COPYRIGHT

Examine the law relating to assignment and licensing of copyright.

Introduction
The concept of protection commenced with the protection of the rights of authors of books/written works but
with due progress in technology, the mode of exploitation has started to occur in numerous ways. Gone are
the days, when the owner of the work purely exerts ownership and earns revenue as an outcome of his rights,
through the concepts such as assignment & licensing by mutual sharing of benefits even a 3rd party can enjoy
the ownership or certain rights for a specific period.

Copyright Assignment
According to the copyright assignment, the owner of the work has the right to assign the rights he owns, to
any other person. By the process of assignment, the assignee is entitled to all the rights of the owner.
For example, in case an assignor of the copyright is entitled to any rights which form part of that copyright,
he shall be regarded as its owner for those rights. The assignor, when it comes to unassigned rights, also
becomes the owner of the copyright. If an assignee dies before the work begins, his legal representatives will
be entitled to receive the benefits of the assignment. The concept of assignment is laid down under Section 18
of the Copyrights Act of 1957.
In the case of Video Master v. Nishi Production, 1998(1) ALL MR 620, the main issue which was brought into
the limelight before the high court of Bombay was whether the right to satellite broadcasts would also be
included in the assignment of video rights. The Court expressed its opinion by mentioning that they find
merit in the contentions of the defendant as there are numerous types of communication such as video
telecasting, and satellite broadcasting etc., It was found that the film's owner had a unique copyright that he
could pass on to other persons. Consequently, the owner of the film has a separate right to the satellite
broadcast copyright, and the video copyright assigned to the applicant does not include that right.

Mode of Assignment
Under Section 19 of the Copyrights Act of 1957, an assignment will be considered to be valid only if it is
expressly mentioned in written form duly signed by the assignor or his agent. The assignment of copyright in
a work should set out the works, as well as the types of rights assigned and their duration and territorial
scope. In addition, it must also necessarily include the royalty payment to be done if there are any to the
assignor or his legal heirs during the pendency of assignment and under the terms agreed between the
parties, this assignment shall be reviewed, extended or terminated.
For example, in case the period of the assignment is not expressly mentioned anywhere, then it will be
automatically considered as 5 years from the date of assignment. It shall be construed as applicable in the
entire territory of India if the territorial scope of the assignment is not expressly mentioned anywhere.
In addition, Section 19(8) states that the copyrighted work entrusted in breach of the terms and conditions
under which rights are assigned to a specific copyright organisation where the author is a member shall be
void.
As per Sections 19(9) & 19(10), the assignment of copyright does not affect the author's right to an equal
share of the royalties and the remuneration due for the use of his protected work to make a cinematograph
film or sound recording.
On the other hand, under Section 19(a), if the assignee blatantly fails to make use of the rights assigned to
him, if it is found that it is not because of any act or omission by the assignor that this failure has occurred,
and even if a complaint is received from the assignor, then the Appellate board may cancel the assignment
after examining it as necessary.
In the case of Saregama India Ltd v. Suresh Jindal, it was laid down that the owner of the copyright in the
future work may assign the copyright to any person, either wholly or partially, for the whole or part of the
copyright or any part of the copyright for the purposes of this Act, and that the assignee for this Act shall be
regarded as the copyright holder.

Copyright Licensing

Under the concept of licensing of copyright, the author or the owner who possesses exclusive rights over a
work is vested with the right to grant the license to any other party. As contained under Section-30 of the
Copyrights Act of 1957, which elucidates that any author or owner who owns an exclusive right over a work
has the right to grant a license provided that the license must be in written form which must be duly signed
by him or his authorizing agent.
It is significant to note that a license shall be granted for either a present work or future work and the
licensing period will come into effect after the work comes into existence.
In case, if the licensee of a future work dies before that work comes into existence, its legal representatives
are entitled to benefit from his licence if it is not otherwise provided for.
A license is typically more or less similar to that of an assignment deed. It is important to note down the
particulars which it contains in it.
They are mentioned below:
• Time period of the license
• The rights which have been licensed
• Geographical limit or extent of the license
• Amount of royalty to be paid as consideration
• Clauses & Conditions pertaining to termination, revision & extension.

In general, voluntary licenses are of 5 types namely:

Exclusive- Under Section 2(j) of the copyrights act, the term exclusive licence has been standardly defined as
a licence, which grants rights in respect of a copyrighted work to the licensee and persons authorized by him
but does not apply to any person outside that group.
Non-Exclusive-The right of exclusion is not granted under this provision. It's a matter of giving the authority
to do something that otherwise would have been an infringement. For example, if the proprietor grants an
exclusive right, he relinquishes all of his rights and retains no entitlement to economic rights that have been
transferred.
Co-exclusive- In this case, the licensor grants licences to a maximum of one licensee but recognises that only
a limited number of licensees will be granted licences.
Implied- Under this type, the author is implicitly allowing or authorizing the use of his work. For example, if
the owner is aware of the fact that someone was taking advantage of his talents, for instance, but he didn't
act.
Solo- It is a type where the licensor and licensee can exclusively use it for the exclusion of any other 3rd party.

Statutory License
On the other hand, the concept of statutory license is different as it does not focus on the conduct of the
licensor. It attempts a wholesale expropriation of owner autonomy, once the work fits within the broader
class of works that can be so licensed.
There are currently 2 types of statutory licenses which are mentioned below:
• Cover version recording license as contained under Section 31C
• Broadcasting license as contained under Section 31D.

Assignment v. Licensing
• Under a licensing agreement, the owner of the work grants a license to utilize his work in a certain way but
the ownership or title of the work vests with himself. On the other hand, in an assignment, the owner of the
work transfers or assigns all the rights he possesses over the work including the title.
• The concept of licensing permits long-term compensation & reversal of rights if it has been found that the
deal was not profitable as it desired to be. In an assignment, there is no such scope for the reverse of title or
the ownership as it stipulates payments to be made upfront.
• A licensee is permitted to make alterations to the extent that restrictions are imposed on him. Whereas, in
an assignment making alterations are not allowed as the complete rights of the owner are transferred to the
assignee.
• Under the concept of licensing, there is no requirement for notification. Whereas in an assignment, the
assignee has to apply for a transfer of ownership. He becomes the owner of the work only after the registrar
receives the application comprising all the relevant information.

Benefits of Licensing
• It potentially helps to enhance marketing.
• It helps to generate higher revenues at less cost of production.
• It helps in the commercial expansion of business. Through the process of licensing, introducing work in
foreign markets are much more simplified.
• Investments are comparatively low but there are payments in return in the form of royalties.
• Flexible in nature as the parties are vested with the right to make alterations depending upon the
circumstances.

Benefits of Assignment
• It helps to increase financial gain as the owner of the work can assign his complete ownership to a 3rd party
for a lump sum consideration.
• It helps in mitigating risks and reduces costs.
• The assignment provides clarity about the ownership in case multiple parties claim ownership rights.

Compulsory License
Compulsory licenses are those which create an impact on the identity of the licensee and other party i.e., the
owner who is willing to do business on certain terms and conditions including payment of royalty etc. In
simple terms, an unjustified refusal to deal with a person is usually the cause of a compulsory licence.
The proprietor retains certain rights of choice in terms of applying for adequate licensing agreements with
those he considers appropriate, but is also allowed to determine the conditions of such contracts without
undue delay. The provisions related to the concept of compulsory licensing are covered under Sec 31A & 31B
of the copyrights act.
Under Section31A of the copyrights act, if an author/owner of the work is found to be dead or cannot be
found anywhere left untraced, then in such case any person may file an application before the copyrights
board seeking for licence to publish it. It is important to note that the person who intends to file such an
application must publish his proposal in one issue of a newspaper in a particular language.
Also, the application must be filed in the prescribed form along with the appropriate fee. On the other hand,
under Section 31B of the copyrights act, any person who is working for the benefit of disabled persons based
on profit may file an application in the prescribed form before the concerned board seeking a compulsory
license to publish any work in which ownership right prevails.

Conclusion
Thus, based on the above-mentioned information it is evident that the terms 'assignment' and 'licensing' hold
significant importance in the concept of IP rights. As mentioned earlier, after the process of assignment the
assignee consequently becomes the owner whereas the licensee is allowed to exercise limited rights. Both
have their pros and flaws but it's nevertheless to mention that they play a pivotal role in the concept of
intellectual property rights.

Rights Of Performers Under Indian Copyright Law

Earlier the rights of performers were not granted protection under Copyright Jurisprudence. The
performance done by an actor in a cinema or the performance of a singer in a song recording were not
accorded any protection. In 1994 the works the concept of performers rights under Copyright Jurisprudence
was recognized. The Rome Convention of 1961 provided recognition to the concept of performers rights. It
was said that performers have rights and without their consent, their content cannot be broadcasted. Section
38 and 39 of the Copyright Act recognize the concept of performer rights.
�
The First Law, related to Copyright was enacted by the British, it had no concept of the rights of performer.
Even in the Copyright Act of 1957 there was no mention of performer rights. In the case of�Fortune Films
v s Dev Anand�Bombay High Court said that there were no performer rights as per Indian Copyright Law.

In 1994, by way of amendment Sections 38, 39 and 39 A were introduced which dealt with the concept of
performer rights. Indian Law recognized the concept of performer in an exhaustive manner. Section 2(q)(q)
says that actor, musician, dancer, acrobat, snake conjurer, a person delivering lecture or making any kind of
performance.

Origin Of Performers Rights:

In earlier times, the role of the individual in broadcasting the content was not recognized. In the year 1961,
with the enactment of the Rome Convention, the concept of performer rights was accorded recognition. As
per the terms of this Convention performers works were protected for the duration of 20 years. Article 7 of
the Convention accords protection to the rights of the performers

1. Performers have the right to prevent others from broadcasting or communicating to the public by
means other than broadcasting without their consent
2. They have the right to prevent others from fixation of their unfixed live performance without taking
their consent.
3. They have the right to prevent others from reproduction of their live performance without their
consent.
4. They have the right to prevent the commercial exploitation of their performance for any other
purpose, for which the consent is not obtained.

What Are The Rights Of The Performer Under The Copyright Act

1. Performer has right to make sound or visual recording:

A performer has the right to make the sound or visual recording. He can also give consent to other
people to record the live performance. Without the consent of the performer, no other person can
make use of that sound recording. But, in case, their performance is for the cinematograph film and
the written agreement is made consenting the incorporation of hisperformance in such film then all
the rights will, therefore, be enjoyed by the producer of such film irrespective of whether the
 performer is a singer or actor

2. Performer has the right to produce the sound or visual recording:

A performer may also become producer of the sound or visual recording and can enjoy all the rights
that a producer enjoys such as reproducing a number of copies, giving the copies for commercial
rental, communicating the work to the public etc. But for that purpose, the performer must have the
prior permission from the individual copyright owner like lyricist and music composer and
should have the certificate related to the sound or visual recording by the competent authority.

3. Performer has the right to broadcast performance:

Performers can prevent others from broadcasting their live performance. In case the consent of the
performer is not taken and any other individual is broadcasting his performance then it will amount
to copyright infringement. But, if the performance is for the cinematograph film and then rights will
be enjoyed by the producer of the cinematograph film but if the performance is commercially
exploited for other purposes than such film then the performer has the right to claim the royalties.

4. Performer has the right to communicate the work other than by broadcast:
Performer can use other means to communicate with the public than by means of broadcast.
Broadcast means communication to the public either by means of wireless diffusion or by wire.

Judicial Pronouncements Vis A Vis Performer Rights:

In the case of�Neha Bhasin vs Anant Raj Anant[1]�the Bombay High Court directed the showing of the
Plaintiffs name as the playback singer, and not as the backup singer as it was successfully proved by the
Plaintiff that she had sung the song in all versions. The Court opined that although she did not have
performers rights in the song, as that it is available only for live events, she had moral rights in the song and
had a right to have her name displayed as the lead singer.
In the case of Super Cassettes Industries v. Bathla Cassette Industries,�the Delhi High Court held
that copyright and performers rights are two different things and in case the song is re-recorded then the
prior permission of the original singer is required.

Remedies against Performer�s Rights Infringement

The remedies are available against the infringer of performer�s right in Section 55 and also from Section 63
to 70 of the Copyright Act. The following remedies may be availed:

Civil Remedies:
The owner of the performer�s right or his exclusive licensee may go to the court and obtain the injunction
either temporary or permanent or they may also claim damages.

Criminal Remedies:
Not only civil remedy but criminal remedy is also available against the infringer. The infringer may be
sentenced for six months which may extend up to three years or may be liable to pay a fine of Rs. 50,000 to
Rs. 2,00,000 or both.

Anton Pillar Order:

Sometimes the court gives permission to the plaintiff, on an application by him, to enter into the defendant�s
place along with the attorney and inspect the relevant documents. This is necessary because the defendant
may remove the documents from his premises if he knows before.
Conclusion
The rights that conferred to the performers are a very encouraging step in the field of Copyright law. They
always had a special place in the copyright work but their work was never given the kind of appreciation that
was required. Now their rights are protected under Copyright law and also this strengthens their financial
position as well.

Right of Broadcasting Organization under Copyright Act

Right to Broadcast the Performance –

Performer has been given the sole right to decide if he wants to communicate his performance to the general
public.9

Performer can also choose to stop the broadcasting of his work, if the work been broadcasted is different from
the work for which his consent has been taken to broadcast. Moreover, if the broadcast is without the consent
of the performer, the broadcast will be considered illegal under the act.

However, the work that is being broadcast or communicated to the public must not include entire or any part
of the performance which has already been broadcasted by the performer or the broadcasting organisation.10

Right to Royalty –

Major amendment that has been brought to the rights of the performer through The Amendment Act of 2012
was the idea of introducing the concept of royalties for the performer so as to protect his livelihood and
provide him the benefits for his work. As per the act, the performer shall be entitled for royalties, in case he
takes the decision of giving his performance or work for commercial use in any form.11

It has also been provided that, if a performer once gives his consent, by the way of a written agreement, to
incorporate his performance in a cinematograph film, he cannot afterwards object the enjoyment by the
producer of the film of the performer’s right, in the same film, unless there exists a contract to the contrary.

Moral Rights of The Performer –

Another major amendment made in the performer’s right by The Amendment Act of 2012 was brought by the
way of Section 38B, which replaced the earlier provisions under the section 38(3) & 38(4). Section 38B states,
even after the assignment of his right, may it be wholly or partially, the performer still has the rights to the
following under the Act :

(a) Right to claim to be identified as the performer of his performance unless where the omission has been
dictated by the manner of the use of the performance

(b) Right to restrain or claim damage in respect of any distortion, mutilation or other modification of his
performance that would be prejudicial to his reputation.

However, it has also been clarified in the same section that mere removal of any portion of a performance for
the purpose of editing, or to fit it within a limited duration, or any other modification required for purely
technical reasons shall not be deemed to be prejudicial to the performer’s reputation.
Right to The Performance–

The act not only provides with the copyright and protection of performer’s right during the life of the
performance but also for a long time period after the performance. The performer’s right shall subsist until
‘fifty years’ from the beginning of the calendar year next following the year in which the performance is
made.1

Broadcast & Broadcasting Organization

Literal meaning of the term “broadcast” is the transmission or distribution of programme or information or
audio or video content to a dispersed audience via radio or television.

As per the section 2(dd) of The Copyright Act, “broadcast” means “communication to the public—

(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual
images; or

(ii) by wire, and includes a re-broadcast.”

Broadcasting organisation, such as radio or television are also popularly known as electronic media, play a
vital role in the society. They are powerful media for entertainment, dissemination of information,
knowledge, art and culture. Such broadcasting organisation have also been provided with the rights to protect
their interest after the Amendment of 2012 in The Copyrights Act, other than the performers.

Rights of The Broadcasting Organization

Just as performer’s rights have been protected by the legislature undee the Section 38 of the act, similarly,
broadcaster’s rights have also been protected by the Act under section 37.

Every broadcasting organisation shall have a special right to be known as “broadcast reproduction right”
in respect of its broadcasts.14

Right to The Broadcasting for A Term –

Just like performer’s right has been granted for an entire term, similarly, broadcaster’s rights have also been
provided for an entire term. The broadcast reproduction right shall subsist until ‘twenty-five years’ from the
beginning of the calendar year next following the year in which the broadcast is made.15

The Amendment Act of 2012 might have introduced the affirmative rights for the performer by omitting the
provisions in which negative rights were given but the same is not the case with the rights of the broadcasting
organisation. Rights protecting the broadcaster are given in the form of the infringements that would be
considered during the continuance of the broadcast reproduction right, with regards to the broadcast.

