Copyright Act

UNIT 7 INTELLECTUAL PROPERTY

RIGHTS
Structure
7.0 Introduction
7.1 Learning Outcomes
7.2 Concept, Nature and Scope of IPR
7.2.1 Definition of IPR

7.2.2 Importance of IPR

7.2.3 Scope of IPR

7.3 Evolution and Growth of IPR

7.3.1 Paris Convention

7.3.2 Berne Convention

7.3.3 General Agreement on Tariffs and Trade (GATT)

7.3.4 Rome Convention

7.4 Components of IPR

7.4.1 Patent

7.4.2 Trademark

7.4.3 Copyright

7.4.4 Geographical Indication

7.4.5 Industrial Designs

7.5 Let Us Sum Up

7.6 Further Readings
7.7 Check Your Progress: Possible Answers

7.0 INTRODUCTION
We are living in an era of rapid technological advancements. Today development
and growth have been made possible by the outcomes of the human intellect
which need legal protection, worldwide. Such statutory protections provide
economic and financial rights to the originator in his or her intellectual creations.
They also promote creativity and encourage fair trading which contribute to the
economic and social development of the society as a whole.
We have briefly discussed IPR in previous units. In this unit we shall give you
a detailed overview of various aspects of Intellectual Property Rights (IPR).
In the increasingly globalised world, it is important for you to be aware of this
very important law.

87
Information Ethics
and Laws 7.1 LEARNING OUTCOMES
After completing this unit, you should be able to:
● Discuss the concept, nature and the scope of IPR;
● Describe the evolution and growth of IPR;
● Acquaint yourself with WIPO and new trading system;
● Explain the important components under the IPR regime; and
● Enumerate the various legislations available for IPR.

7.2 CONCEPT, NATURE AND SCOPE OF IPR

Intellectual Property (IP) very broadly means the legal rights which result from
intellectual activity in the industrial, scientific, literary and artistic fields. IP
refers to the ownership of an idea or design by the person who came up with it.
It is a term used in property law. It gives a person certain exclusive rights to a
distinct type of creative design, meaning that nobody else can copy or reuse that
creation without the owner’s permission. It can be applied to musical, literary
and artistic works, discoveries and inventions. Common types of intellectual
property rights include copyrights, trademarks, patents, industrial design rights
and trade secrets.
According to the World IP Organisation (WIPO), IPR refers to creations of the
mind: inventions; literary and artistic works; and symbols, names and images
used in commerce.

7.2.1 Definition of IPR

The concept of property has existed from time immemorial. Various scholars
have underlined the importance of the concept of property which directly
or indirectly includes IP. According to world famous jurist Salmond, “The
immaterial product of a man’s brains may be as valuable as his lands or his
goods. The Law therefore gives him a proprietary right in it.”
Encyclopedia Britannica defines the term intellectual property as: ‘A property
that derives from the work of an individual’s mind or intellect’. Since IPR is a
right over an idea it also covers everything under the idea. If an idea which is
the subject matter of an IPR finds its application in a tangible thing, the latter is
also covered by that IPR.
Over a period of time and particularly in the contemporary corporate paradigm,
ideas and knowledge have become increasingly important parts of trade. Most
of the value of high technology products and new medicines lies in the amount
of invention, innovation, research, design and testing. Films, music recordings,
books, computer software and on-line services are bought and sold because
of the information and creativity they contain, and not simply because of the
plastic, metal or paper used to make them.
Some products that were earlier used to be traded as low-technology goods
are now products of a higher proportion of invention, innovation and design
88 in their value, for example, new varieties of seeds, plants, etc. Therefore the
rights to restrict others from using their inventions, designs or other creations Intellectual Property
are provided by IPR. Rights

