Intellectual Property Rights

By

Hoori Nadir
Lecturer (Retail and Marketing)
GHSIMR
Kanpur
 

Intellectual property is a legal field that refers to creations of mind such as musical literacy, artistic work, inventions symbols, names, images, and designs used in commerce, including copyright, trade marks, patents & related rights. Under Intellectual Property Law the holders of one of these abstract properties have certain exclusive rights to the creative works commercial symbols or inventions which is covered by it.

There is a well established statutory, administrative and judicial framework to safe guard Intellectual Property Right in India, whether they relate to patents, trademarks, copyrights or industrial designs. Well known international trade marks have been protected in India even when they were not registered in India. The Indian trademark law has been extended through court decisions to service marks in addition to trade marks for goods. Computer software companies have successfully curtailed piracy through court orders. Computer databases have been protected. The courts under the doctrine of breach of confidentiality, accorded an extensive protection of trade secrets. Right to piracy, which is not protected even in some developed countries, has been recognized in India. Protection of intellectual property rights in India strengthened further. The year 1999 witnessed the consideration and passage of major legislation with regard to protection of intellectual property rights in harmony with international practices and in compliance with India's obligations under TRIPs.

Evolution of IPRs

The initiative was taken by traders and those who were profit mongers.USA dominated more of the rather most of the ownership when in 1929 stock market of USA crashed. In 1938 Anglo-American treaty was signed and in 1945 Brettenwoods conference was held. There was a strings of events connected to each other which gave rise to IPRs as a stream. Post 1980 USA encountered a piracy feel and simultaneously Japan gave jitters to US economy. Due to these economic jitters and other circumstances prevailing in the market Intellectual Property Rights litigation came into picture with the increased interest of authors and designers who acted as creators and form IPR after knowing their strength. World Trade Organization is the governing body earlier dealing with only services now Intellectual property rights as well.

Emerging Issues in Intellectual Property

Intellectual property plays an important role in an increasingly broad range of areas ranging from the internet to health care to nearly all aspects of science, technology, literature and the arts. Understanding the role of intellectual property in these areas many of them still emerging often requires significant new research and study. In an effort to promote informed discussion of the intellectual property issues involved in these fields. Intellectual property surrounds us in nearly everything we do. At home, at school, at rest, at play. No matter what we do the fruits of human creativity and invention surrounds us.

Purpose

Intellectual property rights give creators exclusive rights to their creations, thereby providing an incentive for the author or inventor to develop and share the information rather than keep it secret. The legal protections granted by Intellectual property laws are credited with significance contributions toward economic growth. Economists estimate that two third of the value of large businesses in the USA can be traced to intangible assets, Likewise industries which rely on Intellectual property protections are estimated to produce 72% more value per added employee than non Intellectual property industries. A joint research project of WIPO and the United Nations University measuring the impact of Intellectual property systems on six Asian countries and found that "a positive co-relation between the strengthening of the Intellectual property system and subsequent economic growth".

Types of Intellectual Property Rights

As far as division is concerned IPRs are of two types:-
1. Orthodox or conventional IPRs
2. Unorthodox or Innovative IPRs

Orthodox IPRs: - These are the conventional IPRs used by individuals, companies, association of persons etc.

They are further segregated in different types
* Copyright
* Patent
* Trademark

Copyright

Copyright is an IPR deals with expression of idea not an idea itself. Copyright comes into existence immediately after expression and requires no formal registration. Copyright is an expression and manner of expression.

Patents

Patent is a right exclusively used for ideas but it is of commercial use. Patents are generally of three types
* Novelty
* Non-obviousness
* Novel art

Indians attempt to patent "Neem" as a pesticide has failed.
Patents could be further divided into
* Product Patent
* Process Patent

Amendments to Indian Patent Act are as follows:-
* New chemical entity will not be treated as patent. They must pass the test of effecus to complete patent.
* Registration in any member country is applicable to all members of WTO.

Trademark

Association of traders name with the commodity traded gives rise to trade mark.

Unorthodox IPRs /Innovative IPRs

These are the new entrants in the field of IPRs. All due to globalization and whole world has become a single platform, so do these gained importances. These are as follows:-

* Industrial Design
* Geographical Indications
* Plant Varieties
* Semi conductor layout design(SCLD)

Out of these four semi conductor layout design is more vulnerable to copying. SCLD law was brought in reference to agreements of TRIPs.

World Trade Organization is the apex body dealing with IPR issue.WTO is a watchdog in international trade.WTO was developed in 1995 and India was the founder member of the organization. WTO deals with issues like barrier free trade.

