DMBA302: Legal Aspects of Business Manipal University Jaipur (MUJ)

MASTER OF BUSINESS ADMINISTRATION

SEMESTER 3

DMBA302
LEGAL ASPECTS OF BUSINESS

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DMBA302: Legal Aspects of Business Manipal University Jaipur (MUJ)

Unit 15
Intellectual Property Laws
Table of Contents

SL Topic Fig No / Table SAQ / Page No

No / Graph Activity
1 Introduction
3
1.1 Objectives
2 Legal Aspects of Patents 1 4-7
3 Filing of Patent Applications 7-9
4 Rights from Patents I 10-11
5 Infringement of Patents 11
6 Trademark and Trade Secret 12
7 Geographical Indication and Remedies for 2 13-14
Infringement
8 Copyright and its Ownership 3 15-17
9 Infringement of Copyright 18-22
10 Civil Remedies for Infringement 4, II 22-23
11 Summary 23
12 Glossary 24
13 Terminal Questions 25
14 Answers 25-26
15 Case-let 27

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1. INTRODUCTION
In the earlier units, we discussed the laws related to business and industry. In this unit, we
will study laws related to intellectual property rights (IPR). The most important legislations
pertaining to IPR are patent and copyright laws.

The Patents Act, 1970, was passed to protect the IPR of a person to whom the patent has
been granted. The Act describes the procedure for the grant of patent and protects his rights
against infringement. The 1970 Act was amended in 1999 and 2002 to meet India’s
obligations under the Agreement of Trade Related Aspects of Intellectual Property Rights
(TRIPS), which forms part of the agreement establishing the World Trade Organization
(WTO).

The law relating to copyright is contained in the Copyright Act, 1957. This law is applicable
to every citizen of India, and came into force on 21 January 1958. The Act has been amended
in 1983, 1984, 1992, and 1994 primarily to bring the Indian law in conformity with the
international conventions in general and the Bern Convention, and the Universal Copyright
Convention in particular.

1.1 Objectives
After studying this unit, you should be able to:

❖ Explain the legal aspects of patents and describe the procedure for application of patents
❖ Describe the procedure for examination, publication and revocation of patents
❖ Define copyright and aspects of its ownership
❖ Recognise the remedies available for infringement of IPR violations

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2. LEGAL ASPECTS OF PATENTS

In the previous section, we have had a brief discussion on patent and copy right laws. In this
section, we shall study about the legal aspects of patents. A patent is defined as the legal
monopoly provided by law to the owner of an invention or idea for a limited period of time.
The normal period of patent rights is up to 20 years. However, the right of owning a patent
does not automatically provide the owner with the right of usage or ownership. These rights
are entwined with the concepts of public health, safety and standards of morality and
decency. Legally, a patent right is similar to a property right and can be transferred,
inherited, sold, licensed and deeded or even relinquished. Such a right can also be revoked
by law, as it is created by law in the first place.

Legally, a patent is viewed as a negative right, as it provides a first mover advantage to the
individual owner as he is qualified to use it for a specific period of time exclusively. The
inventor can prevent others from using, replicating or selling the idea or design without
permission. Patents are associated with the technical and functional elements of the new
idea or product and they must necessarily fulfill certain conditions to be granted. Also, most
patents deal with improvements to existing design or technology and may be simple in
nature. Patents are often associated with geographical territories and will not provide the
owner with any rights outside of the territory. For example, a patent granted in the European
Union may not apply to inventions in India. Hence, the same patent may be filed in different
countries by different inventors. Normally, the patent is applied in the country of invention
before the appropriate body. In India, patents are applied through the Indian patent office or
alternatively, through a patent agent. As India is a member of World Trade Organization
(WTO), it is governed by the trade and protocol agreements of WTO, such as the Agreement
of Trade Related Aspects of Intellectual Property Rights (TRIPs). This agreement strives to
regulate the issues of IPR internationally, and the signatories are bound by the convention
adopted. Later, the patents law in India was suitably amended to accord with the
international regulations, and is currently governed by the following Acts:
• The Patents Act, 1970, as amended by The Patents (Amendment) Act 2005.
• The Patents Rules, 2003, as amended by The (Amendment) Rules 2006.

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Some of the important definitions of the Patents Act are as follows:

Budapest Treaty: It refers to the Treaty on the International Recognition of the Deposit of
Micro-organisms for the purposes of patent procedure at Budapest on 28 April 1977. India
has joined the Budapest Treaty and is governed by its provisions.