7.2.2 Importance of IPR

The protection of IP rights is an essential component of a country’s financial
policy. It can stimulate research, creativity and technological innovations by
giving freedom to individual inventors and companies to gain the benefits of
their creative efforts. The importance of IP rights can be summarised as:
● IPR are vital for economic growth. The WIPO IP Handbook gives two
reasons for IP laws: One is to give statutory expression to the moral and
economic rights of creators in their creations and the rights of the public
for accessing those creations. Second is to stimulate, as a deliberate act of
government policy, creativity and the dissemination and application of its
results and to encourage fair trading which would contribute to economic
and social development.
● IPR allows owners of IP to derive financial benefits from the property they
have created.
● IP helps in the generation of Breakthrough Solutions to some major global
problems: For example: Nearly all of the 300 products on the World
Health Organisation’s Essential Drug List, which are critical to saving or
improving people’s lives around the globe, came from the R&D intensive
pharmaceutical industry that depends on patent protections. Innovative
agricultural companies are creating new products to help farmers produce
more and better products for the world’s population while reducing the
environmental impact of agriculture. IP-driven discoveries in alternative
energy and green technologies may help improve energy security and
address the problem of climate change.
● IPR encourages innovation and rewards entrepreneurs. Risk and occasional
failure are the lifeblood of the innovation economy. IP rights are a sort of
encouragement to entrepreneurs to keep pushing for new advances in the
face of adversity.

7.2.3 Scope of IPR

The convention establishing the World IP Organisation (WIPO) has described
a detailed definition of IPR.
According to which IPR shall include the rights relating to:
a) Literary, artistic and scientific work;
b) Performances of performing artists, phonograms and broadcasts;
c) Inventions in all fields of human endeavour;
d) Scientific discoveries;
e) Industrial Designs;
f) Trade Marks, service marks and commercial names and designations;
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Information Ethics g) Protection against unfair competition and; all other rights resulting from
and Laws intellectual activity in the industrial, scientific, literary or artistic fields.
Check Your Progress: 1
Note: 1) Use the space below for your answers
2) Compare your answers with those given at the end of the unit
1) Define Intellectual Property Rights.
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2) Does IPR cover tangible things?
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3) State how IPR helps in maintaining economic growth?
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7.3 EVOLUTION AND GROWTH OF IPR

The growth of IPR can be seen in the light of two major conventions for the
protection of IPR: Paris convention for the Protection of Industrial Property,
1883 and Berne Convention for the protection of Literary and Artistic Works,
1886. These two conventions have undergone various changes since then and
have been brought under the supervision of World IP Organisation (WIPO)
which was constituted in 1967 as a result of a treaty signed in Stockholm on July
14, 1967. WIPO is one of the 15 specialised agencies of the United Nations.
In 1947, the General Agreement on Tariffs and Trade (GATT) was formed.
After that, due to the insistence of America, new rounds of negotiations were
held, and ultimately TRIPS came into existence and became effective from
January 1995.
The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) is an international legal agreement between all the member nations of
the World Trade Organisation (WTO). It sets down minimum standards for the
regulation by national governments of many forms of Intellectual Property (IP)
90 as applied to nationals of other WTO member nations.
TRIPs is especially important for its detailed provision for enforcement of IPR’s Intellectual Property
which had been hitherto in the jurisdiction of the national laws only. Within a Rights
couple of years, WIPO supervised two more treaties for the protection of IPR:
the WIPO Copyright Treaty, 1996 and the WIPO Performers and Phonograms
Treaty, 1996. They together are termed as WIPO “internet treaties”.
Thus we can see that the evolution of IP began with the Paris Convention
for Protection of Industrial Property (1883) and attained perfection in the
establishment of World Trade Organisation (WTO) in 1995 and signing of the
Agreement on Trade Related Aspects of IP Rights (1993). The efforts made
at Berne Convention on Literary and Artistic Rights (1886) and at Rome
Convention (1961) for Musical and Performing Arts are important milestones
in the history of evolution of IP. They ultimately led to secure protection in
performances for performers, in phonograms for producers of phonograms and
in broadcasts for broadcasting organisations.