Any person who has not obtained the licence from the owner of the work and does any of the following acts,
in regards to the broadcast or any substantial part of it will deemed to have infringed broadcast
reproduction right of the broadcaster : 16

(a) re-broadcast the broadcast

(b) causes the broadcast to be heard or seen by the public on payment of any charges
(c) makes any sound recording or visual recording of the broadcast.

(d) makes any reproduction of such sound recording or visual recording where such initial recording was
done without licence or, where it was licensed, for any purpose not envisaged by such licence

(e) sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual
recording referred to in clause (c) or clause (d), subject to the provision of Section 39.

Judicial Pronouncement Related to The Chapter VIII of The Copyright Act, 1957

✓ The very first case, Fortune Films International v. Dev Anand16, where the issue of whether the copyright
of the work of the actor has been recognised or protected by the Copyright Act was raised in the Bombay High
Court. The Honourable Supreme Court held that an actor in a film has no rights over his performance in the
film and thereby denied the existence of the rights of the performers under the Indian copyright laws back
then.

✓ In the case of Super Cassettes Industries v. Bathla Cassette Industries17, the Delhi High Court stated that
since the incorporation of the Amendment Act of 2012, performer’s right and copyright are two different
concept. This case established a step ahead towards the recognition of the performer’s rights by stating that
the rerecording of any work or song without the consent of the original maker of the song is an infringement
to the performer’s rights.

✓ In the case of Neha Bhasin v. Anand Raj Anand18, issue in matter was related to the live performance. The
Delhi High Court held that every performance has to be live in the first instance, whether it is before an
audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the
performer, then the performer’s right is infringed.

✓ In the lastest case of Star India Pvt. Ltd. V Piyush Aggarwal19, the issue that was raised was whether a
cricket match would constitute a “performance” or not under the copyright act. The Delhi High Court
observed that a cricket match will be considered a “performance” and therefore, cricketers, commentators
and umpires are performers under the Act.

Copyright Office and Registrar of Copyright

The Registrar of Copyrights is the head of the Copyright Office under the Department of Industrial Policy
and Promotion of the Ministry of Commerce and Industry and in-charge of implementation of Copyright Act.
The appointment of the Registrar is done by the central government. The registrar of copyrights is also the
secretary of the copyright board.

Copyright Office

Copyright symbol

Section 9 of the Copyright Act requires for establishment of an office to be called the Copyright Office for the
purpose of the Act. The Copyright Office is to be under the immediate control of a Registrar of Copyrights to
be appointed by the Central Government, who would act under the superintendence and directions of the
Central Government.[2] The Copyright Office has been set up to provide registration facilities to all types of
works and is headed by a Registrar of Copyrights and is located at G-30, August Kranti Bhawan Bhikaji Cama
Place, New Delhi, 110066. As of October 16, 2019 the Copyright Office has been relocated to IPO (Intellectual
Property Office), Plot No. 32, Sector 14, Dwarka, Delhi, 110075 from G-30, August Kranti Bhawan, Bhikaji
Cama Place, New Delhi, 110066.[3] The applications for registration of works can be filled at the counter
provided at the Copyright Office from 2.30 P.M. to 4.30. P.M. from Monday to Friday. The applications are
also accepted by post. On-line registration through “E-filing facility “ has been provided from 8 September
2009, which facilitates the applicants to file applications at the time and place chosen by them.[4]

Types of Works

The types of work Copyright office is involved with includes:

1.Artistic Work 2. Literary Work

3.Software 4. Music

5.Sound Recording 6. Cinematograph films

7.Lyric 8. Lyric Book

9.Story Book 10. Story Themes

What are the rights of an author under Copyright law?

Copyright was not as prominent in the past. However, as the press came, copyright came along, for the
chances of copying information increased multi-folds. Before the invention of the press, copying of text was
very difficult and the process was very slow as well. The generation of material was for non-monetary
purposes but after press took over, monetization of the books became popular. The writers started to sell the
books. But there was a hurdle in the process. The copies of books became common which was a cause of a
headache for the authors. Thus the importance of copyright was felt. This led to the printing of books legally
without hurting the interests of the author.

The question thus arises that ‘What basically is a copyright?’

“Copyright is an intellectual property right and is the creation of a statute.” Copyright can protect the rights of
the author. The first copyright law was passed in 1914. It was based on the British legislature. The copyright
law is known as the Copyright Law, 1957 which was again amended in 1999. India is also a signatory of the
International Copyright Order of 1991. Subject to section 17 of Copyrights Act, the first owner of copyright is
the person who is either the originator of the data or to whom the copyright has been sold.

What is copyright protection?

Since the need for protection for copyright has increased, it is important to understand it. Copyright was
created to protect the rights of the creators to prevent their data from reproduction, dissemination, display
and generating profit from their work. Infringement of data for profit is a legal offense. They must pay some
compensation or fees for copying the data.
Copyright protects social, legal and economic interests of the authors. The author can derive
economic benefits by exploiting his works. His rights can be classified as:

1. Right to reproduce work

This is the most fundamental right of the author. As far as the Copyright Law of 1957 states, the author can
reproduce his work or authorize others to do so. No one other than the author can reproduce his work
without his prior permission. In the case of Star India (P) Ltd. v. Leo Burnett India (P) Ltd., the
points discussed were can the works of writing be copied in cinematography. Tide came out with the logo
‘Kyon Ki Bahu Bhi Kabhi Saas Banegi’ which sparked a controversy because it resembled the title of a show
‘Kyon Ki Saas Bhi Kabhi Bahu Thi’. Held, it was against the law.

2. Right to adaptation and translation of work

The author has the right to convert his work into other forms. Any work can be adopted in different forms by
the author like a book can be converted in movies, play etc. or from two-dimensional form to
three-dimensional form. Once the work has been adapted, the author has full right to control the production.
If the ones reproducing the work want to abridge it, they need to take permission from the author.

3. Right to distribute copies of work or commercial rental

It implies lease, sale, rental, lending etc. of the work to the public. Changing of possession of the copies of
work by any means is distribution. It is the exclusive right of the owner of the work. The doctrine of
exhaustion is applicable in this case. It states that the right of the author to distribute the copies of his work
extends only to the first sale of new copies and not beyond that. However, after the exhaustion of the
copyright term, the right is lost.

4. Right of public performance

Only the author of the copy has the right to public performance unless otherwise said or authorized by him.
Anyone other than the author doing so without his prior consent must be heavily penalized. S/he can file a
suit against any person for doing so without his consent.

5. Right to broadcast work

Broadcasting means the transmission of data through wireless networks. The Indian copyright law also
defines the term ‘broadcast’ as communication to the public by any means of wireless diffusion, whether in
any one or more of the forms of signs, sounds or visual images; or by wire and includes a re-broadcast.

The author has additional rights to preserve and protect his moral rights. The author can protect his
intellectual property under the copyright law.

Objectives of Copyright Act 1957

The Copyright Act of 1957 in India is designed with two primary objectives:

● Firstly, it aims to promote progress in science and useful art by rewarding authors for their creative
efforts.
● It grants authors the exclusive right to their expressive works, such as writings, songs, designs, and
artworks, as well as film and sound recordings.
 ● This protection encourages creators to invest their time, money, and talent in bringing their works to
the public.
● Secondly, copyright law allows for the free expansion of knowledge and ideas. It strikes a balance by
permitting others to build upon the concepts and information presented in a copyrighted work.
● Certain uses of copyrighted content are also allowed without the need for explicit permission.
● The Copyright Act of 1957 specifies the scope of these acceptable uses.
● The Act includes provisions that ensure a harmonious balance between the rights of copyright owners
and the public interest.
● It aims to benefit society as a whole while safeguarding the fruits of individuals’ efforts, labor, talent,
or tests.
● As highlighted in the Sulamangalam R. Jayalakshmi v. Meta Musicals case (2000), the purpose of
copyright law is to protect creators’ creations from unauthorised appropriation by others.
● Overall, copyright law seeks to encourage creativity, reward authors, and foster the expansion of
knowledge while maintaining a fair and equitable balance between the rights of creators and the
broader welfare of society.

Some More Objectives

The Copyright Act of 1957 has several objectives, including:

● To protect the rights of creators of original works of authorship. This includes literary,
dramatic, musical, and artistic works, as well as cinematograph films, sound recordings, and
broadcasts.
● To encourage the creation of new works of authorship. Copyright protection provides
creators with the incentive to create new works, knowing that their work will be protected from
unauthorised copying and exploitation.
● To ensure that the public has access to copyrighted works. Copyright protection does not
prevent the public from using copyrighted works. However, it does require that the public obtain
permission from the copyright owner before using the work in certain ways. This helps to ensure that
copyright owners are compensated for their work and that the public has access to a wide range of
creative works.
● To promote the development of science and the useful arts. Copyright protection can help to
promote the development of science and the useful arts by encouraging the creation of new works that
build on existing knowledge.
● To balance the interests of copyright owners and the public. Copyright law seeks to balance
the interests of copyright owners, who have the right to control the use of their work, and the public,
which has the right to access copyrighted works. This balance is achieved through a number of
provisions in the Copyright Act, such as the fair use doctrine and the first-sale doctrine.

The Copyright Act of 1957 is an important piece of legislation that helps to protect the rights of creators,
encourage the creation of new works, and ensure that the public has access to copyrighted works.

The act also helps to balance the interests of copyright owners and the public.

Conditions for Copyright Protection

Copyright does not protect ideas or facts themselves. Copyright does protect the selection and arrangement of
ideas: i.e., their original and creative expression, as soon as they are fixed in some tangible form. The
Requirements to Claim Copyright Are:

1. Fixation
The ideas must be fixed in some tangible medium of expression. Copyright protection is automatic,
although there are benefits to officially registering your work with the Copyright Office. Copyright
protection is immediate, as soon as the expression is fixed in tangible form. That is, it applies to drafts
and completed works, both published and unpublished.
2. Originality
A fixed expression of ideas is protected by copyright if and only if it is original.
Neither quality nor uniqueness is required.
1. Even bad work is subject to copyright protection.
2. Works that are similar, but independently created, are individually subject to copyright
protection.
3. Minimal Creativity
Hard work is not enough to gain copyright protection.
At least minimal creativity is also required.
Examples:
1. A list of parts for a child’s toy is probably not subject to copyright.
a. A sheet of instructions for assembling a toy from its parts may be subject to copyright.
2. A complete telephone white page is not subject to copyright.
a. A categorized yellow pages directory may be subject to copyright.
b. A web-site that provides the means for searching a white pages database may be
subject to copyright.

Copyright protection is not provided for;

1. Works not fixed in tangible form.

2. Titles, names, short phrases, slogans, methods, factual information, symbols or designs – however,
3. trademark law may provide some protection to these works.
4. Ideas or concepts, procedures, process, plans, principles, discoveries, and guidelines – however, in
such cases patent or trade secret law may provide protections to these works.
5. Works that are already in the public domain and original authorship is not traceable are not covered
under copyright law.
6. Copyright works that are already expired.

Rights of Copyright owner

Right of Reproduction

This is the most prominent right which is acquired after the copyright protection. This right authorizes the
person having such copyright to make copies of the protected work in any form. In the modern context
copying, a song on a Compact Device or any sound and visual recording can be considered as a reproduction
of the content. Prior to copying the permission of the author is required unless it can be shown that such
copying is not intended to make any commercial benefits out of it.

Right to Distribute
Right to distribute is an off-shoot of the right of reproduction. The person who owns the copyright owner may
distribute his work in any manner he deems fit. The owner is also entitled to transfer the whole or some
rights in favor of any other person while retaining others. For example, he can entitle any person to translate
his work.

Right to make Derivative Works

The copyright has the right to use his work in various ways, for instance making adaptations or translations.
One example of adaptation is making a movie based on a novel, so here to make any derivative work the
consent of the owner is mandatorily required. In these situations, certain other rights of the owner also come
into play, like the right to integrity which protects the owner against deformation, defacement or
modification of his work in a way that it is harmful for his reputation.

Right to Publicly Perform

The owner of the copyright has the right to publicly perform his works. Example, he may perform dramas
based on his work or may perform at concerts, etc. This also includes the right of the owner to broadcast his
work. This includes the right of the owner to make his work accessible to the public on the internet. This
empowers the owner to decide the terms and conditions to access his work.

Right to Follow

This right is granted generally only to the authors and artists. This empowers the authors to obtain a
percentage of the subsequent sales of his work and is called Droit de Suite or Right to Follow. The right is also
available to artists on resale of their work.

Right of Paternity

The Right of Paternity or Attribution gives the copyright owner a right to claim authorship of the work. Under
the Right of Paternity a copyright owner can claim due credit for any of his works. Thus, if a movie is
produced based on a book by an author, and he hasn’t been given due credit in it, he can sue the makers to
acknowledge his work.

Sui Generis Rights

The ordinary copyright law often fails to protect the computer software and databases since the essential
element of creativity is not present in such databases. Therefore, there was a need for new law to protect such
software and databases. The law of sui generis was introduced to resolve the problem of resolving databases
on the whole. A database is a compilation or arrangement of information which may not be creative; it may
still require protection from unauthorized copying. However, this may require certain modifications such as
the making of copies has to be excluded from such copyright protection. Such database right exists for a
fifteen year period.

Private Copying

This is an exception to the reproduction rights which are attained by the owner. According to this right, any
person can make copies of the copyright protected work if it is proved that such copying is for educational
purpose and that there is no commercial motive behind such copies being made.

Conclusion
In conclusion is maybe said that copyright law adequately protects the rights of the copyright owners. The law
has kept pace with the changing times and has accommodated a number of new things in its ambit, including
digital reproduction and sui generis rights. India has also risen up to the challenge and updated its copyright
law from time to time.

History and Development of Copyrights in India

INTRODUCTION

We live in the era of science and creation. Every day there is a creation or invention of a new piece of work.
Intellectual Property Rights came into existence to protect these creations and their creators. It expands to
the world of science and technology, literature, design, logos and artistic fields. Intellectual property is
intangible. Intellectual property gives the rights to the creator to decide the fate of the property. Copyright is
a vital branch of Intellectual Property. It is a right which could be exclusive to the creator or could be
assignable by the same. The main idea behind this branch of Intellectual Property Right is that if a person
creates something then the ownership lies with him/her. It is the right to copy or reproduce the work in
which copyright subsists.[1]

Copyright was born as a result of the invention of the Printing Press by Gutenberg in the 15th century. This
invention aided reproduction of literary work. The working of copyrights evolved as the world evolved.
Technology was one of the major reasons behind the making of amendments in the copyright laws
throughout the world.

Copyrights extend to an array of fields like music, literature, drama, art, sound recordings and
cinematography. The owner originally owns the copyright only for a specific period after which it can become
a public domain.

THE HISTORY AND DEVELOPMENT

The history of copyright laws of India goes back to more than 150 years. India saw a lot of changes and
developments in this aspect starting from the British Era to the recent one in 2012. Typically, the evolution of
copyright is divisible into three major phases. However, the history of India’s copyright laws are considerably
incomplete without including the fourth phase of 2012 amendments to the existing copyright laws.

I. Phase 1 – 1847:

India’s first affair with the copyright laws was under the East India Regime. During that era, any act passed
by the Governor-General applied to India.[2] The highlight of this act is giving of the term of copyright to the
creator. The creator received the rights for his lifetime plus seven more years after his death (post-mortem).
However, in no case would these rights exceed forty-two years in total. Further, if an author refuses to
publish his book, the government shall have the power to publish the same upon the author’s death.
Unauthorized printing for “sale, hire or export” or “publishing or exposing to sale or hire” was under the
ambit of laws relating to infringement. This offence was so grave that it would be heard by the highest local
court which exercised original civil jurisdiction.

The 1857 Act had specific provisions regarding “any encyclopaedia, review, magazine, periodical work or
work published in a series of books or parts” under a contract of service copyright. The rights in the
aforementioned instance shall vest on the “proprietor, projector, publisher or conductor”.
Another important aspect of the Act was regarding the Registration process. It was vital for a creator to
register with the Home Office. This step was mandatory if the creator wished to gain protection under this
enactment. The Act reserved the subsistence of copyright in the author specifically. An author’s right to sue
an infringer for its infringement shall extend to any other available law.