Controller: It refers to the Controller General of Patents, Design and Trade Marks.

Convention application: It refers to an application for a patent made by a foreign national

of a convention country.

Exclusive license: It is a license from a patentee to a licensee, which confers any right in
respect of the patented invention, to the exclusion of all other persons (including the
patentee).

Invention: It is a new product or process involving an inventive step and capable of

industrial application.

Inventive step: It refers to a feature of an invention that involves technical advance as

compared to the existing knowledge or having economic significance.

International application: It refers to an application for patent made in accordance with

the Patent Cooperation Treaty, entered in Washington on 19 June 1970.

Patent: It refers to a patent for any invention granted under this Act.

Patent Agent: It refers to a person registered under this Act as a patent agent for a period of
time.

Patented article and patented process: It refers to an article or process for which a patent
is in force.

Patentee: It refers to the person registered as the grantee or proprietor of the patent for a
period of time.

Convention country: The expression convention country is defined in Section 133. It states
that any country, which is a signatory to an international, regional or bilateral treaty,
convention or arrangement and which affords to the applicants for patents in India, or to

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citizens of India, with similar privileges as are granted to its own citizens in respect of the
grant of patents and protection of patent rights shall be a convention country.

However, the Act also provides for those inventions which do not come under its purview
and hence cannot be patentable. Sections 3-5 deal with inventions that are not patentable
and lists them as follows:
• An invention that is frivolous or contrary to well established natural laws
• An invention that would be contrary to public order or morality or that causes serious
prejudice to human, animal or plant life or health or to the environment
• Discovery of a scientific principle or formulation of an abstract theory
• Discovery of any new property or use for a known substance or of the mere use of a
known process, machine or apparatus, unless such known process results in a new
product or employs at least one new reactant
• A substance obtained by a mere admixture resulting only in the aggregation of the
properties of the components thereof or a process for producing such substance
• Arrangement or re-arrangement or duplication of known devices each functioning
independently of one another in a known way
• A method of agriculture or horticulture
• Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic,
or other treatment of human beings or any process for a similar treatment of animals
to render them free of disease or to increase their economic value or that of their
products.

All other inventions, to the exclusion of the above, can be patented under the Act. The next
section deals with the method of filing applications for such patents.

In the next section, we shall study about the filing of patent applications.

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SELF ASSESSMENT QUESTIONS – 1

1. Application for a patent made by a foreign national is known as

_______________ .
2. is a new product or process involving an inventive step and
capable of industrial application.
3. is the person entered in the patents register, as the grantee or
proprietor of the patent.

3. FILING OF PATENT APPLICATIONS

In the previous section, we had discussed the legal aspects of patents. In this section, we shall
study about the filing of patent applications.

Sections 6-11 of the Act deal with procedure for application of patents. According to Section
6, a patent application may be made by any of the following persons either alone or jointly
with any other person:
• Any person claiming to be the true and first inventor of the invention
• Any person being the assignee of the person claiming to be the true and first inventor
in respect of the right to make such an application, or
• The legal representative of any deceased person, who immediately before the death
was entitled to make such an application.

Section 7 states that every application for a patent shall be for one invention only. The
application is to be made in the prescribed form and is to be filed in the patent office. Every
international application under the patent cooperative treaty for a patent shall be deemed
to be an application under this Act, if a corresponding application has also been filed before
the Controller of India. If an application is made by virtue of an assignment of the right to
apply for a patent, the proof of such a right should be enclosed along with the application.
According to Section 8, every foreign application should be accompanied by a statement
setting out detailed particulars of application and provide an undertaking that he would keep

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the Controller informed in writing of the details and development in any patent application
filed outside India.

Section 9 states that where an application for a patent is accompanied by a provisional

specification, a complete specification shall be filed within 12 months from the date of filing
of the application. If the complete specification is not filed, the application shall be deemed
to be abandoned. According to Section 10, a description of the invention is called the
‘specification’. It should describe the invention and begin with a title sufficiently indicating
the subject matter to which the invention relates. Drawings may be supplied for the purpose
of any specification. Any drawings so supplied shall be deemed to form part of the
specification. Further, in any particular case, if the Controller may require that an application
should be further supplemented by a model or sample of anything illustrating the invention.
However, such model or sample shall not be deemed to form part of the specification.

