Intellectual Property Rights: Concept, Nature and Kinds

Intellectual Property Law: Concept & Aspects of Protection, Legal Frameworks [History &
Sources]

Principles of Treatments of IPRs

CONCEPT OF INTELLECTUAL PROPERTY

• Intellectual Property (IP) is the creation of human intellect and includes patents,
copyrights, trademarks, and designs.
• Webster Dictionary- IP is the property that results from original creative thought as
patents, copyrights, etc.
• The Supreme Court in R.C. Cooper v. Union of India (1970) defined property as
ownership, estates and interests in corporeal things, and also, and rights such as
trademarks. Copyrights, patents; and signifies a beneficial right to a thing considered
as having monetary value.
• Gramophone Company of India v. Birendra Bahadur Pandey, 1984 SC- IP are the
brainchild of the authors, fruits of their labour and therefore considered to be their
property.
• Salmond- Every man owns what he creates. The immaterial work of a man’s brain may
be as valuable as his land or goods. The law therefore gives him a proprietary right in
it.
• Article 2 of the Convention Establishing WIPO (World IP Organisation)- “intellectual
property” shall include the rights relating to:

•- literary, artistic and scientific works,

•- performances of performing artists, phonograms, and broadcasts,
•- inventions in all fields of human endeavor,
•- scientific discoveries,
•- industrial designs,
•- trademarks, service marks, and commercial names and designations,
•- protection against unfair competition,
•and all other rights resulting from intellectual activity in the industrial, scientific,
literary or artistic fields.
NATURE
o Positive and Negative Aspect
• Intellectual property rights have a dual nature. On one hand, they function as negative
rights—they empower the holder to prevent others from using, copying, or exploiting
their creation without permission. On the other hand, they also serve a positive role by
granting creators the opportunity to secure exclusive benefits, such as obtaining a patent
or registering a trademark. This duality ensures that while unauthorized use is restricted,
innovators and businesses are also rewarded for their original contributions.
o Exclusive Rights
• Intellectual property law grants creators and owners exclusive rights over their work.
 • These rights allow them to control the use, reproduction, distribution, and
commercialization of their creations.
• Unauthorized use by others without permission can lead to legal consequences.
o Limited Duration
• IP rights are not indefinite; they are granted for a specific time period to encourage
innovation while ensuring that knowledge eventually enters the public domain.
• Patents, for instance, are generally granted for 20 years, while copyrights extend for
the lifetime of the creator plus additional years (usually 50-70 years, depending on
jurisdiction).
• Trademarks, however, can be renewed indefinitely as long as they are in use and meet
legal requirements.
o Territoriality
• Intellectual property rights are not universally applicable; they are granted and enforced
within specific jurisdictions.
• Protection must be sought separately in different countries through national or
international registration systems.
o Public Interest
• While IP laws grant creators exclusive rights, they also serve the broader public interest
by encouraging innovation and creativity.
• Laws ensure that after a certain period, intellectual property enters the public domain,
allowing society to benefit from scientific, artistic, and technological advancements.
o Evolving Nature
• The landscape of IP law is dynamic, constantly adapting to technological advancements
and new forms of creative expression.
• The rise of digital media, artificial intelligence, biotechnology, and the internet has
necessitated continuous updates to IP regulations.
• Legal frameworks must balance the rights of creators, the interests of businesses,
and public access to knowledge.