II. Phase 2 – 1914:

United Kingdom constituted a new copyright Act of 1911. An extension of this was enacted in India in 1914.
This marked the second phase of Copyright laws in India. 1914 Act had several modifications. Copyright
infringement came under the ambit of a criminal offence. It was dealt in Sections 7 to 12 of the 1914 Act. the
term of copyright available to an author was reduced drastically to ten years from the date of the first
publication. An author would enjoy “sole right” during this term.

This clause was stated in section 4 of the Act. There was a proviso in the clause which stated that if the author
publishes his/her work in another language within the term than the original then the author will retain the
sole rights for another ten years for that language. Indian Copyright Act 1914 was continually applicable in
India until replaced by the Copyright Act 1957.[3]

III. Phase 3 – 1957:

India entered the third phase after attaining freedom. The Copyright Act of 1957 was a pioneer in an
uninterrupted copyright law in India. This Act went through several amendments in 1983, 1984, 1992, 1999
and lastly in 2012. This Act was broadly classified into 15 chapters and 79 sections. The central government
had the power to make any required rules by the method of notification in the Official Gazette. This clause is
governed by section 78 of the Act.

Under this Act, initiation of establishment of a copyright office took place. This office was under the control
of the Registrar of Copyrights. Registrar would work as per the guidance of the central government.[4] The
main work of the office was to maintain a register which contain name or titles of the work etc.[5] The
Registrar of the Copyrights had rights to dispose or allow applications. He also had the power to inquire into
complaints of infringement.

Under Section 20 of the Act, a Copyright Board required setting up. Every case that appears before this Board
is considerably judicial proceedings.[6] The Act gave exclusive rights to communicate works by radio
diffusion. The term of copyright kept altering in accordance to the amendments. It extended from 23 years to
50 and finally 60 years. The right to produce a work of translation was made coextensive with other rights
arising out of copyright. Both criminal and civil remedies were made available for infringement. Remedies
against groundless threats were also introduced in this Act.

IV. Phase 4 – 2012:

As time progressed India became a part of several world treaties. Two such treaties were the World
Intellectual Property Organization Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances
and Phonograms Treaty (WPPT). It was now important to keep the copyright laws of India in harmony with
these international treaties. Therefore, both houses of the Indian Parliament in jointly passed the Copyright
Amendment Bill, 2012. This was in compliance with both treaties.

This Act worked on extending the rights of the performers and the broadcasters. One of the main agendas
was to eliminate unequal treatment given to the lyricist and music composers of their copyright creations
used in cinematographic films. It ensured royalties to the music composers and the authors. Further,
exclusive moral and economical rights were bestowed over the performers.

CONCLUSION

In today’s era, the world has realised the importance of protecting its creations and inventions. Thus,
intellectual property took birth and evolved. Copyright has walked a long journey since the invention of the
printing press. As the world progresses the law of copyright shall develop as law needs to walk at par with the
society.

Copyright Societies

Copyright Societies Answer:- Copyright Act, chapter 7 of the Act deal with copyright societies their
powers, procedure followed and other related matter, in section 33 to 39-A. Whereas an individual owner of
the copyright in his individual capacity continues to have the right to grant licences in respect of his own
works, the Act also provides for establishment, formation and registration of certain societies consisting of
authors, owners of copyrights and other interested persons.

A performing Rights Society which was functioning before the coming into force of the copyright
(Amendment Act), 1991 (with effect from 10/5/1995), will be deemed to be a copyright society and every such
society should get itself registered within a period of one year from the date of commencement of the
copyright (Amendment Act), 1994 prior to the-coming into force of the 1994 Amendment Section 33 to 36
dealt with performing rights societies, which carried on the business of issuing of granting licences for the
performances in India of any work in which copyright subsisted. The activities of the societies were confined
to copyright subsisting in literary, dramatic and musical work which can be performed in public.

a) Registration of copyright societies: Rule 12 to 14 deals with the registration of copyright societies,
conditions and eligibility therefore and the administration of the copyright societies.

Any association of persons, whether incorporation or not, comprising seven or more owners of copyright
formed for the purpose of carrying on the business of issuing or granting licences, in respect of any class of
works in which copyright subsists. Such an association may file on application with the Registrar of copyright
for submission to the Central Government for grant of permission to carry on such business and for its
registration as a copyright society.

b) Conditions for grant of permission to carry on copyright business: An application for

registration as a copyright Society will not be eligible for such registration, unless-

1. the instrument i.e memorandum or articles of association by which the applicant is established or
incorporated creates a commitment to deal with only copyright business and other related activities; and

2. the applicant is willing to comply with the provisions of the Act and the rules (Rule 14).

The applications must be accompanied by a true copy of the instrument, the consent writing of the
individuals named in the application to act as the members of the governing body of the applicant and other
undertakings (Rule 14-A). The Central Government may either accept or reject the application within 60 days
from the date of receipt of application through the Registrar (Rule 14- B).
Term of Copyright
Copyright is protected for a limited time. Economic rights have a time limit, which can vary according to
national law. In those countries which are members of the Berne Convention, the time limit should be equal
to or longer than fifty years after the creator’s death. Longer periods of protection may, however, be provided
at the national level.3 For example, in Europe and the United States, the term of protection is life plus seventy
years.

Under the Indian Copyright Act, 1957, Chapter V enumerates the term of copyright protection. Section 22 of
the Act states the term of copyright in published literary, dramatic, musical and artistic works shall subsist,
published within the lifetime of the author, until sixty years from the beginning of the calendar year following
the year in which the author dies. In this section, the reference to the author shall, in the case of a work of
joint authorship, be construed as a reference to the author who dies last.4 This term has been increased from
fifty years to sixty years by the Amendment of 1992.

However, in cases where the work falls under the category of a cinematograph film, sound recording,
photograph, posthumous publications5, anonymous organisations, the sixty years period is counted from the
date of publication.

Term of Copyright for Posthumous Publications

it is the publication of work after the death of its author. The term of copyright protection of a posthumous
publication subsists for a period of sixty years and unlike in others, here such period is calculated from the
date of publication.6 The United States Court of Appeals held in the case of Bartok v. Boosey &
Hawkes7that, “A “posthumous work” under section 24 of the Copyright Act is a work on which the right to
copyright has passed by will or intestacy due to the absence of an effective assignment by the author during
his lifetime.”

Term of Copyright for Anonymous Publication

If the publication of the work anonymously, that is, publication when the author of such work is unknown.
The copyright term of an anonymous publication, as provided under Section 23 of the Copyright Act, 1957,
is also for a period of sixty years, calculated from the beginning of the calendar year next following the year in
which the work is first published. The section also provides for the disclosure of the identity of the author. In
its proviso, it is provided that where the identity of the author is disclosed before the expiry of the said period,
the copyright exists for a period of sixty years, calculated from the beginning of the calendar year next
following the year in which the work is first published.8 The explanation clause to Section 23 of the Copyright
Act, 1957 enumerates about the position of the author, that is, here the identity of an author shall be deemed
to have been disclosed. The identity may be disclosed either publicly by both the author and the publisher or
is otherwise established to the satisfaction of the Appellate Board by that author.

Term of Copyright for Photographs

While Section 22 contains terms of copyright for all other works, the term for photographs has been set out
separately in Section 25 of the Act. This is in consonance with the Berne convention, which also arrays
separate terms for photographs and other works under Article 7.4 and Article 7.1 of the Berne Convention
(Paris text) respectively. The Indian Copyright Act provides for copyright in a photograph for a period of 60
years from the beginning of the calendar year, following the year in which the photograph is published. But
this Section has been omitted by the amendment of 2012.

Term of Copyright for Cinematograph Films

Copyright of Cinematograph Films9 shall subsist until sixty years from the beginning of the calendar year
next following the year in which the film is published.

Term of Copyright for Sound Recordings

Copyright of sound recordings10 shall subsist until sixty years from the beginning of the calendar year
following the year in which the sound recording is published.

Term of Copyright of government works

In the case of a Government work, where Government is the first owner of the copyright therein, copyright
subsists until sixty years from the beginning of the calendar year next following the year in which the work is
first published.11

Term of Copyright where a public undertaking is the first owner

In the case of a work, where a public undertaking is the first owner of the copyright therein, copyright
subsists until sixty years from the beginning of the calendar year next following the year in which the work is
first published.12

Term of Copyright of work of an international organisation

In the case of a work of an international organisation to which the provisions of section 41 apply, copyright
subsists until sixty years from the beginning of the calendar year next following the year in which the work is
first published.13

An author’s moral right as a right against distortion is available even after the expiry of the term of copyright.

Conclusion

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby
protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford
to ignore the basic requirement of encouraging the same. There is as such no mandatory requirement for
registration of a work to avail the protection under the act. Rather it is an automatic right, which emerges as
and when infringement takes place. Copyright is protected for a limited time. The Berne Convention specifies
the limit or the term of copyright as not less than sixty years. And on its line, the Indian Copyright Act, 1957
provides for the protection for sixty years. Keeping in mind the provisions of the act and the rules framed
therewith, an author’s moral right as a right against distortion is available even after the expiry of the term of
copyright.

PATENT
Rights and obligations of Patentee

What is a patent?

A patent is a specific right given to the person who has invented something new. He can enjoy
the right of patent till the expiry of the term of his patent. The patent right to patentee helped
to secure his invention and encourage him for more scientific research.

The patent comes under 7 Important Intellectual Property Rights in India.

Who is Patentee?

The person who invents the new article or improvement in existing articles or a new process for making any
old article is known as Patentee.

Objects of Patent

The main objective is to encourage scientific research, new technology, and the progress of industrialization.
It is given for a specific time and after the expiry of the period, the patent will pass into the public domain.

Significance of patent

Research and development (R&D) are the key factors for the growth of the County. Monopoly rights to
patentee motivate him for more and more research in the field of technology development.

What can be patented?

The Patent act 1970 (Amended in 2005) defines inventions as “any new process or product which involves the
inventive step and which is capable for industrial applications.

There are three main points which must be followed:

Novelty

Novelty is the main subject of innovation. A novelty means any invention or technology which is not used
before in the country or elsewhere, which is not anticipated by publication and should not fall in the public
domain.

For instance, in a case, the USA patented the “turmeric” which was challenged on the ground that there
is no novelty in the invention.

Non-obviousness

The merely obvious or modification of the prior articles that could be achieved without the lure of patent
rights is not available for the Patent Rights. There must be some non-obviousness. Though it is difficult to
determine whether the given modification is a mere mechanical advancement in that article or the result of
the meritorious invention.
Also, it is observed that even after the grant of a patent, it is open for the opposing party of that patent to
prove that there were no inventive steps in the invention and therefore, the Patent authority can grant an
interim injunction.

Industrial application

An article or invention must be capable of “industrial application” to grant the Patent. Though, the use may
not be for-profit because it can be used for agriculture also.

Product Patent and Process Patent

Before the Patent Amendment Act 2005, the process patent was granted for the categories of food, drugs, and
pharmaceuticals. But after the TRIPs, the changes were made in the act and the Act was shifted to Product
patent.

Non-Patentable Inventions

Every invention is not patentable. The law forbids some categories to grant the patents:

● An invention that is contrary to morality or public order.

● Frivolous invention.
● Discovery of living things.
● Re-arrangement of known substances.
● A method of agriculture.
● Any process of medical treatment.
● Plants and animals.
● A mathematical or computer program.
● A literary, musical or dramatic work.
● Presentation of information.
● Duplication of known properties of traditionally known components.
● A method of playing the game.
● Inventions relating to atomic energy.

Novartis Case

Who can apply for a patent?

● The true or first inventor of the invention.

● The assignee, legal representatives of the true inventor.

Types of patent

There are the following three types of patent:

● Utility patent
● Design patent
● Plant patent

Utility patent
A utility patent is one of the common types of patent. The utility patent is issued for any process, product,
machine, the composition of matters, or any useful improvement in an old product or process.

Design patent

The design patent is a letter to the appearance of an item. Any new and original design for any product can be
patented.

Plant patent

A plant patent is a given for the new variety of plants that is created by a person due to any process.

Term of Patent in India

Before 2002, the term for the patent in India was 5 to 14 years according to the inventions. But after
the 2005 amendment, the term was set up to “20 years”. 20 years shall be counted from the date of
applying.

Rights and obligations of the patentee

Rights of patentee

After the grant of the patent, certain rights and obligations are given to patentees in India. The Patent Act
gives certain rights to the patentee so that he can gain some profit from his patent.

The patentee can enjoy the following rights:

Exclusive right

Section 48 of the patent act 1970 provides the exclusive right to patent. As we know that the patent can be a
product or process. Section 48 provides exclusive rights by preventing the patent in both situations whether
it’s a product or process.

● If the subject matter of the patent made by the patentee is a product, The exclusive right to patent
prevents third parties from making, offering for sale, selling, importing, using the product made by
the patentee without his consent.
● If the patentee has taken the patent for a process, the exclusive right to patentee prevents third parties
from using that process for making any product, using, selling or importing without the consent of the
patentee.

In simple words, the third party can only use a product or process patented by the patent only if
the patentee gives his consent to third parties to manufacture, import and sell that product or
process.

Right to exploit

This is one of the main rights of patentees in which the patentee has the right to possess, use, and dispose of
the patent made by him.
Any agent authorised by the patentee can also enjoy this right on the behalf of the patentee. Under The patent
Act, it is mentioned that the patentee can give the power of attorney to his agent for the use of a product or
process patented by his master.

Right of assignment

It is the right of the patentee that he can assign and give the licence to a third party to use, manufacture, sell
or export his product or process. But for the assignment of his right to a third party, the patentee has to
inform the registrar of the patent. The licence given by the patentee to third parties will work like a written
contract between them.

Right to enjoy the benefit

It is the right of the patentee that he can take benefit from his invention. In a case where he has assigned the
third party for the manufacturing used and selling his invention, he can take the benefit from that
assignment.

Right to Mark

The patent holder can affix his name or company name on the product invented by him. He has the right to
sell his product by affixing his company name on the product.

Right against infringement

It is the right of a patentee that he can file litigation in the court of law if any person has increased his rights
given under the patent Act by using his product or process.

Right to renounce patent rights

The patentee can renounce his patent rights by giving his written declaration to the controller of the patent.
After the written declaration of the patentee, the controller will advertise his surrender.

After the advertisement, any other party interested in getting the ownership can approach the controller to
take ownership of that patent. If the controller finds that the approach made by any other party is genuine, he
will grant the ownership to that party.

Rights of co-owner of the patent

In a situation where there are two or more persons in the patent, each person will be known as patentee and
every person shall have every right given under the act unless an agreement to the contrary is made between
all the partners.

● If there is any agreement made between the patent holders, the share will be divided according to that
agreement.
● If there is no agreement made between the patent holders, every patent holder can enjoy the rights
given under the patent Act without infringing the right of another patent holder.
● If any patent holder sold his right to another person, that person will take the position of the patent
holder as a partner.
● The agent of the patent holder can also enjoy the right of the patentee on the behalf of his master.
Obligation of patentee

The Patent Act also give some application to the patentee which should be fulfilled by the patentee

Duty to disclose

It is the duty of the patentee to disclose all the necessary facts needed by the controller. The duty to disclose
all the necessary Facts starts from the initial state when a person files the application for a patent. It is the
duty of the patentee that he should inform the controller regarding a similar invention filed by him or
another person.

Request for examination

It is the duty of the patentee that he has to request the controller for the examination of a product or process
invented by the patentee.

Duty to answer all the objections

Many times it happens that many other parties raise objections to the invention made by a patent holder. It is
the duty of the patentee that he has to answer all the objections imposed on him.

Clear all the objections

It is the duty of the patentee that he should clear all the objections opposed to his invention. If he fails to clear
all the objections, the patent controller may take his patent rights and give it to the party who is making the
objection.

Statutory fees

Patents need some fees during the registration process of the patent. If the patent holder failed to pay all the
state rotary fees, we will not be liable to grant the patent.

Conclusion

A patent is an exclusive right of a person to enjoy the benefits from the invention made by him. Any process
or product can be patented by taking some points into consideration. The patent rights in India encourage
the person to do more research in science so that our nation can grow more.

