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Fundamental of IPRs

Revised by Ms. Jaya V S Asst. Res. Prof & Programme Co-ordinator

This paper will give you a basic idea about the philosophy behind IPR, its history, various forms and significance in the modern era.

What is an Intellectual Property Right (IPR)?

Intellectual Property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical or scientific creation. Intellectual Property Rights (IPR) refers to the legal rights given by the State to the inventor/creator to protect his invention/creation for a certain period of time. These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time.

Significance of IPR

Intellectual property rights illustrate the nations ability to translate knowledge and thereby creating social good and wealth through innovations. These innovations hold the key to any nations prosperity as well as processing of knowledge. It is very well settled that intellectual property play a vital role in the modern economy. It has also been conclusively established that the intellectual labour associated with the innovation should be given due importance so that public good emanates from it. A detailed study about the various forms of intellectual property rights will give you more idea about the subject.

Theories of IPR

Moral Desert Theory

According to John Locke, every man has a property in his own person. ie., the fruits of a mans labour belong to him. In this scheme intellectual property would seem to follow naturally since the individual must surely be permitted the fruits of his mental and physical labour.

Personality Theory

According to Kant and Hegel, if ones artistic expressions are synonymous with ones personality, then they are deserving of protection just as much as the physical person is deserving of protection since in a sense they are a part of that physical person.

Utilitarian Theory

Advocated by economists such as Bentham and Mill, the utilitarian theories assume that the objective of any policy should be the attainment of the greatest good for the greatest number. The utility gains from increased incentives for inventions must be weighed against the losses incurred from monopolization and their diminished diffusion

Forms of IPR

Patents are granted for various kinds of inventions, which fulfill the patentability criteria of novelty, non-obviousness (inventive step) and industrial applicability Copyright exists in original artistic and literary creations Trademark rights exist for visual symbols including a label or a logo by which the buyers can identify the goods / services of a particular seller / service provider

3 Originally, only patent, trademarks and Industrial designs were protected as Industrial Property, but now the term Intellectual Property has a much wider meaning.

Need for Intellectual Property Rights (IPR)

IPR is a strong tool, to protect investments, time, money, effort and the like invested by the inventor/creator of an Intellectual Property, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in a way, aids the economic development of a country by promoting healthy competition and encouraging industrial development and economic growth. Further it also enhances technology advancement in the following ways:

a. it provides a mechanism of handling infringement, piracy and unauthorized use b. it provides a pool of information to the general public since all forms of IP are published except in case of trade secrets .

A spurt in interest about intellectual property rights (IPR) has been visible in the country for almost the last 15 years. The recent interest started with a curiosity and an element of apprehension but it has now graduated to a need-based compulsion and desire to play the new game introduced with the formation of the World Trade Organisation (WTO) and the introduction of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). With the opening up of trade in goods and services, the IPRs have become more susceptible to infringement without adequate return to the creators of knowledge. There has been a quantum jump in Research and Development (R&D) costs with an associated jump in investments required for putting a new technology in the market place. The stakes of the developers of technology have become very high and hence the need to protect the knowledge from unlawful use has become expedient, at least for a period, that would ensure recovery of the R&D and other associated costs and adequate profits for continuous investments in R&D. Globalisation, multilateral trade and new economic order are continuously reducing the geographical barriers to trade rendering the global trade very complex. IPRs become important parameters influencing

4 trade. Therefore, one expects that a large number of IP rights would be generated and protected all over the world including India. The current importance of IPRs is dictated by the following reasons:

(i) (ii) (iii) (iv) (v)

Technologies are changing rapidly, Product life cycle is becoming shorter, Investments on R&D, production, marketing have become very high, Human resources should possess high level of skills, and The industry is becoming very competitive.

What are the types of protection offered?

