Issues relating to Intellectual Property Rights
Intellectual Property rights has vital role in all sector and has become a crucial factor for investment decisions by many companies. India is now TRIPS-compliant. This is an international agreement administered by the World Trade Organization (WTO), which sets down minimum standards for many forms of intellectual property regulations as applied to the nationals of other WTO Members. The well-balanced Intellectual Property rights system in India is helpful for foreign companies to protect their Intellectual Property in India
World Intellectual Property Organization describe Intellectual Property as "The creations of the mind, inventions, literary and artistic works, and symbols, names, images, and designs used in commerce". It is documented in literature that Intellectual Property is any piece of work that is shaped by the skills and abilities of someone called the author. Fundamentally, Intellectual property is a term referring to a brand, invention, design or other kind of creation, which a person or business has legal rights over. Almost all businesses own some form of IP, which could be a business asset. According to the Lebanese law, an author can be a writer, designer, software developer, director, and producer. Intellectual property rights are the rights which an author holds to protect his/her own piece of work.
Copyright laws were set up in the past to protect these rights. WTO (1995) explained IPR as a general term covering patents, copyright, trademark, industrial designs, geographical indications, protection of layout design of integrated circuits and protection of undisclosed information (trade secrets). IPRs refer to the legal ownership by a person or business of an invention/discovery attached to particular product or processes which protects the owner against unauthorized copying or imitation.
General types of IP include:
1. Copyright: This protects written or published works such as books, songs, films, web content and artistic works;
2. Patents: Patents are a long-established ways to motivate innovation. This property right convenes to the holder the exclusive right of exploitation and enables them to exploit the invention by manufacturing, using, or selling products or processes incorporating the technology covered by the patent. The owner may also allow the invention to be exploited by others over a set period of time, in return for fair remuneration to compensate them for the intellectual and material effort involved in its conception and production. Patent protection provides the owner of the right with the means to prevent unauthorised use of the protected technology, to defend their rights in law and to initiate legal proceedings against any persons fraudulently using the patented invention. In United States, there are three different types of patents:
Utility Patents: these patents protect inventions that have a specific function, including things like chemicals, machines, and technology.
Design Patents: these patents protect the unique way a manufactured object appears.
Plant Patents: these patents protect plant varieties that are asexually reproduced, including hybrids.
3. Designs: This protects designs, such as drawings or computer models. Copyrights protect the dramatic arts. They give owners exclusive rights to reproduce their work, publicly display or perform their work, and create derivative works. Moreover, owners are given economic rights to financially benefit from their work and prohibit others from doing so without their permission. It is vital to realize that copyrights do not protect ideas, only how they're expressed.
4. Trademarks: This protects signs, symbols, logos, words or sounds that distinguish products and services from those of competitors. Trademarks shield the names and identifying marks of products and companies. The aim of trademarks is to make it easy for customers to distinguish competitors from each other. Trademarks are automatically assumed once a business begins using a certain mark to identify its company, and may use the symbol TM without filing their symbol or name with the government.
Intellectual property can be either registered or unregistered. Unregistered IP allow the creator to automatically have legal rights over his creation. Unregistered forms of IP include copyright, unregistered design rights, common law trademarks and database rights, confidential information and trade secrets. With registered IP, person will have to apply to an authority, such as the Intellectual Property Office in the UK, to have rights recognised. If you do not do this, others are free to exploit your creations. Registered forms of IP include patents, registered trademarks and registered design rights.
Requirement of Intellectual Property rights: The protection of intellectual property rights is an essential component of financial policy for any country. Only such protection can stimulate research, creativity and technological innovations by giving freedom to individual inventors and companies to gain the benefits of their creative efforts. It is a very important issue to plan to protect the intellectual property rights. The major needs are to
- Prevent plagiarism.
- Prevent others using it.
- Prevent using it for financial gains.
- Fulfil obligation to funding agency.
- Support income generation strategy.
Development of Intellectual property rights in India:India has been a World Trade Organisation (WTO) member since 1995. WTO member nations must include some IP protection in their national laws. This means that if you are doing business with India, you will find some similarity between local IP law and enforcement procedures, and those enforce in the UK.
Chronological development of IPR in India:
1947: Patents & Designs Act, 1911
1995: India joins WTO
1998: India joins Paris Convention/PCT
1999: Patent amendment provided EMR retrospectively from 1/1/95
2003: 2nd amendment in Patents Act
Term of Patent – 20 years after 18 months publication
Patent Tribunal Set up at Chennai
2005: Patents (Amendment) Act 2005
1999 - 2005: Plant Varieties and Farmers’ Rights Act & Biodiversity Act. Designs, TM/Copyright Acts updated GI Registry set up at Chennai. IP Acts TRIPS Compliant
India has been a member of the World Trade Organisation (WTO) since 1995. This requires member nations to establish intellectual property (IP) laws whose effect is in line with minimum standards. Consequently, there should be few major variances between India’s laws and developed countries. Copyright India is a signatory to the Berne Convention on copyright. Though, it is good to register copyright of creative work as doing so may help to prove ownership if there are criminal proceedings against infringer. In most cases though, registration is not needed to maintain a copyright violation claim in India. Registration is made, in person or via a representative, with the Copyright Office. Internet piracy of films, music, books and software is an issue in India. Patents India’s Patents Act of 1970 and 2003 Patent Rules set out the law concerning patents.