Complete Specification under the Patents Act, 1970

1. Definition: In the Patents Act, 1970, complete specification refers to a document that contains a full and
detailed description of the invention, along with the method by which it can be performed and the claims
defining the scope of the invention.
2. Purpose: The purpose of a complete specification is to enable a person skilled in the field of the invention
to understand and reproduce the invention without undue experimentation.
3. Mandatory requirement: The filing of a complete specification is a mandatory requirement for patent
applications. It must be filed within 12 months from the date of filing the provisional specification or the
priority date, whichever is earlier.
4. Content: A complete specification should include a title, a description of the invention, a claim or claims
that define the scope of the invention, any drawings (if necessary), and an abstract summarizing the
invention.
5. Disclosure requirement: The complete specification must provide sufficient disclosure of the invention,
enabling a person skilled in the relevant field to carry out the invention. It should include the best method of
performing the invention known to the applicant.
6. Claims: The claims in the complete specification define the scope of protection sought by the inventor.
They must be clear, concise, and supported by the description in the specification.
7. Amendments: Amendments to the complete specification are allowed, but they must not introduce new
subject matter that goes beyond the original disclosure. Amendments should be filed in accordance with the
applicable rules and procedures.
8. Examination: After the filing of the complete specification, the patent application undergoes examination
by the Patent Office. The examination process determines whether the application meets the criteria for
patentability.
9. Importance: The complete specification is crucial in establishing the novelty and inventive step of the
invention. It forms the basis for the patent application and guides the examination process.
10. Publication: Once the complete specification is accepted and granted, it is published in the official gazette,
making the invention's details available to the public.

Importantly, the complete specification must be filed within 12 months of filing the provisional specification,
if any. It protects the rights of the inventor, providing a legal basis for claiming ownership and seeking
enforcement against infringement.
In summary, a complete specification is an essential document under the Patents Act, 1970, providing
detailed information about an invention, its technical aspects, and claims. It ensures that the inventor's rights
are safeguarded and allows for the enforcement of those rights in case of infringement.

Powers of Controller of Patent in India

The Controller of Patents in India, also known as the Controller General of Patents, Designs, and Trade
Marks, plays a crucial role in administering and enforcing the patent system in the country. The office of the
Controller operates under the purview of the Indian Patents Act, 1970, and is responsible for various powers
and functions that contribute to the effective management of patents. Here is a detailed note on the powers of
the Controller of Patents in India:

1. Granting Patents: The Controller has the authority to grant or refuse patent applications after conducting
the necessary examination. This involves assessing the patentability criteria, including novelty, inventive
step, and industrial applicability of the invention. The Controller's decision is binding, subject to appeal by
the concerned parties.
2. Examination: The Controller conducts examinations to establish the novelty and inventiveness of patent
applications. The examination process involves evaluating the patent claims and examining the prior art to
determine if the invention meets the required standards. The Controller has the power to request further
information or evidence from the applicant during this process.
3. Patent Opposition: The Controller handles patent opposition proceedings. Any person can file an
opposition against a patent application within a specified period after its publication in the Official Gazette.
The Controller reviews the opposition and may decide to refuse the patent application, grant the patent with
or without amendments, or conduct a hearing if necessary.
4. Patent Revocation: The Controller has the authority to revoke or cancel a patent if it is found to have been
granted in contravention of the provisions of the Patents Act. The revocation can be initiated through an
application by any interested person or through the Controller's own action.
5. Patent Renewal: The Controller manages the process of renewing patents in India. Patents are usually
granted for a period of 20 years from the date of filing. To maintain the patent rights, the patentee must pay
the renewal fees as prescribed by the Controller.
6. Correction and Amendment: The Controller can allow corrections and amendments to the application or
patent documents, subject to certain conditions. These corrections may include alterations to the description,
claims, drawings, or any other relevant part.
7. Compulsory Licenses: The Controller has the power to grant compulsory licenses for patents under specific
circumstances. This allows a third party to exploit the patented invention without the patent owner's consent.
The Controller ensures that the compulsory license provisions are adequately exercised to balance the rights
of patent owners and the public interest.
8. International Agreements: The Controller facilitates cooperation with international patent organizations
and ensures compliance with international agreements and treaties related to patents. India is a signatory to
various international agreements, such as the Paris Convention for the Protection of Industrial Property and
the Patent Cooperation Treaty, and the Controller plays a vital role in implementing the obligations arising
from these agreements.

It is important to note that the powers of the Controller of Patents are subject to the provisions of the Patents
Act and the rules and regulations framed thereunder. The Controller exercises these powers judiciously to
maintain the balance between protecting the rights of patent holders and promoting innovation and public
welfare in India's patent system.

Patent infringements and remedies available in India

Types of patent infringement

Classification of patent infringement have been discussed hereunder.

Direct infringement

Direct infringement is a most common and obvious form of patent infringement. When a third party without
the permission of the patent holder:

● Commercially uses the invention.

● Reproduces the invention.
● Import a protected idea/ invention in India.
● Selling patented inventions.
● Offer to sell patented inventions.

Direct infringement can either be intentional or unintentional during the term of patent. Only requirement to
be fulfilled is the performance of a substantially deceptive function of an invented product without obtaining
a legal licence from the owner for the usage. For example, Samsung started using the same manufacturing
process as the Apple company for making phones, without taking permission. This is a direct infringement of
a patent existing on the product, owned by the Apple company.

Literal infringement
Literal infringement is a type of direct infringement in which each and every element or composition
protected by either product or process patent is copied, in other words, a replica of the original product is
used, manufactured, sold or imported.

In the case of Polaroid Corp. vs. Eastman Kodak Co (1986), Polaroid claimed that Kodak had violated its
patent right related to instant photography. The central dispute revolved around Kodak’s instant
photography system, which Polaroid argued had utilised its patented technology. Polaroid believed that four
of its patents related to instant photography, including the process of developing an instant image and the
instant camera itself, were infringed by Kodak. After a prolonged trial, the court ruled in favour of Polaroid,
determining that Kodak had indeed infringed upon Polaroid’s patents. As a result, Kodak was ordered to stop
the production and sale of its instant photography system and Polaroid was awarded substantial damages.

Non-literal infringement

Non-literal infringement is also recognised by the name of Doctrine of Equivalence. In this type of
infringement, the alleged invention has to pass through the “Triple Identity Test”. This means when an
invention is similar to the patented invention hence performing significantly the same function, in the same
way and producing the same result, may even differentiate in name, shape or form, that invention will be said
to have caused non-literal infringement of the previously patented invention.

In the landmark case of Ravi Kamal Bali vs. Kala Tech. & Ors (2008), the plaintiff was granted patent for
‘tamper lock/seals’ and the defendant constructed a similar kind of product by the name of ‘Seal Tech’, which
had the similar functional features as the plaintiff’s lock. The court of law had applied the Doctrine of
Equivalence, and gave the decision in favour of the plaintiff stating that both the products had exactly the
same function and also was made up from the same material with the only slight differentiation was of
construction which did not constitute an innovation.

Indirect infringement

Indirect infringement occurs when a third party supports, contributes or promotes the direct infringement.
The infringement can either be accidentally or knowingly.

Induced infringement

Induced infringement involves wilful aiding of the infringing process, with or without any intention to
infringe. In either case, the infringer shall be held liable for infringement. The aiding can be in the form of:

● Assisting in manufacturing of the product.

● Assembling the patented product without proper licence.
● Providing instructions to third parties on production of product.
● Printing the instructions of patented items and selling them.
● Licensing plans or processes.

Contributory infringement

Contributory infringement is a kind of indirect infringement in which the infringer sells or supplies the parts
of a product used exclusively to manufacture the patented products. The infringer is held liable even if he
doesn’t actively participate in the manufacturing process.
Wilful infringement

Wilful infringement occurs when someone disregards the patent invention voluntarily. The burden of proof
in this case lies on the patent holder. The infringer can take the defence of legal opinion thoroughly in
writing. Three step process for willful infringement are:

● Knowledge about the patented invention,

● Good faith belief that the infringer wouldn’t be liable for patented invention,
● Infringer’s belief is reasonable.

If the wilful infringement is proved, the court can order strong deterrents (3 to 4 times of actual damage),
inclusive of court costs, lawyer’s fees etc.

Burden of proof

The burden of proof in patent infringement originally lies upon the patentee (the plaintiff). However, TRIPS
amended the Patents Act, 1970 by insertion of Section 104A thereby introducing the concept of “reversed
burden of proof”. This signifies that if the subject matter of patent is a process and results to;

1. A new product, and

2. There is substantial likelihood that an identical product is made by the same process and the patentee,
despite reasonable efforts, failed to determine the process.

Then the burden of proof is on the defendant to prove the non-infringement.

What acts do not amount to patent infringement

There are several acts that does not amount to infringement-

1. Independent invention: The impugned product or process was independently developed by the
accused party, without any reference to or use of the claimed invention of the patent. To prove
independent invention, the accused party typically needs to provide evidence of their invention, such
as records of their development activities, laboratory notebooks, or testimony from witnesses. This
evidence should demonstrate that the accused party was working on the same problem as the patent
holder and arrived at the same solution independently and without reference to the claimed invention
of the patent.
2. Patent expiration: When a patent expires, the inventor’s exclusive rights to the invention are no
longer in effect and anyone may use the invention without infringing the patent.The term of a patent
is typically set by law and is typically 20 years from the filing date of the patent application. After the
patent has expired, the claimed invention becomes part of the public domain and can be freely used
by anyone without fear of infringing the patent.To prove that the patent has expired, the accused
party can typically provide evidence of the filing date of the patent and the relevant patent law to
demonstrate that the patent has reached the end of its term.
3. Research and experimentation: Experimental use of a patented invention for the purpose of
testing or evaluating it is not considered infringement. In other words, the accused party is claiming
that they were using the claimed invention to test and evaluate its performance, and that they did not
intend to sell or otherwise commercially exploit the invention.
 4. Government use: In many countries, the government has the right to use a patented invention
without infringing the patent for the purpose of fulfilling its responsibilities and providing services to
the public. The accused product or process is used by or on behalf of the government and is therefore
not subject to the patent. This defence is based on the idea that the government should have the right
to use patented inventions for various public purposes, such as for national security or for the
provision of essential services, without being subject to infringement claims.
5. Prior use: If a person has been using a patented invention before the patent was granted, they may
be able to continue using it without infringing the patent, depending on the laws of the relevant
jurisdiction. To prove prior use, the accused party typically needs to provide evidence of their use of
the accused product or process before the filing date of the patent.
6. Fair use: The concept of fair use allows for limited use of a patented invention for purposes such as
criticism, commentary, news reporting, teaching, scholarship, or research. The defence is based on
the idea that certain uses of a patented invention should be allowed without infringing the patent,
even if they would otherwise be considered infringing, in order to promote the public good and
encourage creative and intellectual activity. To prove fair use, the accused party typically needs to
show that their use of the patented invention was for a permissible purpose under copyright law and
that it was reasonable in scope and impact.
7. First sale doctrine: The first sale doctrine, also known as the exhaustion doctrine, provides that the
sale of a patented item by the patent holder or with their authorization exhausts their patent rights
and allows the buyer to use or resell the item without infringing the patent. The doctrine is based on
the idea that the patent holder’s exclusive rights to the patented invention are limited and that the
rights of others to use, sell, or distribute a patented product should not be unduly restricted. The first
sale doctrine is often invoked in cases involving the resale of patented products, such as used books,
CDs, or other products that were legally obtained through a sale or transfer. By applying the first sale
doctrine, these products can be resold or otherwise distributed without infringing the patent,
provided that the product was not altered or modified in a way that would give rise to a new patent
infringement.
8. Invalidity or unenforceability of the patent: If a patent is found to be invalid or unenforceable,
any act that would have otherwise constituted infringement would not be considered infringing.

Remedies for patent infringement

Section 108 of Patent Act,1970 deals with the “Reliefs in suit for infringement”. The remedies for a suit filed
in the infringement of a patent can be classified into three types, they are:

1. Injunction: In the context of patent infringement, an injunction is a court order that requires the
infringing party to stop making, using, selling, or importing the infringing product. It is a preventative
measure that aims to preserve the value of the patent and prevent further harm to the patent holder.
To obtain an injunction, the patent holder must prove that their patent is valid and that it has been
infringed upon by the defendant. Injunction is of three kinds:
● Temporary Injunction: It is a kind of temporary remedy that is provided before the final verdict of
the case. It is used to preserve the status quo of the patent holder. Moreover, they are likely to succeed
in their lawsuit and will suffer irreparable harm if the infringing activity is allowed to continue. The
court should consider three factors before granting temporary injunction to the patent holder-

I. Prime facie case.

II. Balance of inconvenience.

III. Irreparable loss

● Permanent injunction: It is a kind of permanent remedy that is granted when the case is finally
decided by the court. It requires the infringing party to stop the infringing activity permanently. The
court may also award monetary damages, such as compensation for any profits that the infringing
party has made as a result of the infringing activity. To obtain a permanent injunction, the patent
holder must file a lawsuit and prove that their patent is valid and that it has been infringed upon by
the defendant. However, obtaining a permanent injunction can be a complex and time-consuming
process, and the patent holder must have strong evidence to support their claim.
● Ex-parte injunction: An ex-parte injunction is a provisional remedy that is used in urgent
situations and is granted without a hearing. It is a powerful remedy for patent infringement, but it
must be used with caution, as it may result in harm to the defendant if it is later found to be
unjustified. It is typically used in urgent situations where the plaintiff needs immediate relief and
there is not enough time for a full hearing.
2. Damages: Damages is a remedy for patent infringement that compensates the patent holder for any
harm that they have suffered as a result of the infringing activity. Damages may be awarded in the
form of monetary compensation, such as compensation for any lost profits or other financial losses
that the patent holder has suffered. The main objective of damages is to compensate for the loss or
injury that happened to the plaintiff.
3. Seizure, forfeiture or destruction: Courts may decree that the items determined to be infringing
should be taken into custody, forfeited, or disposed of as deemed appropriate.

Conclusion: In India, patent infringement is a serious offense, and patent holders have several remedies
available to protect their rights and seek appropriate compensation. It is important for patent owners to seek
legal advice and consult with an intellectual property lawyer who can guide them through the process of
enforcing their patents and securing the best available remedy for infringement.

Surrender of Patents

Section 63 of the Patents Act, 1970 allows a patentee to surrender a patent. The patentee can offer to
surrender his patent by giving notice to the Controller.1 The offer to surrender the patent should be published
by the Controller, and every person interested in the patent must also be notified of the same.2

After the publication, any interested person can oppose the surrender, by giving notice to the Controller
which should be notified by the Controller to the patentee.3 If the patentee or the opponent wants to be heard,
the Controller, on being satisfied that the patent may be surrendered and after the hearing, may accept the
offer and revoke the patent by order.4

The notice of opposition must be given to the Controller within a period of 3 months from the date of
publication of the notice to surrender the patent.5 If the patentee’s offer to surrender the patent is accepted by
the Controller, he may:6

● direct the patentee to return the patent; and

● on receiving the patent revoke it by order; and
● publish the revocation of the patent.

Revocation of Patents
Section 64 of the Patents Act, 1970 deals with the ‘Revocation of patents’. A patent that has been granted to
an invention can be revoked by the Appellate Board in the following ways:

● on a petition filed by any interested person; or

● on a petition filed by the Central Government; or
● on a counter-claim in a suit for infringement of the patent by the High Court.