Intellectual property rights as a collective term includes the following independent IP rights. IP protection can be sought for a variety of intellectual efforts including Patents (Patents Act, 1970) Industrial designs (Designs Act, 2000) relates to features of any shape, configuration, surface pattern, composition of lines and colors applied to an article whether 2-D e.g. textile or 3-D e.g. toothbrush, Trademarks (Trademark Act, 1999) relates to any mark, name or logo under which trade is conducted for any product or service and by which the manufacturer or the service provider is identified, Copyright (Copyright Act, 1957) relates to expression of ideas in material form and includes Literary, Musical, Dramatic, Artistic, Cinematography work, audio tapes & computer software Geographical Indications (Geographical Indications of Goods Act, 1999) are indications, which identify a good as originating in the territory of a country or a region or locality in that territory where a given quality, reputation or other characteristic of the goods is essentially attributable to its geographical origin. Undisclosed Information/ Confidential Information/ Trade secrets (under Common Law in India), Plant breeding (the Protection of Plant Varieties and Farmers Rights Act, 2001) and

5 Integrated Circuit layout designs (Semiconductor Layout Designs Act, 2000.)

See TRIPs Agreement http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm

These are different forms of IPR, each being independent of the other and governed by a separate law. Their mutual exclusiveness and independence can be gauged by the fact that it is possible to protect different aspects of an original or inventive work with different rights. IPRs are awarded by a country and most of the rights are territorial in nature. A

copyright generated in a member country of the Berne Convention is automatically protected in all the member countries, without any need for registration. However, the copyright will not be automatically available in countries that are not the members of the Berne Convention. Therefore, copyright may not be considered a territorial right in the strict sense. Like any other property IPR can be transferred, sold or gifted. One of the main underlying principles of IPR is that protection is not given for what is already known in the public domain. IPR are meant to benefit creators of work, inventions and designs. These rights are granted for a limited period of time, except that in the case of trademark, the protection period could be extended indefinitely by a process of renewal. IPR are monopoly rights and thus prohibit unauthorised use of the protected work/invention. In return for such rights, the State expects that the invention/ original work should be made public for use by others after the rights have expired or during the period of protection with proper authorization from the right holder. However, protection of undisclosed information falls in a different category; the above principle of public disclosure is not applicable in this case. On the contrary, in order to protect the right, the information has to be kept secret and it has to be ensured that it does not come in the public domain. A patent is awarded for an invention, which satisfies the criteria of global novelty, non-obviousness and industrial application. Patents can be granted for products and processes. As per the Indian Patent Act 1970, the term of a patent was 14 years from the date of filing except for processes for preparing drugs and food items for which the

6 term was 7 years from the date of the filing or 5 years from the date of the patent, whichever is earlier. No product patents were granted for drugs and food items.

India is a signatory to the Berne Convention and has a very good copyright legislation comparable to that of any country. Copyright is awarded to literary, dramatic, musical, artistic, cinematographic film and sound recoding. Computer programmes and databases are considered literary work and hence, are protected by copyright in India; in fact, these are also considered copyrightable items under TRIPS. It may be noted that copyright protection extends to an expression of an idea but not to the idea itself. To get protection, these works should be in a tangible form, which means in a form capable of either visually or audibly recreating the representation of the original work. Works are not copyrightable if they are merely ideas or sounds or gestures.

A trademark is any word, name, symbol, or device or any combination thereof used by persons to distinguish their goods and services, including a unique product, from those manufactured or sold by others and to indicate the source of goods / services. This gives an opportunity to consumers / buyers to assess the quality of the goods being bought by them. The purpose of awarding a trademark is also to benefit the public as it could make an informed choice while opting for different products and services.

Industrial design is connected with the protection of external shape, appearance and configuration of an article. Protection of IC layout design and geographical

indications are the most recent laws passed by the Indian Parliament. Protection of IC layout design is associated with protection of mask designs in integrated circuits.

Geographical indication is a name granted by the State to a product, natural or man made, identifiable with a specific geographical location for the uniqueness of the product. Once a geographical indication has been granted to a product then no similar or identical product made / produced elsewhere can be sold under that geographical indication. As per the Indian law, violation of geographical indication would invite heavy penalty including fine and imprisonment.