The process for filing a patent application is as follows:

• The application for a patent must be filed at the Patent Office branch corresponding to
the territorial jurisdiction in which the applicant resides or has his/her place of
business. A foreign applicant should file in the Patent Office that has jurisdiction where
the applicant has his/her address for service.
• If the application is on priority basis, it must be filed with complete specification.
However, a non-priority application can be filed with complete or provisional
specification. For a provisional specification, it is important that the complete
specification should be filed within 12 months.
• For priority applications, a declaration containing the name of the inventor must be
filed with the application or within six months. For a non-priority application, the name
of the inventor should be mentioned in the application form.
• At the time of filing for a patent, the Controller should be informed of all corresponding
or similar applications in other countries. The status of such applications should be
informed to the Controller until the grant of patent in India.
• After the filing, the patent office peruses the applications both formally and
substantively and provides the first examination report.

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• An applicant is provided a time limit of 12 months for reverting to all

queries/requirements/objections in the first examination report. Any failure for such
a revert results in the lapse of the patent application.
• Patents are usually published 18 months from the date of application. Usually, any
opposition to the patent can be filed in this period. Opposition to the patent can be filed
after obtaining the grant also. In certain circumstances, the grant of patents can be
revoked when it is found to be opposed to law, morality or public safety.
• Annual renewal charges have to be paid for the lifetime of the patent. If the renewal
charges are not paid within the prescribed time, the patent lapses automatically.
However, lapsed patents can be restored within one year of lapse, if it is found that such
a lapse was unintentional.
• Within three months from the date of the calendar year, the patentee and licensee are
required to submit a statement mentioning the extent of commercial viability of
patents.

In the next section, we shall study about the rights from patents.

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4. RIGHTS FROM PATENTS

In the previous section, we had discussed the filing of patent applications. In this section, we
shall study about the rights from patents.

Sections 43-53 deal with the grant of patents and the rights conferred on the patentee.
Section 43 states that if the patent application is in order and has not been refused by the
Controller or not contrary to the provisions of the Act, the patent shall be granted as quickly
as possible to the applicant. When the patent is granted, the controller publishes the grant
and all documents related to it are open to public scrutiny thereafter. In the event of the
patentee’s demise, Section 44 states that the Controller may suitably amend the patent by
suitably substituting the name of the deceased. Section 45 states that every patent should be
dated as of the date on which the application for patent was filed. According to Section 46,
every patent should be in the prescribed form and is effective throughout India. Also, a patent
is granted for one invention only.

Section 48 provides that the following rights are conferred on a patentee:

• If the subject matter of the patent is a product, the patentee has the exclusive right to
prevent third parties from making, using, offering for sale, selling or importing that
product in India, without his consent.
• If the subject matter of the patent is a process, the patentee has the exclusive right to
prevent third parties from using that process, and from the act of using, offering for
sale, selling or importing for those purposes the product obtained directly by that
process in India, without their consent.

Section 53 provides that the term of every patent granted after the commencement of the
Patents (Amendment) Act, 2002, and the term of every patent that has not expired and has
not ceased to have effect, shall be 20 years from the date of filling of the application for the
patent. Sections 54-56 deal with patents of addition. An application may be for a patent in
respect of any improvement in or modification of a patented invention (known as main
invention). The Controller may grant the patent for the improvement or modification as a
“patient of addition”. The term of the patent of addition shall run concurrently and terminate

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with the main patent. No renewal fee is payable for the patent of addition so long as the main
patent remains in force.

Activity 1
If an invention is relevant for defense purposes or atomic energy, then the controller
shall grant permit without the prior approval of the central government. Comment.
Hint: Refer the Act for inventions relating to defense purposes

5. INFRINGEMENT OF PATENTS
Sections 104-115 deal with the subject of suits concerning infringement of patents. Section
104 provides the jurisdiction of a court for suits related to infringement of a patent. Section
105 provides that a person may obtain a declaration from the court to the effect that the use
by him of any process or product does not constitute infringement of a patent claim, even
though the patentee or licensee has not alleged any infringement. Section 106 empowers the
court to grant relief in cases of groundless threats of infringement, including an injunction
and damages or an account of profit.

Section 107-A states that the import of patented commodity is allowed, despite commodity
being patented here. However, the foreign exporter must be duly authorised under the law
to export the commodity. Such types of imports are known as 'parallel imports' and are a
powerful tool in price control. This provision is made from the user's point of view, and
therefore the act of such import will not be considered to be an infringement of the patent.