Grounds for Revocation of Patents

A patent may be revoked on any of the following grounds:

● where an invention as claimed in a valid claim of earlier priority date which is included in the
complete specification of another patent;
● where the patent application was filed by a person who is not entitled under the provisions of the Act
and was granted a patent on such application;
● where the patent was wrongfully obtained and the rights of the petitioner or any person
under/through whom he claims, were contravened;
● when the subject of a claim of the complete specification is not an invention within the meaning of the
Act;
● where the invention that is being claimed is not new having regard to what was publicly known or
used in India before the priority date of the claim and also having regard to what was published in any
of the documents, whether in India or elsewhere;
● where the invention that is claimed is obvious and lacks any inventive step, having regard to what was
publicly known, used or published in India, before the priority date;
● where the invention is not useful;
● where the invention and the method by which it is to be performed is not sufficiently and fairly
described by the complete specification. In other words, the description of the method or the
instructions for the working of the invention as specified in the complete specification are insufficient
to enable a person of average skill and knowledge of the art to which the invention relates, to operate
or work the invention or where the best method of performing the invention which is known to the
applicant is not disclosed;
● where the scope of any claim is not defined properly or based on the matter which his not disclosed in
the specification;
● where a false suggestion or representation was made to obtain the patent;
● where the subject of any claim of the complete specification is not patentable under the Act;
● the invention that is being claimed was secretly used in India before the priority date of the claim;
● where the information required under Section 8 has not been disclosed by the applicant of the patent
to the Controller or the information that has been furnished is false to his knowledge;
● where any direction of secrecy passed under Section 35 has been contravened by the applicant or
made an application in contravention of Section 39 for the grant of a patent outside India;
● where the permission to amend the complete specification under Section 57 or 58 was obtained by
fraud;
● the complete specification does not disclose or mentions the wrong source or geographical origin of
biological material used for the invention;
● the invention was anticipated having regard to the knowledge which was available within any local or
indigenous community within India or elsewhere.
However, where the invention claimed is not new, obvious or lacks any inventive step, having regard to what
was publicly known or used in India or published in India or elsewhere, before the priority date of the claim:7

● a personal document, secret trial or secret use shall not be taken into account;
● where the patent is for a process or for a product that is made by a process which is claimed, the
importation of the product which is made abroad by that process into India will constitute knowledge
or use in India of the invention, on the date of importation. Except where the product has been
imported for the purpose of reasonable trial or experiment only.

Categories of Grounds for Revocation

Broadly there are three categories of grounds for revocation of a patent, viz.,

1. grounds relating to the rights of the patentee and his conduct

2. grounds relating to the invention and its quality
3. grounds relating to the description of the invention

The grounds relating to the rights of the patentee and his conduct includes the following:

● patentee is not entitled to the patent because the applicant for the patent was not entitled to apply;
● The patent was obtained wrongfully as against the person entitled;
● the patent was obtained by false suggestion or representation;
● failure to disclose information regarding foreign applications;
● non-compliance with directions for secrecy;
● the amendment of the complete specification was obtained by fraud.

The grounds relating to the invention and its quality include the following:

● where the subject of a claim is not an invention;

● the subject of a claim is not a patentable invention;
● the invention claimed was secretly used before the priority date;
● the invention claimed is already a subject of a prior grant;
● the invention claimed lacks novelty, having regard to prior knowledge or use;
● the invention is obvious or lacks an inventive step, having regard to prior knowledge or use;
● where the invention is not useful;
● the invention claimed was anticipated having regard to the knowledge, oral or otherwise within any
local or indigenous community in India or elsewhere.

The grounds relating to the description of the invention includes the following:

● the invention is not described sufficiently and the best method for performing it is not disclosed;
● the claims are not defined clearly.

Furthermore, on a petition of the Central Government, the High Court may revoke a patent if it is satisfied
that the patentee has failed to comply with the request of the Central Government, without any reasonable
cause to make, use or exercise the invention which has been granted a patent for the Government’s purpose,
within the meaning of Section 99 of the Act.8 The petition for revocation of a patent should be notified to all
persons mentioned in the register who are proprietors of that patent or have a share or interest in the patent.9
Revocation at Instance of the Government

Section 65 of the Patents Act, 1970 deals with cases relating to atomic energy wherein, a patent is revoked
or the complete specifications are amended on directions from the Government. Where after the grant of a
patent, the Central Government is satisfied that a patent is for an invention relating to atomic energy for
which no patent can be granted, the Government can direct the Controller to revoke the patent.

Therefore, if a patent has been granted to an invention in the field of atomic energy, the Central Government
can direct the Controller to revoke the patent. Upon receiving the direction from the Central Government the
Controller notifies the patentee and every person who has an interest in the patent and gives them an
opportunity of being heard, after which the Controller revokes the patent.

If the Controller feels that the patent can be sustained by amending something, instead of revoking the patent
he can also allow the patentee to amend the complete specification in a manner which he considers
necessary. Therefore, the Controller can exercise his discretion in this regard.

The Government can also revoke a patent in the public interest.10 Where a patent or the manner in
which it is exercised is mischievous to the State or prejudicial to the public, the Central Government after
giving an opportunity to the patentee to be heard can make a declaration to that effect in the Official Gazette
following which the patent shall be considered revoked.

The revoking of a patent in the larger interest of the public is a fast track proceeding. It does not involve the
Controller being directed by the Central Government, nor does it involve invoking any grounds of revocation.
Thus, it is the most expeditious way by which a patent can be revoked, and once the declaration is made in
the official gazette, the patent stands revoked.

Conclusion

Therefore, the revocation of a patent results in the cancellation of the exclusive rights which have been
granted to the patentee with respect to an invention. Section 64 of the Act prescribes extensive grounds for
revocation of a patent, which can be invoked for the revocation of a patent on a petition of any person
interested or on a petition of the Central Government by the Appellate Board or on a counter-claim in a suit
for infringement of the patent by the High Court.

In the case of Dr Aloys Wobben & Anr. v Yogesh Mehra & Ors.11 the Supreme Court held that under
Section 64 of the Patents Act, the revocation of a patent can be sought either by a counter-claim in a suit for
infringement before the High Court or by filing a petition for revocation before the Intellectual Property
Appellate Board (IPAB).

Therefore, if a revocation petition is filed by a person under Section 64(1), before an infringement suit is
instituted against him, he cannot seek revocation of the patent by way of counter-claim in a patent
infringement suit. Similarly, if the defendant, in response to a patent infringement suit has sought revocation
of the patent by way of counter-claim, he cannot file a petition for revocation before the IPAB.12

This will prevent multiple proceedings since only one of the two proceedings i.e., either the revocation
petition or counter-claim in a patent infringement suit will be sustained. It will also allow those opposing a
patent to know exactly which forum they should approach to challenge the validity of a patent. This, in turn,
will reduce the cost of litigation and also avoid conflicting decisions being given by the IPAB and the High
Court. Thus, the Supreme Court has streamlined the process of patent litigation by making the Indian Patent
system more robust by avoiding multiplicity of proceedings.

Restoration of Lapsed Patent

The Patents Act of 1970 in India allows for the restoration of a lapsed patent. Here are some key points to
understand about the restoration process:

1. Lapsed Patent: A patent is considered lapsed when the patentee fails to pay the required fees or file
necessary documents within the specified time frames as prescribed by the Patents Act.
2. Grounds for Restoration: The Act provides for the restoration of a lapsed patent if the patentee can
demonstrate that the failure to pay fees or comply with other requirements was unintentional and a
reasonable excuse exists for the delay. Some valid reasons for restoration include death or illness of the
patentee or his agent, or a procedural error by the Indian Patent Office.
3. Time Limit: A restoration application must be filed within 18 months from the date of lapse of the patent.
If the delay in filing the application is satisfactorily explained, an extension of this time limit can be
considered.
4. Application Process: To seek restoration of a lapsed patent, an application must be filed with the Indian
Patent Office, along with a statement explaining the grounds for restoration and any relevant supporting
documents.
5. Publication and Opposition: Once the application for restoration is filed, it is published in the official
journal to notify the public. Interested parties have a period of four months from the date of publication to
file an opposition, if they believe the restoration should not be granted.
6. Examination and Decision: The Indian Patent Office examines the restoration application and considers
any objections raised during the opposition period. The patentee may be required to attend a hearing before a
decision is made.
7. Grant or Rejection: If the Indian Patent Office is satisfied with the reasons presented in the application
and there is no opposition, the patent is restored. However, if the office finds the grounds insufficient or if the
opposition is accepted, the restoration application may be rejected.
8. Effect of Restoration: If the restoration application is granted, the patent is treated as if it had never
lapsed. The patentee gains all rights and privileges that existed before the lapse, and the term of the patent is
extended to its original duration.
9. Publication of Restoration: The Indian Patent Office publishes the decision to restore the patent in the
official journal to inform the public about the reinstated patent.

It is important to consult with a qualified patent attorney or seek appropriate legal advice to navigate the
process of restoring a lapsed patent under the Patents Act 1970, as it involves complex legal procedures and
requirements that may vary over time.

Procedure for Grant of Patent

Persons entitled to apply for patents

—(1) Subject to the arrangements contained in section 134, an application for a patent for an invention might
be made by any of the accompanying persons, in other words,—

(a) By any individual professing to be the valid and first creator of the invention;
(b) By any individual being the assignee of the individual professing to be the valid and first innovator in
regard of the privilege to make such an application;

(c) By the legitimate agent of any deceased individual who is preceding his demise and is qualified to make
such an application.

(2) An application under sub-section (1) might be made by any of the persons alluded to in that either alone
or mutually with some other individual.

Procedure for Grant of Patent under Patents Act, 1970:

1. **Patent Application Filing:**

- File an application for a patent with the relevant patent office.

- The application should include a complete specification, providing a detailed description of the invention
and its claims.

- The application should also include relevant drawings and abstracts, if applicable.

2. **Publication of Patent Application:**

- The patent application is published after 18 months from the date of filing or priority date, whichever is
earlier.

- This publication makes the invention available to the public.

3. **Request for Examination:**

- After publication, the applicant or any interested party may request examination.

- The request is made within a prescribed time frame from the date of publication.

4. **Examination Process:**

- An examiner examines the patent application to ascertain its novelty, inventiveness, and industrial
applicability.

- The examiner may issue an examination report, raising objections if necessary.

 - The applicant has the opportunity to respond to the examination report and address any objections.

5. **Publication of Examination Report:**

- After the examination, the patent office publishes the examination report, including objections (if any)
raised by the examiner.

6. **Hearing (if required):**

- If objections raised in the examination report are not resolved, the applicant may request a hearing before
the patent office.

- The hearing provides an opportunity to present arguments and clarify any concerns.

7. **Grant of Patent:**

- If the patent office is satisfied with the examination report and any amendments made in response to
objections, the patent is granted.

- The patent is granted by issuing a patent certificate mentioning the title, patent number, and other details.

8. **Term and Maintenance of Patent:**

- The term of the patent is 20 years from the date of filing, subject to payment of maintenance fees.

- The patent holder must pay the required fees to keep the patent in force.

9. **Publication of Granted Patent:**

- The granted patent is published in the official patent gazettes and becomes available to the public.

10. **Rights and Protection:**

- The patent holder can exercise exclusive rights over the invention, preventing others from making,
using, or selling the patented invention without permission.

- In case of any infringement, the patent holder can take legal action to protect their rights.
It is important to note that the procedure mentioned above provides a general overview. Specific timelines,
requirements, and procedures may vary depending on the jurisdiction and national laws. It is advisable to
consult the relevant patent office or seek professional legal advice for accurate and up-to-date information.

Documents Required For Patent Application

○ Application for grant of the patent in form 1

○ Proof of right to file the application from the inventor.
○ Provisional/complete specification in form -2
○ Statement and undertaking under section 8 in Form 3
○ Declaration as to inventorship
○ Power of authority in form 26
○ Applicant’s signature and an appropriate date
○ If application pertains to a biological material obtained from India, submission of the
permission from the National Biodiversity Authority
○ Request for Examination- Form 18
○ Requisite Statutory Fees

Grounds of Opposition to Patent

● Obtained wrongly or fraudulently.

● The invention has been already published and known.
● Not involved in any of the inventive step.
● Not completed within 12 months.
● No clear and explicit description of the invention.
● Not considered an invention based on the subject matters for the invention.

Trademark
A trademark is the characteristics or combinations of characteristics capable of distinguishing the goods
and/or services of one enterprise from those of other enterprises. Trademarks fall under the ambit of
intellectual property rights and are protected by national and international laws.
Section 2(1)(i)(viii)(zb) in the Trade Marks Act, 1999 defines trademark as a mark which is:

● capable of being represented graphically;

● capable of distinguishing the goods or services of one person from those of others;
● may include the shape of goods, their packaging and combinations of colours.

Functions of a trademark

The following functions are performed by a trademark:

● Firstly, a trademark indicates the source or origin of the goods, products, or services. In this case, it is
presumed that any particular good can have only one origin.
● It assures the quality of the goods bearing the trademark to the consumers.
 ● Apart from the quality which is related to the goodwill of the product, the trademark also creates
brand awareness and serves the marketing purposes and advertising aspects. In other words,
companies put a great amount of resources into developing any product, marketing it to customers,
providing customer support and backing up their products with warranties. Trademark assures that
the effort to serve the consumers pays back.
● Provides legal protection and guards against counterfeiting and fraud of a particular brand.
● Finally, trademarks are used to differentiate the product from others. This is the distinguishing factor
that falls under distinctiveness. The idea is that trademarks would distinguish marketed goods and
services from those of competitors.

**Legal Requirements for Registration of Trademark under Trademarks Act, 1999**

The Trademarks Act, 1999 in India governs the registration and protection of trademarks. Trademarks play a
crucial role in distinguishing the goods or services of one business from those of others, and their registration
provides exclusive rights to the owner. To obtain registration of a trademark under the Trademarks Act, 1999,
certain legal requirements must be fulfilled. Below is a detailed note on these legal requirements:

1. **Distinctiveness**: A trademark must be distinctive to be eligible for registration. It should uniquely

identify the goods or services of the applicant and should not be descriptive of the product or services offered.
Generic terms or symbols that are commonly used in a particular trade cannot be registered as trademarks.

2. **Non-Descriptiveness**: The trademark should not describe the characteristics, features, or quality of the
goods or services. It should not directly indicate the kind, quality, quantity, intended purpose, or
geographical origin of the goods or services. The trademark should be capable of being represented
graphically.

3. **Not Deceptive**: A trademark should not be deceptive or likely to deceive the public regarding the
nature, quality, or geographic origin of the goods or services. It should not mislead or create confusion among
consumers.

4. **Non-Functional**: A trademark should not be functional or necessary to obtain a technical result. It

should not add any substantial value to the goods or services being offered.

5. **Unique and Non-Conflicting**: The trademark should not conflict with any existing registered
trademarks or prior pending applications. A search should be conducted to ensure that the proposed
trademark is not identical or similar to any other existing trademark. This is important to avoid confusion
among consumers.

6. **Ownership and Authorization**: The applicant seeking trademark registration must be the actual owner
of the trademark or should provide sufficient proof of authorization by the owner to apply for registration.
For corporate entities, the application should be made in the name of the company.

7. **Sound and Moral Values**: Trademarks that consist of a sound or an aroma can also be registered under
specific conditions. The sound or scent should be distinctive, not functional, and capable of graphical
representation. Additionally, trademarks that are against public order, morality, or religious sentiments
cannot be registered.

8. **Prohibited Marks**: Certain marks are prohibited from registration, such as marks that are likely to hurt
religious sentiments, are obscene, are scandalous, or promote illegal activities.
9. **Clear Representation**: The trademark must be represented clearly and precisely in the application,
either through a graphical representation or a sound reproduction.

10. **Filing Application**: The applicant must file the trademark application with the appropriate
Intellectual Property Office (IPO) in the prescribed format. The application should include the trademark, the
goods or services in connection with which the mark is sought to be registered, and the class(es) of goods or
services as per the International Classification of Goods and Services (Nice Classification).

11. **Fee Payment**: The prescribed fee for trademark registration must be paid at the time of filing the
application. The amount of the fee varies depending on the type of applicant (individual, small enterprise,
startup, or others) and the number of classes applied for.

Meeting these legal requirements is essential for successfully registering a trademark under the Trademarks
Act, 1999. It is advisable to consult with a legal professional or trademark agent to ensure compliance with
the law and increase the chances of a successful registration.

Various kinds of marks

Under the Trade Marks Act, 1999, several kinds of marks are protected. A mark can be any symbol, logo,
label, brand name, device, word, numeral, or combination thereof used to distinguish goods or services of one
person from another. Here are the various types of marks protected under the Trade Marks Act:

1. Word Marks: These are marks that consist of alphabets, numerals, or any combination thereof. For
example, "Nike," "Apple," or "Coca-Cola" are registered word marks. Word marks are the most common type
of marks used to identify goods or services.

2. Device Marks: Device marks are marks that include specific designs, logos, or pictorial elements without
any accompanying words. These marks are protected based on their distinctive artistic or visual elements.
For instance, the Apple logo or the Nike "swoosh" symbol represents device marks.

