IPR-UNIT-3

Copyrights
Originality of material
The concept of originality is fundamental in copyright law across the
world. It serves as a yardstick to evaluate whether a particular work is
eligible for copyright protection. Let’s delve into the nuances of
originality:

1. Definition of Originality:
In civil law countries, “originality” refers to an author’s own intellectual
creation. It signifies that the work must stem from the author’s
independent thought and not be influenced by external factors.

The Indian Copyright Act of 1957, in Section 13(1), states that copyright
subsists in “original literary, dramatic, musical, and artistic works.”
However, the Act does not provide a precise definition or test for
determining originality.
 2. Tests for Originality:
Non-Copying Requirement (Completely Objective Test):
• This test focuses on whether the work is independently
created by the author, without directly copying from another
work.
• It emphasizes the absence of direct copying.
Threshold/Degree of Originality (Varies from Court to Court):
• Courts assess the level of creativity or originality required for
a work to qualify for copyright protection.
• The threshold varies, but it generally demands more than
mere triviality or minimal variation from existing works.
 3.Di erent Doctrines in Various Jurisdictions:
UK’s Sweat of the Brow Doctrine:
The UK case of Walter v Lane established this doctrine.
• This doctrine emphasizes the diligence and e ort put into
creating a work.
• It de-emphasizes the need for “creativity.”
4. Application in India:
India follows the sweat of the brow doctrine, emphasizing the
author’s e ort and labor. In summary, originality ensures that a
work is not a mere copy and reflects the author’s intellectual
creation. While the specifics may vary across jurisdictions, the
core principle remains consistent: creativity and independent
thought underpin copyright protection
Right of reproduction
Right of reproduction is the most basic of the rights under the
umbrella of copyright and is available to all the works that are
subject to copyright protection.

The right of reproduction commonly means that no person

shall make one or more copies of a work or of a substantial
part of it in any material form including sound and film
recording without the permission of the copyright owner. The
right of reproduction is the legal basis for many forms of
exploitation of copyright works.
For example, the printing of books by a publisher or the cutting
of music CDs by a producer depends on this right of
reproduction.
What Reproduction Rights Cover:

• Copying: The right to make exact or substantially similar

copies of the work.
• Distribution: The right to distribute these copies to the public,
whether through sale, rental, or lending.
• Digital Reproduction: In the digital age, this includes making
digital copies, uploading files, and sharing content online.
• Derivative Works: The right to create new works based on the
original (e.g., adaptations, translations, remixes).
 Copy right ownership issues
1. Easy Reproduction and Distribution:
With the rise of digital technologies, it has become much easier to reproduce
and distribute copyrighted materials. Digital copies of books, music, and
movies can be made quickly and easily, and can be distributed around the
world in a matter of seconds.

2. Di culty in Tracking:
In the digital age, it can be di cult to track the use of copyrighted materials.
Once a digital copy is released online, it can be downloaded and shared
countless times, making it almost impossible to know who is using the
material and for what purpose.

3. Complex Ownership:
In the digital age, ownership of copyrighted materials can be di cult to
establish. With the ease of reproduction and distribution, it can be hard to
determine who the original owner of a particular work is, or who has the
right to distribute it.

4. High Cost of Enforcement:

Enforcing copyright laws in the digital age can be a costly and time-
consuming process. With so much content available online, it can be di cult
to identify cases of copyright infringement and take legal action against
 5. International Scope:
In the digital age, content can be distributed globally, which can make it di cult to enforce
copyright laws across di erent countries and legal systems.

6. Fair Use:
The concept of fair use allows limited use of copyrighted materials without obtaining
permission from the copyright owner. However, determining what constitutes fair use can be a
complex and subjective process, which can make it di cult to enforce copyright laws.

7. User-Generated Content:
With the rise of social media and other user-generated content platforms, it has become easier
than ever for individuals to create and share their own content. However, this can also make it
di cult to determine who owns the copyright to a particular work, and to enforce copyright
laws.

8. Emerging Technologies:
The digital age is constantly evolving, and new technologies such as artificial intelligence and
blockchain are changing the way that content is created, distributed, and consumed. Keeping up
with these emerging technologies and their potential impact on copyright protection can be a
challenge.

