INTELLECTUAL PROPERTY RIGHTS (IPR)
IPR: An Overview
The
general assumption about property is that it is something movable or immovable
tangible thing, which is most of the time expensive one. However, as it is very
much indicative from the word ‘intellectual’, the ‘intellectual property’ can
be understood as the property created by mind like some ideas, inventions,
literary or artistic creations etc which are intangible most of the time but
can be converted into tangible things. We all know that the owners of movable
or immovable tangible properties possess legal rights over their property and
every country has laws to protect such properties of their citizens from any
kind of encroachment or any illegal authority claimed over them.
However, it is sad to know that till
recently the creations of mind, the product of intellect of people were not
considered as equivalent to the physical properties and that’s why there were
no significant and sufficient laws to protect such properties. Perhaps it was
so because of no monetary value associated with the intellectual properties.
It was only in 1995 that a significant step was taken and the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) was formed at the end of seven years of negotiations from 1986 to 1993, as part of the Uruguay Round of Multilateral Trade Negotiations of the GATT. The TRIPS Agreement came into force on the 1st of January 1995, with the establishment of the World Trade Organization (Puri & Varma, 2005).
It does not mean that there were no laws related to intellectual properties in India. Laws were there but they were not enough to protect the intellectual properties rights of the people. The people and government had not thought to protect their ancient knowledge by any specific law. Indians always believed in knowledge sharing and that’s why the medicinal uses of turmeric, basil, neem etc were in public domain since long and yet it was not protected under any law. It was only after the controversy of claims over the medicinal uses of turmeric and neem and claims over basmati rice by American companies that people in India became aware about their intellectual property rights and a need of strong laws were felt. Also the commercial interest of the people compelled many companies and individuals to protect their intellectual properties.
There are several definitions given to intellectual property. One of the best definitions of intellectual property was given by World Intellectual Property Organisation (WIPO):
“Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.”
Similarly, there are several definitions of intellectual property rights. One of the best definitions among them is given by World Trade Organisation (WTO):
“Ownership of ideas, including literary and artistic works (protected by copyright), inventions (protected by patents), signs for distinguishing goods of an enterprise (protected by trademarks) and other elements of industrial property.”
It is obvious from the above definition given by WTO that the intellectual property rights are mainly of three types:
- Copyright
- Patents
- Trademarks
- Intellectual Property Rights are legal rights, which result from intellectual activity in industrial, scientific, literary & artistic fields. These rights Safeguard creators and other producers of intellectual goods & services by granting them certain rights to control the use of their creations or products. (WIPO, 2008). Protected IP rights like other property can be a matter of trade, which can be owned, sold or bought.
- They allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation.(WIPO).
- IPR are largely territorial or country specific rights except copyrights which is global in nature in the sense that it is immediately available in all the members of the Berne Convention. (Saha, n.d.)
- Legal protection is granted to the owner or creator of the Intellectual property under different related acts. That means inventions, designs and other industrial innovations can be protected under Patent Act, trademarks can be protected under Trademark Act and Copyright Act covers literary works (such as novels, poems and plays), films, music, artistic works(e.g. drawings, paintings, photographs and sculptures) and architectural design.
- The protection given under these Acts are for a definite period of time depending upon the law of the country.
Tracing
the history of IPR in India
The history of IPR in India can be traced back to as early as 1957, when first time The Copyright Act was introduced for Indians with some modifications to the similar kind of act which was already existing and was borrowed from the British but was very much similar to United Kingdom Copyright Act. Actually the East India Company had already introduced the Copyright Act in India in 1847 out of its own interest but it was merely a reflection of Copyright Act of Great Britain which was already into existence for almost one century. In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most portions of the United Kingdom Copyright Act of 1911 to India. Thus the modern Copyright Act of India has seen a long and complicated journey of 150 years. Today, the Copyright Act of 1957, the Copyright Rules, 1958 and the International Copyright Order, 1999 govern the copyright protection in India. (Adukia R.S., n.d.)