3. Numerical Marks: Numerical marks consist of numbers and are used to differentiate goods or services.
These marks can be protected if they are distinctive and not commonly used in a descriptive manner. For
example, "4711" for a cologne brand or "501" for a type of jeans can be registered as numerical marks.

4. Shape Marks: Shape marks are related to the three-dimensional configuration of goods or their packaging.
These marks are distinctive shapes that are visually perceived and are not typically used in everyday life or
trade. For instance, the unique shape of the Coca-Cola bottle is a registered shape mark.

5. Sound Marks: Sound marks represent sounds used to distinguish goods or services. These can be
registered if they are distinctive and not commonly used. Sound marks are relatively uncommon but have
gained popularity in recent years. For instance, the MGM lion's roar or the Nokia ringtone are examples of
sound marks.

6. Scent Marks: Scent marks identify goods or services based on their specific smell or fragrance. While less
common than other types of marks, scent marks can be registered if they are distinctive and not commonly
used. For example, a specific scent associated with a perfume brand can be protected as a scent mark.

7. Color Marks: Color marks are distinctive colors or combinations of colors that identify the origin of goods
or services. These marks are less frequently registered due to the difficulty in proving distinctiveness.
However, some well-known examples include the purple color of Cadbury's chocolate packaging and the red
sole of Christian Louboutin shoes.

8. Collective Marks: Collective marks are used by members of an association, cooperative, or other collective
group to indicate a common origin of their goods or services. These marks help establish a common standard
or quality associated with the group. For example, a mark used by a group of craftsmen or artisans to identify
their products.

9. Certification Marks: Certification marks are used to indicate that goods or services comply with specific
standards or qualities. These marks are used by third-party organizations to certify products or services.
Examples include the "Organic" logo or the "ISO 9001" certification mark.

It's important to note that under the Trade Marks Act, a mark must be distinctive, not deceptive, and not
similar to existing marks in order to be protected. The registration of a mark provides the owner with
exclusive rights to use the mark and prevents others from using it without permission in connection with
similar goods or services.

Distinctiveness or capability of distinguishing is indeed a crucial criterion for registering a

trademark in India. A trademark serves as a unique identifier for goods and services, thereby enabling
consumers to differentiate between similar offerings in the marketplace. In order to provide legal protection
and exclusive rights to a trademark owner, the trademark must possess distinctive qualities that set it apart
from others in its class.

The registration process for trademarks in India is governed by the Trade Marks Act, 1999. To qualify for
registration, a trademark must fulfill the following conditions:

1. Distinctiveness: As mentioned earlier, the trademark should be distinctive and capable of distinguishing
the goods or services of one entity from another. A generic or descriptive mark that merely describes the
characteristics of the product or service will be difficult to register. However, marks that have acquired
distinctiveness through continuous use and promotion may be eligible for registration.
2. Non-descriptiveness: The trademark should not describe the nature, quality, or characteristics of the
product or service it represents. It should be a unique identifier rather than a commonly used term.
3. Non-deceptiveness: The trademark should not be deceptive or likely to mislead consumers about the
nature, origin, or quality of the goods or services.
4. Non-inheritability: The trademark should not be a surname, personal name, or geographic name that is
commonly used and does not possess any specific meaning.
5. Non-genericness: The trademark should not be a common or generic term that is used in everyday
language to refer to a particular type of product or service.

The procedure for registering a trademark in India involves the following steps:
1. Trademark search: Conduct a thorough search to ensure that the proposed trademark is not identical or
similar to any existing registered or pending trademarks. This step helps avoid potential conflicts and
objections.
2. Filing of the application: Submit an application for trademark registration along with the necessary
documents and prescribed fee to the Trademark Registry. The application can be filed online through the
official website of the Intellectual Property India (IPI) or in person at the appropriate Registrar's office.
3. Examination: After filing the application, the Trademark Registry examines it for compliance with the
requirements of the law. This includes checking for distinctiveness, non-descriptiveness, and
non-deceptiveness. If any objections arise during examination, the applicant will be given an opportunity to
respond and overcome those objections.
4. Publication: If the trademark application passes the examination without objections or upon successful
resolution of objections, the mark is published in the Trade Marks Journal. The purpose of publication is to
allow interested parties to oppose the registration within a specified time frame.
5. Opposition and registration: If no opposition is raised within the stipulated period after publication or if
opposition proceedings are resolved in favor of the applicant, the trademark will be registered, and a
certificate of registration will be issued. The registration provides exclusive rights to the trademark owner for
the specified goods or services.
6. Renewal: The registered trademark is valid for ten years from the date of application. It can be renewed
indefinitely upon payment of the prescribed renewal fees. Non-renewal can result in the removal of
trademark protection.

It's worth noting that to simplify and expedite the trademark registration process, India has adopted the
Madrid Protocol, which allows for international registration of trademarks through a single application. This
offers significant advantages for entities seeking global protection for their trademarks.

Infringement:
Section 29 of the Trademark Act-1999 talks about various aspects related to infringement as given in S.29(1)
that a registered trade mark is infringed by a person who, not being a registered proprietor or a person using
by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to,
the trade mark in relation to goods or services in respect of which the trade mark is registered and in such
manner as to render the use of the mark likely to be taken as being used as a trade mark.
Other subsections describes that in course of the use of the trademark it is said to be infringing the rights of
other company due to use of similar or identical trademark using for marketing of similar kind of goods and
services or use of identical or deceptively similar trademark for any other kind of goods and services. It is
further given in the Sub Section (9) of this section that the infringement can also be done by the spoken use of
those words as well as by their visual representation.

Passing Off:
The specific description of passing off is not given in the trademark act but the courts have drawn its meaning
from common law that if the infringement of trademark done in such a manner where the mark is not only
deceptively similar to the trademark of other company but also creating confusion for the customers, which
ultimately results in damage for business of the company.

Differences between Passing Off and Infringement:

They are slightly different to each other:
· Statutory remedy is available for infringement whereas the action for passing off is a common law remedy.
· For infringement it is necessary only to establish that the infringing mark is identical or deceptively similar
to the registered mark but in the case of a passing off action, the need is to prove that the marks are identical
or deceptively similar which is likely to deceive or cause confusion and damage to the business of the
company.
· When a trademark is registered, registration is given only with regard to a particular category of goods and
hence protection can be given only to these goods and action of infringement would be taken but in a passing
off action, the defendant’s goods need not be the same, they may be related or even different.

Domain Name protection under Trade mark law

1. Definition: A domain name is a unique address that identifies a website on the internet. It serves as the
online identity of a business or organization. The Trade Marks Act, 1999 in India provides protection to
domain names under the ambit of trademark law.
2. Trademarks and Domain Names: Trademarks are symbols, names, or devices used to distinguish goods or
services of one party from those of others. A domain name that is also used as a trademark can be protected
under the Trade Marks Act, 1999 if it meets the legal requirements for registration.
3. Registration Process: In order to protect a domain name under the Trade Marks Act, an application for
trademark registration must be filed with the appropriate authority, i.e., the Trademarks Registry in India.
The application should include the details of the domain name and the specific goods or services associated
with it.
4. Distinctiveness: To be eligible for trademark protection, a domain name must be distinctive and capable of
distinguishing the goods or services from those of others. Generic or descriptive terms that do not have
inherent distinctiveness may not be suitable for protection unless they have acquired secondary meaning
through extensive use.
5. Confusingly Similar Domain Names: The Trade Marks Act offers protection against domain names that
may cause confusion with existing trademarks. If a domain name is identical or similar to an existing
registered trademark, it can be challenged for infringement.
6. Enforcement of Rights: Once a domain name is protected as a trademark, the owner can enforce their
rights against any unauthorized use or infringement. This includes taking legal action against individuals or
entities that use a confusingly similar domain name in bad faith to create confusion or deceive consumers.
7. Remedies and Damages: Trademark owners can seek various remedies for infringement, including
injunctive relief to stop the unauthorized use of a domain name, damages for any loss suffered due to
infringement, and in some cases, recovery of legal costs.
8. International Domain Name Protection: The Trade Marks Act, 1999 provides protection for domain
names registered in India. However, for international domain names, protection can be sought under various
international conventions and treaties, such as the Paris Convention for the Protection of Industrial Property
and the Uniform Domain-Name Dispute-Resolution Policy (UDRP).
9. Domain Name Disputes: In case of domain name disputes, alternative dispute resolution mechanisms,
such as arbitration or mediation, can be used to resolve conflicts without going to court. The UDRP is a
widely adopted policy that helps resolve domain name disputes worldwide.
10. Importance of Protection: Protecting a domain name under the Trade Marks Act is crucial for businesses
to establish and maintain their online presence. It helps prevent unauthorized use or infringement, protects a
company's reputation, and ensures consumer trust and brand recognition in the digital space.

Please note that the information provided above is based on the Trade Marks Act, 1999 in India, and the legal
landscape may have evolved since the knowledge cutoff in September 2021. It is advisable to seek
professional legal advice for the most up-to-date and accurate information regarding domain name
protection under trademark law.

**Benefits of Registration of Trade Mark:**

The registration of a trademark under the Trade Marks Act 1999 provides several benefits to the owner. Here
are some of the key advantages:
1. **Exclusive Rights**: The registration of a trademark grants the owner exclusive rights to use the mark for
the specified goods or services in connection with which it is registered. This exclusivity helps prevent others
from using a similar or identical mark, thus protecting the brand's reputation and market share.
2. **Protection Against Infringement**: Registered trademarks enjoy legal protection against infringement.
If someone uses a similar or identical mark without permission, the trademark owner can take legal action
and seek remedies, such as injunctions, damages, and even criminal penalties in some cases.
3. **Deterrent Effect**: The registration of a trademark acts as a deterrent to potential infringers. The
existence of a registered mark in the trademark registry serves as a clear indication of the owner's rights and
can discourage others from attempting to use or imitate the mark.
4. **Evidence of Ownership and Validity**: Registration creates strong evidence of ownership and validity of
the trademark. In case of any dispute, the registered owner can rely on the certificate of registration as proof
of their exclusive rights over the mark, making it easier to enforce those rights.
5. **Enhanced Marketability and Brand Value**: A registered trademark enhances the marketability and
value of a brand. Customers often associate registered marks with quality and reliability, which can positively
influence their purchasing decisions. A registered mark can also be licensed or franchised, providing
additional commercial opportunities.
6. **Nationwide Protection**: Once registered, a trademark is protected throughout the territory of India,
giving the owner the right to prevent others from using a similar mark across the country. This nationwide
protection is crucial for businesses aiming to expand their operations across different regions.
Now, let's discuss the provisions regarding the duration, renewal, removal, and restoration of registration
under the Trade Marks Act 1999.
**Duration and Renewal of Registration:**
- The initial duration of trademark registration is ten years from the date of filing the application.
- The owner can apply for renewal within six months before the expiration of the registration.
- Upon renewal, the registration can be extended for successive periods of ten years each.
- Failure to renew within the specified period may result in the removal of the mark from the register.
**Removal of Registration:**
- The registration of a trademark can be removed from the register under certain circumstances, including
non-use and cancellation actions.
- Non-use: If the mark has not been used continuously for a period of five years from the date of registration,
it becomes vulnerable to removal on grounds of non-use.
- Cancellation: Interested parties can apply for cancellation of a registered mark based on various grounds,
such as prior existence of a similar mark, lack of distinctiveness, or improper registration.

**Restoration of Registration:**
- If a mark is removed from the register due to non-renewal or non-use, it can be restored under certain
conditions.
- Restoration requests must be made within one year from the date of removal.
- The owner must demonstrate valid reasons for non-renewal or non-use and show that the removal was
unintentional.
- If restoration is granted, the mark's registration is revived with effect from the original expiration or
removal date.

It is important for trademark owners to understand these provisions and comply with the necessary
requirements to ensure the continuous protection and validity of their registered marks.

**The Madrid Protocol**

The Madrid Protocol is an international treaty administered by the World Intellectual Property Organization
(WIPO) that provides a centralized system for the registration and management of trademarks worldwide. It
was established to simplify the process of protecting trademarks across multiple countries.
**Key Features of the Madrid Protocol:**
1. **Centralized Application Procedure:** One of the main advantages of the Madrid Protocol is that
trademark holders can file a single application, known as an international application, with their national
trademark office. This application can cover multiple countries that are members of the Madrid Protocol.
This streamlines the process and reduces the administrative burden of applying for trademarks individually
in each country.
2. **Home Country Application Requirement:** To utilize the Madrid Protocol, an applicant must have a
"basic" or "home" application or registration in their domestic jurisdiction, known as the "office of origin."
This home registration serves as a basis for the international application. Once the international application
is approved, it is then examined and protected in each desired member country.
3. **Multiple Designations:** The international application allows the applicant to choose the countries
where they wish to seek trademark protection. These countries are referred to as "designated contracting
parties." Within the international application, the applicant can select multiple countries, including current
member countries or countries that may join the protocol in the future.
4. **Centralized Management:** After the international registration is granted, the Madrid Protocol provides
a centralized system for managing and maintaining the registration in all member countries. This means that
any changes, such as renewals, assignments, or amendments, can be easily handled through a single
application and fee, rather than dealing separately with each country's trademark office.
5. **Cost and Time Efficiency:** By eliminating the need to file separate applications in every desired
country, the Madrid Protocol can result in significant cost savings and reduce the complexity of managing
multiple trademarks. In addition, it provides a more efficient process for trademark registration and
maintenance, saving time for both applicants and trademark offices.
6. **Examination and Protection in Each Country:** Despite the unified application process, it's important to
note that each national trademark office still conducts its own examination of the trademark application. If
any objections or refusals arise during this examination, they are dealt with separately by each office.
**Membership and Expansion:**
The Madrid Protocol has seen substantial growth in its membership since its introduction in 1989. As of
September 2021, there were 108 member countries, covering various regions around the world. It includes
countries from major economies such as the United States, the European Union, Japan, China, Australia, and
many others.
Over time, the Madrid Protocol has continued to expand its reach and attract new member countries. This
expansion increases its value and relevance as a global trademark registration system, making it more
comprehensive and accessible for businesses seeking international protection for their trademarks.
**Conclusion:**
The Madrid Protocol simplifies and streamlines the process of protecting trademarks on an international
scale. It provides trademark holders with an efficient and cost-effective mechanism to obtain and manage
trademark registrations in multiple countries through a single application. By providing a centralized system,
it reduces administrative complexities and saves time and resources for trademark applicants and national
offices alike. The continued growth of its membership demonstrates its significance as a global trademark
registration system for businesses operating in multiple jurisdictions.

DESIGN
The Designs Act, 2000 is an Indian legislation that provides protection and regulation for designs. It aims to
encourage innovation and creativity by safeguarding the visual appearance of products or objects through the
registration of designs. Now let's delve into the meaning and definition of designs under the Designs Act,
2000:

**Meaning of Designs:**
A design refers to the features of shape, configuration, pattern, ornamentation, or composition of lines or
colors that give a unique appearance to an article. It may be applied to any article or substance made by any
industrial process or means, including handicrafts.
**Definition of Designs:**
As per Section 2(d) of the Designs Act, 2000, the definition of designs includes the following elements:
1. **Original Design:** A design is original if it is not previously published or used in any country before the
date of application in India, or if it is significantly distinguishable from known designs or combinations of
known designs.
2. **Visual Appearance:** A design should be visually appealing to be eligible for protection under the
Designs Act. It primarily focuses on the external features and visual aesthetics of the article.
3. **Non-Functional Features:** Designs that are solely functional in nature or serve a technical purpose are
not eligible for registration. The functionality of an article is governed by patent law rather than design law.
4. **Registration:** To enjoy the benefits of the Designs Act, a design must be registered with the Design
Office, under the Controller General of Patents, Designs, and Trademarks. Registration provides exclusive
rights to the owner over the design and allows them to prevent unauthorized copying or imitation.

