All you want to know about

Intellectual Property
Introduction
Intellectual Property (IP) deals with any basic construction of human
intelligence such as artistic, literary, technical or scientific constructions.
Intellectual Property Rights (IPR) refers to the legal rights granted to the
inventor or manufacturer to protect their invention or manufacture product.
These legal rights confer an exclusive right on the inventor/manufacturer or its
operator who makes full use of it’s his invention/product for a limited period of
time.

In other words, we can say that the legal rights prohibit all others from using
the Intellectual Property for commercial purposes without the prior consent of
the IP rights holder. IP rights include trade secrets, utility models, patents,
trademarks, geographical indications, industrial design, layout design of
integrated circuits, copyright and related rights, and new varieties of plants. It
is very well settled that IP plays an important role in the modern economy.

There are many types of intellectual property protection. A patent is a

recognition for an invention that satisfies the criteria of global innovation, and
industrial application. IPR is essential for better identification, planning,
commercialization, rendering, and thus the preservation of inventions or
creativity. Each industry should develop its speciality based on its IPR policies,
management style, strategies, and so on. Currently, the pharmaceutical
industry has an emerging IPR strategy, which needs better focus and outlook in
the coming era.

IPR is a strong tool, to protect the investment, time, money, and effort invested
by the inventor/creator of the IP, as it gives the inventor/creator an exclusive
right for a certain period of time for the use of its invention/creation. Thus, IPR
affects the economic development of a country by promoting healthy
competition and encouraging industrial growth and economic growth. The
present review presents a brief description of IPR with particular emphasis on
pharmaceuticals.
Meaning of intellectual Property
Intellectual Property can be defined as inventions of the mind, innovations,
literary and artistic work, symbols, names and images used in commerce. The
objective of intellectual property protection is to encourage the creativity of the
human mind for the benefit of all and to ensure that the benefits arising from
exploiting a creation benefit the creator. This will encourage creative activity
and give investors a reasonable return on their investment in research and
development.

IP empowers individuals, enterprises, or other entities to exclude others from

the use of their creations. Intellectual Property empowers individuals,
enterprises, or other entities to exclude others from the use of their creations
without their consent.

According to Article 2 of the WIPO (World Intellectual Property Organisation) –

Central Organisation for the protection of Intellectual Property Laws and the
expert organization of the UN, “”Intellectual Property shall include the rights
relating to literary, artistic and scientific works, inventions in all fields of human
endeavour, scientific discoveries, industrial designs, trademarks, service marks
and commercial names and designations, protection against unfair competition,
and all the other rights resulting from intellectual activity in the industrial,
scientific, literary or scientific fields.””

Meaning of intellectual property rights

The intellectual property right is a kind of legal right that protects a person’s
artistic works, literary works, inventions or discoveries or a symbol or design for
a specific period of time. Intellectual property owners are given certain rights by
which they can enjoy their Property without any disturbances and prevent
others from using them, although these rights are also called monopoly rights of
exploitation, they are limited in geographical range, time and scope.

As a result, intellectual property rights can have a direct and substantial impact
on industry and business, as the owners of IPRs one can enforce such rights
and can stop the manufacture, use, or sale of a product to the public. IP
protection encourages publication, distribution, and disclosure of the creation to
the public, rather than keeping it a secret and to encourage commercial
enterprises to select creative works for exploitation.