9. Balancing Access and Protection:

While copyright protection is important, it is also important to balance this protection with the
need for access to information and creative expression. Finding the right balance between
access and protection can be a challenge in the digital age.
•
Copy right notice

Form and Placement of the Copyright Notice:

The copyright notice generally consists of three elements:

The symbol © (the letter C in a circle), or the word "Copyright"

or the abbreviation "Copr.";
The year of first publication of the work; and
The name of the owner of copyright in the work.
Example: © 1996 Jane Doe
Importance of Copyright Notice
Copyright notice is no longer necessary for a work to be protected under
copyright law. For any work published after March 1, 1989, the copyright notice is
strictly optional, though highly recommended. However, if a work was first
published before March 1, 1989, copyright notice was required for the work to be
protected under copyright. Works that were published without a copyright notice
prior to this date may have lost all right to copyright protection.

Even though the copyright notice is no longer required, it should still be placed
on all published works. Use of the notice is recommended for the following
reasons:

• it informs the public that the work is protected by copyright (and thereby helps
to scare aware potential infringers);
• it prevents a party from claiming the status of "innocent infringer," which may
allow a party to escape certain damages under the Copyright Act; and
• it identifies the copyright owner and the year of first publication (so that third
parties will know who to contact to request a license to the work).
There is no need to register the work with the Copyright O ce or to seek any
other kind of permission before using the copyright notice.
International copyright law
• International copyright law just does not exist! The scope and
application of copyright law are both territorial and regional. The
country's national laws will determine how to protect against illegal
use of work there.
• A number of international copyright treaties and conventions have
made the procedure of providing protection to foreign copyright
holders significantly simpler. This has given content producers and
owners worldwide exclusive rights to use their works.
• Due to international conventions and agreements (primarily the Berne
Convention), which provide a common framework that national
legislation must follow to ensure countries respect the rights of
foreign authors, the fundamental rights are the same in the majority
of countries even though the specifics of their national laws may vary.
• This indicates that copyright safeguards your creation automatically
on a global scale.
Principle Conventions and Agreements
The Berne Convention

The primary international agreement controlling copyright is the

Berne Convention. It establishes a framework that all contracting
states must include in their national laws and extend to
international authors and artists. This framework includes author
rights, a minimum guaranteed copyright duration, activities requiring
approval, etc.

The Berne Convention for the Protection of Literary and Artistic

Works is its full name. It was initially ratified in 1886 as a
commitment to respect the legal rights of all authors who are
citizens of nations that have ratified the convention. The Paris Act of
1971 is the convention's present incarnation. The World Intellectual
Property Organization is in charge of overseeing the convention
(WIPO).
• The Berne Convention has 181 nations as signatories as of
2022.

• The Act protects authors whose nationalities are those of one

of the Union's member nations or when the work is first
published (or concurrently published) in one of those nations.
The member nations make up the Union.

• Persons who are not citizens but who have their habitual
abode in a country of the Union will be treated as citizens for
the purposes of the Convention.
TRIPS
TRIPS, also known as the Agreement on Trade-Related Aspects
of Intellectual Property Rights, is a pact that all of the World
Trade Organization's members have signed (WTO).

Many of the clauses are similar to the Berne Convention from

the perspective of copyright.

Other Treaties and Agreements

Here are some other treaties that grant additional rights or are
noteworthy historically −
• The WIPO Treaty on Copyright (WCT) − A specific agreement
made under the Berne Convention that deals with the rights
of writers and the protection of works in the digital sphere.

• Moroccan Treaty − According to the 2013 "Marrakesh Treaty

to Facilitate Access to Published Works for Persons Who Are
Blind, Visually Impaired, or Otherwise Print Disabled,"
government-authorized organizations are permitted to
reproduce and distribute accessible versions of books to
people who are blind, have visual impairments, or have other
disabilities that make it di cult for them to read books.
International Copyright Application

India is a signatory to the Berne Convention, therefore even if

the work was initially published there; it is protected by
copyright in many other countries across the world. So, even if
copyright protection is not formally requested, works that were
first published in India are protected worldwide by copyright
laws.