Code of conduct

* Non discrimination
* Reciprocity
* Market access
* Fair competition

Preamble of WTO

* Raising standard of living
* Ensuring full employment
* Large and steady increase in income and demand
* Increase in production of goods and services
* Protection and preservation of environment
* Increase in means to achieve objectives

Two new laws came into picture on the horizon of WTO

LPG (Liberalized Privatization and globalsation-1991)
LPG (Licensing permit and Government-1951)

Intellectual Property Rights Laws

Intellectual property laws are designed to protect different forms of subject matter, although in some cases there is a degree of overlap.

These laws can be categorized under following heads:-

Trademark Law

A trademark is a distinctive sign, which is used to distinguish the products or services of different businesses. Trade mark law protects words, phrases, logos or symbols used to distinguish one product from another. In circumstances where a competitor uses a protected trademark can go to court and obtain an injunction to stop the use.

Copyright Law

It is used in creative and artistic works (For example: books, movies, music, paintings, photographs and software) and gives the holder the exclusive right to control reproduction or adaptation of such works for a certain period of time (historically, a period of between 10-30 years depending upon jurisdiction, but more recently the life of the author, plus several decades)

Patent Law

Patent law protects inventions it gives the patent holder a right to prevent others from participating and practicing the inventions without a license from the inventor for a certain period of time. Patents can protect the functional features of a process, machine, manufactured item, asexually reproduced plant or composition of matter.

Industrial Design Right

An industrial design right protects the form of appearance, style or design of an industrial object for example: Spare parts, Furniture, textiles etc.

Cyber Law

It is a term used to describe the legal issues related to use of communications technology, particularly cyberspace i.e. the internet. It is an interaction of many legal fields, including intellectual property, privacy, freedom of expression and jurisdiction. In essence cyber laws are designed for the physical world to human activity on the internet.

Geographical Indications of goods

In recent years, the Indian government has become aware of the importance of GI, following the debacles related to Basmati and Turmeric GI is a notice of a definite product have been produced in a particular place. The producer can use this sign only for products from the specified region. Unlike a trademark however the GI is not an individual property for use by the geographical indication of that region which any producer may use.

Intellectual Property Laws looks into
Who is the beneficiary in general???

* It's a tussle between private interest and public interest.
* Purpose of law is to strike a balance between interest conflicts.

Creator's point of view

* Protection of his/her brain child i.e. Intellectual Property Right
1. Protection of IPR assets
2. Protection against theft and piracy
* Technology makes copying easy hence piracy is unavoidable
* Notion of full control is replaced by partial control

Creator demands from Law

* Acknowledgement
* Permissive user
* Monetary gain in terms of industrial users

Prevention of Contrary Behavior to their demand

Prevention by the owner

* Not making Intellectual Property available
* Negotiating for terms of settlements
* Assignment to Intellectual Property asset whether it should be exclusive or non exclusive
* In case of scientific ideas status of scientific ideas as Intellectual Property

Cases:

1. Dispute is pending at WTO Australia Vs India and Thailand Vs India regarding subsidized Indian sugar export. Backdrop: Order of WTO against EU prohibiting subsidized exports. India was present in earlier case as third party.Approx 1400 Rs/Tones is given to exporters from factory to dock.

2. Currently China has prohibited entry of Indian food products with SPS (sanitary-phytosanitary measures). Ayurvedic medicines are detained at US ports. Backdrop: Non disclosure of ingredients in English and not on standards.

Exceptions

* Cold Drinks do not fall under food adulteration act of IPC.
* Laws of nature can not be patented.

Criticism

Some critics of Intellectual Property, such as those in the free cultural movement characterize it as intellectual protectionism or intellectual monopoly and argue the public interest is harmed by protectionist legislation such as copy right extension, software patents and business method patents. Although the term is in wide use, some critics reject the term "Intellectual Property" altogether. Richard Stallman argues that it "Systematically distorts and confuses these issues and its use was and is promoted by those who gain from this confusion". He suggests the term "operates as a catchall to lump disparate laws which originated separately, evolved differently, cover different rules and raise different public policy issues".

What does an IPR specialist do??

* They can draft patent applications and licensing agreements.
* They can be counselors/advisors.

Who are eligible??

Lawyers, science graduates from recognized Universities, including R&D specialists, working professionals, scientists, research students.

NOTE: - In India to become patent attorney it is mandatory to pass patent agents exams.

Organizations involved in IPR

* World Intellectual Property Organization(WIPO) of the UN, based in Geneva – is the apex intergovernmental body dealing with IPRs.
* In India, The Ministry of Commerce and Industry, Ministry of Human Resource development, Ministry of Information and Broadcasting and Department of Science and Technology(TIFAC)
* CII, FICCI, ASSOCHAM etc.
 

Hoori Nadir
Lecturer (Retail and Marketing)
GHSIMR
Kanpur
 

Source: E-mail July 25, 2008

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