Intellectual Property Law & Rights

** According to Halsbury’s Laws of England, ‘property’ is that which belongs to a person exclusively of others and can be subject to bargain and sale.

** Property is a very wide term to define. So many descriptions are given in law dictionaries to explain what is property. To summarise all these definitions, we can say that,

“Property means property of any kind, whether movable or immovable, tangible or intangible and includes any right or interest in such property.

Meaning of Intellectual Property :

Human beings are superior from other living creatures because they possess intellect {intelligence}. Creative brilliance of human being creates intellectual property; which in turn, when properly exploited, can earn wealth. Since it is essentially a creation of mind, therefore, it is called ‘Intellectual Property’.

** Intellectual Property of whatever species (kind) is in the nature of intangible property. In each case it consist of a bundle of rights in relation to certain material (important) object created by the owner.

** The law relating to intellectual property is based on certain basic concepts. e.g.,

Patent Law : Centres round the concepts of novelty (lack of anticipation) and inventive step (lack of obviousness).

Trade Marks : Concept of distinctiveness (distinguishable) and similarity of marks and of goods.

Copyright : Originality and reproduction of the work in any material(object/stuff) form.

Design Law : Novelty or originality of the design not previously published in India or any other country.

Semiconductor Integrated circuits Layout- Design :  It is a supplement act to designs. It fulfills the obligations of TRIPS agreement regarding the protection of semiconductor integrated circuits layout- designs.

Geographical Indication : Protection against false and misleading indication of goods which have acquired a special importance on account of their association with indication of source though it naturally found, agriculturally cultivated or manufactured.

Trade Secrets : Trade secrets are intellectual property rights on confidential information which may be sold or licensed.

Why legal protection for intellectual property :

Every human endeavor (effort) which promote economic, social, scientific and cultural development of society must be encouraged and the creator must be suitably rewarded by affording legal protection to his intellectual creation. Thus the IPR’s are legal rights governing the use of creations of human minds.

Evolution & Development of IPRs at international and national level

Industrial revolution in 19^th century gave motivation to invention.

The first multilateral effort was made through Paris Convention for Protection of Industrial Property held on 20^th March, 1883 in Paris. It was followed by Berne Convention for protection of Literary & Artist works in 1886 in Berne, Switzerland.

Together, these two international efforts can be termed as the ‘Magna Carta’ of IPR’s. Since then IPR regime has made a long journey and with the establishment of WIPO (World Intellectual Property Organization) and TRIPs (Trade Related Aspects of Intellectual Property), the IPR jurisprudence has been firmly established at international as well as national level.

There are two main bodies –

World Intellectual Property Organization (WIPO) under UN which administers around 7 treaties mentioned below.

Another relevant body is the World Trading Organization (WTO). ‘Trade Related Aspects of Intellectual Property (TRIPS)’ is administered by the WTO.

1. Paris Convention for Industrial Property, 1883 – Since it deals only with Industrial property, it covered only Patents and Trademarks. It was among the first treaties to recognize various principles of international trade like National Treatment, Right of Priority, Common rules etc.

2. Bern convention for literary and artistic works, 1886 – It provided for a copyright system. It doesn’t provide for any formality to claim protection. Protection is automatically accorded to any creation, provided work is original and other conditions under the treaty are fulfilled. It means that your work, if original, is already protected. You can claim that you have copyright.

3. Madrid Agreement, 1881 – Governs the international recognition of trademarks. Made international fillings easy and cheap.

4. Patent cooperation treaty, 1970 – It was earlier not possible for an entity to claim protection in different countries by single application. This was made possible as it aimed for co-operation and it was open for all parties to the Paris convention.

5. Budapest Treaty of 1980 – It made possible patenting for microorganisms. Claimant is required to deposit his invention on micro-organisms with an Authority – ‘International depository of Micro-Organisms’ under WIPO. He shall make all the adequate disclosures.

6. Trademark Law Treaty, 1994 – Harmonized administrative procedures and introduced ‘service marks’ in ambit of trade marks. Earlier trademarks were accorded only to goods.

7. The Hague agreement concerning the International Deposit of ‘Industrial Design’ 1925 – It created the International Design Bureau of WIPO.

Agreement on Trade Related Aspects of Intellectual Property (TRIPS) –

It is a landmark and most comprehensive treaty on Intellectual property. While earlier treaties’ subject matters were specific, TRIPS deal with 8 kinds of property rights – Patents, Trademarks, trade dress, Copyrights, Industrial Designs, Plant Varieties, Integrated Circuits and layouts, and Geographical Indication.

Further, almost all countries are party to TRIP. In earlier treaties only limited countries participated.

It also provides an enforcement mechanism which was not available in WIPO treaties. It mandated all member countries to make their domestic laws compliant to TRIPS.

India passed certain laws and amended others. India’s IPR regime now stands fully compliant to TRIPS. For e.g. India amended patent law in 2005 to provide ‘product’ patent protection. Earlier protection was available only to ‘processes’.

TRIPS were the results of discussions held in the Uruguay round which led to the formation of WTO. This treaty is an offshoot (branch) of the General Agreement on Trade in Goods (GATT). This treaty provided a robust(strong) Dispute Resolution Mechanism and stringent penal provisions under auspices(protection) of WTO.

What Is the General Agreement on Tariffs and Trade (GATT) ? :

The General Agreement on Tariffs and Trade (GATT), signed in 1947 by 23 countries, is a treaty minimizing barriers to international trade by eliminating or reducing quotas, tariffs, and subsidies. It was intended to boost economic recovery after World War II.

GATT was expanded and refined over the years, leading to the creation in 1995 of the World Trade Organization (WTO), which absorbed the organization created to implement GATT. By then, 125 nations were signatories to its agreements, which covered about 90% of global trade. The General Agreement on Tariffs and Trade (GATT) was signed by 23 countries in October 1947, after World War II, and became law on Jan, 1, 1948.

The purpose of the GATT was to make international trade easier. The GATT held eight rounds in total, from April 1947 to December 1993, each with significant achievements and outcomes. In 1995, the GATT was absorbed into the World Trade Organization (WTO), which extended it.

Further, every treaty under WTO is based some principle which are –

National Treatment – No foreign products, once they enter domestic territories, shall be discriminated against in any manner. This also applies to intellectual property. Members must accord similar treatment to foreign creations, as they do to domestic ones.

Most Favored Nation – If a member provides some privilege, favorable treatment or exemption to another country or group, then other members must get similar favorable treatment.

Right to priority treatment – If a similar patent application has been filed in two different countries, then the prior applicant has the right to the patent.

Concept of Minimum Standards – This treaty provides for a minimum level of protection that every member should provide to intellectual property. Members have discretion to provide more protection than minimum standards.

Universal Copyright Convention, 1952 – This convention is administered by UNESCO. This exists simultaneously with the Bern Convention. This treaty provides for procedural formalities for filing and recognition of copyright. As Bern convention provides for an automatic route to copyright, this treaty has lost its relevance.

India’s legal framework caters to the following areas of intellectual property:

Trade Marks, Patents, Copyrights, Industrial designs, Geographical indications, Layout designs of integrated circuit, Varieties of plant,Information Technology and Cybercrimes, Data protection.

Intellectual properties rights in India is governed under the following Acts:

Trade Marks Act, 1999

The Patents Act, 1970 (amended in 2005)

The Copyright Act, 1957 (amended in 1999)

The Designs Act, 2000

The Geographical Indication of Goods (Registration and Protection) Act, 1999

The Protection of Plant Varieties and Farmers Rights Act, 2001

The Information Technology Act, 2000

The Semiconductor Integrated Circuits Lay out Designs Act, 2000