The current state of affairs related to Intellectual Property in Malta

Speech by the hon. Censu Galea, Minister for Competitiveness and Communications to the conference entitled: `Intellectual Property within a national and EU Context` - Seminar organised by Impetus Europe Consulting Group - 24.03.2006

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It is a pleasure for me to be here addressing this conference. At the outset, it is worth noting that the protection of intellectual property rights is not something that was introduced in Malta recently. In fact the vesting of rights to intellectual property owners has been possible in Malta since 1911 in respect of Copyright and since 1899 in respect of inventions, trademarks and designs. The first trademark registration in Malta actually took place in 1900. The oldest trademark still in force today was registered by Unilever in respect of food products in 1926. The first design registration took place in 1901. The application requested rights in connection with the aesthetic features of a bottle. The first Patent was issued in 1891 and concerned improvements in discharging coal and similar cargo from lighters to ships and wharfs.

The earliest multilateral treaty denoting minimum levels of protection was concluded in 1883 and is known as Paris Convention for the Protection of Industrial Property. This was closely followed by the Berne Convention for the Protection of Literary and Artistic Works in 1886. Malta ratified the latter in 1964 and the former 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 was thus 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 That very same year the century old laws governing copyright, patents and trademarks were repealed and replaced by new legislation.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 concerning design was also introduced.

Accession to the European Union was another milestone in the area of Intellectual Property resulting in the transposition of eleven directives and application of six regulations to date.

As a result of the above Malta currently provides the possibility of acquiring the following Intellectual Property Rights:

- Authors Rights for literary, musical, artistic and audiovisual works as well as databases and software through Copyright;

- Performers, producers and broadcasters rights through neighbouring rights;

- Creators rights for semi-conductor products topography through sui generis rights;

- Artistic rights for Industrial Designs through registered designs and non-registered design rights;

- Investors rights through patents;

- Extension of invention rights in the case of pharmaceuticals and plants protection products through supplementary protection certificates;

- Brand rights which are protected through trademark registration and unfair competition provisions in the Commercial Code; and

- Geographical indications via collective and certificate marks.

It is here worth noting a few examples to give an indication of the extent of some of these rights.

According to the Copyright Act:

Copyright in an audiovisual work, a database, a literary, musical or artistic work shall be the exclusive right to authorise or prohibit the doing in Malta of the direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part; the rental and lending; the distribution& and other conditions.

On the other hand, the Patents Act inter alia provides that:

Where the patent concerns a product, the proprietor of the patent shall have the right to prevent third parties from performing, without his authorisation, certain acts.

Whilst Where the patent concerns a process, the proprietor of the patent shall have the right to prevent third parties from performing without his authorisation, other specified acts.

In addition to the aforesaid, the Trademark Act provides that a person infringes a registered trademark if he uses an identical or similar trademark in relation to products or services which are identical, similar or sometimes even dissimilar to those in respect of which it is registered.

However, it should be noted that the possibility of acquiring such rights is a must if Malta is to be attractive for business and foreign direct investment in particular. Companies wanting to invest in a business venture want to rest assured that there is the necessary legal infrastructure to prevent others from taking a free ride at their expense. Nevertheless, having such rights on paper is not enough. There must be the possibility of enforcing them.

Our laws provide for civil action, criminal action and cross border measures. Today the main threat is the ease of copying intellectual property as a result of digitisation and readily available equipment. This can only be curbed by vigilant internet surveillance and encrypting of products to prevent copying. However, one has to call a spade a spade. This is a very hard battle to win as pirated goods flood the world and, through the internet, bypass borders. Border control, on the other hand, is a success story. During 2005 the Malta Customs registered 94 cases of possible infringing goods. In this regard it initiated legal action in respect to 50 cases while 44 were settled out of court.