HISTORICAL EVOLUTION OF INTELLECTUAL PROPERTY RIGHTS

The roots of IP law can be traced back to medieval practices, but the modern framework began
with England’s Statute of Monopolies (1623) and the Statute of Anne (1710)—the latter
marking the birth of copyright law by granting authors exclusive rights for a limited period.
Paris Convention (1883)
• First major international agreement recognizing the need for global cooperation on IP
protection.
• Signed by 140 states, focusing on industrial property in the broadest sense.
• Key Provisions:
o Protection of patents, trademarks, industrial designs, service marks, trade
names, and geographical indications.
o Repression of unfair competition.
o National treatment: Nationals of any member country receive the same IP
protections in other member countries as local citizens.
• Did not cover copyright laws.
Berne Convention (1886)
• First international agreement focusing on copyright protection.
• India is a signatory along with over 120 other states.
Other Major IP Treaties & Conventions
• Patent Cooperation Treaty (1970): Facilitates patent application process across
multiple countries.
 • Budapest Treaty (1977): Recognition of deposited microorganisms for patent
procedures.
• Madrid Agreement (1891): System for international registration of trademarks.
• Locarno Agreement (1968): Classification system for industrial designs.
• Washington Treaty (1989): Intellectual property in integrated circuits.
• Trade Mark Law Treaty (1994): Simplifies trademark registration process.
• TRIPS Agreement and WTO Framework
GATT and the Evolution of TRIPS
• General Agreement on Tariffs and Trade (GATT) (1947): Regulated international
trade.
• Uruguay Round (1986-1994): Discussions on including intellectual property rights
(IPR) led to the formation of the TRIPS Agreement (Trade-Related Aspects of
Intellectual Property Rights) in 1994.
• TRIPS Agreement became a binding obligation under the World Trade Organization
(WTO).
Key Features of TRIPS Agreement
• National Treatment: Members must grant the same IP protections to foreign nationals
as their own citizens.
• Minimum Standards for IP Protection:
o Patents: 20-year patent protection for all inventions in all fields of technology.
o Copyright: Protection for literary, artistic, and musical works.
o Trademarks: Protection and enforcement of marks, including well-known
trademarks.
o Industrial Designs: Protection of product appearance and aesthetics.
o Geographical Indications: Protection for products with specific regional
characteristics.
o Trade Secrets and Confidential Information: Protection against unauthorized
disclosure.
Structure of TRIPS Agreement
• Part I: General Provisions and Basic Principles.
• Part II: Standards concerning scope and use of Intellectual Property Rights.
o Section 1: Copyright and Related Rights.
o Section 2: Trademarks.
o Section 3: Geographical Indications.
o Section 4: Industrial Designs.
o Section 5: Patents.
o Section 6: Layout Designs of Integrated Circuits.
o Section 7: Protection of Undisclosed Information.
o Section 8: Anti-Competitive Practices in Licensing.
• Part III: Enforcement of Intellectual Property Rights.
• Part IV: Procedures for Acquisition and Maintenance of IPRs.
• Part V: Dispute Prevention and Settlement.
• Part VI: Transitional Arrangements.
• Part VII: Institutional Arrangements and Final Provisions.
Transition Periods under TRIPS
• Developed Countries: 1 year to conform to TRIPS standards.
• Developing Countries (including India): 5 years for transition.
• Least Developed Countries: 11 years.
 • Special Provision for Pharmaceuticals & Agriculture: Developing nations without
existing product patents in these sectors must allow patent applications from the
beginning of the transition period.

KINDS OF IPR
Two Branches of IP
o Industrial Property: Patents, Trademarks, Industrial Designs, Geographical
Indications, and Layout Designs.
o Copyright and Neighbouring Rights: Literary, Musical, and Artistic works,
including audiovisual content, performances, and broadcasts.

1. Patents
o Grants exclusive rights for an invention.
o Allows the patent owner to control its use by others.
o In return, the inventor must disclose technical details in a publicly available
patent document.
2. Copyright
o Protects literary and artistic works (e.g., books, music, films, paintings,
software, databases).
o Grants creators control over reproduction, distribution, and adaptation of their
works.
3. Trademarks
o Identifies and distinguishes goods/services of a particular business.
o Can be a logo, name, slogan, or symbol.
o Ensures brand recognition and consumer trust.
4. Industrial Designs
o Protects the aesthetic or ornamental features of a product (e.g., shape, surface,
patterns, colors).
o Applicable to both two-dimensional and three-dimensional designs.
5. Geographical Indications (GIs)
o Signifies that goods originate from a specific region with unique qualities (e.g.,
Darjeeling Tea, Champagne).
o Protects traditional knowledge and cultural heritage associated with a place.
6. Trade Secrets
o Protects confidential business information (e.g., formulas, manufacturing
processes, marketing strategies).
o Unauthorized acquisition or disclosure is considered an unfair trade practice.