In the next section, we shall study about the copyright and its ownership.

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6. TRADEMARK AND TRADE SECRETS

A trademark process occurs when an individual or an organization declares ownership of a
distinctive mark, symbol or logo by filing the trademark registration application with the
Indian Trademark Registrar Office, Controller General of Patents Designs and Trademarks.
After a trademark is registered it gets the privilege to avail legal protection against
trademark infringement under the Trademark Act of India.

There are primarily three types of common trademark infringement as mentioned below:
1. Application of False Trademark
To be involved in any type of process in manufacturing, processing or packaging of
products or services with an unauthorized trademark.
2. Distributing of Products with False Trademark
By selling or dealing in any products or services that have a false or unauthorized
trademark.
3. False Claim of Trademark Registration

Trade secrets
Trade secrets are intellectual property rights on confidential information which may be sold
or licensed. In general, to qualify as a trade secret, the information must be:
• commercially valuable because it is secret,
• be known only to a limited group of persons, and
• be subject to reasonable steps taken by the rightful holder of the information to keep it
secret, including the use of confidentiality agreements for business partners and
employees.

Protection of Trade Secrets

Although India has no specific trade secrets law, Indian courts have upheld trade secrets
protection under various statutes, including contract law, copyright law, the principles of
equity and – at times – the common law action of breach of confidence (which in effect
amounts to a breach of contractual obligation). Section 72 of the Information Technology Act
2000 also provides certain protection, although this is limited to electronic records.

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7. GEOGRAPHICAL INDICATION
Geographical indications are one of the forms of IPR which identifies a good as originating in
the respective territory of the country, or a region or locality in that particular territory,
where a given quality, reputation or other characteristic related to good is essentially
attributable to its geographical

Remedies for infringement of Geographical Indications

Remedies which are available for conservation of geographical indications may be broadly
classified into two categories:
(i) Civil remedies
• Injunction
Injunctions include temporary injunction and permanent injunction. An injunction is
granted for the protection of violations of related items, documents or other evidence in
respect of the subject of the suit. An injunction is granted for restricting the defendant from
disposing of or dealing with his products which may adversely affect plaintiffs’ ability to
recover damages, costs or other pecuniary remedies which may be finally awarded to the
plaintiff as compensation of damage.

• Damages
The remedy of damages or account of profits in the form of compensatory damages is
available to prevent infringers from infringement. Damages (other than nominal losses) or
accounts of profits may be ruled out Where the defendant satisfied the court that he was
unaware and there was no reasonable basis for that Assuming that the plaintiff’s
geographical Indication was registered when he was engaged in using it; And when he
became aware of the existence and nature of the geographical Indication, he stopped using
it.

• Delivery of the infringing labels and indications containing products

It is in the court’s discretion to order the infringer to deliver up infringing labels and
indications for destroying.by taking relevant circumstances into consideration the court may
or may not order for such remedy. All the mentioned remedies are also available for the

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action of passing off. The actions of Passing off are initiated against the infringement of
unregistered geographical indications.

(ii) Criminal Treatment.

The Act has penal provisions for violation of various provisions related to Geographical
indications which are discussed below:
• Falsifying and incorrectly applying geographical indications to the goods.
• Selling goods to which false geographical indications apply.
• Misrepresentation of a geographical indication in registered form.
• Improperly describes a place of geographically connected business indication Registry.
• Falsification of entries in the register.

SELF ASSESSMENT QUESTIONS – 2

4. According to Section 7, every application for a patent should pertain to

_______________ invention only.

5. Section 53 states that the term of every patent granted after the
commencement of Patents (Amendment) Act, 2002, shall be ____________
years from the date of filing the application for the patent.

6. The import of a patented commodity is allowed under Section

_______________of the Patents Act.

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8. COPYRIGHT AND ITS OWNERSHIP

In the previous section, we had discussed rights from patents. In this section, we shall study
about the copyright and its ownership.

Copyright confers certain economic and legal rights on the creators of original work, such as
literature, drama, music or art. The creator of such a work registers its copyright, thereby
establishing its authenticity. Copyright enables the creators to control the use and
distribution of materials created by them. As copyright involves the use of creative skill, it is
easy for any person to exploit it without compensating the creator. In India, the copyright
law allows its registrants to obtain economic compensation for the material or work created
by them.

