Intellectual Property Rights (IPR) - Concepts and Issues


By

A. Peer Mohamed Ariff
Chief Accounts Officer
S. Dhinesh Babu
Asst. Professor, MBA Department
S. Thambi Durai
Lecturer, MBA Department
Mohamed Sathak Engineering College
Kilakarai-623 806
 


Introduction

Intellectual property (IP) is a legal field that refers to creations of the mind such as musical, literary, and artistic works; inventions; and symbols, names, images, and designs used in commerce, including copyrights, trademarks, patents, and related rights. Under intellectual property law, the holder of one of these abstract "properties" has certain exclusive rights to the creative work, commercial symbol, or invention by which it is covered.

Intellectual property rights are a bundle of exclusive rights over creations of the mind, both artistic and commercial. The former is covered by copyright laws, which protect creative works such as books, movies, music, paintings, photographs, and software and gives the copyright holder exclusive right to control reproduction or adaptation of such works for a certain period of time.

The second category is collectively known as "industrial properties", as they are typically created and used for industrial or commercial purposes. A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder a right to prevent others from practicing the invention without a license from the inventor for a certain period of time. A trademark is a distinctive sign which is used to prevent confusion among products in the marketplace.

An industrial design right protects the form of appearance, style or design of an industrial object from infringement. A trade secret is an item of non-public information concerning the commercial practices or proprietary knowledge of a business. Public disclosure of trade secrets may sometimes be illegal.

The term "intellectual property" denotes the specific legal rights described above, and not the intellectual work itself.

The importance of intellectual property in India is well established at all levels- statutory, administrative and judicial. India ratified the agreement establishing the World Trade Organization (WTO). This Agreement, inter-alia, contains an Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which came into force from 1st January 1995. It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade. The obligations under the TRIPS Agreement relate to provision of minimum standard of protection within the member countries legal systems and practices.

The Agreement provides for norms and standards in respect of following areas of intellectual property:

  • Copyrights and related rights
  • Trade Marks
  • Geographical Indications
  • Industrial Designs
  • Lay out Designs of Integrated Circuits
  • Protection of Undisclosed Information (Trade Secrets)
  • Patents
  • Plant varieties

Intellectual Property (IP) is the information and original expression that brings its original value from creative ideas with a commercial value.  Intellectual property allows the people to have fully independent ownership for their innovations and creativity like that for their own physical property.  By safeguarding such innovations, can lead to the owner of IP can be encouraged for further innovations to the benefit of the society in general.  It may not be possible to protect IP and obtain intellectual property rights unless they have been applied for the sanction obtained.

Most of the countries having large number of local industries with innovative designs have specific laws to safeguard the innovations by some regulations with respect to copying of inventions, identifying symbols and creative slogans.  As in other developing countries, India too showed for quick enforcement of intellectual property right protection laws.  India has to comply being a member of WTO for such implementation of laws at least by 2005.  India's IPR scene is no deterrent to foreign companies.  These laws consist of distinct types of intangible properties.

ESSENTIAL ELEMENTS OF INTELLECTUAL PROPERTY RIGHTS

IPR is a broad term for covering -

1) Patents for inventions
2) Copyrights for material
3) Trademarks for broad identity and
4) Trade secrets.

In general these properties are termed as "Intellectual Property".  Intellectual Property is an asset that can be bought or sold, licensed and exchanged.  But of course unlike other properties, intellectual property is intangible; rather it cannot be identified by its specific parameters.  These properties are protected on a national basis.

PATENTS

This refers to innovations new or improved product and processes which are meant for industrial applications.  This is a territorial right which requires registration for a limited time.  Patent is a contract between an inventor as an individual and the society as a whole.  The inventor has exclusive right to prevent anybody making use of and/or selling a patented invention.  Of course, this is only for a specific duration till the inventor discloses the details of invention to the public.

Unlike other rights, this protects effect, but not expression or image.  A well-crafted patent can give monopoly right to business in its area.  A patent is expensive but the preparatory steps are economical in nature.