Just
like the Copyright Act, the Patent law in India had also seen many dawn and
dusks. From being introduced in 1856, it underwent amendments for eleven times
in the years 1859, 1872, 1883, 1888, 1911, 1920, 1930, 1945, 1950, 1952, to the
commencement of The Patents Act, 1970. (Ibid).Though even after 1970, many
changes in the Patent Act have been done but this year is like a milestone in
the history of IPR because this Act remained in force for almost 24 years till
1994 without any change. After that three amendments were done in the Act of
1970 in the years 2000, 2003 and finally in 2005 which is in force till date.
The Act has now been radically amended to become fully compliant with the provisions
of TRIPS (Saha, n.d.)
The
Trademark Act of 1999 is culmination of sustained effort towards such an Act
since 1860. A specific Indian Trademark Act was passed in 1940 which was
replaced by Trademark and Merchandise Act, 1958 and finally Trademark Act 1999
was enforced by the Government of India in compliance with the TRIPS obligation
on the recommendation of the World Trade Organisation.
List of laws related to intellectual
properties in India:
- The
Copyright Act, 1957, the Copyright Rules, 1958 and International Copyright
Order, 1999.
- The
Patents Act, 1970, the Patents Rules, 2003, the Intellectual Property Appellate
Board (Patents Procedure) Rules, 2010 and the Patents (Appeals and Applications
to the Intellectual Property Appellate Board) Rules, 2011
- The
Trade Marks Act, 1999, the Trade Marks Rules, 2002, the Trade Marks (Applications
and Appeals to the Intellectual Property Appellate Board) Rules, 2003 and the
Intellectual Property Appellate Board (Procedure) Rules, 2003
(Adukia R.S., n.d.)
Main types of Intellectual Property Rights
Copyright
(WIPO, 2008)
As
per Copyright Act, 1957,
"copyright" means the exclusive right subject to the
provisions of this Act, to do or authorise the doing of any of the following acts
in respect of a work or any substantial part thereof, namely:-
(a)
in the case of a literary, dramatic or musical work, not being a computer
programme, -
(i) to reproduce the work in any material
form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the
public not being copies already in circulation;
(iii) to perform the work in public, or
communicate it to the public;
(iv) to make any cinematograph film or
sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation
or an adaptation of the work, any of the acts specified in relation to the work
in sub-clauses (i) to (vi);
(b)
in the case of a computer programme,-
(i) to do any of the acts specified in
clause (a);
“(ii) to sell or give on commercial rental
or offer for sale or for commercial rental any copy of the computer programme:
Provided that such commercial rental does not apply in respect of computer
programmes where the programme itself is not the essential object of the
rental.”
(c)
in the case of an artistic work,-
(i) to reproduce the work in any material
form including depiction in three dimensions of a two dimensional work or in two
dimensions of a three dimensional work;
(ii) to communicate the work to the
public;
(iii) to issue copies of the work to the
public not being copies already in circulation;
(iv) to include the work in any
cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of
the work any of the acts specified in relation to the work in sub-clauses (i)
to (iv);
(d)
In the case of cinematograph film, -
(i) to make a copy of the film, including
a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for
sale or hire, any copy of the film, regardless of whether such copy has been
sold or given on hire on earlier occasions;
(iii) to communicate the film to the
public;
(e)
In the case of sound recording, -
(i) to make any other sound recording
embodying it;
(ii) to sell or give on hire, or offer for
sale or hire, any copy of the sound recording regardless of whether such copy
has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording
to the public.
(Source: Copyright Office, India.)
Patent
Again I would give an example from our day-to-day life that when somebody often says something, people say that this is his patent dialogue means that statement is created and used by him. Thus people have a fair idea of what patent is. Let us see how it is defined by various persons and organisations. According to The Law Lexicon (2001) “The word patent means the exclusive privilege granted by the sovereign authority to an inventor with respect to his invention”
Similar
to this definition a more elaborated definition of patent is given by WIPO as
follows:
A patent is a document,
issued, upon application, by a government office (or a regional office acting
for several countries), which describes an invention and creates a legal
situation in which the patented invention can normally only be exploited
(manufactured, used, sold, imported) with the authorization of the owner of the
patent. “Invention” means a solution to a specific problem in the field of
technology. An invention may relate to a product or a process. The protection
conferred by the patent is limited in time (generally 20 years). Patents are
frequently referred to as “monopolies”, but a patent does not give the right to
the inventor or the owner of a patented invention to make, use or sell
anything. Thus, while the owner is not given a statutory right to practice his
invention, he is given a statutory right to prevent others from commercially
exploiting his invention, which is frequently referred to as a right to exclude
others from making, using or selling the invention. Simply put, a patent is the
right granted by the State to an inventor to exclude others from commercially
exploiting the invention for a limited period, in return for the disclosure of
the invention, so that others may gain the benefit of the invention. The
disclosure of the invention is thus an important consideration in any patent
granting procedure.