Nature of intellectual Property

 Intangible Rights over Tangible Property: The main Property that
distinguishes IP from other forms of Property is its intangibility. While
there are many important differences between different forms of IP, one
factor they share is that they establish property protection over intangible
things such as ideas, inventions, signs and information whereas intangible
assets and close relationships are a tangible object. In which they are
embedded. It allows creators or owners to benefit from their works when
they are used commercially.
 Right to sue: In the language of the law, IP is an asset that can be owned
and dealt with. Most forms of IP are contested in rights of action that are
enforced only by legal action and by those who have rights. IP is a
property right and can, therefore, be inherited, bought, gifted, sold,
licensed, entrusted or pledged. The holder of an IPR owner has a type of
Property that he can use the way he likes subject to certain conditions and
takes legal action against the person who without his consent used his
invention and can receive compensation against real Property.
 Rights and Duties: IP gives rise not only to property rights but also duties.
The owner of the IP has the right to perform certain functions in relation
to his work/product. He has the exclusive right to produce the work, make
copies of the work, market work, etc. There is also a negative right to
prevent third parties from exercising their statutory rights.
 Coexistence of different rights: Different types of IPRs can co-exist in
relation to a particular function. For example, an invention may be
patented, and the invention photograph may be copyrighted. A design can
be protected under the Design Act, and the design can also be
incorporated into a trademark. There are many similarities and differences
between the various rights that can exist together in IP. For example,
there are common grounds between patent and industrial design;
Copyright and neighbouring rights, trademarks and geographical
indications, and so on. Some intellectual property rights are positive
rights; the rest of them are negative rights.
 Exhaustion of rights: Intellectual property rights are generally subject to
the doctrine of exhaustion. Exhaustion basically means that after the first
sale by the right holder or by its exhaustion authority, his right ceases and
he is not entitled to stop further movement of the goods. Thus, once an IP
rights holder has sold a physical product to which IPRs are attached, it
cannot prevent subsequent resale of that product. The right terminates
with the first consent. This principle is based on the concept of free
movement of goods which is in force by consent or right of the rights
holder. The exclusive right to sell goods cannot be exercised twice in
relation to the same goods. The right to restrict further movements has
expired as the right holder has already earned his share by the act of
placing goods for the first sale in the market.
  Dynamism: IPR is in the process of continuous development. As
technology is rapidly evolving in all areas of human activities, the field of
IP is also growing. As per the requirement of scientific and technological
progress, new items are being added to the scope of IPR, and the scope of
its preservation is being expanded. Bio Patents, Software Copyrights,
Plant Diversity Protection, these are few names which reflect
contemporary developments in the field of IPR. The importance of
intellectual property and its mobility is well established and reflected at all
levels, including statutory, administrative and judicial.

Scope of intellectual Property

The scope of IP rights is broad; two classification modes are used to determine
whether IP is copyright or Industrial Property. Industrial properties include
patents or inventions, trademarks, trade names, biodiversity, plant breeding
rights and other commercial interests. A patent gives its holder the exclusive
right to use the Intellectual Property for the purposes of making money from
the invention.

An invention is itself a new creation, process, machine or manufacture. Having

copyright does not give you the exclusive right to an idea, but it protects the
expression of ideas that are different from a patent. Copyright covers many
fields, from art and literature to scientific works and software.

Even music and audio-visual works are covered by copyright laws. The duration
of copyright protection exists 60 years after the death of the creator. In other
words, an author’s book is copyrighted for his entire life and then 60 years after
his death. Unlike patent laws, there is no requirement of the administrative
process in copyright laws.

Why promote and protect Intellectual Property?

There are several reasons for promoting and protecting intellectual property.
Some of them are:

1. Progress and the good of humanity remain in the ability to create and
invent new works in the field of technology and culture.
2. IP protection encourages publication, distribution, and disclosure of the
creation to the public, rather than keeping it a secret.
3. Promotion and protection of intellectual Property promote economic
development, generates new jobs and industries, and improves the
quality of life.
Intellectual Property helps in balancing between the innovator’s interests and
public interest, provide an environment where innovation, creativity and
invention can flourish and benefit all.

Kinds of intellectual Property

The subject of intellectual property is very broad. There are many different
forms of rights that together make up intellectual property. IP can be basically
divided into two categories, that is, industrial Property and intellectual property.
Traditionally, many IPRs were collectively known as industrial assets.