7.3.1 Paris Convention

The Paris Convention 1883 applies to industrial property in the widest sense,
including patents, trademarks, industrial designs, utility models (a kind of
“small- scale patent” provided for by the laws of some countries), service marks,
trade names (designations under which an industrial or commercial activity are
carried out), geographical indications (indications of source and appellations of
origin) and the promotion of fair competition.
The substantive provisions of the Convention fall into three main categories:
national treatment, right of priority and common rules.
Under the provisions on national treatment, the Convention provides that each
Contracting State must grant the same protection to nationals of other Contracting
States that it grants to its own nationals. The term ‘Contracting state’ implies
those countries who have signed the treaty or convention. Nationals of non-
Contracting States are also entitled to national treatment under the Convention
if they are domiciled or have a real and effective industrial or commercial
establishment in a Contracting State.
The Convention provides for the right of priority in the case of patents (and utility
models where they exist), marks and industrial designs. This right means that,
on the basis of a regular first application filed in one of the Contracting States,
the applicant may, within a certain period of time (12 months for patents and
utility models; 6 months for industrial designs and marks), apply for protection
in any of the other Contracting States. These subsequent applications will be
regarded as if they had been filed on the same day as the first application.
The Convention lays down a few common rules that all Contracting States must
follow. The most important are:
a) Patents
● Patents granted in different Contracting States for the same invention are
independent of each other: the granting of a patent in one Contracting State
does not oblige other Contracting States to grant a patent; a patent cannot
be refused, annulled or terminated in any Contracting State on the ground
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Information Ethics that it has been refused or annulled or has been terminated in any other
and Laws Contracting State.
● The inventor has the right to be named as such in the patent.
● The grant of a patent may not be refused or be invalidated, on the ground
that the sale of the patented product, or of a product obtained by means of
the patented process, is subject to restrictions or limitations resulting from
the domestic law.
● Each Contracting State that takes legislative measures providing for the
grant of compulsory licences to prevent the abuses which might result from
the exclusive rights conferred by a patent may do so only under certain
limited conditions.
b) Marks
● The Paris Convention does not regulate the conditions for the filing
and registration of marks which are determined in each Contracting
State by domestic law. The registration of a mark obtained in one
Contracting State is independent of its possible registration in any
other country, including the country of origin.
● Where a mark has been duly registered in the country of origin, it
must, on request, be accepted for filing and protected in its original
form in the other Contracting States.
● Each Contracting State must refuse registration and prohibit the use of
marks that constitute a reproduction, imitation or translation, liable to
create confusion, of a mark used for identical and similar goods.
● Each Contracting State must likewise refuse registration and prohibit
the use of marks that consist of or contain, without authorisation,
State emblems and official signs and hallmarks of Contracting States,
provided they have been communicated through the International
Bureau of WIPO. The same provisions apply to flags, other emblems,
abbreviations and names of certain inter-governmental organisations.
c) Industrial Designs: Industrial designs must be protected in each
Contracting State, and protection may not be forfeited on the ground that
articles incorporating the design are not manufactured in that State.
d) Trade Names: Protection must be granted to trade names in each Contracting
State without there being an obligation to file or register the names.
e) Indications of Source: Measures must be taken by each Contracting State
against direct or indirect use of a false indication of the source of goods or
the identity of their producer, manufacturer or trader.
f) Unfair competition: Each Contracting State must provide for effective
protection against unfair competition.
The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at
Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in
1958 and at Stockholm in 1967, and was amended in 1979.The Convention is
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open to all States. Instruments of ratification or accession must be deposited Intellectual Property
with the Director General of WIPO. Rights