All the above would however be fruitless if it were not complemented with efforts to facilitate the creation of intellectual property. Whilst there are several initiatives being undertaken to this end it is worth noting the concerted efforts being undertaken by Government through the National Reform Programme (2005-2008). The programme which was launched last year by the Cabinet Committee on Competitiveness which I chair, outline Maltas response towards securing its competitiveness, economic growth and job creation in terms of the EU Lisbons Agenda. The measures outlined in the programme under the strategic themes of Competitiveness and Education and Training serve as direct spur to the creation of intellectual property. The compatibility of the Lisbon Agenda and intellectual property rights is in fact one of the presentations of this seminar. Here one may also mention other Government initiatives in this regard, administered by Malta Enterprise, MCAST and the Malta College for Science and Technology.

The idea behind the setting up of the intellectual property rights system is namely to reward and encourage creativity and innovation as well as knowledge sharing and technology transfer with a view to a better quality of life. However, it is not obligatory for the creator of a product to make it available for others. Furthermore, as a result of the rights, the creator would be on a monopolistic situation dictating his own terms while stopping others from entering the market. In fact, the rights are counterbalanced by a number of limitations and Competition Law with a view that they are used in such a way which is beneficial and not acting as a stranglehold on society particularly in the areas of education, health and development. To this end, the Copyright Act has 28 exemptions which are complemented by others in the Patent Act.

The activity in the field of Industrial Property registration can be gauged by statistics provided by the Commerce Division namely the Division responsible for issues concerning IP rights.

The Division last year received at its Industrial Property Directorate around 700 Patents applications as opposed to 25 received in 1995. Last years figures showed a 45% increase over those of 2004.

Trademark applications last year amounted to 1,271. Here one must point out that as from 1 May, 2004 it became possible to secure trademark rights in Malta via the Community Trademark System whereby a trademark could be protected throughout the European Union with one single registration via the Office for Harmonisation in the Internal Market (OHIIM) in Alicante, Spain. To date circa 300,000 Trademarks have been registered by OHIM and as a result of accession these are now valid in Malta. Last year OHIM received approximately 60,000 new trademark applications all of which if granted would also extend to in Malta.

Obviously having the laws and the infrastructure is not enough. It is imperative that all the stakeholders are made aware of their rights, of their obligations to respect other people rights and the possibility of legally using licensed and unlicensed intellectual property. To this end the Commerce Division last year distributed 13,000 leaflets to businesses encouraging them to contact the Divisions Industrial Property Directorate for advice on how best to protect their rights and in addition the Division held meetings with several stakeholders and participated in several seminars on topical issues in the area. This year the Division has already made presentations to local craftsmen and to Malta Forum fl-Ewropa and it also held two seminars for general stakeholders and 1 for over 200 students.

It is here worth noting that a Commerce Divisions proposal for EU funding in this area was accepted and Malta has been granted EU transitional funds for a project entitled Intellectual Property Training, Awareness and Enforcement. This project is divided in two parts: a Twinning Light Contract for institution building and a Service Contract for an Information Campaign. Since this project places significant importance on the curbing of counterfeit goods, the other main players of this project i.e. Customs, Police and Attorney Generals Office, also have an important role in the Twinning Light Contract. During the first phase of this project foreign experts have undertaken the training of officials from the Commerce Division in the area of IP so that these officials would then be in a position to train others on this topic. As part of this project the experts also conducted workshops with the Customs and Police on the latest technologies used in the identification of counterfeit goods.

The second part of this project is the creation and launching of an information campaign on IP aimed at the general public and SMEs. This campaign will strive to bring the notion of IP into all homes, offices and higher level educational institutions in Malta and Gozo. The scope is to sensitize the Maltese public to the subject of IP and to create an understanding for the need to protect ones own creations and to respect those of others. This campaign is to be launched in the coming weeks.

In concluding I would like to point out that EU accession has provided Malta with the opportunity to be actively involved in the policy decisions taken in this very important area. Obviously once Maltas position is accepted at EU level, the Commission and the Presidency will present it as part of its submissions in the international stage with all the additional clout that carries. Malta through the EU is in fact currently involved in several initiatives being undertaken in this area ranging from traditional knowledge, broadcasting to the simplification of the Copyright directives and the introduction of the Community Patent.

Over the years Malta has taken large steps forward in the field of Intellectual Property Rights and I am sure that with the participation of all the stakeholders involved we will continue to register positive developments which reflect the modern day needs of business and the civil society. Thank You.