It mainly consisted of patents, trademarks, and designs. Now, the protection of

industrial property extends to utility models, service marks, trade names,
passes, signs of source or origin, including geographical indications, and the
suppression of unfair competition. It can be said that the term ‘industrial
property” is the predecessor of ‘intellectual property”.

Copyright
Copyright law deals with the protection and exploitation of the expression of
ideas in a tangible form. Copyright has evolved over many centuries with
respect to changing ideas about creativity and new means of communication
and media. In the modern world, the law of copyright provides not only a legal
framework for the protection of the traditional beneficiaries of copyright, the
individual writer, composer or artist, but also the publication required for the
creation of work by major cultural industries, film; Broadcast and recording
industry; And computer and software industries.

It resides in literary, dramatic, musical and artistic works in ”original’ cinematic

films, and in sound recordings set in a concrete medium. To be protected as the
copyright, the idea must be expressed in original form. Copyright acknowledges
both the economic and moral rights of the owner. The right to copyright is, by
the principle of fair use, a privilege for others, without the copyright owner’s
permission to use copyrighted material. By the application of the doctrine of fair
use, the law of copyright balances private and public interests.

Patent
Patent law recognizes the exclusive right of a patent holder to derive
commercial benefits from his invention. A patent is a special right granted to
the owner of an invention to the manufacture, use, and market the invention,
provided that the invention meets certain conditions laid down in law. Exclusive
right means that no person can manufacture, use, or market an invention
without the consent of the patent holder. This exclusive right to patent is for a
limited time only.

To qualify for patent protection, an invention must fall within the scope of the
patentable subject and satisfy the three statutory requirements of innovation,
inventive step, and industrial application. As long as the patent applicant is the
first to invent the claimed invention, the novelty and necessity are by and large
satisfied. Novelty can be inferred by prior publication or prior use. Mere
discovery ‘can’t be considered as an invention. Patents are not allowed for any
idea or principle.

The purpose of patent law is to encourage scientific research, new technology,

and industrial progress. The economic value of patent information is that it
provides technical information to the industry that can be used for commercial
purposes. If there is no protection, then there may be enough incentive to take
a free ride at another person’s investment. This ability of free-riding reduces the
incentive to invent something new because the inventor may not feel motivated
to invent due to lack of incentives.

Trademark
A trademark is a badge of origin. It is a specific sign used to make the source of
goods and services public in relation to goods and services and to distinguish
goods and services from other entities. This establishes a link between the
proprietor and the product. It portrays the nature and quality of a product. The
essential function of a trademark is to indicate the origin of the goods to which
it is attached or in relation to which it is used. It identifies the product,
guarantees quality and helps advertise the product. The trademark is also the
objective symbol of goodwill that a business has created.

Any sign or any combination thereof, capable of distinguishing the goods or

services of another undertaking, is capable of creating a trademark. It can be a
combination of a name, word, phrase, logo, symbol, design, image, shape,
colour, personal name, letter, number, figurative element and colour, as well as
any combination representing a graph. Trademark registration may be
indefinitely renewable.

Geographical indication
It is a name or sign used on certain products which corresponds to a geographic
location or origin of the product, the use of geographical location may act as a
certification that the product possesses certain qualities as per the traditional
method. Darjeeling tea and basmati rice are a common example of geographical
indication. The relationship between objects and place becomes so well known
that any reference to that place is reminiscent of goods originating there and
vice versa.

It performs three functions. First, they identify the goods as origin of a

particular region or that region or locality; Secondly, they suggest to consumers
that goods come from a region where a given quality, reputation, or other
characteristics of the goods are essentially attributed to their geographic origin,
and third, they promote the goods of producers of a particular region. They
suggest the consumer that the goods come from this area where a given
quality, reputation or other characteristics of goods are essentially attributable
to the geographic region.

It is necessary that the product obtains its qualities and reputation from that
place. Since those properties depend on the geographic location of production, a
specific link exists between the products and the place of origin. Geographical
Indications are protected under the Geographical Indication of Goods
(Registration and Protection) Act, 1999.