The Designs Act, 2000 also distinguishes between two types of designs:
1. **Functional Designs:** These are designs that primarily serve a functional purpose, and their protection is
governed by patent law. Functional features cannot be protected under the Designs Act, as it focuses on the
aesthetic aspects of an article.
2. **Aesthetic Designs:** These are designs primarily focused on visual appeal or aesthetic qualities.
Aesthetic designs are eligible for registration and protection under the Designs Act, while functional features
of an article are protected by patent law.
It is important to note that protection under the Designs Act is limited to the visual appearance of an article
and does not cover the underlying functionality or technical aspects. Additionally, the registration of a design
is territorial, meaning it provides protection only within the boundaries of India.
Overall, the definition and meaning of designs under the Designs Act, 2000 emphasize originality, visual
appeal, and non-functional aspects of an article, aiming to stimulate creativity while providing protection to
designers and innovators in India.

Rights and liabilities of registered proprietors of Designs under designs act, 2000
Under the Designs Act, 2000, registered proprietors of designs enjoy certain rights and are subject to specific
liabilities. Let's delve into the details:

**Rights of Registered Proprietors of Designs:**

1. **Exclusive rights:** A registered proprietor of a design has the exclusive right to use the design for any
purpose related to the article in which the design is applied, with the power to prohibit others from doing so
without their consent. This includes making, selling, importing, and using products embodying the registered
design.
2. **Legal protection:** The registration of a design confers a legal right on the proprietor, providing
protection against unauthorized copying or imitation. It enables the proprietor to take legal action against
anyone who infringes their rights.
3. **Duration of protection:** The registration of a design grants exclusive rights to the registered proprietor
for a period of ten years from the date of registration, which can be further extended for a maximum of five
years by applying for a renewal before the expiration of the initial ten-year term.
4. **Infringement proceedings:** The registered proprietor can file a lawsuit and claim remedies against any
person infringing their design rights. This may include seeking an injunction to prevent further unauthorized
use, claiming damages for loss suffered due to infringement, or demanding account of profits made by the
infringer.
5. **Licensing and assignment:** The registered proprietor has the authority to license or assign their design
rights to others. This allows them to generate income by granting permission to third parties to use the
design, either exclusively or non-exclusively, in return for royalties or other compensation.

**Liabilities of Registered Proprietors of Designs:**

1. **Non-use of the design:** Registered proprietors are not under an obligation to use their design; however,
non-use of a registered design for a continuous period of five years from the date of registration can be
grounds for cancellation of the registration.
2. **Non-compliance with formalities:** Failure to comply with the formalities, such as not paying renewal
fees on time, can result in the lapse or cancellation of the registration. Registered proprietors must ensure
they fulfill the necessary requirements and obligations stipulated under the Designs Act and its related rules.
3. **Prior design rights:** Registered proprietors must ensure that their design does not infringe upon the
existing design rights of others. It is their responsibility to conduct proper due diligence and ensure that their
design is novel and does not violate any pre-existing rights. Failure to do so may result in potential litigation
and the loss of their own design rights.
4. **Defending against invalidation actions:** If a third party challenges the validity of the registered design,
the proprietor must actively defend their rights by providing evidence and arguments to establish the
originality, novelty, and individual character of their design.

In summary, registered proprietors of designs enjoy exclusive rights to use and protect their designs,
enabling them to take legal action against infringement. However, they also have certain liabilities, such as
ensuring compliance with formalities and avoiding infringement of prior design rights. By understanding
these rights and liabilities, proprietors can effectively utilize and safeguard their registered designs.

Copyright in registered design

Under the Designs Act, 2000, copyright protection is granted to registered designs. A registered design refers
to the unique visual features of shape, configuration, pattern, ornament or composition of lines or colors
applied to an article. The designs must be new and not similar to any existing designs or combinations of
known designs.

Copyright in registered design is different from copyright in a work. While copyright protects original literary,
artistic, and dramatic works, copyright in registered design specifically protects the visual appearance or
design of a product. Copyright in a work gives the creator exclusive rights to reproduce, distribute, display,
and perform the work. In the case of copyright in registered designs, the creator is granted exclusive rights
over the design's visual features applied to an article.

Some acts that amount to piracy or infringement of registered designs include:

1. Reproduction: Creating copies of the registered design without the permission of the owner constitutes
infringement. This includes reproducing the design in any material form, such as by manufacturing, selling,
importing, or using articles with a design that is identical or substantially similar to the registered design.
2. Selling or importing infringing articles: Importing or selling articles that have been copied directly or
substantially from a registered design without authorization from the owner is an act of piracy.
3. Licensing or authorizing infringing acts: Giving permission to others to reproduce or use a registered
design without the owner's consent is considered an infringement. This includes licensing agreements that
allow others to copy or use a registered design without proper authorization.
4. Altering or tampering with the registered design: Modifying or tampering with a registered design in a
way that substantially changes its original visual features without the owner's permission is an infringement.
Remedies for piracy of registered designs include:
1. Injunction: The court can issue an injunction to prevent further infringement, prohibiting the infringer
from using, reproducing, or selling the infringing articles.
2. Damages: The owner of the registered design can claim damages for any loss suffered due to the
infringement. This includes both actual damages (financial losses) and notional or statutory damages.
3. Delivery-up: The court may order the infringing articles to be delivered to the owner or destroyed to
prevent their further distribution.
4. Account of profits: The court can order the infringer to account for profits made from the unauthorized use
of the registered design. This allows the owner to claim a share of the infringer's profits obtained through the
infringement.

It's important for designers and companies to register their designs to gain the benefits of copyright
protection under the Designs Act, 2000. Registering a design provides the owner with a legal framework to
take action against individuals or entities involved in piracy, ensuring the exclusive rights to their unique
designs.

GEOGRAPHICAL INDICATIONS

Differences Between Trademarks and geographical indications

GI Definition

The definition for a GI is found in The Geographical Indications of Goods (Registration and Protection) Act,
1999, under Section 2(1)(e):

‘Geographical indication’, is an indication that such goods like agricultural, natural, or manufactured are
originating, or manufactured, in the territory of a country, or a region or locality within that territory, where a
given quality, reputation, or other characteristic of such goods is essentially attributable to its geographical
origin.

On other hand, according to Section 2(i) (zb) of the Indian Trademarks Act 1999, ‘A mark capable of being
represented graphically and capable of distinguishing the goods or services of one person from those of
others, and may include shape of goods, their packaging, and combination of colors’.

Key differences : Trademark and Geographical Indication

1. A trademark is a symbol, name, or identity of a firm that is used to distinguish one entity’s goods or
services from those of another. A car is still an automobile, but the manufacturer’s trademark allows it to be
differentiated. BMW and Audi, for example, are the trademarks of the respective automobile manufacturers.
In the case of a GI, the name denotes the product’s place of origin, and any producer in that geographic
region can use the GI for that product.

2. A geographical indication (GI) is essentially a collective protection provided to a group of producers from a
specified place where the commodity was initially created. A trademark, on the other hand, can be registered
by a single person or a company, both.

3. While Register Trademark in a person’s name and address may only be used by that person or
manufacturer, every manufacturer or producer in the same territory is permitted to use the same GI.
4. A trademark can be a letter, a word, digits, or a combination of characters and numbers, as well as an
abbreviation, name, gadget, hologram, sound, or odor. A GI, on the other hand, can only be a name or a
symbol associated with a location.

5. A Trademark is available for both goods and services whereas GI is meant only for goods unique to a
geographical region.

6. The individuality or uniqueness of a trademark is determined by human ingenuity or intellect. It is possible

for a trademark to be suggestive, descriptive, or arbitrary. A GI is a code that identifies a product based on its
origin. The nature of the GI is determined by factors like geography, human labor, and the environment of a
certain geographical place.

Check Here to more about : https://ipindia.gov.in/

7. GI is a right enjoyed by a community / association of producers (community right). For instance, Assam
Muga Silk has GI conferring rights to all such traders from that community. Trademark is a right enjoyed by
only one person/company (individual right).

8. The Indian Trademarks Act 1999 governs trademarks, whereas the Geographical Indications of Goods
(Registration and Protection) Act 1999 governs GIs.

Conclusion:

The only thing that a GI and a trademark have in common is that they both serve as source indications. The
main distinction is that, whereas a trademark identifies a thing or service as coming from a certain
manufacturer, a geographical indicator indicates the geographical location from which the product comes,
not the creator of the good in question. Both types of intellectual property are used to identify a product
or service.

Geographical indication establishes product

Geographical indication (GI) is a form of intellectual property protection that establishes a link between a
product and its place of origin. It is a valuable tool for promoting and protecting traditional products,
fostering rural development, and preserving cultural heritage. A geographical indication indicates that a
product possesses certain qualities, reputation, or characteristics that are essentially attributable to its
geographical origin.

The concept of GI recognizes that specific geographical locations often have unique environmental
conditions, traditional knowledge, cultural practices, and expertise that contribute to the distinctiveness and
quality of a product. By linking the product to its place of origin, consumers can make informed choices and
associate specific qualities or characteristics with particular regions, fostering trust and recognition.

To acquire protection under the Geographical Indications of Goods (Registration and Protection) Act, 1999,
the registration process involves the following steps:

1. Filing an application: The application for registration of a geographical indication must be filed with the
appropriate office, typically the Geographical Indications Registry. The application should include the name
or representation of the geographical indication, along with other relevant information.
2. Examination of the application: The application is examined by the Geographical Indications Registry to
determine if it meets the necessary requirements. The examination includes verifying the correctness of the
application and assessing whether the geographical indication fulfills the eligibility criteria.

3. Publication: Once the application passes the examination, it is published in the Geographical Indications
Journal. Interested parties can file oppositions against the registration within a specified period.

4. Opposition proceedings: If an opposition is filed against the registration, both parties are given the
opportunity to present their case before the Registrar. The Registrar considers the evidence and arguments
presented and decides whether to accept or reject the opposition.

5. Registration: If the application proceeds unopposed or survives the opposition proceedings, the
geographical indication is registered in the Geographical Indications Register.

The duration of protection for a registered geographical indication varies depending on the country's
legislation. In the case of India, under the Geographical Indications of Goods (Registration and Protection)
Act, 1999, the initial duration of protection is ten years from the date of registration. However, the protection
can be renewed indefinitely for subsequent periods of ten years each by paying the prescribed renewal fees.

It's important to note that during the protection period, registered geographical indications are safeguarded
against unauthorized use, imitation, or misrepresentation. This ensures that the producers from the
associated regions receive the economic benefits derived from their unique products and also preserves the
traditional skills, cultural heritage, and local economies tied to the geographical indication.

Overall, the establishment of a product-place link through geographical indication provides a legal
framework to protect, promote, and preserve the authenticity and reputation of traditional products,
benefitting both producers and consumers.

Powers of the Registrar

The Registrar of Geographical Indications (GI) plays a crucial role in the registration and protection of
geographical indications in India under The Geographical Indications of Goods (Registration and Protection)
Act, 1999. The Act provides the Registrar with various powers to ensure the effective implementation of the
GI system. Here are the key powers of the Registrar:

1. **Registration**: The Registrar is responsible for the registration of geographical indications. Applicants
submit their applications for registration to the Registrar, who examines them for compliance with the legal
requirements and issues the Certificate of Registration upon successful completion of the registration
process.

2. **Examination**: The Registrar conducts a detailed examination of the application to determine whether
the proposed geographical indication meets the necessary criteria. This examination includes assessing if the
indication identifies the specific geographical origin of the goods and whether the goods possess unique
qualities or reputation attributable to that origin.

3. **Publication**: Once an application is accepted for registration, the Registrar publishes it in the
Geographical Indications Journal, which is available to the public. The purpose of publication is to allow
interested parties to oppose the registration if they have valid grounds to do so within a specified period.

4. **Opposition Procedures**: The Registrar handles opposition proceedings by facilitating the resolution of
disputes between parties. If any person objects to the registration of a geographical indication, they can file
an opposition with the Registrar, who will examine the opposition, provide an opportunity for both parties to
be heard, and render a decision on the matter.

5. **Renewal**: The Registrar has the authority to renew the registration of a geographical indication. The
initial registration period is ten years, renewable indefinitely for subsequent periods of ten years each. The
Registrar receives applications for renewal and issues a renewed certificate upon satisfaction of the renewal
requirements.

6. **Rectification**: The Act empowers the Registrar to rectify or correct any clerical errors or inaccuracies
that may have occurred in the register. If any person believes that an entry in the register requires
rectification, they can apply to the Registrar, who will assess the request and take appropriate action.

7. **Infringement Actions**: The Registrar possesses powers to initiate proceedings against the unauthorized
use of a registered geographical indication. If the Registrar becomes aware of any infringement or misuse of a
registered GI, they may take necessary steps, including initiating legal action against the infringer, obtaining
injunctions, and seeking damages on behalf of the registered proprietor.

8. **Cancellation**: The Registrar has the authority to cancel the registration of a geographical indication
under specific circumstances. If the Registrar receives an application or otherwise becomes aware that a
registered GI no longer complies with the requirements of the Act or has not been used for a continuous
period of five years, they can initiate cancellation proceedings after giving the registered proprietor an
opportunity to be heard.

The Registrar of Geographical Indications in India, empowered by The Geographical Indications of Goods
(Registration and Protection) Act, 1999, possesses a wide range of powers to ensure the accurate registration,
protection, and enforcement of geographical indications. These powers significantly contribute to the
promotion and preservation of the unique qualities and reputation associated with specific geographical
origins of goods within the Indian context.

**Plant Variety and Registration Under the Protection of Plant Varieties and Farmers' Rights
Act, 2001**

Plant variety refers to a plant group that is clearly distinguished by its uniform characteristics and can be
propagated unchanged through specific means such as seeds, tubers, cuttings, and more. The Protection of
Plant Varieties and Farmers' Rights Act, 2001 in India encompasses the legal framework for the protection of
plant varieties and the rights of farmers. This legislation establishes a system for the registration of plant
varieties, ensuring breeders' rights and promoting innovation in the agricultural sector.

**Criteria for Registration of a Variety:**

To be eligible for registration, a plant variety must fulfill the following criteria:

**1. Novelty:** The variety should be new and not be commercially exploited in India for a prescribed period
preceding the date of filing the application. The period varies depending on the category of crops. Specifically,
it should not have been sold, offered for sale, or otherwise disposed of to the public for a period of:
- **Trees and vines**: Six years
- **Other crops**: Four years
**2. Distinctiveness:** The variety should be distinguishable from any other known variety, clearly showing
characteristics that set it apart.
**3. Uniformity:** The variety should be uniform in its essential characteristics within reasonable limits,
ensuring consistent and predictable performance.
**4. Stability:** The variety should remain unchanged in its essential characteristics, even after repeated
propagation.
Additionally, a variety cannot be registered under the following circumstances:
- If it is likely to become a necessity for cultivation in India.
- If it contains genetic material derived from traditional varieties.
- If it is essentially derived from a variety whose breeder's rights are still in effect.
- If it is causing public interest concerns, as specified in the Act.

**Procedure for Registration of a Variety:**

To register a variety under the Protection of Plant Varieties and Farmers' Rights Act, 2001, the following
procedure is followed:
1. **Application:** The breeder or his authorized representative needs to submit an application in the
prescribed format to the Registrar of Plant Varieties.
2. **Examination:** The application is examined by the Plant Varieties Registry to determine whether the
variety meets the criteria of novelty, distinctiveness, uniformity, and stability. This examination may include
field inspection, examination of characteristics and genome, and any other necessary tests.
3. **Objections, Withdrawal, or Amendment:** If any objections or deficiencies are found, the applicant is
notified, providing an opportunity to respond, clarify, or amend their application.
4. **Publication and Opposition:** Once the Registrar is satisfied with the application, it is published in the
Plant Varieties Journal. During the publication period, anyone may oppose the registration by filing a notice
of opposition.
5. **Hearing and Decision:** If an opposition is filed, a hearing is conducted to address the concerns raised.
After considering all relevant factors and submissions, the Registrar makes a decision.
6. **Registration:** If the Registrar is satisfied that the variety is eligible and no opposition is upheld, the
variety is registered and a Certificate of Registration is issued to the breeder.
7. **Term of Protection:** The registered variety is protected for a specified period, which varies depending
on the category of crops, ranging from 15 to 18 years for trees and vines, and 15 to 21 years for other crops.
The Protection of Plant Varieties and Farmers' Rights Act, 2001 provides a legal framework that promotes
innovation, rewards breeders for their efforts, and protects farmers' rights by facilitating the development
and registration of new plant varieties.