According to Section 13, copyright subsists throughout India in the following classes of work:
• Original, literary, dramatic, musical and artistic work
• Cinematograph films; and
• Sound recordings

Section 14 states that the term ‘copyright’ means the exclusive right, with respect to the
following:
• For literary, dramatic or musical work not being a computer programme:
o To reproduce the work in any material form including the storing of it in any
medium by electronic means
o To issue copies of the work to the public not being copies already in circulation
o To perform the work in public, or communicate it to the public
o To make any cinematograph film or sound recording in respect of the work
o To make any translation or adaptation of the work
• For a computer programme:
o To do any of the acts specified in clause (a) above
o To sell or give on hire, or offer for sale or hire any copy of the computer programme,
regardless of whether such copy has been sold or given on hire on earlier occasions
• For an artistic work:

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o To reproduce the work in any material form including depiction in three

dimensions of a two-dimensional work or in two dimensions of a three-dimensional
work
o To communicate the work to the public
o To issue copies of the work to the public not being copies already in circulation
o To include the work in any cinematograph film
o To make any adaptation of the work
• For a cinematograph film:
o To make a copy of the film, including a photograph of any image forming part
thereof
o To sell or give on hire; or offer for sale or hire, any copy of the film, regardless of
whether such copy has been sold or given on hire on earlier occasions
o To communicate the film to the public.
• For a sound recording:
o To make any other sound recording embodying it
o To sell or give on hire, or offer for sale or hire, any copy of the sound recording
regardless of whether such copy has been sold or given on hire on earlier occasions
o To communicate the sound recording to the public.

Section 17 states that the author of the work is recognised to be the first owner of the
copyright. This is however, subject to some exceptions given below:
• In the case of a literary, dramatic or artistic work made by authors in the course of their
employment or apprenticeship under the proprietor of a newspaper, magazine or
similar periodical, for the purpose of publication, the proprietor shall be the first owner
of the copyright so long as it relates to publication in the newspaper, magazine or other
periodical.
• If a photograph, painting, portrait, engraving or cinematograph film is made on
payment at the instance of any person; such person shall be the first owner of the
copyright.
• If a work is made in the course of the author’s employment under a contract of service
or apprenticeship, the employer shall be the first owner of the copyright therein.

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• If any person has delivered any address or speech in public, then they shall be the first
owner of the copyright. However, if the address or speech is delivered on behalf of any
other person, then such other person shall be the owner of the copyright therein.
• In the case of government work, the government is the owner of the copyright in the
absence of any agreement to the contrary.
• In the case of a work made or first published by or under the direction or control of any
public undertaking, such public undertaking shall be the first owner of the copyright
therein.

The terms of a copyright are discussed in Section 22-24. Section 22 provides that copyright
shall subsist in any literary, dramatic, musical or artistic work published within the lifetime
of the author until 60 years from the beginning of the calendar year to the next following
year in which the author dies.

Section 23 provides for the term of copyright in anonymous and pseudonymous works. In
the case of a literary, dramatic, musical or artistic work (other than a photograph), which is
published anonymously or pseudonymously, copyright shall subsist until 60 years from the
beginning of the calendar year to the next following year in which the work is first published.

Section 24 provides for term of copyright in posthumous works. Where copyright subsists at
the date of death of the author and adaptation of which has not been published before that
date, the copyright will subsist until 60 years from the beginning of the calendar year to the
next following year in which the work is first published.

In the next section, we shall study about the infringement of copyright.

SELF ASSESSMENT QUESTIONS – 3

7. In India, the copyright law allows its registrants to obtain _______________ for
the material or work created by them.
8. According to Section13, copyright is applicable to three classes of work,
_____________ and ______________.
9. Section 22 provides that copyright shall subsist in any literary, dramatic,
musical or artistic work published within the lifetime of the author until
______________ years.

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9. INFRINGEMENT OF COPYRIGHT
In the previous section, we had discussed the copyright and its ownership. In this section,
we shall study about the infringement of copyright.