Any work that fits the definitions of music, art, theater, film,
photography, or sound recordings is protected by copyright. It
is necessary for the work being copied righted to be original,
but originality of thinking or idea is not a requirement. Just
being original in one's intellectual expression is what the law is
all about.
Conclusion

The Universal Copyright Convention, the Berne Convention for

the Protection of Literary and Artistic Works, and the TRIPS
Agreement in India are all parties to the International Copyright
Order, which safeguards the copyright of nationals or entities
of those nations. As a result, works from the countries covered
by the International Copyright Order are safeguarded in India
just like Indian works would be. India has also ratified a number
of international copyright conventions, guaranteeing that its
works are safeguarded abroad.
Law of Patents
Patent search
Procedure for Patent Registration in India

Patent Registration process can be completed in

multiple stages, beginning from Patent Search to the
issuance of Patent Registration Certificate. These
stages involve legal intricacies which can be better
handled by an experienced IPR Professional. So, we
strongly recommend approaching a Patent Service
Provider like Setindiabiz, or an experienced legal
practitioner for patent filing in India.
Step 1: Patent Search
Patent Search is the first step of Patent Filing procedure in India and is
conducted worldwide to determine the novelty of an invention. Generally, it
is considered safe to do patent searches before patent application filing. If
an invention is found in prior arts or closely resembling prior arts, then the
novelty of that invention can be challenged by the Indian Patent O ce and
the application can be objected to. Therefore, it is important to perform
prior patent searches to assess the chances of your patent getting
approved by the Patent O ce.

Step 2: Drafting Patent Specification

After conducting thorough searches worldwide, the specification of the
invention is written in a techno-legal language with or without the
inventor’s claims. Without claims is the provisional specification and with
claims is the complete specification. The specification outlines the field of
invention, detailed description of the invention with working examples, and
the best method to use the invention so that when it comes to the
knowledge of a person skilled in the art, it can be easily used. Legal
protection to the patent is granted when the specification is drafted with
• Step 3: Patent Application Filing
• After drafting the Patent Specification, you can begin the procedure for
Filing Patent Application in India. As we discussed earlier, patent
applications can be provisional or complete, based on the specifications
drafted. The drafted provisional or complete specification is filed in
Form-2 while Patent Application form is filed in Form 1 as prescribed by
the Indian Patent Act. If a provisional patent specification is filed, then
within 12 months of its filing, a complete specification has to be filed with
the inventor’s claims. There are 6 di erent types of Patent Application
forms which can be filed on the basis of their purpose. These are:
• Ordinary patent application: Used to file a patent application directly in
India, seeking protection only within the Indian territory.
• PCT National phase patent application: Used to enter the national phase
of PCT or Patent Cooperation Treaty in India, after which the applicant will
be allowed to seek patent protection in multiple countries.
• PCT International patent application: Used to file a single patent
application for patent registration in multiple countries which are
members of the PCT, providing a centralized process for seeking patent
protection internationally.
• Convention patent application: Used to claim priority based on an
earlier application filed in a convention country, allowing applicants to
secure the priority date for their invention.
• Divisional patent application: Used to divide an existing patent
application into multiple separate applications, typically when the
existing application contains multiple inventions.
• Patent of addition application: Used to file an application for an
improvement or modification of an already existing invention for which a
patent has already been granted.
• Step 4: Patent Publication for Public Opposition
• Once the patent application process is complete, then after the expiry of
18 months from the date of patent filing or date of priority whichever is
earlier, the patent is published in an official journal and is open for public
viewing and inspection. This provides an opportunity to the general
public to raise an objection to the patent on valid grounds.
• Step 5: Requesting Patent Examination
• The patent application is examined only when a request for
examination has been filed. The request for examination has to be
filed within 48 months of the patent filing date or date of the
priority. The patent examiner examines a patent application and
issues an examination report. The examination report contains a
series of objections raised by an examiner. The response to an
examination report has to be filed within 12 months of the issuance
of the examination report. If needed, the examiner can call the
applicant or his agent for a show cause hearing to resolve the
objections. That’s why this phase is also called patent prosecution.
• Step 6: Grant of a Patent
• After all objections to the examination report have been replied to
and the examiner is satisfied with the reply of the applicant, the
application is put in order for grant of Patent Registration. This
marks the end of the procedure for registration of Patent. On the
other hand, if the examiner is not satisfied with the reply and
arguments of the applicant, then he/she can reject the patent
application. In this case, the applicant will again have to repeat the
entire patent procedure in India again to get patent protection.
• Cost & Validity of Patent Registration
• Once a patent is granted, it confers exclusive patent rights to
the inventor or applicant for a period of 20 years from the date
of filing the patent application form, subject to annual renewals
starting from the 3rd year after the Patent has been granted.
For the cost of Patent Registration in India, you can refer to the
table below. It discusses the patent registration fees in India
both for e-filing and physical filing modes.
Thank you