PRINCIPLES OF TREATMENTS OF IPRS

1. Principle of National Treatment

Foreign nationals must receive treatment no less favorable than that given to a country’s
own nationals. In practice, this means that a member country must grant IP protection to
foreign creators on equal terms.
o Enshrined in the Paris Convention (1883), Berne Convention (1886/1971),
and the Rome Convention (1961).
o Under TRIPS Article 3, members are required to accord the same treatment to
nationals of other member countries.
 Case Example:
•
o In the Havana Club Trademark Dispute (WT/DS176/AB/R), the EU challenged
U.S. law (§ 211(a)(2)) that imposed additional hurdles on foreign (Cuban or
successors-in-interest) trademark enforcement compared to U.S. nationals. The
WTO Dispute Settlement Board ruled that this differential treatment violated
TRIPS Article 42, which mandates available civil judicial procedures for all IP
right holders.
2. Most-Favored Nation (MFN) Principle in IPR
The Most-Favored Nation (MFN) Principle in Intellectual Property Rights (IPR) ensures that
any advantage, favor, privilege, or immunity granted to the nationals of one WTO member
must be extended to all other WTO members without discrimination.
Legal Basis:
• TRIPS Agreement – Article 4:
“With regard to the protection of intellectual property, any advantage, favor, privilege,
or immunity granted by a Member to the nationals of any other country shall be
accorded immediately and unconditionally to the nationals of all other Members.”
Key Features:
1. Non-Discriminatory Treatment: No country can give special IP-related advantages to
one WTO member without extending them to all.
2. Independent of National Treatment: While National Treatment ensures foreign and
domestic entities are treated equally, MFN ensures equal treatment among foreign
entities.
3. Exceptions:
o Rights under existing bilateral agreements before the WTO was established
(before 1995).
o Special treatment under regional trade agreements (e.g., EU-specific IP
protections).

3. Principle of Automatic Protection

Protection for IP is granted automatically—without any requirement for formal registration
or compliance with other formalities—once the work or invention is fixed in a tangible
medium.
o Fundamental to the Berne Convention (1886/1971), ensuring that copyright
protection is immediate and unconditional.
4. Principle of Independence of Protection
The protection of an IP right is independent of whether that right is also protected in the country
of origin. A work or invention can be protected in a country even if it is not protected in the
country where it was created.
• Key Agreements:
o Reflected in both the Berne Convention1 and the Paris Convention.
5. Principle of Minimum Standard of Protection
There is an internationally agreed minimum level of protection that each member country must
provide. This covers both the subject matter (the types of works or inventions) and the duration
of protection.
o TRIPS Article 1.1 mandates that all member countries give effect to the
provisions of TRIPS. While countries may implement more extensive
protection, they must not contravene the minimum standards set by the
agreement.

1
Art. 5
 6. Moral Rights of Authors
Beyond economic rights, moral rights protect the personal and reputational interests of creators.
o Right to Claim Authorship: Ensuring that the creator is recognized.
o Right to Object: Protecting the work from any modifications (mutilation,
distortion, or other derogatory treatment) that could harm the author’s honor or
reputation.
o Recognized in the Berne Convention and reflected in national laws that
implement these international standards.
6. Additional Principles under TRIPS and Related Provisions
• Existing Obligations Under Other Treaties (TRIPS Article 2.2)

"Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that
Members may have to each other under the Paris Convention, the Berne Convention, the
Rome Convention, and the Treaty on Intellectual Property in Respect of Integrated
Circuits."
• Purpose of the TRIPS Agreement (Articles 7 & 8):
o Article 7: Emphasizes that IP protection should promote technological
innovation, the transfer and dissemination of technology, and contribute to
social and economic welfare.
o Article 8: Allows member countries to adopt measures for public interest (e.g.,
public health, preventing abuse of IP rights) provided these are consistent with
TRIPS.