(WIPO, 2008)
In
compliance with TRIPS and WIPO, in India too “A Patent gives a monopoly right
to a person who has invented a new and useful product or a new process of
making a product or an improvement or modification of an existing product or
process. It is a statutory grant conferring exclusive right to manufacture the
patented product or manufacture a product according to the patented process for
a limited period of time, that is, a period of 20 years.” (Puri &
Varma, 2005). According to the Patent Act, 1970, Patentable inventions are new
products or processes, involving inventive steps and capable of being made or
used in an industry. It means the invention to be patentable should be
technical in nature and should meet the following criteria –
- Novelty: The matter disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.
- Inventive Step: The invention is not obvious to a person skilled in the art in the light of the prior publication/knowledge/ document.
- Industrially applicable: Invention should possess utility, so that it can be made or used in an industry.
(a)
an invention which is frivolous or which claims anything obviously contrary to
well established natural laws;
(b)
an invention the primary or intended use or commercial exploitation of which
could be contrary to public order or morality or which causes serious prejudice
to human, animal or plant life or health or to the environment; (For e.g.
process of making brown sugar will not be patented.)
(c)
The mere discovery of a scientific principle or the formulation of an abstract
theory (or discovery of any living thing or non-living substances occurring in
nature);
(d)
the mere discovery of a new form of a known substance which does not result in
the enhancement of the known efficacy of that substance or the mere discovery
of any new property or mere new use for a known substance or of the mere use of
a known process, machine or apparatus unless such known process results in a
new product or employs at least one new reactant;
(e)
a substance obtained by a mere admixture resulting only in the aggregation of
the properties of the components thereof or a process for producing such
substance;
(f)
the mere arrangement or re-arrangement or duplication of known devices each
functioning independently of one another in a known way;
(g)
a method of agriculture or horticulture; (For e.g. the method of terrace
farming cannot be patented.)
(h)
any process for the medicinal, surgical, curative, prophylactic, diagnostic,
therapeutic or other treatment of human beings or any process for a similar
treatment of animals to render them free of disease or to increase their
economic value or that of their products; (For e.g. any new technique of hand
surgery is not patentable)
(i)
plants and animals in whole or any part thereof other than micro-organisms but
including seeds, varieties and species and essentially biological processes for
production or propagation of plants and animals;
(j)
a mathematical or business method or a computer programme per se or algorithms;
(k)
a literary, dramatic, musical or artistic work or any other aesthetic creation
whatsoever including cinematographic works and television productions;
(I)
a mere scheme or rule or method of performing mental act or method of playing
game;
(m)
a presentation of information;
(n)
topography of integrated circuits;
(o)
an invention which in effect, is traditional knowledge or which is an
aggregation or duplication of known properties of traditionally known component
or components.
(p)
Inventions relating to atomic energy and the inventions prejudicial to the
interest of security of India.