7.3.2 Berne Convention

The Berne Convention deals with the protection of works and the rights of their
authors. It is based on three basic principles and contains a series of provisions
determining the minimum protection to be granted, as well as special provisions
available to developing countries that want to make use of them.
1) The three basic principles are as follows:
a) Works originating in one of the Contracting States must be given
the same protection in each of the other Contracting States as the
latter grants to the works of its own nationals (principle of “national
treatment”).
b) Protection must not be conditional upon compliance with any formality
(principle of “automatic” protection).
c) Protection is independent of the existence of protection in the country
of origin of the work (principle of “independence” of protection). If,
however, a Contracting State provides for a longer term of protection
than the minimum prescribed by the Convention and the work ceases
to be protected in the country of origin, protection may be denied once
protection in the country of origin ceases.
2) The minimum standards of protection relate to the works and rights to be
protected, and to the duration of protection:
a) As to works, protection must include “every production in the literary,
scientific and artistic domain, whatever the mode or form of its
expression.”
b) Subject to certain allowed reservations, limitations or exceptions, the
following are among the rights that must be recognised as exclusive
rights of authorisation:
● the right to translate,
● the right to make adaptations and arrangements of the work,
● the right to perform in public dramatic, dramatic-musical and
musical works,
● the right to recite literary works in public,
● the right to communicate to the public the performance of such
works,
● the right to broadcast (with the possibility that a Contracting State
may provide for a mere right to equitable remuneration instead
of
● a right of authorisation),
● the right to make reproductions in any manner or form (with the 93
Information Ethics possibility that a Contracting State may permit, in certain special
and Laws cases, reproduction without authorisation
● the right to use the work as a basis for an audiovisual work, and the
right to reproduce, distribute, perform in public or communicate
to the public that audiovisual work .
c) As to the duration of protection, the general rule is that protection must
be granted until the expiration of the 50th year after the author’s death.
In the case of audiovisual (cinematographic) works, the minimum
term of protection is 50 years after the making available of the work to
the public (“release”) or – failing such an event – from the creation of
the work. In the case of works of applied art and photographic works,
the minimum term is 25 years from the creation of the work.
3) The Berne Convention allows certain limitations and exceptions on
economic rights, that is, cases in which protected works may be used
without the authorisation of the owner of the copyright, and without
payment of compensation.
The Berne Convention, concluded in 1886, was revised at Paris in 1896 and
at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at
Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended
in 1979. The Convention is open to all States. Instruments of ratification or
accession must be deposited with the Director General of WIPO.

7.3.3 General Agreement on Tariffs and Trade (GATT)

GATT is the product of growing realisation by the member nations that their
relations in the field of trade and commerce should be conducted to raise standards
of living, ensure full employment, develop the full use of the resources of the
world and expand the production and exchange of goods. It aims to achieve these
objectives by providing reciprocal and mutually advantageous arrangements
directed to the substantial reduction of tariffs and other barriers to trade and to
the elimination of discriminatory treatment in international commerce.

7.3.4 Rome Convention

The Rome Convention secures protection in performances for performers, in
phonograms for producers of phonograms and in broadcasts for broadcasting
organisations.
1) Performers (actors, singers, musicians, dancers and those who perform
literary or artistic works) are protected against certain acts to which they
have not consented, such as the broadcasting and communication to the
public of a live performance; the fixation of the live performance; the
reproduction of the fixation if the original fixation was made without the
performer’s consent or if the reproduction was made for purposes different
from those for which consent was given.
2) Producers of phonograms have the right to authorise or prohibit the
direct or indirect reproduction of their phonograms. Where a phonogram
published for commercial purposes gives rise to secondary uses (such
94 as broadcasting or communication to the public in any form), a single
 equitable remuneration must be paid by the user to the performers, to the Intellectual Property
producers of the phonograms, or to both. Rights

3) Broadcasting organisations have the right to authorise or prohibit certain

acts, namely the rebroadcasting of their broadcasts; the fixation of their
broadcasts; the reproduction of such fixations; the communication to the
public of their television broadcasts if such communication is made in
places accessible to the public against payment of an entrance fee.
The Rome Convention allows for limitations and exceptions to the above-
mentioned rights in national laws as regards to private use, use of short
excerpts in connection with reporting current events, ephemeral fixation by
a broadcasting organisation by means of its own facilities and for its own
broadcasts, use solely for the purpose of teaching or scientific research and
in any other cases where national law provides exceptions to copyright in
literary and artistic works.
As to duration, protection must last at least until the end of a 20-year period
computed from the end of the year in which:
● the fixation was made for phonograms and for performances
incorporated therein;
● the performance took place, for performances not incorporated in
phonograms;
● the broadcast took place. However, national laws increasingly
provide for a 50-year term of protection, at least for phonograms and
performances.
WIPO is responsible, jointly with the International Labour Organisation (ILO)
and the United Nations Educational, Scientific and Cultural Organisation
(UNESCO), for the administration of the Rome Convention. These three
organisations constitute the Secretariat of the Inter-governmental Committee
set up under the Convention consisting of the representatives of 12 Contracting
States.

