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| Intellectual Property Rights chart as in India |
The term Intellectual Property (IP) in whatever form is in the nature of intangible incorporate property which cannot be exhausted by consumption. It reflects the idea that its subject matter is the product of the mind or the intellect. IP like any other form of property can be a matter of trade, that is, it can be owned, bequeathed (passed on personal property by Will), sold or bought. IP includes Copyright, Patents, Trademarks, Geographical Indications, Industrial Designs, Layout-Designs (Topographies) of Integrated Circuits and Plant Variety Protection.
International Aspect
The UN agency dealing in the field of IP is World Intellectual Property Organization (WIPO) based in Geneva. India is a member of WIPO.
India being a member of WTO, it’s agreement on IP, i.e., the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) is applicable to India. The Agreement has made protection of intellectual property an enforceable obligation of the Member States and sets out the minimum standards of intellectual property protection for Member States. India has complied with the obligations contained in the TRIPS Agreement and amended/enacted IP laws. (The Patents Act 1970 was amended in 2005).
India is also a member of
Paris Convention for the Protection of Industrial Property, 1883 (relating to patents, trademarks, designs, etc.) administered by WIPO. The Paris convention sets out a range of basic rules relating to IPs, and although the convention does have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all notable current IP systems. One of the most significant aspect of this convention in relation to patents is the provision of the right to claim priority i.e., filing an application in any one member state, and receive the benefits of the original filing date. Because the reference to a patent is intensely date driven, this right is fundamental to modern patent usage.
Berne Convention for the Protection of Literary and Artistic Works, 1886 (relating to copyright). The Berne Convention, 1886 established the recognition of copyrights among sovereign nations, rather than merely bilaterally.
Patent Cooperation Treaty (PCT), 1970 (amended in 1979, and modified in 1984 and 2001). It provides a unified procedure for filing patent applications to protect inventions in each of its Contracting states. A patent application filed under the PCT is called international application or PCT application
Domestic Aspect
Under the Indian IP regime the Department of Industrial Policy and Promotion (DIPP) is concerned with legislations relating to Patents, Trade Marks, Designs and Geographical Indications. These are administered through the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM), subordinate office, with headquarters at Mumbai, as under:
The Patents Act, 1970 (amended in 1999, 2002 and 2005) through the Patent Offices at Kolkata (HQ), Mumbai, Chennai and Delhi.
The Designs Act, 2000 through the Patent Offices at Kolkata (HQ), Mumbai, Chennai and Delhi.
The Trade Marks Act, 1999 through the Trade Marks Registry at Mumbai (HQ) Chennai, Delhi, Kolkata and Ahmedabad.
The Geographical Indications of Goods (Registration & Protection) Act, 1999 through the Geographical Indications Registry at Chennai.
Apart from the abovementioned, the other legislations for the protection of IPs are as under:
Copyright Act, 1957 (Amended in 1999) administered by the Department of Higher Education.
Semi-conductor Integrated Circuits Layout-Design Act, 2000 administered by the Department of Information Technology.
Protection of Plant Varieties & Farmers’ Rights Act, 2001 administered by the Department of Agriculture and Cooperation.
Further, an Intellectual Property Appellate Board (IPAB) has been set up at Chennai to hear appeals against the decisions of Registrar of Trademarks, Geographical Indications and the Controller of Patents.
The Controller General of Patents, Designs and Trade Marks (CGPDTM) is also in-charge of the Office of the Patent Information System, Nagpur and the Intellectual Property Training Institute, Nagpur.
Copyrights
Copyright means the exclusive right to do or authorise others to do certain acts in relation to (1) literary, dramatic, musical and artistic works, (2) cinematograph film and (3) sound recordings. In India the Copyright Act, 1957 (Amended in 1999) provides for the registration of copyrights. The object of copyright law is to encourage authors, artists and composers to create original works by rewarding them with exclusive right for a limited period to exploit the works for monetary gain.
The concept of copyright originated in 1710 in Britain with the Statute of Anne. It established the author of a work as the owner of the right to copy that work and the concept of a fixed term for that copyright. Under the Berne Convention, 1886 copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation. In these countries, there is no requirement for an to "register" or "apply for" a copyright, or to mark his or her works with a copyright symbol or other legend. Hence, even in India registration of copyright is not compulsory, though recommended, either for acquiring copyright or enforcing it by way of filing an infringement suit.
Copyright law is, in essence, concerned with the negative right of preventing copying of an already existing an original work. Copyright gives the creator of an original work the exclusive rights for a certain time period in relation to that work after which time the work is said to enter the public domain. These exclusive rights include the right to produce copies and sell copies; import or export the work to create derivative works (works that adapt the original work); perform or display the work publicly (performance rights); sell or assign these rights to others; snd, transmit or display by radio or video (broadcasting rights).
There is no copyright over ideas and information themselves. Copyright subsists only in the form or manner in which they are expressed. It is not infringement to adopt ideas of others.
The term of copyright varies depending on the nature of work and whether the author is a natural person or legal person or whether the work is anonymous or pseudonymous. In case of literary or musical works or artistic works (other than photographs) the copyright subsists during the lifetime of the author and 60 years after his death. However, if the work has not been published, performed, or offered for sale or broadcast during the life of the author, the copyright protection shall continue for a period of 60 years from the end of the year in which any of these acts are done relating to the work. In all other cases the term is sixty years from the year of publication.