(Source: Intellectual
Property Office, India)
Trademarks can be in the form of letters, numerical or words or signs, symbols, drawings, three dimensional shapes, music or audio, fragrances, colors; anything which identifies any good or service. It helps consumers in identifying the authentic goods and services. It protects the owner’s right to exclusively use the trademark or authorise other person to use it in lieu of payment. According to WIPO (2008), “A trademark is any sign that individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors.” This definition mentions about two aspects of trademarks, which also can be referred as the functions of the trademarks. These aspects are – “Individualisation of goods which provides authenticity and identity to the product” and “It helps in distinguishing the products of one enterprise from the other enterprise”. Though these two are different aspects of trademarks, they are also interdependent and that’s why WIPO suggests looking at them together for all practical purposes. Individualisation of goods and services for consumer by using trademarks does not mean that the consumers must be informed about the actual person who has manufactured it or who is trading it. It only has to create trust of the consumer into the enterprise. In compliance with the definition given by WIPO, in India too, the Trademarks Act, 1999 explains,
Trade mark means a mark
capable of being represented graphically and which is capable of distinguishing
the goods or services of one person from those of others and may include shape
of goods, their packaging and combination of colours; and—
(i) in relation to Chapter XII (other than
section 107), a registered trade mark or a mark used in relation to goods or
services for the purpose of indicating or so as to indicate a connection in the
course of trade between the goods or services, as the case may be, and some
person having the right as proprietor to use the mark; and
(ii) in
relation to other provisions of this Act, a mark used or proposed to be used in
relation to goods or services for the purpose of indicating or so as to
indicate a connection in the course of trade between the goods or services, as
the case may be, and some person having the right, either as proprietor or by
way of permitted user, to use the mark whether with or without any indication
of the identity of that person, and includes a certification trade mark or
collective mark;
(Source: Ministry of Law,
India)
Geographical Indication of Goods
There are many products which are known by their geographical origin, whether by name or by symbols; like “Champagne,” “Cognac,” “Roquefort,” “Chianti,” “Pilsen,” “Porto,” “Sheffield,” “Havana,” “Tequila,” “Darjeeling”—are some well-known examples of such names with which the products of certain nature and quality are associated. According to WIPO (2008), “the term is intended to be used in its widest possible meaning. It embraces all existing means of protection of such names and symbols, regardless of whether they indicate that the qualities of a given product are due to its geographical origin (such as appellations of origin), or they merely indicate the place of origin of a product (such as indications of source). This definition also covers symbols, because geographical indications are not only constituted by names, such as the name of a town, a region or a country (“direct geographical indications”), but may also consist of symbols. Such symbols may be capable of indicating the origin of goods without literally naming its place of origin. Examples for such indirect geographical indications are the Eiffel Tower for Paris, the Matterhorn for Switzerland or the Tower Bridge for London.”
In
compliance with WIPO, the Geographical Indications of Goods (registration and
protection) Act, 1999 explains:
“geographical
indication”, in relation to goods, means an indication which identifies such
goods as agricultural goods, natural goods or manufactured goods as
originating, or manufactured in the territory of a country, or a region or
locality in that territory, where a given quality, reputation or other
characteristic of such goods is essentially attributable to its geographical
origin and in case where such goods are manufactured goods one of the
activities of either the production or of processing or preparation of the
goods concerned takes place in such territory, region or locality, as the case
may be. Explanation.—For the purposes of this clause, any name which is not the
name of a country, region or locality of that country shall also be considered
as the geographical indication if it relates to a specific geographical area
and is used upon or in relation to particular goods originating from that
country, region or locality, as the case may be;
(Source: Ministry of Law,
India)
Some
examples of Indian Geographical Indications are - Solapur Chaddar, Solapur
Terry Towel, Basmati Rice, Darjeeling Tea, Kanchipuram Silk Saree, Alphanso
Mango, Nagpur Orange etc.
Designs
“design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere
mechanical device, and does
not include any trade mark as defined in clause (v) of sub-section (1) of
section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as
defined in section 479 of the Indian Penal Code or any artistic work as defined
in clause (c) of section 2 of the Copyright Act, 1957.
(Source: Intellectual
Property Office, India)
A
unique design for any product not only attracts the consumers but also the
producing company acquires much more praise, which it can’t afford to lose. It
not only enhances its prestige and reputation but also provides a thrust for
economic gain. These designs can be pertaining to a wide variety of products of
different industries like handicrafts, medical instruments, watches, jewellery,
house wares, electrical appliances, vehicles and architectural structures
anything. It is majorly for aesthetic purpose.
Semiconductor Integrated Circuits Layout-Design
“semiconductor integrated circuit” means a product having transistors and other circuitry elements which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function;
(Source: Ministry of Law, India)
Protection of Plant Varieties and Farmers Rights
(i) defined by the expression of the characteristics
resulting from a given genotype of that plant grouping;
(ii) distinguished from any other plant grouping by
expression of at least one of the said characteristics; and
(iii) considered as a unit with regard to its
suitability for being propagated, which remains unchanged after such
propagation,
and includes propagating material of such variety, extant
variety, transgenic variety, farmers’ variety and essentially derived variety.
