Nature of IPR

- Nature of incorporeal property

- IPRs are essentially economic or commercial rights
- TRIPS – ‘do’ – need to strike a balance between rights of inventors and creators to
protection and the rights of users of technology
- Article 7 (TRIPs) – w/r protection and enforcement of IPRs – to contribute to
promotion of technological innovation and transfer and dissemination of technology –
to mutual advantage….
- UDHR, 1948 – broader perspective recognises
o Everyone has right freely to participate in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its benefits
o Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary and artistic production of which he is the
author
- Characteristics of all types of IPRs
o Rights are essentially negative – rights to stop others doing certain things – to
stop pirates, counterfeiters, imitators etc without licence of the right owner
o Some aspects confer positive entitlements – right to be granted a patent or
register a trade mark
- IPRs are largely territorial rights except copyright which is global in nature
- IPRs confer monopoly rights (no one can uses these rights without the consent of the
right holder)
- Rights can be renewed after stipulated period except copyrights and trade secrets
- IPR’s characteristics are associated with real and personal property.
o IPR is an asset – can be bought, sold, licensed, exchanged, gratuitously given
like any other form of property
o These rights can be held simultaneously in many countries at same time
o These rights can be held only by legal entities
- Since IPRs associate to new or original – what is known in public domain cannot be
protected
- Patents:
o Confers exclusive right to use the invention patented, to grant licenses to
others
o The invention may relate to new product or process involving an inventive
step and a capable of industrial application
o Patent rights are governed by Patents Act, 1970
 Governs the acquisition of the exclusive right, conditions to be fulfilled
for acquisition, its duration, licensing or other assignment to others
 After expiry of the term, the patent comes into public domain and
anybody can use the patented invention

1 |Smt. Sheela Ganesh, JSSLC

 - Industrial Design:
o Such property consists of exclusive right to apply the design registered under
the Designs Act, 2000 – in relation to class of goods (registered) – maximum
period of 15 years subject renewal fees
o After expiry of the period – the design can be used by anybody
- Trademarks:
o Two types of rights conferred – one, conferred by the registration under the
Trade Marks Act, 1999 and other acquired in relation to a trade mark
o Registration of TM – confers right to use the mark for goods or services
o Proprietor can prevent others from using deceptively similar marks
o Unregistered TM – protection given to good will of the business
- Copyright:
o Like patents and industrial design – is purely a creation of statute – the
Copyright Act, 1957
o Copyright subsists in –
 original literary, dramatic, musical and artistic works; (other than
photography) (literary works include computer programmes, tables,
compilations including computer databases)
 cinematograph films;
 sound recording;

IPR AND ECONOMIC DEVELOPMENT:

- IPRs affect the economic process and development of a country

- There is increasing awareness of IPRs both commercially and legally
- It can increase economic growth and foster benefits of technical change (development
prospects)
- Promotes effective and dynamic competition in the economy
- IPR protection is strengthened by implementation of TRIPs Agreement (WTO)
- IPRs two important economic objectives:
o First, to promote investments in knowledge creation and business innovation
by establishing exclusive rights to use and sell newly developed technologies,
goods and services
o Second, to promote widespread dissemination of new knowledge by
encouraging the right holders to place their inventions and ideas in the market
(access to new technologies, products and services)
- Patents provide the right to prevent for 20 years the unauthorised making, selling,
importing, or using of product or process that is recognised in a patent claim and that
must demonstrate novelty, inventive step and industrial utility – (market advantage
available in return for disclosing technical knowledge)
- Trademarks protect right to market goods and services (including licensing) – (with
sufficient distinctiveness – to avoid confusion to customers)
- Copyrights provide exclusive rights for some definite period – (infringement of it can
cause enormous economic loss to copyright holders)

2 |Smt. Sheela Ganesh, JSSLC

 - Geographical Indications – the main economic benefit would be quality mark –
which enhances export market and revenues – comparative advantage in agricultural
products and processed goods and beverages

- IPRs play a significant role in encouraging innovation, product development, and

technological advancement
- National regime of IPR protection depends on the level of economic growth and
development
- Government needs to strengthen its IPR system to make the economy more wealthier
- Inadequate IPR system could adversely affect the economic growth and development

IMPORTANCE OF IPR PROTECTION:

- Intellectual property is defined as a body of legal rights, economic or moral, which

arise from mental and artistic creativity
- These legal rights subsequently provide exclusive economic rights in such works
- IPR protection through a system of national and international efforts – provide
incentives and financing for innovation and creation  which leads to economic,
cultural and social growth and development
- IPR system encourages the protection and dissemination of knowledge and wide
range of quality goods and services
- IP refers to unique, value adding creations of the human intellect that result from
human ingenuity, creativity and inventiveness
- IPR enables property like rights – to harness the commercial value of the outputs of
human inventiveness and creativity
- IPRs are protected through national laws and international conventions, treaties and
agreements including Paris and Berne Convention and TRIPs Agreement etc

ENFORCEMENT OF IPRS:

- Enforcement is the most crucial part of IP regime

- TRIPs Agreement mandates for minimum requirement for implementation of IP laws
- In India remedies for infringement include (Civil and Criminal remedies)
o Civil remedies – Injunction, damages, other remedies – CPC
o Criminal Remedies – penal remedies (punishment and fine) – IPC
o Administrative remedies – esp. w/r Copyright infringement – moving through
Registrar of Copyrights banning, confiscation etc

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3 |Smt. Sheela Ganesh, JSSLC