Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce. They usually give the creator an exclusive right over the use of his/her creation for a certain period.
Intellectual Property can be protected in law by, for example, patents, copyrights, and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the Intellectual Property system aims to foster an environment in which creativity and innovation can flourish.
Importance of intellectual property
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 Organisation (WTO). This Agreement, inter-alia, contains an Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which came into force on 1st January 1995. It lays down minimum standards for the protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights to reduce distortions and impediments to international trade.
Recently, the Intellectual Property regime in India has undergone various significant developments concerning laws and policies. Two of the most noteworthy developments are the constitution of the joint India – US working group on IPR and a national IPR Think Tank group set up to draft a national IPR policy.
At present, issues of piracy of films and software are being widely debated in the government circle for enhanced Intellectual Property protection. Currently, trade secrets, although a recognized form of Intellectual Property, are not protected by legislature in India and they continue to be enforced contractually or under common law. and in the area of pharmaceuticals, the government is working to achieve a perfect balance between protecting the IPRs of the inventor/industry and the public interests at large.
Types of Intellectual Property:
- Copyright
- Patent
- Trademark
- Industrial design
- Geographical Indications
Copyright
It is the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.
Protection: Exhaustive lists of works covered by copyright are usually not to be found in legislation. Works commonly protected by copyright throughout the world include literary works such as novels, poems, plays, reference works, and newspaper articles; computer programs, databases; films, musical compositions, and choreography; artistic works such as paintings, drawings, photographs, and sculpture; architecture; and advertisements, maps, and technical drawings.
Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation, or mathematical concepts as such. Copyright may or may not be available for several objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.
Types of rights under copyright:
Economic rights are rights that allow the owner to derive financial reward from the use of his works by others;
Moral rights are which protect the non-economic interests of the author.
Legislation: India’s copyright law, laid down in the Indian Copyright Act, 1957 as amended by the Copyright (Amendment) Act, 1999, fully reflects the Berne Convention on Copyrights, to which India is a party. India is a party to the Geneva Convention for the Protection of Rights of Producers of Phonograms and to the Universal Copyright Convention. India is also an active member of the World Intellectual Property Organisation (WIPO), Geneva, and UNESCO.
Tenure: It lasts till the lifetime of the author and 60 years from the year of the author’s death
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Patent
It is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.
Protection: The patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. It means that the invention cannot be commercially made, used, distributed, imported, or sold by others without the patent owner’s consent.
Territorial rights. Exclusive rights are only applicable in the country or region in which a patent has been filed and granted, by the law of that country or region.
Legislation: The Patents Act, 1970 & The Patents Rules 1972.
Tenure: The protection is granted for a limited period, generally 20 years from the filing date of the application.
Trademark
It is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights.
Protection: It will confer an exclusive right to the use of the registered trademark. This implies that the trademark can be exclusively used by its owner, or licensed to another party for use in return for payment. Registration provides legal certainty and reinforces the position of the right holder, for example, in case of litigation.
Registration: At the national/regional level, trademark protection can be obtained through registration, by filing an application for registration with the national/regional trademark office and paying the required fees. At the international level, you have two options: either you can file a trademark application with the trademark office of each country in which you are seeking protection, or you can use the WIPO Madrid System.
Kinds of Trademark: A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features such as the shape and packaging of goods, non-visible signs such as sounds or fragrances, or color shades used as distinguishing features.
Legislation: Keeping in view the changes in trade and commercial practices, globalization of trade, need for simplification and harmonization of trade marks registration systems, etc., a comprehensive review of the Trade and Merchandise Marks Act, 1958 was made and a Bill to repeal and replace the 1958 Act has since been passed by Parliament and notified in the Gazette on 30.12.1999. This Act not only makes Trade Marks Law, and TRIPS compatible but also harmonizes it with international systems and practices.
Tenure: The tenure of trademark registration can vary, but is usually ten years. It can be renewed indefinitely on payment of additional fees.
Industrial design
In a legal sense, an industrial design constitutes the ornamental or aesthetic aspect of an article. An industrial design may consist of three-dimensional features, such as the shape of an article, or two-dimensional features, such as patterns, lines, or color.
Protection: The owner of a registered industrial design or of a design patent has the right to prevent third parties from making, selling, or importing articles bearing or embodying a design that is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes. In most countries, an industrial design needs to be registered to be protected under industrial design law as a registered design. In some countries, industrial designs are protected under patent law as design patents. Registration is not a must for protection; however, it is mandatory for taking action against infringement.
Products that can benefit: Industrial designs are applied to a wide variety of products of industry and handicraft items: from packages and containers to furnishing and household goods, from lighting equipment to jewellery, and from electronic devices to textiles. Industrial designs may also be relevant to graphic symbols, graphical user interfaces, and logos.
Legislation: The existing legislation on industrial designs in India is contained in the New Designs Act, of 2000 and this Act will serve its purpose well in the rapid changes in technology and international developments. The present legislation is aligned with the changed technical and commercial scenario and made to conform to international trends in design administration.
Tenure: It is initially ten years from the date of registration, but in cases where a priority claim has been allowed the duration is ten years from the priority date.
Geographical Indications
It is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. To function as a GI, a sign must identify a product as originating in a given place. The qualities, characteristics, or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production.
Protection: A geographical indication right enables those who have the right to use the indication to prevent its use by a third party whose product does not conform to the applicable standards. For example, in the jurisdictions in which the Darjeeling geographical indication is protected, producers of Darjeeling tea can exclude the use of the term Darjeeling for tea not grown in their tea gardens or not produced according to the standards set out in the code of practice for the geographical indication.
However, a protected geographical indication does not enable the holder to prevent someone from making a product using the same techniques as those set out in the standards for that indication. Protection for a geographical indication is usually obtained by acquiring a right over the sign that constitutes the indication.
Type of Products for which geographical indications can used: Geographical indications are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products.
Legislation: The Geographical Indications of Goods (Registration & Protection)Act, 1999
Tenure: The registration of a GI shall be for ten years but may be renewed from time to time for an unlimited period by payment of the renewal fees.
Infringement, misappropriation, and enforcement
Violation of intellectual property rights, called “infringement” concerning patents, copyright, and trademarks, and “misappropriation” concerning trade secrets, may be a breach of civil law or criminal law, depending on the type of intellectual property involved, jurisdiction, and the nature of the action.
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