The legal authority in this patent right is the World Trade Organization (WTO) agreement with respect to Trade Related Aspects of Intellectual Property Right (TRIPS).  This offers the international standard for the required duration of 20 years from the date of filing the patent.  Once this period is over, people are free to make use of this invention as they like.  However, though the member has a right to prevent others making use of his patented invention, the owner has no right to make use or sell the invention itself.  Patents are granted under national laws and these rights are enforceable by civil laws rather than criminal proceedings.

Requirement for Patents

While applying for a patent certain documents have to be submitted as essential requirements which are enlisted as below

1. Problem of invention.
2. Current report of the problem to be addressed.
3. Solution to the problem.
4. Extent of novelty.
5. Uses or application.
6. Inventor details
7. Resources of funds

Types of patents

i) Utility patents
ii) Design patents
iii) Plant patents

i) Utility patents

It can be granted to anyone who invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof.  Utility period is of 20 years.

"Process" refers to industrial and manufacturing (production) method.  "Manufacture" refers to articles manufactured.  "Composition of matter" refers to chemical compositions and may include mixtures of ingredients as well as new chemical compounds.

ii) Design patents

It can be granted to any one who invents a new, original ornamental design for an article of manufacture.  A design patent protects the ornamental design (i.e. appearance) of the article.  A design patent has duration of 14 years from the date of filing.

iii) Plant patents

Plant patent can be granted to any one who invents or discovers and reproduces a new variety of plant.  A plant patent has a term of 20 years from the date of filing

COPY RIGHTS

A copyright is a very particular and exclusive right even for reproduction of an original work. This is for material, aesthetic material, literacy, music, film, sound recording, broad casting, software and multimedia.  This offers automatic right for safeguarding any original creation, which is not in need of registration but with limited time.  It does not require the lawyer's help for settlement.

Protection to copy right does not give any procedure, principle, concept or method or operation, irrespective of the format in which it is explained.  In other words protection of copyright is limited to an inventor's particular expression of an idea, concepts or process in a tangible medium.  Copyright is sanctioned to prevent others from:

a) Copying the work
b) Publishing and selling copies commercially
c) Renting or lending the work in a free market
d) Doing or demonstrating the work in public

The TRIPS agreement offers a minimum duration of copyright protection to the tune of the life of the inventor or author plus fifty years.  Anyhow rights granted exclusively to the copy right owner may allow others in making fair use of the owner's work, like for the purpose of review, comment, reporting, teaching, researches, etc.  Of course, the impact of copying an inventor's work's commercial value is considered to find out whether the copying is for "fair use".  In order to secure protection for copy right, the particular work must be an original work made or written in a tangible medium of expression.  The test for such originality consists of two conditions (1) work must originate from the inventor and not a copy from others' works.  And (2) the invention or work must have adequate amount of creativity.

TRADE MARKS

Trademark is for broad identity of specific goods and services allowing differences to be made among different trades.  This is a territorial right, which requires registration, but without any time limit.  Lawyers are needed for guidelines. 

A trademark is an identification symbol which is used in the course of trade to enable the purchasing people (buyers) to distinguish one trader's goods from the similar goods of other traders. These marks also symbolize distinctly the quality of the products.  These marks are in the form of certain 'wordings' or can be in the format of logos, designs, sounds, etc. Examples: NIIT, Kodak.

The TRIPS agreement offers the same type of protection for trademarks.  Registration of trademark is issued for definite period of time.  However, in order to avoid confusion, encourage competitions and protect the inventor's good will, the registration may be renewed.  With reference to intellectual property area, trademarks are national in origin and should comply with provision of TRIPS agreement. 

TYPES OF TRADEMARKS

Generic Trademarks

Words, symbols or devices that are not so distinctly distinguishing the goods from others are at the weakest ends, as they are common terms used to identify the goods themselves.  These are termed as generic terms and are not protectable as trademarks.

Descriptive Trademarks

Descriptive trademarks clearly denote or inform the specific purpose, functions, physical characteristic and end use of the product. 

Suggestive Trademarks

Suggestive trademarks do not at a glance describe the goods for which the mark is used; yet they rather require some imagination or perception to arrive at a conclusion about the nature of the goods.  Suggestive marks are inherently distinctive and proteactable.

