Intellectual property is considered to be the property that includes intangible creations of human intelligence such as art, design, literary works. Intellectual property rights are the referred to legal rights given to the inventor or manufacturer to protect their inventions, designs, and literary works. The object of intellectual property protection is to encourage the creativity of the human mind for the benefit of and to ensure that the benefits arising from exploiting a creation benefit the creator.
Meaning of Intellectual Property Rights
According to WTO (World Trade Organization), intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator the exclusive right over the use of his/her creation for a certain period.
According to Article 2 of WIPO (World Intellectual Property Organisation) – Central Organisation for the protection of Intellectual Property Laws and the expert organization of the UN, “Intellectual Property shall include the rights relating to literary, artistic and scientific works, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service marks, and commercial names and designations, protection against unfair competition, and all the other rights resulting from intellectual activity in the industrial, scientific, literary or scientific fields.”
The intellectual property right is a legal right that protects a person’s literary works, inventions, artistic works, and designs, etc. for a specific period. Thus the owners are provided with certain rights by which they can enjoy their property without any disturbances such as piracy, false accusation of invention, etc. Intellectual property rights also promote publication, manufacturing, and production.
Types of Intellectual Property Rights
The patent is an intellectual property right granted to the inventor by the concerned government office for his novel technical invention. Among the different types of IPR, patents are considered most valuable, and rightly so.
The patentability of an invention needs to fulfill the following criteria:
- Patentable subject matter – It must not be done by any ordinary skilled man
- Inventive step
- Industrial application
- Specification enablement
The Patents Act, 1970 deals with all the aspects of patents in India. In patenting process on the one hand inventor is granted exclusive rights which give recognition as well as financial benefits but on the other hand, the inventor has to disclose all the relevant information in a descriptive way to the patent office at the time of filing the patent application. The information available in the patent document can be seen by anybody and no doubt it gives direction to other researchers to innovate further in the relevant field.
A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or legal entity. A trademark can be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are always displayed on company buildings. It is legally recognized as a type of intellectual property.
The Trade Marks Act 1999 (“TM Act”) provides, inter alia, for registration of marks, filing of multi-class applications, the renewable term of registration of a trademark as ten years as well as recognition of the concept of well-known marks, etc. It is pertinent to note that the letter “R” in a circle i.e. ® with a trademark can only be used after the registration of the trademark under the TM Act.
The trademarks can be classified into five categories:
India follows the NICE classification of goods and services for registration of trademarks. The NICE Classification groups goods and services into 45 classes (classes 1-34 include goods and classes 35-45 include services). The NICE Classification is recognized in the majority of the countries and makes applying for trademarks internationally a streamlined process. Every business entity, seeking to register the trademark for a good or service, has to choose from the appropriate class, out of the 45 classes.
Copyrights protect original work of authorship, such as literary works, music, dramatic works, pantomimes and choreographic works, sculptural, pictorial, and graphic works, sound recordings, artistic works, architectural works, and computer software. With copyright protection, the holder has exclusive rights to modify, distribute, perform, create, display and copy the work.
The Copyright Act 1957, supported by the copyright rules 1958, is the governing law for copyright protection in India. India is a member of the Berne Conventions and Universal Copyright Convention. The Government of India has also passed the International Copyright Order, 1999.
Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea. In M/s Mishra Bandhu Karyalaya & Others v. Shivaratanlal Koshal, it has been held that the laws of copyright do not protect ideas, but they deal with the particular expression of ideas.
A vital field that gets copyright protection is the computer industry. The Copyright Act, 1957 was amended in 1984 and computer programming was included with the definition of “literary work.” The new definition of “computer programme” introduced in 1994, means a set of instructions expressed in words, codes, or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result.
- Geographical Indications
Geographical Indication (GI) is a tag or sign used on products for indicating their specific place of origin. It specifies the characteristics, qualities, and reputation assumed to be in the product because of its linkage to a particular geographical location. Any sign can be used as a GI only when it can identify a product to be originating from a particular place. It can be used for the following mentioned things –
- Agricultural products e.g. Alphonso Mango, Nagpur oranges
- Foodstuffs e.g. Roquefort cheese is the unique blue cheese from France
- Wine and spirits e.g. Tequilla made from blue agave plant growing in the city of Tequila, Mexico
- Handicrafts e.g. Madhubani Paintings, Kanchipuram Sarees
- Industrial products e.g. Darjeeling tea.
Until recently, Geographical indications were not registrable in India, and the absence of statutory protection; Indian geographical indications had been misused by persons outside India to indicate goods not originating from the named locality in India. Patenting turmeric, neem, and basmati are the instances that drew a lot of attention towards this aspect of Intellectual property. Mention should be made that under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), there is no obligation for other countries to extend reciprocal protection unless a geographical indication is protected in the country of its origin. India did not have such a specific law governing geographical indications of goods that could adequately protect the interest of producers of such goods.
To cover up such situations it became necessary to have comprehensive legislation for the registration and for providing adequate protection to geographical indications and accordingly the Parliament has passed legislation, namely, the Geographical indication of Goods (Registration and Protection) Act, 1999. The legislation is administered through the Geographical Indication Registry under the overall charge of the Controller General of Patents, Designs, and Trade Marks.
Given considerable progress made in the field of science and technology, a need was felt to provide a more efficient legal system for the protection of industrial designs to ensure effective protection to registered designs, and to encourage design activity to promote the design element in an article of production. Against this backdrop, The Designs Act of 1911 has been replaced by the Designs Act, 2000. The Designs Act, 2000 has been enacted essentially to balance these interests and to ensure that the law does not unnecessarily extend protection beyond what is necessary to create the required incentive for design activity while removing impediments to the free use of available designs.
According to Section 2 of Design Act, 2000, “design” means only the features of shape, configuration, pattern, ornament, or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a merely mechanical device.
The Design Act in India was enacted by the Legislature on May 25, 2000, to consolidate and amend the law relating to the protection of designs in India. Under the TRIPS Agreement, minimum standards of protection of industrial designs have been provided.
There are some issues in the Indian IPR regime relating to patents and compulsory licensing and also India continuous to remain on the United States Trade Representative’s (USTR’s) ‘Priority Watch List for alleged violations of intellectual property rights. Therefore there is a need for a proper regulating mechanism for IPR to solve these issues.