7.4 COMPONENTS OF IPR

The components of IPR, as envisaged by WIPO and TRIPS, have specified
aims and objectives. A brief explanation of the components iss as follows:

7.4.1 Patent
John of Utynam is the recipient of the first known English patent, granted in
1449 by King Henry VI. John came to England to make the windows for Eton
College. The patent granted him a 20-year monopoly on the making of coloured
glass.
Patent is granted for inventions which have industrial and commercial value.
Any person, whose invention has novelty, involving inventive steps and is of
industrial application, can be granted a monopoly right for a specified period to
commercially exploit the invention and earn profit out of the invention. Novartis
v. Union of India decided by the Supreme Court of India in 2013 is a leading
case regarding patent rights. 95
Information Ethics 7.4.2 Trademark
and Laws
A trademark, as you are aware, is a distinctive sign that identifies certain goods
or services produced or provided by an individual or a company. Its origin dates
back to ancient times when craftsmen produced their signatures, or “marks”, on
their artistic works or products of a functional or practical nature. The system
helps consumers to identify and purchase a product or service based on whether
its specific characteristics and quality as indicated by its unique trademark
meet their needs. Trademark protection ensures that the owners of marks have
the exclusive right to use them to identify goods or services, or to authorise
others to use them in return for payment. The period of protection varies, but a
trademark can be renewed indefinitely upon payment of the corresponding fees.
Trademark protection can be legally enforced by courts.
For Example, in the case of Pidilite Industries Ltd SM Associates, decided
by the Bombay High Court in 2003, the plaintiff was registered proprietor of
trademark “M-SEAL”. The defendant adapted and used the mark “SM SEAL”,
with all essential characters of the trademark “M- SEAL”. The Bombay High
Court ruled that the defendant's use of impugned mark was causing confusion
and deception and restrained the defendants from using the mark.

7.4.3 Copyright
The subject matters of copyright are the literary, artistic, dramatic, musical,
cinematographic films, sound recording. Literary works now also include
computer programmes, tables, compilation including computer databases.
Mere idea without tangible expression is not granted legal protection. It is a
right granted to author or originator of certain literary or artistic production.
A copyright owner has sole and exclusive right of multiplying copies of the
original work and publishing and selling them for a specified period. For
example, downloading and sharing files of music, videos and games without
permission of the copyright owner amounts to copyright infringement. Another
example is the case of Celador Production Ltd v Gaurav Mehrotra, decided
by the Delhi High Court in 2002. The High Court found that the defendant’s
website using domain name “CrorepatiKaun.com” with logos and names and
identical photographs of plaintiff’s TV show Kaun Banega Crorepat was an act
of infringement of plaintiff’s copyright.

7.4.4 Geographical Indication

An indication which identifies goods, such as agricultural goods, natural
goods or manufactured goods as originating in the territory of a country, or its
region are called as geographical indications. These indications denote quality,
reputation or other characteristics of such goods essentially attributable to its
geographical origin. The right conferred on geographical indication prevents
competition from commercially exploiting the respective rights to the detriment
of the owner of that property.

