Intellectual Property Rights Laws
In India, Intellectual property protection is covered by various laws, namely: The Copyright Act, 1957: It protects musical, dramatic,literary and artistic creations as well as cinema and sound productions.
IPR stands for Intellectual Property Rights. To understand about Intellectual Property Rights, it is important to understand about the Intellectual Property (IP). Intellectual Property refers to the property which has both moral and commercial value and that comes out from the human intellect that may be a creation of human minds, inventions, copyrights on musical, literary, dramatic, artistic works and symbols, names, images used in commerce.
Each of them is governed by different legislative framework.
Acts For Patent-
1. The Patents Act 1970
2. The Patents (Amendment) Act 1999, 26 March 1999
3. The Patents (Amendment) Act 2002, 25 June 2002
4. The Patents (Amendment) Act 2005
Acts For Trade Marks-
1. Trade Marks Act 1999
2. Trade Marks (Amendment) Rules, 2013
3. Trade Marks (Amendment) Act 2010
4. Trade Marks Act, 1999
Acts For Geographical Indications-
1. The Geographical Indications of Goods (Registration & Protection) Act, 1999
Acts For Design-
1. Design Act,2000
Acts For Copyright-
1. Copyright Act, 1957
2. Copyright Rules,2013
International agreements for IPR laws:
With the trade related Aspects of Intellectual Property Rights (TRIPS) Agreement of World Trade Organisation (WTO), the intellectual property rights attained the authority to enforce the law internationally. According to TRIPS, the intellectual property rights are:
1) Copyright and Related Rights:
a) Rights of artists, painters, musicians sculptors, photographers, and authors for copyright in their works;
b) Rights of computer programmes whether in source or object code for a copyright in their programmes and compilation data;
c) Rights of performers producers of phonogram’s and broadcasting organizations in respect of fixation on their programmes for copyright in their work.
2) Right of traders in their trade marks.
3) Right of manufacturers & producers on geographical indication in relation to such products and produce.
4) Right of designers for their distinctive design striking to the eye.
a) Right of the inventor for patent is his invention.
b) Rights of plant breeders and farmers.
c) Rights of biological diversity.
6) Right of computer technologist for their layout design of integrated circuits.
7) Right of businessmen for protection of their undisclosed information on technology and management.
Copyrights and Related Rights:
The subject-matter of copyright is the literary, dramatic and musical or artistic work, a cinematograph film and a sound recording. Literary work includes computer programmes, tables and compilations including computer databases.
The object of this right is not the material thing produced, but the form impressed upon it by the maker. The picture, in the abstract sense of the artistic form made by visible by that paint and canvas, belongs to him who made it.
Trademark is anything which identifies the origin of the goods or services. It can be a name, symbol, logo, colour, sound etc. Trademark symbolizes the value or goodwill associated with the goods and its specific source. It distinguishes one firm from others. Benefits of trademarks are several-fold:
It helps consumers to identify products with desirable attributes quickly. It encourages firms to improve quality of their product. In absence of any identification mark, it would be difficult to distinguish the duplicates from high quality products. This will lower the incentive of the firm to make high quality products as the returns would be same as that of inferior products. Trademark protection gives a “monopoly power” over the distinctive trademark in the sense that others are debarred from using the same or a confusingly similar trademark. However this kind of monopoly power does not involve any welfare loss as its aim is not to prevent similar products but only to prevent use of similar or deceptive marks with the aim of confusing the consumer. As a result, trademarks have mostly a positive incentive effect. It may seem that overall the economics of trademark protection and the intellectual property law of those marks are non-conflicting. There are, however, some grey areas:
Issue of umbrella branding (brand extension) whereby a company uses a trademark made famous by sale of one product to enter into another market. For example Reliance entering retail marketing, entertainment industry, restaurants etc. Such brand extension strategies raise legitimate competition policy issues as a firm is essentially using an advantage acquired in other market to sell its products. Consumers are likely to try the products associated with a well-known brand name rather than an unknown brand with same quality making it difficult for a new company to enter the market.
Compulsory licensing of trademarks – Competition policies forcing companies to license their trademark may result in shoddy work at premium price associated with the brand. This will also ruin the reputation associated with the brand. This would affect the firm ‘s incentive to provide consumers with high quality goods.
The subject-matter of a patent-right is an invention. He whose skill or labour produces the idea of a new process, instrument or manufacture has that idea as his own in law. He alone is entitled to use it and to draw from it the profit inherent in it.
A geographical indication is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999 has come into force with effect from 15 September 2003. GIs have been defined under Article 22(1) of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS) Agreement as: “Indications which identify a good as originating in the territory of a member, or a region or a locality in that territory, where a given quality, reputation or characteristic of the good is essentially attributable to its geographic origin.”
Industrial 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 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 and does not include any trademark.
Lay-out Designs of Integrated circuits:
In the case of layout designs of integrated circuits the property consists in the exclusive right to apply the layout design registered under statute in relation to the class of goods for which it is registered for a prescribed period. The right can also be licensed for use by third party or assign to any person
Production of undisclosed information:
Confidential information and know-how can be protected only so long as the owner is able to keep them secret and takes action against unlawful use of such information by others by an action for breach of confidence or contract.
The law relating to property and intellectual property has similarities regarding the nature the mode of acquisition, the nature of rights conferred, the commercial exploitation of those rights, the enforcement of those rights and the remedies available against infringement of those rights. Property rights include not all a person’s right but only his corporeal property rights consisting of material things. But intellectual property is in the nature of intangible incorporeal property. The rights of intellectual property are created by statute.
The invention may relate to a new product or an improvement of an existing product or a new process of manufacturing an existing or a new product. The acquisition of the monopoly of intellectual property, the conditions to be satisfied for acquisition, its duration, the licensing of this monopoly rights or their assignment to others are strictly governed by the statutes. The commercial exploitation of intellectual property may be assigned his rights or license them to industrialists for a lump sum payment or on a royalty basis the right of material property is transferred for sufficient consideration.
Infringement and Penalties:
As per the TRIPS Agreement, member countries of WTO may provide for criminal procedures and penalties to be applied in other cases of infringement of IPRs, in particular where they are committed wilfully on a commercial scale. In respect of trademark, the civil remedied available against infringement are an injunction, either damages or an account of profits and the delivery-up of the infringing articles for destruction. Civil and Criminal remedies are available against infringement of intellectual property.
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Trade Related Aspects of Intellectual Property Rights (TRIPS):
According to the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of World Trade Organisation, the Protection of Intellectual Properly provided by the following International Conventions shall be given in all Member Countries of WTO, mutatis mutandis.
i) The Paris Convention for the Protection of Industrial Property, 1967.
ii) The Berne Convention for the Protection of Literary and Artistic Works, 1971 along with Appendix.
iii) The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961, and
iv) The World Intellectual Property Organization (WIPO) convention.
Intellectual property lawyers:
Intellectual property lawyers are professionals trained in the legislation and regulations that protect individuals’ creations from intellectual theft.
According to the World Intellectual Property Organization (WIPO), a United Nations agency responsible for the protection of intellectual property worldwide, “Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.”
In regard to the law, intellectual property is divided into two categories: industrial property and copyright. Industrial property includes inventions and their patents, trademarks, industrial designs, and geographic indications of source. Copyright includes literary and artistic works such as novels, poems, and plays; films and musical works; artistic works such as drawings, paintings, photographs, and sculptures; and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.
Civil and Criminal suits can be filed depending on the case.