Protection of Breeders
The Protection of Plant Varieties and Farmer's Rights Act, 2001 (PPVFR Act) is a legislation enacted by the
Government of India to provide protection to plant breeders' rights and farmers' rights. It aims to encourage
the development of new plant varieties and safeguard the interests of both breeders and farmers. The Act
recognizes the importance of protecting plant varieties to promote innovation, enhance agricultural
productivity, and ensure the fair distribution of benefits derived from plant breeding activities.

Under the PPVFR Act, breeders are granted certain exclusive rights over their registered plant varieties.
These rights include:
1. Protection: The Act provides legal protection to breeders of new plant varieties by granting them exclusive
rights over the production, distribution, and sale of their registered varieties. This protection prevents
unauthorized use or exploitation of the breeder's variety by third parties.
2. Authorization: Breeders have the authority to authorize or prohibit the production, sale, or distribution of
their registered varieties. They can enter into licensing agreements or grant permission to others for
propagating the variety under certain terms and conditions.
3. Royalties: Breeders are entitled to receive royalties from the sale of their registered varieties. The Act
ensures fair remuneration for breeders' efforts and investments in developing new plant varieties.
4. Duration: The protection granted to breeders under the PPVFR Act lasts for a specified period. For most
crops, it is 15 years from the date of registration, while for trees and vines, it is 18 years. After the protection
period expires, the variety enters the public domain and can be freely used by farmers and breeders.
5. Benefit-sharing: The Act aims to ensure equitable sharing of benefits arising from the commercial
exploitation of a registered variety. Breeders are required to contribute a percentage of their annual net sales
towards a National Gene Fund. This fund is utilized for the welfare of farmers and the promotion of plant
genetic resources.

To avail protection and exercise their rights under the Act, breeders are required to satisfy certain conditions.
These conditions include:
1. Novelty: The plant variety must be new and distinct, which means it should not have been commercially
exploited in India before the date of its application for registration.
2. Distinctiveness, Uniformity, and Stability (DUS): The variety must demonstrate distinct characteristics,
be uniform in its traits within a specified range, and remain stable across multiple generations.
3. Depository: Breeders are required to deposit seed or other propagating material of the registered variety at
an authorized depository specified by the Act. This ensures the availability of genetic resources for research,
verification, and enforcement purposes.
The PPVFR Act also recognizes the rights of farmers, who have been cultivating a variety prior to its
registration. Farmers have the freedom to save, use, sow, exchange, or sell the protected variety within the
farm. They are protected from claims of infringement by breeders, as long as they do not sell the variety
under a brand name.

In conclusion, the Protection of Plant Varieties and Farmer's Rights Act, 2001 provides essential protection to
breeders, ensuring their exclusive rights over registered plant varieties. It fosters innovation, encourages
plant breeding activities, and promotes the fair sharing of benefits derived from the commercial exploitation
of plant genetic resources. The Act strikes a balance between the interests of breeders and the rights of
farmers, thereby fostering sustainable agricultural development in India.

Offences and Penalties

The Protection of Plant Varieties and Farmer's Rights Act, 2001, is an essential legislation in India that aims
to protect the rights of plant breeders and farmers while providing an effective framework for the
development and commercialization of new plant varieties. Along with providing provisions to safeguard
intellectual property rights, the Act also outlines various offences and penalties for non-compliance. Let's
take a detailed look at the offences and penalties under this Act:
1. Offences related to registration and variety protection:
- Falsely claiming plant varieties to be registered: Any person who falsely represents a plant variety as
registered under the Act commits an offence.
- Unauthorized sale, export, or import of registered varieties: Any person who sells, exports, or imports a
registered variety without obtaining the necessary authorization from the Registrar commits an offence.
- Sale of spurious varieties: Selling, offering for sale, or falsely labeling or representing a variety as a
registered variety is an offence.
2. Offences related to unauthorized use or infringement of variety rights:
- Unauthorized use: Any person who uses a registered variety without obtaining prior authorization from
the rights holder commits an offence.
- Infringement of variety rights: Any person who produces, sells, offers for sale, distributes, or markets a
variety registered under the Act without the consent of the rights holder commits an offence.
 - Unauthorized production or sale of propagating material: Unauthorized production or sale of propagating
material of a protected variety is an offence.
3. Offences related to farmers' rights:
- Non-payment of benefit sharing: Any person who fails to pay the benefit sharing amount to the farmers
for any commercial utilization of the registered variety commits an offence.
- Non-compliance with seed standards: Any person who sells, distributes, or trades seeds of a registered
variety without complying with the prescribed seed standards commits an offence.
4. Other offences and penalties:
- Obstructing or refusing to cooperate with the Registrar: Any person who obstructs or refuses to cooperate
with the Registrar of Plant Varieties commits an offence.
- Providing false information: Furnishing false information or fraudulent representation regarding any
aspect related to variety registration, rights, or farmers' rights is an offence.
- Penalties: The Act provides provisions for penalties for various offences, including fines and
imprisonment. The severity of the penalty depends on the nature and severity of the offence committed.

It is important to note that the Act lays down comprehensive provisions for the protection of plant varieties
and the rights of farmers and breeders. The penalties outlined in the Act serve as a deterrent to potential
offenders and ensure compliance with the law, fostering an environment of innovation, fair trade, and
protection of intellectual property rights in the agricultural sector.

Law relating to protection of plant variety

The Protection of Plant Varieties and Farmer's Rights Act, 2001 (PPV&FR Act) is an Indian legislation that
aims to provide protection to plant breeders' rights as well as safeguard the rights of farmers in relation to
their traditional knowledge and sustainable cultivation practices. The Act seeks to strike a balance between
promoting innovation and ensuring the interests of farmers are protected.

Key features of the Act:

1. Protection of Plant Varieties: The PPV&FR Act provides for the protection of plant varieties by granting
breeders exclusive rights over their creations. These rights include the right to produce, sell, market,
distribute, and use the registered variety for a specified period. The Act enables breeders to protect their
investment in research and development, encouraging the development of new and improved plant varieties.
2. Registration of Plant Varieties: To receive protection, the plant variety must be distinct, uniform, and
stable (DUS). The registrant must apply for registration with the Protection of Plant Varieties and Farmers’
Rights Authority (PPV&FRA) and fulfill the prescribed criteria. Upon successful registration, the breeder is
granted an exclusive right over the registered variety for a specific period.
3. Farmers' Rights: The Act recognizes the vital role of farmers in conserving and enhancing agricultural
biodiversity. It acknowledges their contributions to the development and preservation of plant genetic
resources and promotes the rights of farmers in relation to their traditional knowledge and sustainable
agricultural practices. Farmers are allowed to save, use, exchange, or sell seeds of protected varieties for their
own farm purposes, but they cannot sell branded seeds.
4. Benefit-Sharing: The Act emphasizes the equitable sharing of benefits arising from the commercial use of
plant varieties. It requires breeders to share a portion of their royalties with farmers and the local
communities involved in conserving and improving the varieties. This provision ensures that farmers and
indigenous communities are appropriately rewarded for their contributions.
5. Farmers' Variety Registration: The Act provides a mechanism for farmers to register their traditional
varieties. This encourages the conservation and documentation of farmers' varieties and safeguards them
against biopiracy. Registered farmers' varieties cannot be patented, and their seeds are available to all
farmers.
6. Plant Fund: The PPV&FR Act establishes a Plant Varieties Protection and Farmers' Rights (PVPFR) Fund
to support various activities, including the promotion of plant varieties' development, breeding programs,
and benefit-sharing initiatives. The fund enables the government to extend support to farmers and breeders
for research and development in the field of plant varieties.
7. Dispute Resolution: The Act also provides for a dispute resolution mechanism, allowing for the timely and
effective resolution of conflicts that may arise between breeders, farmers, and other stakeholders. The
PPV&FRA, established under the Act, has the authority to hear and decide on such disputes.

In summary, the Protection of Plant Varieties and Farmer's Rights Act, 2001 is a comprehensive legislation
that seeks to protect and promote the interests of both plant breeders and farmers. It establishes a framework
for the registration and protection of plant varieties, while also recognizing and safeguarding the rights of
farmers and promoting the conservation of agricultural biodiversity.

Farmer’s rights
The Protection of Plant Varieties and Farmer's Rights Act, 2001 is a legislation enacted in India to protect the
rights of farmers and breeders with respect to plant varieties. The act recognizes the vital role played by
farmers in the conservation and continuation of agricultural biodiversity. It aims to promote sustainable
agriculture and safeguard the interests of both farmers and breeders.

Under this act, farmers are granted various rights and entitlements to ensure the protection of their rights as
cultivators and custodians of traditional plant varieties. Here are the key provisions that outline farmer's
rights:
1. **Right to save, use, and exchange seeds**: Farmers have the freedom to save, use, and exchange seeds of
protected varieties of plants that they have traditionally cultivated. This right allows farmers to continue their
age-old practices of seed selection and seed saving, contributing to the preservation of traditional knowledge
and genetic diversity.
2. **Right to sell and market farm produce**: Farmers have the right to sell and market the produce from
their farm, including seeds and other agricultural products derived from protected varieties. This empowers
farmers to benefit from their own efforts and entrepreneurial skills.
3. **Right to protect against unauthorized use**: Farmers have the right to protect their seed varieties from
unauthorized use by third parties. This provision safeguards against the unauthorized commercialization and
exploitation of traditional varieties by others.
4. **Right to be recognized as a breeder**: The act recognizes the contributions made by farmers towards the
development of new plant varieties. If a farmer discovers and develops a new plant variety, they are entitled
to claim recognition as a breeder and receive benefits accordingly.
5. **Right to receive compensation**: In case of infringement of the rights granted to farmers under this act,
they have the right to seek appropriate compensation. This provision ensures that farmers are protected from
any losses incurred due to violations of their rights.
6. **Right to participate in decision-making**: The act emphasizes the participation of farmers in the
decision-making process concerning the conservation, cultivation, and sustainable use of plant genetic
resources. Farmers' organizations are encouraged to be involved in policy development and decision-making
at various levels.

These rights provided under the Protection of Plant Varieties and Farmer's Rights Act, 2001 recognize the
critical role of farmers in promoting food security, environmental sustainability, and maintaining agricultural
diversity. This legislation strives to strike a fair balance between the interests of farmers and breeders while
protecting the rights of both stakeholders.
Traditional Knowledge
Traditional Knowledge (TK) refers to the knowledge, innovations, and practices developed by indigenous and
local communities over centuries, often passed down orally from generation to generation. This knowledge
covers a wide range of subjects such as agriculture, medicine, ecology, and cultural expressions. However, the
protection of TK under intellectual property rights (IPRs) poses several challenges due to its unique
characteristics and the need to respect the rights and interests of indigenous and local communities.

Intellectual Property Rights encompass legal protections for creative works or inventions, including
copyright, patents, trademarks, and trade secrets. These systems were primarily developed to protect
individual creators or inventors and their innovations, often with a focus on commercial development and
rewards. When it comes to TK, issues arise because it often belongs to local communities or entire cultures
rather than specific individuals, and its value is often based on collective ownership and use.

There are several key issues to consider when addressing the protection of TK under IPRs:

1. Misappropriation and Biopiracy: TK is vulnerable to misappropriation, where external entities exploit it

without proper consent or compensation, leading to biopiracy. Biopiracy occurs when a third party patents,
trademarks, or commercializes traditional knowledge without the permission or equitable benefit-sharing
with the indigenous or local communities that possess this knowledge.
2. Cultural Appropriation: Traditional cultural expressions, including music, art, dance, and ceremonies, are
sometimes used by outsiders without respecting their cultural significance or compensating the communities
that developed them. This results in cultural exploitation and misrepresentation.
3. Prior Informed Consent: Respecting the principle of prior informed consent is crucial to protect the rights
and interests of indigenous and local communities. It ensures that any use or commercialization of
traditional knowledge is done with the free, prior, and informed consent of the relevant communities.

To address these issues, various initiatives have been undertaken at national and international levels:

1. International Legal Frameworks: International agreements, such as the Convention on Biological

Diversity (CBD) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),
emphasize the protection of TK and the rights of indigenous peoples.
2. Domestic Laws and Policies: Many countries have enacted laws protecting TK. Examples include India's
"Protection of Plant Varieties and Farmers' Rights Act" and Peru's "Law on the Protection of Traditional
Knowledge."
3. Benefit-Sharing Mechanisms: To ensure that the benefits derived from the utilization of TK flow back to
the indigenous and local communities, benefit-sharing arrangements have been proposed. These
arrangements aim to provide fair and equitable compensation or economic benefits to the communities that
hold the knowledge.
4. Indigenous Intellectual Property Rights: There have been calls to develop sui generis systems or
alternative frameworks for the protection of traditional knowledge that are better suited to indigenous
perspectives, values, and customary laws.
5. Traditional Knowledge Digital Libraries: Digital repositories or databases have been created to safeguard
TK and provide a platform for indigenous communities to share and manage their knowledge. Examples
include the Traditional Knowledge Digital Library in India and the Traditional Knowledge and Cultural
Expressions database by WIPO.

Efforts are ongoing to strike a balance between protecting TK under IPRs and respecting the rights and
interests of the indigenous and local communities that hold this knowledge. The recognition and preservation
of TK are crucial for promoting cultural diversity, sustainable development, and mutual respect between
different knowledge systems.

Protection of Semiconductor Integrated Circuits

In the world of technology, semiconductor integrated circuits (ICs) have become increasingly vital
components in various electronic devices such as computers, smartphones, and telecommunication
equipment. The Protection of Semiconductor Integrated Circuits (SICs) under Intellectual Property (IP)
Rights aims to safeguard the innovative designs and investment made in developing these ICs. In this note, I
will delve into the background, legal framework, and key aspects of the protection of SICs.
**Background:** Semiconductor ICs consist of interconnected electronic components, including transistors,
diodes, and resistors, etched onto a single substrate known as a semiconductor wafer. These circuits perform
essential functions, enabling electronic devices to function efficiently. Given their commercial significance
and technical complexity, it is essential to provide legal protection to the designs and investment in
developing these circuits.
**Legal Framework:** The protection of semiconductor ICs is governed by international agreements and
national laws. One of the most significant international agreements in this domain is the Treaty on
Intellectual Property in Respect of Integrated Circuits (also known as the Washington Treaty), administered
by the World Intellectual Property Organization (WIPO). The Washington Treaty provides a minimum
standard of protection and enforcement for SICs.
**Key Aspects of Protection:**
1. **Layout Design Protection:** Layout designs refer to the three-dimensional arrangement of electronic
components on a semiconductor wafer. Protection of layout designs is typically achieved through a dedicated
form of IP known as layout design rights (LDRs), also referred to as semiconductor mask work rights. LDRs
grant exclusive rights to the creators of original layout designs for a specified period. Registration systems
exist in most jurisdictions to provide legal recognition and enforceability of these rights.
2. **Subject Matter Eligibility:** To qualify for protection, a layout design must meet certain eligibility
criteria. Generally, the design must be original, meaning it is the result of the creator's intellectual effort and
not common in the industry. The layout design should also be fixed on a semiconductor wafer and possess
industrial application, meaning it should be suitable for mass production.
3. **Scope and Duration of Protection:** The scope of protection granted to a layout design generally
includes the exclusive right to reproduce the design, commercially exploit it, import or distribute integrated
circuits that embody the protected layout design, and prevent unauthorized copying or imitation. The
duration of protection varies across jurisdictions, typically ranging from 10 to 15 years from the date of filing
or commercial exploitation.
4. **Exceptions and Limitations:** Some jurisdictions incorporate exceptions and limitations to protect
certain user interests or ensure the free flow of information. These may include provisions for private use,
experimental purposes, or the reproduction of a layout design solely for the purpose of repairing or servicing
an integrated circuit.
5. **Enforcement and Remedies:** The protection of SICs requires an effective enforcement mechanism to
deter infringement and provide appropriate remedies. International agreements like the Washington Treaty
prescribe measures for civil remedies, enforcement procedures, the calculation of damages, and border
measures to prevent the importation of infringing integrated circuits.
**Conclusion:** The protection of Semiconductor ICs under Intellectual Property Rights is crucial for
promoting innovation, encouraging investment, and ensuring fair competition in the electronics industry.
Through layout design protection and the associated legal framework, creators can safeguard their
investment and maintain a competitive advantage. As technology evolves, it remains essential to continue
updating and harmonizing IP laws to effectively protect semiconductor ICs and support further
advancements in the field.