Section 51 provides that copyright in a work shall be deemed to be infringed in the following
cases:
• When any person does anything that infringes the exclusive rights of the owner of
copyright or permits any place to be used for the communication of the work to the
public for profit, they are said to have infringed upon the copyright. Such people are
excused if they were not aware and had no reasonable ground for believing that such
communication would be an infringement of copyright.
• The following instances can also be construed as infringement of copy rights, when any
person:
o Hires/ sells/ lets for hire or by way of trade displays or offers for sale or hire any
infringing copies of the work covered by copyright;
o Distributes, either for the purpose of trade or to such an extent as to affect
prejudicially the owner of the work;
o Exhibits in public by way of trade any infringing copies of the work; or
o Imports into India any infringing copies of the work except the copy of any work for
the private and domestic use of the importer.

The reproduction of a literary, dramatic, musical or artistic work in the form of a

cinematograph film shall be deemed to be infringing copyright. Section 52 specifies the
following acts that do not constitute an infringement of copyright:
• A fair dealing with a literary, dramatic, musical or artistic work, not being a computer
programme, for the purposes of private use/research/ criticism/review.
• The making of copies or adaptation of a computer programme by the lawful possessor
of a copy of such computer programme, in order to utilise the computer programme for
the purpose for which it was supplied; or to make back-up copies purely as a temporary
protection against loss.

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• A fair dealing with a literary, dramatic, musical or artistic work for the purpose of
reporting current events in a newspaper, magazine or similar periodical, or by
broadcast or cinematograph or photographs.
• The reproduction of a literary, dramatic, musical or artistic work for the purpose of a
judicial proceeding or for the purpose of a report of a judicial proceeding.
• The reproduction or publication of literary, dramatic, musical or artistic work in any
work prepared by the Secretariat of a Legislature exclusively for the use of its members.
• The reproduction of any literary, dramatic or musical work in a certified copy made or
supplied in accordance with any law for the time being in force.
• The reading or recitation in public of any reasonable extract from a published literary
or dramatic work.
• The publication in a collection, mainly composed of non-copyright matter bonafide
intended for the use of educational institutions and in any advertisement issued by or
on behalf of the publisher, of short passages from published literary or dramatic works.
• The reproduction of a literary, dramatic, musical or artistic work by a teacher or a pupil
in the course of instruction; or as part of the questions to be answered in an
examination; or in answer to such questions.
• The performance, in the course of the activities of educational institution of a literary,
dramatic or musical work by the staff and students of the institution, if the audience is
limited to such staff and students, the parents and guardians of the students and
persons directly connected with activities of the institution.
• The making of sound recordings in respect of any literary, dramatic or musical work, if
sound recording of that work have been made by or with the license or consent of the
owner of the right in the work; the person making the sound recordings has given a
notice of the intention to make the sound recordings, has provided copies of all covers
or labels with which the sound recordings are to be sold, and has paid in the prescribed
manner to owner of rights in the work, royalties in respect of all such sound recordings
to be made by them, at the rate fixed by the Copyright Board in this behalf.
• The causing of a recording to be heard in public by utilising it, in an enclosed room or
hall meant for the common use of residents in residential premises (not being a hotel
or similar commercial establishment) as part of the amenities provided exclusively or

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mainly for residents, therein; or as part of the activities of a club or similar organisation
that is not established or conducted for profit.
• The performance of a literary, dramatic or musical work by an amateur club or society,
if the performance is given to a non-paying audience or for the benefit of a religious
institution;
• The reproduction in a newspaper, magazine or other periodical of an article on current
economic, political, social or religious topics, unless authors of such articles have
expressly reserved to themselves the right of such reproduction.
• The publication in a newspaper, magazine or other periodical of a report of a lecture
delivered in public.
• The making of not more than three copies of a book by or under the direction of the
person in charge of a public library, if such book is not available for sale in India.
• The reproduction for the purpose of research or private study or with a view to
publication, of an unpublished literary, dramatic or musical work kept in a library,
museum or other institution to which the public has access.
• The production or publication of a translation in any Indian language of an Act of a
Legislature and of any rules or orders made there under:
o If no translation of such Act or rules or orders in that language has previously been
produced or published by the Government; or
o Where a translation of such Acts or rules or orders in that language has been
produced or published by the government if the translation is not available for sale
to the public.
• The making or publishing of a painting, drawing, engraving or photograph of a work of
architecture or the display of a work of architecture.
• The making or publishing of a painting, drawing, engraving or photograph of a
sculpture, or other artistic work falling under Section 2(e) (iii). If such work is
permanently situated in a public place or any premises to which the public has access.
• The inclusion in a cinematograph film of any artistic work permanently situated in a
public place or any premises to which the public has access; or any other artistic work,
if such inclusion is only by way of background or is otherwise incidental to the principal
matters represented in the film.