The regulatory authority for patents is the Patent Registrar within the department of the Controller General of Patents, Designs and Trade Marks, which is part of India’s Ministry of Commerce and Industry. Patents are valid for 20 years from the date of filing an application, subject to an annual renewal fee. India’s patent law operates under the ‘first to file’ principle - that is, if two people apply for a patent on an identical invention, the first one to file the application will be awarded the patent. The laws governing designs are the Designs Act 2000 and the Designs Rules 2001. Designs are lawful for a maximum of ten years, renewable for a further five years. Trade marks India’s trade mark laws consist of the 1999 Trade Marks Act and the Trade Marks Rules of 2002, which became effective in 2003. The regulatory authority for patents is the Controller General of Patents, Designs and Trade Marks under the Department of Industrial Policy and Promotion.
Trade names also constitute a form of trade mark in India, with protection, irrespective of existing trade names, for those wishing to trade under their own surname. Because of the common practice of ‘cybersquatting’ - the registration in bad faith of marks by third parties registering domain names for certain well known marks in order to sell them to the original rights owners. Registration takes up to two years. A trade mark in India is valid for ten years and can be renewed thereafter indefinitely for further ten-year periods. Registering and enforcing intellectual property rights in India.
Intellectual property rights can be imposed by bringing actions to the civil courts or through criminal prosecution. India’s laws governing all forms of IP set out procedures for both civil and criminal proceedings, as does the Competition Act. A drawback of civil litigation is that persons are unlikely to recover large damages, and disciplinary damages against an infringer are rare. However, if persons have an identified infringer, it may be advisable to launch civil litigation, because if an interim injunction is granted the infringement can be halted pending the outcome of the case. Over the years, however, decisions in favour of foreign companies against local infringers have established the judiciary’s unbiased approach. It has been observed that the protection of intellectual property rights has debatable issues in international commerce. Disputes of intellectual property rights dominate not only business among nations, but business within nations. Several latest developments in technology due to globalization and skill, and the rapid development of emerging economies have raised the importance of intellectual property rights protection, both politically and commercially. In advanced countries, IPR violations cause job and revenue losses.
While the IPR system in India comprises of strong Intellectual Property laws but it has many loopholes as it lacks effective implementation, for which “least priority given to adjudication of IP matters” is often quoted as a reason. Major challenge is to inform the enforcement officials and the Judiciary to take up issues of Intellectual Property rights, at par with other economic offences, by bringing them under their policy locator. There are also many issues in having an Intellectual Property fund, which can be utilized for further developing the IP culture in the country. It is necessary to devise a National IP Policy for India, which will help in working towards realizing the vision of India in the area of Intellectual Property rights. This will enable the establishment of a strong socio-economic foundation and deep international trust.
In recent years, the issue of intellectual property rights protections is debatable among public policy approaches to issues in developing countries. The TRIPs agreement, implemented in 1993 among World Trade Organization member nations, sets minimum standards of intellectual property rights protections and enforcement in many developing countries, with the threat of negative repercussions if these guidelines are not followed.
Since many decades, intellectual property law has developed legal rules that cautiously balance the above competing interests. The objective is to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and policies that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. In short, the law has developed a careful balance between competing interests. It is observed that legislative enactments and judicial decisions have adopted an extensive view of intellectual property. The subject matter eligible for protection has continued to expand significantly in recent years. This expansion has removed the clear description between patent, copyright, and trademark law. It has also led to overprotection of intellectual property in the form of overlaps that allow multiple bodies of intellectual property law to concurrently protect the same subject matter. Such overlapping protection is difficult because it interferes with the carefully developed principles that have evolved over time to balance the private property rights in intellectual creations against public access to such creations.
Plagiarism is a major issue. It is the act of theft of another person's intellectual property which comprises of ideas, inventions, and original works of authorship, words, slogans, designs, proprietary information, and using them as own without giving credit to main author or inventor.
Today, digital technologies are major tools for creating and storing information for its speed and easy access. Intellectual property rights apply on the Internet but the main issue is to make them enforceable. The ease of reproducing works if they are in digital format is low-cost and there is a near-perfect quality of copies. Publishers argue that the Internet harms their intellectual property interests by fundamentally transforming the nature and means of publications and thus making their works extremely vulnerable to Internet piracy. The distributed nature of Internet's management makes it possible for any user to widely circulate a work on the electronic network termed as Cyberspace through any number of channels. A user can easily distribute a work to news groups through e-mail or on personal website. Intellectual Property Rights Law has presented problems for advanced technologies such as computer programmers. The law adopts that something is either in writing protectable through copyright or a machine protectable by a patent but not by both concurrently.
In Indian situation, Indian Copyright Act kept track of international conventions, the current copyright law has many deficits as compared to the west. As India did not sign the "WIPO Internet Treaties" there is no corresponding legislation in India to the US DMCA. The present Copyright Act of India does not have requirements regarding the 'technological protection measures' nor the protection of electronic rights management information. Some provisions of the Indian Penal Code, 1860 (IPC) may serve to provide for legal protection for technological measures. Section 23 of the IPC speaks of 'wrongful gain or wrongful loss'.
To summarize, the concept of ‘Intellectual Property’ includes the creative and literary outputs of human such as novels, music, motion pictures and industrial designs that are used for commercial purposes. Intellectual property consists of original creations but the same creations are divided into two main categories. First is creations being used for industrial purposes, and second is creations that are copyrighted material. Industrial Property also covers patents or inventions, trademarks, industrial designs and geographical indications of source. Patents are rights that are granted exclusively for inventions pertaining to a product or a process.