(Source: Ministry of Law,
India)
Such
an Act was essential for protecting and encouraging the rights of the farmers;
who strive to increase the varieties of plants and put their effort to develop
new plants and the quality of seeds.
Biological Diversity
India; being a country of rich biodiversity; possesses very rare traditional knowledge which can lead it to use biological resources as assets. Since the world has realised the importance of environment and biodiversity, it has been remained a constant effort to protect the biodiversity anywhere in the world and with this commitment United Nations Convention on Biological Diversity was organised at Rio De Janeiro on 5th June, 1992 and India became one of the signatory of this convention. By signing this convention, India and other signatories got sovereign rights over their biological resources. Such rights were considered necessary “to provide for conservation, sustainable utilisation and equitable sharing of the benefits arising out of utilisation of genetic resources and also to give effect to the said Convention.” Such concerns formed the ground for India to pass an Act “to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto” in 2002. It was called the Biological Diversity Act, 2002 and was enacted by Parliament in the 53rd year of the Republic of India. As per this Act:
“biological diversity” means the variability
among living organisms from all sources and the ecological complexes of which
they are part and includes diversity within species or between species and of
eco-systems;
“biological resources” means plants, animals
and micro-organisms or parts thereof, their genetic material and by-products
(excluding value added products) with actual or potential use or value, but
does not include human genetic material;
(Source: Ministry of Law,
India)
The Need for Protection
Same as necessity is the mother of invention; new inventions in any field are necessity for the growth of human civilisations. It is necessary to protect the human capacity to create or invent new things from being exploited by any other person or organisation without the permission of the creator or inventor. Such protection in the form of legal rights would encourage people for further innovation without any fear of exploitation. These inventions or creations may lead the country towards economic growth and prosperity of its people. In return, the company or people responsible for such inventions are rewarded by providing legal rights over their inventions so that no one can use it without their permission. Thus the protection of intellectual properties can balance the interests of the innovators and the public interest at the same time by satisfying their humane expectations and providing a conducive environment for creativity and invention which can be used in larger interest of the human beings.
Apart
from the broad views on need of protection of intellectual properties, some
crude realities are that the society has moved from agrarian to
industrialisation to globalisation and so the form of competitions also moved
beyond fair values. In today’s highly competitive world, where one side
consumers are having a number of choices and they are considered as kings of
the market, other side they themselves fell prey to the unfair competition
prevailing in the market and get cheated. In such scenario, not only fair
companies and products need legal protection but consumers also need to be
protected from such unfair competition among the companies in the market. In
free market system which is led by competitions, unfair means are bound to be
used. These cannot be checked by self regulation and a strong legal system is
essential to prevent the creator, inventor as well as consumers from any kind
of exploitation.
References:
- Adukia R.S.( n.d.). Handbook on Intellectual Property Rights in India. New Delhi.
- Biological Diversity Act, 2002(Source: Ministry of Law, India)
- Copyright Act, 1957 (Source: Copyright Office, India.)
- Design Act, 2000 (Source: Intellectual Property Office, India)
- Geographical Indications of Goods (registration and protection) Act, 1999(Source: Ministry of Law, India)
- Patent Act, 1970(Source: Intellectual Property Office, India)
- Protection of Plant Varieties and Farmers’ Rights Act, 2001(Source: Ministry of Law, India)
- Puri, M & Varma, A. 2005. Intellectual Property Conventions and Indian Law. Working Paper. Indian Council for Research on International Economic Relations, New Delhi.
- Saha, R. (n.d.). Management of Intellectual Property Rights in India. New Delhi.
- Semiconductor Integrated Circuits Layout-Design Act, 2000 (Source: Ministry of Law, India)
- Trademarks Act, 1999(Source: Ministry of Law, India)
- World Intellectual Property Handbook. 2008. WIPO Publications.
Important websites visited:
www.ipindia.nic.in - Intellectual Property Office,
India
www.patentoffice.nic.in – Patent office, India
http://copyright.gov.in/ - Copyright Office, India
www.wipo.int – World Intellectual Property
Organisation
http://www.wto.org – World Trade Organisation
#Media Laws and Ethics
No comments:
Post a Comment