Intellectual Property Rights in India

Intellectual property rights are the rights given to persons over the creations of their minds and give the creator an exclusive right over the use of his/her creation for a certain period of time.

Intellectual Property Rights ( IPR), very broadly , are rights granted to creators and owners of  works that are results of human intellectual creativity . These works can be in the industrial , scientific , literary and artistic domains , which can be in the form of an invention, a manuscript, a suite of software , or a business name .

 

Intellectual Property Right (IPR) in India was imported from the west. The Indian Trade and Merchandise Marks Act 1884, was the first Indian Law regarding IPR. The first Indian Patent Law was enacted in 1856 followed by a series of Acts being passed. They are Indian Patents and Designs Act in 1911 and Indian Copyright Act in 1914. Indian Trade and Merchandise Marks Act and Indian Copyright Act have been replaced by Trade and Merchandise Marks Act 1958 and Copyright Act 1957 respectively.

 

India, as a developing country, had a transition period of five years (with effect from 01 January, 1995) till January 01, 2000 to apply the provisions of the Agreement. An additional transition period of five years, i.e., till January 01, 2005, is also available for extending product patent protection to areas of technology not protected so far. This would be mainly in the areas of pharmaceuticals and agricultural chemicals.

Patent is an intellectual property right relating to inventions and it is the grant of exclusive rights, for a limited period, provided by the Government to the patentee, in exchange of full disclosure of his invention and excluding others, from making, using, selling, importing the patented product or processes producing that product for any purposes. The purpose of this system is to encourage inventions by highlighting their promotion and utilization so as to contribute to the development of industries, which in turn, contributes to the promotion of technological innovations and to the transfer and dissemination of technology. Under the system, Patents ensure property rights for the invention for which patent have been granted, which may be extremely valuable to an individual or a company.

                 Patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. The trends of patents during the last 25 years in India have their roots in the formulation and implementation of the Indian Patent Act 1970, which became effective from April 20, 1972. There was a strategic shift from the liberal features of the Indian Patents and Designs Act 1922 to the new regime which introduced restrictive changes related to patenting of inventions especially in the areas of chemicals, pharmaceuticals, agrochemicals and foods. The granting of patents for inventions claiming substances intended for use or capable of being used as, food, medicine or drug or all substances resulting from chemical processes was withdrawn. The conditions for compulsory licensing were also made fairly liberal including the introduction of the concept of “license of right” for patents related to drugs, pharmaceuticals and foods.

The copy right ensures that computer programs will be protected as literary works under the Berne Convention and outlines how databases should be protected. It also expands international copyright rules to cover rental rights. Authors of computer programs and procedures of sound recordings must have the right to prohibit the commercial rental of their works to the public. A similar exclusive right applies to films where commercial rental has led to widespread copyright, affecting copyright-owners potential earnings from their films. The performers must also have the right to prevent unauthorized recording, reproduction and broadcast of live performances for not less than 50 years. Producers of sound recordings must have the right to prevent the unauthorized reproduction of recordings for a period of 50 years.India’s copyright law, laid down in the Indian Copyright Act, 1957 as amended by Copyright (Amendment) Act, 1999, fully reflects the Berne Convention on Copyrights, to which India is aparty. Additionally, India is 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 Organization (WIPO), Geneva and UNESCO.The copyright law has been amended periodically to keep pace with changing requirements. The recent amendment to the copyright law, which came into force in May 1995, has ushered in comprehensive changes and brought the copyright law in line with the developments in satellite broadcasting, computer software and digital technology. The amended law has made provisions for the first time, to protect performer’s rights as envisaged in the Rome Convention. Several measures have been adopted to strengthen and streamline the enforcement of copyrights. These include the setting up of a Copyright Enforcement Advisory Council, training programs for enforcement officers and setting up of special policy cells to deal with cases relating to infringement of copyrights.

 

Trade marks have been defined as any sign, or any combination of signs capable of distinguishing the goods or services of one undertaking from those of other undertakings. Such distinguishing marks constitute protectable subject matter. The Agreement provides that initial registration and each renewal of registration shall be for a term of not less than 7 years and the registration shall be renewable indefinitely. Compulsory licensing of trade marks is not permitted.

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 December 30, 1999.

This Act not only makes Trade Marks Law, TRIPS compatible but also harmonizes it with international systems and practices. Work is underway to bring the law into force.

Geographical indications of goods are defined as that aspect of industrial property, which adverts to the geographical indication referring to a country or to a place, situated there is as being the country or place or origin of that product. The given product should have a specific geographical origin and posse’s qualities or a reputation due to that place of origin. A place name is sometimes used to identify a product. This geographical indication not only refers to where the product was made, but more importantly, it identifies the product’s special characteristics which are the result of the products origin. Using the place name when the product was made elsewhere or when it doesn’t have the usual characteristics can mislead consumers, and it can lead to unfair competition. Some exceptions are allowed, for example if the name is already protected as a trademark or if it has become a generic term.

An industrial design is that aspect of a useful article, which is ornamental or aesthetic. It may consist of three-dimensional features such as the shape or surface of the article, or twodimensional features such as patterns, lines or color.

Industrial design is applied to a wide variety of products of industry or handicraft; from watches, jewellery, fashion and other luxury items to industrial and medical implements; from house ware, furniture and electrical appliances to vehicles and architectural structures, from practical goods and textile designs to leisure items, such as toys and pet accessories. A new designs law repealing and replacing the Designs Act, 1911 has been passed by Parliament in the Budget Session, 2000. This Act has been brought into force from May 11, 2001.

A “layout-design (topography)” is defined as the threedimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three dimensional disposition prepared for an integrated circuit intended for manufacture. The obligation to protect layout-designs applies to such layout-designs that are original in the sense that they are the result of their creators own intellectual effort and are not commonplace among creators of layout-designs and manufacturers of integrated circuits at the time of their creation. The exclusive rights include the right of reproduction and the right of importation, sale and other distribution for commercial purposes.

 

The protection must apply to information that is secret, which has commercial value because it is a secret and that has been subject to reasonable steps to keep it a secret. That does not require undisclosed information to be treated as a form of property, but it does require that a person lawfully in control of such information must have the possibility of preventing it from being disclosed to, acquired by, or used by others without his/her consent in a manner contrary to honest commercial practices. “Manner contrary to honest commercial practices” includes breach of contract, breach of confidence and inducement to breach, as well as the acquisition of undisclosed information by third parties who knew, or were grossly

negligent in failing to know, that such practices were involved in the acquisition.

The protection of new plant varieties is another aspect of intellectual property rights, and as such seeks to acknowledge the achievements of breeders of new plant varieties by giving them, for a limited period, an exclusive right. To obtain such protection, the new varieties must satisfy specific criteria. Variety is defined as a plant grouping within a single botanical taxon of the lowest known rank. Provided that the herb should be new or novel, distinct, uniform, stable and have a satisfactory denomination. The organization overseeing the protection of new plant varieties is referred to as UPOV (The International Union for the Protection of New Varieties of Plants.

IPR are considered to achieve economic, social and technological advancement that protects the ideas and stimulates innovation, design and helps to the creation of technology. The various types of IPR were designed to provide the formal basis of ownership of developed knowledge with benefit sharing between partners in innovation to create a niche of themselves. It also leads to wealth creation. The function of IPR regime is also to facilitate the transfer of technology in the form of joint ventures and licensing. The social purpose of IPR is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means of finance for further research and development of knowledge base; while basic social objective of IPR protection is that the exclusive rights given to the inventor, aimed at fine tuning the balance that has to be formed between the legitimate interests of rights holders.