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• The use by the author of an artistic work where the author of such work is not the
owner of the copyright therein, of any Mould, cast, sketch, plan, model or study made
by him for the purpose of the work.
• The reconstruction of a building or structure in accordance with the architectural
drawings or plans by reference to which the building or structure was originally
constructed.
• In relation to literary, dramatic or musical work recorded or reproduced in any
cinematograph film, the exhibition of such film after the expiration of the term of
copyright therein.
• The making of an ephemeral recording, by a broadcasting organisation using its own
facilities for its own broadcast by a broadcasting organisation of a work which it has
the right to broadcast, and the retention of such recording for archival purposes on the
ground of its exceptional documentary character.
• The performance of a literary, dramatic or musical work or the communication to the
public of such work or of a sound recording in the course of any bona fide religious
ceremony or an official ceremony held by the Central Government or the State
Government or any local authority.

Section 52A requires certain particulars to be included in sound recording and video films.
No person can publish a sound recording in respect of any work unless the following
particulars are displayed on the sound recording and on any container thereof:
• Name and address of the person who has made the sound recording
• Name and address of the owner of the copyright in such work
• Year of its publication.

In the case of a video film in respect of any work, the following particulars are to be displayed
in the video film, when exhibited. Also, it is necessary that the video cassette or other
container should have the following particulars:
• If such work is a cinematograph film required to be certified for exhibition under the
provisions of the Cinematograph Act, 1952, a copy of the certificate granted by the
Board of Film Certification

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• The name and address of the people who have made the video film and a declaration
by them that they have obtained the necessary license or consent from the owner of the
copyright in such work for making such video film; and
• The name and address of the owner of the copyright in such work.

In the next section, we shall study about the civil remedies for infringement.

10. CIVIL REMEDIES FOR INFRINGEMENT

In the previous section, we had discussed the infringement of copyright. In this section, we
shall study about the civil remedies for infringement.

Section 55 provides that the owner of copyright can sue in the district court having
jurisdiction and shall be entitled to all such remedies by way of injunction, damages,
accounts and otherwise as are conferred by law for the infringement of a right. However, if
the defendant proves that at the date of infringement he was not aware or had no reasonable
grounds for believing that copyright subsisted in the work, then the plaintiff shall only be
entitled to an injunction and account of profit made by the defendant by the sale of the
infringing copies as the court may in the circumstances deem reasonable. The plaintiff shall
not be entitled to any damages.

Section 71 provides that if any person is aggrieved by an order made by the court under
Section 55, then they can file an appeal within 30 days of the date of the order to the higher
appellate court, which may direct the stay of execution of the order till the appeal is disposed
of.

Section 72 provides that appeals against any final decision or order of the Registrar of
copyright shall lie within three months of the date of the order, with the Copyright Board.
Further, any person aggrieved by any final decision or order of the Copyright Board, may,
within three months from the date of such decision or order, appeal to the High Court.

Activity 2
Analyse various infringements of copyright in India.
Hint: Refer Sec.15.7

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SELF ASSESSMENT QUESTIONS – 4

10. The reproduction of a literary, dramatic, musical or artistic work in the form
of a cinematograph film shall be deemed to be infringing copyright.
True/False
11. The reading or recitation in public of any reasonable extract from a
published literary or dramatic work is considered to be an infringement of
copyright. True/False

12. Section 72 of the Act provides that appeals against any final decision or
order of the Registrar of copyright shall lie within three months of the date
of the order, with the Copyright Board. True/False
11. SUMMARY
Let us recapitulate the important concepts discussed in this unit:
• Patent is form of intellectual right that an inventor has over his/her invention.
• The Patents Act provides a detailed process for the filing of patent applications.
• The Act also discusses the instances under which patents can be infringed upon.
• The copyright act defines the term copyright and its ownership.
• This act also discusses the ownership of copyright and the methods of infringement on
the same.