Industrial design
It is one of the forms of IPR that protects the visual design of the object which
is not purely utilized. It consists of the creation of features of shape,
configuration, pattern, ornamentation or composition of lines or colours applied
to any article in two or three-dimensional form or combination of one or more
features. Design protection deals with the outer appearance of an article,
including decoration, lines, colours, shape, texture and materials. It may consist
of three-dimensional features such as colours, shapes and shape of an article or
two-dimensional features such as shapes or surface textures or other
combinations.

Plant variety
A new variety of plant breeder is protected by the State. To be eligible for plant
diversity protection, diversity must be novel, distinct and similar to existing
varieties and its essential characteristics under the Plant Protection and
Protection Act, 2001 should be uniform and stable. A plant breeder is given a
license or special right to do the following in relation to different types of
promotional material:

1. Produce and reproduce the material

2. Condition the material for the purpose of propagation
3. Offer material for sale
4. Sell the materials
5. Export the materials
6. Import the materials
7. The stock of goods for the above purposes
Typically, countries are protecting new plant varieties through the Sui Genis
system. The general purpose of conservation is to encourage those who intend
to manufacture, finance, or exploit such products to serve their purpose,
particularly where they otherwise do not work at all.

The enactment of the Protection of Plant Varieties and ‘Farmers’ Rights Act 2001
is an outcome of the India’sIndia’s obligation which arose from article 27(3)(b)
of the TRIPs Agreement of 2001 which obliges members to protect plant
varieties either by patents or by effective sui generic system or by any
combination thereof India declined to protect plant varieties by a sui generis
law, i.e. the Plant Varieties Act.

How an average person benefits?

There are many benefits of acquiring intellectual property rights. For example,
protecting your IP may result in:

1. The increased market value of your business – IP can generate income for
your business through licensing, selling or commercializing protected
products or services. This, in turn, can improve your stock market or
increase your profit. In the case of a sale, merger or acquisition,
registered and protected IP assets can increase the value of your
business.
2. Convert ideas into profitable assets – IP can help to convert creative ideas
into commercially successful products and services. For example, licensing
your patent or copyright can result in a steady stream of royalties and
additional income that can result in profitable assets.
3. Market the products and services of the business – IP is necessary to
create an image for your business like trademark, logo, or design of your
 product. So, it will help in differentiating the product and advertise and
promote it to the customers.
4. Increase export opportunities for the business – IP can increase the
competition in export markets. One can use their brands and design for
marketing foreign goods and are looking for franchising agreements with
foreign companies or to export your patented products. Consumers won’t
be confident buying means without products or reliable services,
international trademark protection and enforcement machinery to
discourage counterfeiting and piracy.

Need for Sui Generis protection in IPR

“Sui Generis” stands for its own kind and includes a set of laws which are
nationally recognized and ways of extending plant variety protection other than
through patents. TRIPs themselves do not define what the meaning of Sui
Generis is or should be. One of the main purposes of the sui generis protection
is that the exclusive monopoly granted by the State should enable the real
owners of traditional knowledge to be adequately compensated for their
contribution. It also refers to a law that can protect images contained in
construction, inventions, models, drawings, designs, innovations, figures,
emblems, petroglyphs, art, music, history and another traditional artistic
feeling.

One of the main objectives of Sui generis protection granted by that exclusive
monopoly of the State should enable traditional ‘owner’s knowledge for
adequate compensation of their contribution towards economic growth. In
general, it refers to a particular form of protection, a form that is specifically
adapted to a specific subject or specific circumstances, which is specifically
made for specific needs, priorities, and reality.

The “effective sui generis system” referred to in Article 27.3 (b) of the TRIPS
Agreement is clearly intended as an alternative to the patent system. In this
regard, it is useful to remember that the UPOV system was also established in
1961, which, as a special type of protection, would cover only plant varieties
and especially adapted plant varieties, instead of the patent system. In this
sense, the UPOV system was already conceived as an alternative to the patent
system in 1961 as a Sui Generis protection with different provisions.