The legitimacy of copyright is being challenged by an emerging concept of ‘Copyleft’. The concept originated with Richard Stallman, but came to public attention with the Linux Operating System developed by Linux Torvalds. Copyleft is opposed to the proprietary nature of copyright. Copyleft basically means that a person has the right to use, modify and distribute software and even improve upon it, without adding any restrictions thereon.
Patents
Patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. It consists of an exclusive right to make, use, and sell an invention for a limited period.
The concept of patent essentially involves novelty, inventive step or lack of obviousness. The right which they accord is to prevent all others not only from imitation but also using the invention for the duration of the patent.
Unlike India where patent is granted only for inventions, in US patent is granted for inventions as well as discoveries. In India the concept of both pre-grant as well as post-grant opposition exists.
Trade Marks
A trade mark is a visual symbol in the form of a word, device or label applied to articles of commerce to indicate that they are manufactured or dealt with by a particular person / entity and to distinguish it from other similar articles (goods or services) having a different origin. A trade mark in layman’s language is popularly known as a brand name.
In India the law governing trade marks, the Trademarks Act, 1999 provides for certain requirements to register a trade mark. These include that the selected mark should be capable of being represented graphically, it should be distinct and be used to indicate a connection between the goods or services and the identity of the owner of the mark
Trade mark includes any name (including personal or surname of the applicant or predecessor in business or the signature of the person); an invented word or any arbitrary dictionary word or words; alphabets or numerals or any combination thereof; and, pictures or symbols and shape of goods or their packaging.
Certain other marks like Hybrid marks are also trademarks. These are a combination of trademarks of two or more companies or entities used together as one trademark. Eg. Maruti Suzuki, Hero Honda. Further, a trademark with a global reputation is called a Well Known mark. Such marks inspite of not being registered as trademarks are entitled to protection because of their world wide recognition. Examples of such marks would include those for Tatas, Bajaj, Maruti Suzuki, and Mercedes Benz for automobiles.
Integrated Circuits
A circuit is a communication channel or path between two devices capable of carrying electric current. An integrated circuit is an electronic device that combines circuit elements on semiconductor crystal configured to perform an electronic function. It is a small semiconductor circuit that contains many electronic components. Usually, an integrated circuit comprises of active electronic devices like transistors or diodes or passive electronic devices such as resistors and capacitors.
In India layout of transistors and other circuitry elements is protected for a period of ten years through the Semi-conductor Integrated Circuits Layout-Design Act, 2000.
Geographical Indication
The act relating to geographical indications in India is the Geographical Indication of Goods (Registration and Protection) Act, 1999. Prior to this enactment, a misdescription or false representation relating to a geographical indicators was considered as an act of passing off. Now after the passing of this Act, registration of a geographical indication is mandatory. The initial Registration of a Geographical Indication shall remain valid for a period of 10 years each.
It is an indication which, identifies the goods whether natural or manufactured emanating from a particular area or territory known for particular quality or characteristics of goods. For a geographical indication to be registrable, the goods should display a unique quality, reputation or other characteristic attributable to its geographical origin, such as the climate or soil qualities, processing and production methods etc. It is possible to cover even handicrafts and foodstuff under the Act. Some of the most famous Indian Geographical Indicators are Darjeeling Tea, Chanderi Saree, Pochanpally Ikat, Solapur Chaddar, Mysore Silk, Kullu Shawl, Bidriware, etc.
Recently, an application has been submitted before the Geographical Indication Registry by the Tirumala Tirupati Devasthanams (TTD), a trust which manages the world's richest temple Tirumala Venkateswara Temple at Tirumala in Andhra Pradesh for a GI in the Tirupathi Laddu.
Plant Varities and Farmers’ Rights
The government of India in order to encourage scientific research and create incentive for developing new varieties of plants and to provide for the establishment of an effective system for protection of plant varieties, the rights of farmers & plant breeders has passed the Protection of Plant Varieties & Farmers’ Rights Act, 2001 (PPVFR Act).
Under the Act, PPVFR Authority and Plant Varieties Registry operating National Register of Plant Varieties (Registrar general) have been established. The registration under this Act is to be valid for 9 yrs (maximum 18 yrs) in trees and wines, and 6 yrs (maximum 15 yrs) for other crops.
The provisions of the Act do not affect the traditional rights of a farmer to save, use, sow, resow, exchange, share or sell his farm produce of a variety protected under this Act. However, such a protection does not extend to reproduction under a commercial marketing arrangement.
The varieties bred by farmers are given the same recognition and protection as given to varieties bred by breeders. Further, the contribution of farmers’ varieties to modern plant breeding is acknowledged and there is a provision that modern breeders will have to pay for using these varieties. The farmers are also protected against spurious or substandard seed. They are entitled to compensation if the Breeders’ seed does not perform as claimed.
The Act also protects the farmers against the Terminator Technology, which is banned by the Indian law. Terminator Technology owned by MNC Syngenta is a sterile seed technology, i.e., once the seeds are used to sow the yield cannot be used for sowing the next season, this would result in making the farmer dependent on the corporate breeder for seeds every season.