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12. GLOSSARY
• Assignee – It includes an assignee of the assignee and the legal representative of a
deceased assignee and references to the assignee of any person include references to
the assignee of the legal representative or assignee of that person.
• Copyright – The term ‘copyright’ means the exclusive right, by virtue of, and subject to
the provision of the Act.
• Copyright owner – The author of the work is recognised to be the first owner of the
copyright therein.
• Infringement of copyright – Violation of the rights of the owner of the copyright by a
third person.
• International Copyright – Section 40 authorises the Central Government to extend
copyright protection to foreign works.
• Invention – It means a new product or process involving an inventive step and capable
of industrial application.
• Patentee – It means the person for the time being entered on the register as the grantee
or proprietor of the patent.
• Patent – A patent for any invention is granted under the Patent Act.

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13. TERMINAL QUESTIONS

1. Define a patent. Describe the procedure for obtaining a patent.
2. What are the rights that a patentee acquires under the Act?
3. Describe the relevant sections concerning infringement of patent.
4. What is the importance and meaning of copyright?
5. Describe the civil remedies available for infringement of copyright.
6. What are the acts that are not infringement of copyrights?

14. ANSWERS
1. Convention application
2. Invention
3. Patentee
4. One
5. 20
6. Section 107A
7. Economic compensation
8. Original, literary, dramatic, musical and artistic works; cinematograph films; and sound
recordings
9. 60
10. True
11. False
12. True

Terminal Questions

1. Patent refers to a patent for any invention granted under the Patent Act. Sections 6-11
deal with applications for patents. Section 7 states that every application for a patent
shall be for one invention only. The application is to be made in the prescribed form
and is to be filed in the patent office. For further details, refer to sections 2 and 3.
2. Sections 43-53 deal with the grant of patents and the rights conferred on the patentee.
Section 43 states that if the patent application is in order and has not been refused by

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the Controller or not contrary to the provisions of the Act, the patent shall be granted
as quickly as possible to the applicant. For further details, refer to section 4.
3. Sections 104-115 deal with the subject of suits concerning infringement of patents.
Section 104 provides the jurisdiction of a court. Section 105 provides that a person may
obtain a declaration from the court in this regard. Section 106 empowers the court to
grant relief. Section 107-A states that the import of patented commodity is allowed. For
further details, refer to section 5.
4. 4.Copyright confers certain economic and legal rights on the creators of original work,
such as literature, drama, music or art. The creator of such a work registers its
copyright, thereby establishing its authenticity. Copyright enables the creators to
control the use and distribution of materials created by them. The term ‘copyright’
means the exclusive right, by virtue of, and subject to the provision of the Act. For
further details, refer to section 6.
5. Sec.55 provides that the owner of copyright can sue in the district court having
jurisdiction and shall be entitled to all such remedies by way of injunction, damages,
accounts and otherwise as are conferred by law for the infringement of a right. For
further details, refer to section 8.
6. Section 52 provides the Acts which are not infringement of copyrights. A fair dealing
with a literary, dramatic, musical or artistic work, not being a computer programme,
for the purposes of private use/research/ criticism/review. For further details, refer to
section 4.

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15. CASE-LET
Bangalore, Banashankari police arrested three software engineers for illegally copying
software from a company they were working for. The accused engineers, who were working
with the Ishoni Networks India Private Limited, had started a new company in Koramangala.
They had illegally copied code of the company’s software and were using at their company,
police said. Ishoni Director had lodged the complaint with Banashankari police. Police have
seized four computers, four CPUs, four keyboards, one server and one laptop from the
accused. (Source: DH News Service, Bangalore).

Discuss the law which was violated. What precautions the company should have taken? Also
suggest remedial measures if any.

References:
• Aggarwal, Rohini (2003). Student’s Guide to Mercantile and Commercial Laws,
Taxmann’s, New Delhi
• Kapoor, N.D. (2003). Elements of Mercantile Law, Sultan Chand and Sons, New Delhi.
• Kucchal M.C. (2002). Business Law, Vikas Publishing House Pvt. Ltd., New Delhi.
• Tulsian P.C. (2002). Business Law, Tata McGraw-Hill Pvt. Ltd., New Delhi.
• Gulshan S.S. (2006). Business Law, Excel Books, New Delhi.

E-reference:
• http://www.indialawinfo.com/bareacts/soga.html – retrieved on 15th June, 2012
• https://www.wipo.int/tradesecrets/en/tradesecrets_faqs.html#:~:text=Trade%20se
crets%20are%20intellectual%20property,limited%20group%20of%20persons%2C
%20
• https://www.lexology.com/library/detail.aspx?g=c83e8a6c-a02e-44ba-8723-
94087d2e5e20

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