since it has been signed by 111 nations.
Enrique Chiriboga (Ecuadorian) has a bachelor’s degree in Public and Social Sciences. He is an attorney, Doctor in Jurisprudence, and graduate of the Pontificia Universidad Católica del Ecuador (PUCE). Dr. Chiriboga has taken specialized courses at the University Central de Madrid and Georgetown University. He is a partner of Bustamante & Bustamante. E-mail: firstname.lastname@example.org
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.