7.4.5 Industrial Designs

Industrial designs mean only the features of shape, configuration, pattern,
ornament or composition of lines or colour applied to any article whether in two
96 dimensional or three dimensional or both. It may be by any industrial process or
means whether manual, mechanical or chemical, separate or combined which Intellectual Property
in the finished article appeal to and are judged solely by the eye but does not Rights
include any trade mark. In the case of industrial designs the property consists in
the exclusive right to apply the design registered under the statute.
Legislations for IPR In India
India being the signatory member to all the major conventions related to IPR
has legislated certain acts and statutes to show its commitment towards IPR
protection. Some of the major legislations for the protection of IPR are listed
as follows:
● The Patents Act, 1970
● The Patents (Amendment) Act, 1999
● The Patents (Amendment) Act, 2002
● The Patents (Amendment) Act, 2005
● The Trade Marks Act, 1999
● The Trade Marks (Amendment) Act, 2010
● The Competition Act, 2002
● The Competition (Amendment) Act, 2007
● The Competition (Amendment) Act, 2009
● The Semiconductor Integrated Circuits Layout-Design Act, 2000
● The Geographical Indications of Goods (Registration and Protection) Act,
1999The Protection of Plant Varieties and Farmers’ Rights Act, 2001
● The Designs Act, 2000
● The Copyright Act, 1957
● The Copyright (Amendment) Act, 1994
● The Copyright (Amendment) Act, 1999
● The Copyright (Amendment) Act, 2012
Check Your Progress: 2
Note: 1) Use the space below for your answers
2) Compare your answers with those given at the end of the unit.
1) Outline the objective of the TRIPS Agreement.
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97
Information Ethics 2) What are the subject matters of copyright?
and Laws
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7.5 LET US SUM UP

In this unit it was explained that Intellectual property (IP) broadly means the
legal rights which result from intellectual activity in the industrial, scientific,
literary and artistic fields. IP is a term used in property law and refers to the
ownership of an idea or design by the person who came up with it. It gives a
person certain exclusive rights to a distinct type of creative design, meaning that
nobody else can copy or reuse that creation without the owner’s permission.
Considering IP is the major contributor in the developmental process, various
conventions have been organised globally to establish a formal outline of the
laws for protecting IP. Conventions like Paris and Berne and Organisations like
WIPO have not only set forth the guiding principles for the establishment of
the IPR regime, but also drawn the regulations which bind the signatory nations
to effectively implement the laws relating to IPR in their countries. In India,
following the guiding principles of these conventions several landmark laws
and legislations have been enacted to protect the major components of IPR.

7.6 FURTHER READINGS

1. An Introduction to IP Rights, JP Mishra, Central Law Publication, third
Edition (2012)
2. Intellectual Property, Elizabeth Verkey, Eastern Book Company, Lucknow
(2015)
3. Law relating to IP Rights, V.K Ahuja, LexisNexis; 2nd edition (2013)
4. Law Relating to IP, B.L.Wadhera, Universal Law Publishing - An imprint
of LexisNexis; Fifth edition (2016)

7.7 CHECK YOUR PROGRESS: POSSIBLE

ANSWERS
Check Your Progress: 1
1) Intellectual Property (IP) are the legal rights which result from intellectual
activity in the industrial, scientific, literary and artistic fields. IP refers
to the ownership of an idea or design by the person who came up with
it. It gives a person certain exclusive rights to a distinct type of creative
design, meaning that nobody else can copy or reuse that creation without
the owner’s permission.
2) Since IPR is a right over an idea it also covers everything under the idea.
If an idea which is the subject matter of an IPR finds its application in a
98
tangible thing, the latter is also covered by that IPR.
3) IPR helps in maintaining economic growth by giving statutory expression Intellectual Property
to the moral and economic rights of creators in their creations and the rights Rights
of the public for accessing those creations. As an act of government policy,
IPR promotes creativity and the dissemination and application of its results
and to encourage fair trading which would contribute to economic and
social development.
Check Your Progress: 2
1) The objective of TRIPS Agreement is to present model provisions for
adequate standard and principles concerning the availability, scope and
use of trade-related IPR; effective means for their enforcement; settlement
of disputes between governments; and transitional arrangements aiming at
the fullest participation in the results of the negotiations.
2) The subject matters of copyright are the literary, artistic, dramatic, musical,
cinematographic films, sound recording. Literary works now also include
computer programmes, tables, compilation including computer databases.
Mere idea without tangible expression is not granted legal protection.

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