The need to Develop a suitable regime in the case of IPR to include traditional
medicine adequate measures for ‘sharing profit”. Codified System and measures
of Traditional Medicines are TKDL(Traditional Knowledge Digital Library) like
databases is expected to play a major role in preventing for bio-theft but non-
codified.
Such as regulation of traditional medicine folklore practices, tribal practices etc.
New rules are urgently needed for creating patented ‘and Sui generis” system
for the preservation and promotion of our traditional knowledge Like some
national-level programs initiated by the National Innovation Foundation to
enable non-traditional traditional medical practices Identified, documented,
standardized and better used for therapeutic benefits as well as ailing mankind.

Can a person get IP rights for Tribal songs, if yes,

then how?
India is a diverse country when we talk about folk and ethnic culture with
ethnic, linguistic and religious groups with hundreds of origins and lifestyles,
divided over time, into parts and over the centuries. The notion of folklore in
India is associated with various art forms, mainly tribal and simple rural people,
rather than raw and ephemeral. Folklore and its laws are complicated by the
presence of hundreds of ethnic groups with their languages and dialects,
costume styles, paintings, mythology, legends, songs, music, dance and
theatre. To simplify this folklore, some common denominators such as
economics, community size, etc.

In recent times there has been a strong resurgence of interest in folk arts, and
indiscriminate entrepreneurs have used expressions of folklore for commercial
gain in India. These are not linked in any way to the origins of exploitative
communities, nor do they accept or contribute monetarily to the welfare of the
communities generated by their earnings. This is a sign of a lack of laws and
implementation despite the formulation of laws to protect folklore in India. The
WIPO program and the 1998–1999 budget were initiated to address growing
concerns about the intellectual property rights of indigenous knowledge holders.

The Constitution of India, Part III, Article 29 states that the protection of the
culture of minorities is a fundamental right, which states in a broad sense that a
citizen of any specific language, script or culture has the right to protect it. The
Constitution provides for the preservation of the cultural identity of the tribal
population, although Schedule 6 to Article 371 empowers such groups to have
an autonomous council for self-government in accordance with their customs
and traditions. Legislative bodies have the power to make laws to protect
traditions and customs.

There is also Article 51A (f) which makes it a fundamental duty of every citizen
to value and preserve the rich heritage of India’s culture, but no legislative, or
codified law, which means that it is written on paper only. The Constitution
provides for the preservation of the cultural identity of the tribal population,
although Schedule 6 to Article 371 empowers such groups to have an
autonomous council for self-government in accordance with their customs and
traditions.

Such councils have the power to make laws to protect traditions and customs.
In order to prevent commercial exploitation of folk cultures and to maintain
originality, it is necessary for folklore to establish intellectual property laws
today.

Conclusion
Intellectual property rights are monopoly rights that grant temporary privileges
to their holders for the exclusive exploitation of income rights from cultural
expressions and inventions. There must be good reasons for a society to grant
such privileges to some of its individuals, and so proponents of these rights
provide us with three widely accepted justifications to protect today’s inter-
global intellectual property rights.

It is clear that the management of IP and IPR is a multi-disciplinary task and

calls for many different functions and strategies that need to be aligned with
national laws and international treaties and practices. It is no longer fully driven
from the national point of view.

Different forms of IPR demand different treatment, handling, planning and

strategies, and individuals’ engagement with different domain knowledge such
as science, engineering, medicine, law, finance, marketing, and economics.
Intellectual property rights (IPR) have social, economic, technical and political
implications.

Leading rapid technology, globalization and fierce competition to protect against

infringement of innovations with the help of IPRs such as patents, trademarks,
service marks, industrial design registrations, copyrights and trade secrets. But
there is still a violation of intellectual property rights. The government is also
taking measures to stop them. There are laws regarding the prevention of
infringement of intellectual property rights.