The other types of trademarks include arbitrary marks and fanciful marks which are inherently distinctive.

TRADE SECRETS

A trade secret means information, which is kept confidential as a secret.  This is generally not known in the relevant industry, offering an advantage to its owner over other competitors.  Unlike other types of Intellectual property, this trade secret is fundamentally a "do-it-yourself' type of protection.  For engineers, inventors, and designers, the trade secrets are to be maintained secretly.  Such trade secrets include some formulae, programmes, methods, progresses or data collections etc.   If there is any improper disclosure or use of the trade secret by another person, the inventor may claim and recover damages resulting from illegal use.

TRIPS agreements offer the protection for trade secrets under the heading 'protection of undisclosed information'.  The engineer in competitive field should feel their responsibility and status when they make use of such trade secrets till its disclosure.  If the information of a trade secret is available through any legitimate means and if any inventor is responsible illegally for such leaking, then the trade secret may become ineligible for protection.

Enforcement of Intellectual Property Rights is definitely private rights.  If anybody uses the material without the inventors' permission, the Intellectual Property right owners can use any remedies available under the civil law. 

NEED FOR PROTECTION TO IPR

The protection of intellectual property rights is an essential element of economic policy for any country.  Only such protection can stimulate research, creativity and technological innovations by giving freedom to individual inventors and companies to gain the benefits of their creative efforts.

It is a very important issue to plan to protect the intellectual property rights.  The major needs are to

* Prevent plagiarism.
* Prevent others using it.
* Prevent using it for financial gains.
* Fulfill obligation to funding agency.
* Support income generation strategy.

IMPORTANCE OF IPR

a) Give the inventors exclusive rights of dealing.
b) Permit avoiding of competitors and increase entry barriers.
c) Allow entry to a technical market
d) Generate steady income by issuing license. 

Criticism

Some critics of intellectual property, such as those in the free culture movement, characterize it as intellectual protectionism or intellectual monopoly, and argue the public interest is harmed by protectionist legislation such as copyright extension, softwar 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 catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues." These critics advocate referring to copyrights, patents and trademarks in the singular, and warn against abstracting disparate laws into a collective term.

Conclusion

The Intellectual Property Rights (IPR) will have wide range of socio, economic, technological and political impacts. Rapid technology obsolescence and fierce competitions lead one to protect the innovations using the tools of IPR such as patents, trade marks, service marks, industrial design registration, copy rights and trade secrets.  The legal framework for IPR is in a stage of dynamic adjustments and changes to accommodate the challenges and new situations that result from convergence of technology.

References

  • Dhinesh Babu, S. Professional Ethics and Human Values, Laxmi Publications, New Delhi, 2007.
  • Kinsella, Stephan. "Against Intellectual Property." Journal of Libertarian Studies 15.2 (Spring 2001): 1-53.
  • Lai, Edwin. "The Economics of Intellectual Property Protection in the Global Economy." Princeton University. April 2001.
  • Lee, Richmond. Scope and Interplay of IP Rights ACCRALAW offices.
  • Lessig, Lawrence. "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity." New York: Penguin Press, 2004..
  • Rozanski, Felix. "Developing Countries and Pharmaceutical Intellectual Property Rights: Myths and Reality"
  • Schechter, Roger E., and John R. Thomas. Intellectual Property: The Law of Copyrights, Patents and Trademarks. New York: West/Wadsworth, 2003, ISBN 0-314-06599-7.
  • Shapiro, Robert and Pham, Nam. "Economic Effects of Intellectual Property-Intensive Manufacturing in the United States." July 2007.
  • Vaidhyanathan, Siva. The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System. New York: Basic Books, 2004.
     


A. Peer Mohamed Ariff
Chief Accounts Officer
S. Dhinesh Babu
Asst. Professor, MBA Department
S. Thambi Durai
Lecturer, MBA Department
Mohamed Sathak Engineering College
Kilakarai-623 806
 

Source: E-mail August 21, 2008

           

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