7 Undisclosed information, generally known as trade secret / confidential information, includes formula, pattern, compilation, programme, device, method, technique or process. Protection of undisclosed information is least known to players of IPR and also least talked about, although it is perhaps the most important form of protection for industries, R&D institutions and other agencies dealing with IPRs. Protection of undisclosed information / trade secret is not really new to humanity; at every stage of development people have evolved methods to keep important information secret, commonly by restricting the knowledge to their family members. Laws relating to all forms of IPR are at different stages of implementation in India, but there is no separate and exclusive law for protecting undisclosed information / trade secret or confidential information. History of IPR system Human beings, and even animals, have a tendency to protect and possess a physical thing they have. Thus, a child will not part with her toys, a person with his property and a dog with his dog-bone. Similarly, most people will not like the idea that any one with out their permission, and with out a simple acknowledgement copies their writings, designs or products made by them. By not having a system in place to formally protect the intellectually created work of an individual, a society would strike at the root of ingenuity and innovation of its own people. The society is always in need of new ideas, products, processes, designs, recipes and so on to improve the quality of life, have better health for its people, produce new things and have a trade advantage by increasing the size and quality. Trade and commerce have emerged to be the major deterministic factor for achieving the above goals. Pressures of globalisation or internationalisation were not intense during 1950s to 1980s, and many countries, including India, were able to manage without practising a strong system of intellectual property rights. Globalisation driven by chemical, pharmaceutical, electronic and IT industries has resulted into large investment in R&D. This process is characterized by shortening of product cycle time and high risk of reverse engineering by competitors. Industries came to realize that trade secrets were not adequate to guard a technology. It was difficult to reap the benefits of innovations unless uniform laws and rules of patents, trademarks, copyright etc existed. That is how

8 intellectual property rights became an important constituent of the World Trade Organization. Patents began as instruments for attracting and introducing new products, technologies and techniques in European countries. If you look at the old patents granted by some of the countries you will find that they were just a replication of the technologies available elsewhere. Artisans were invited from one country to the other and given special rights, amongst them being the exclusive right to exploit the technology. The laws and administrative procedures related to intellectual property rights have their roots in Europe. The trend of giving patents started in the fourteenth century. In comparison to other European countries, in some matters England was technologically advanced and used to attract artisans from elsewhere on special terms. Once such people decided to come and settle, they would need to employ the locals who would get trained over time in the relevant trade and craft; but such trained locals were likely to become competitors to the knowledge holder and consequently a threat to the monopoly. Therefore, protection was given to the immigrant to have a monopoly for few years, to enable him to exploit the economic returns of his art, special expertise, or technological innovation. It is interesting to note that the original period of protection of 14 years for a patent was not with out reasons. Seven years was the term of service of an apprentice, so the protection for fourteen years meant protection for two generations of apprentices. For some reasons, this period continued until recently, even though the concept of seven years apprenticeship was no longer valid. As early as 1332, the Venetian Grand Council established a privilege fund for providing loans and other rewards to a foreign constructor of windmills who offered to bring knowledge of this art to the city. In 1416 the Council awarded to Fransciscus Petri, from the Island of Rhodes, a patent for a superior device for fulling (shrinking and thickening) of fabrics, this patent gave exclusive rights for 50 years to Petri and his heirs to build, alter and reconstruct the apparatus. In this period of introducing new art and technologies a thought process slowly started taking roots, on the question of disclosing secrets of the art or craft or technologies. It really did not matter whether the inventor was from the same land or from a foreign country. When in 1421, the Florentine commune awarded a patent to Brunelleschi for a

9 new design of ship, he claimed that the ship could haul loads more cheaply on the Arno River; the nature of bargain for disclosure was spelled out candidly in Bruelleschis petition He refuses to make such machine available to the public in order that the fruit of his genius and skill may not be reaped by another with out his will and consent, and that, if he enjoyed some prerogative concerning this, he would open up what he is hiding and would disclose it to all.

The rights of literary works involving published works were not protected until the advent of printing machines, which made copying of literary works much easier. Otherwise some one would have to write the complete manuscript for making a copy, which from commercial angle, was not profitable. From the beginning copyright laws have been designed more by the economics of publication than by the economics of authorship. The first known copyrights appeared in Italy. The craft of printing was introduced in Rome and Venice by the end of 1460s. A number of privileges were allowed by Venice in terms of import of franchise, exclusive licenses to print or sell an entire class of books, prohibition of import of books printed abroad and patents for the improvement of printing and typography. As the focus was on printing books in public domain (such as the Bible), the rights of authorship were not considered important. The first franchise for printing was taken from a German printer Johann von Speyer. In 1493 the Venetian Cabinet gave Daniele Barbaro an exclusive 10-year grant of proprietary rights for the publication of a book authored by his deceased brother. Such cases were very few and copyrights were by and large issued to the publishers for works written by others. This is an interesting aspect of copyrights. In the last few centuries, the emphasis of ownership shifted from that of publisher to creator / author of the work. With the advent of digital technologies and new forms of works being created, especially for internet purposes, publishers stakes seem to be increasing each day as the quality of replication and ease of replication have become extremely simple. The publisher lobby is therefore seeking new treaties such as the Data Protection Treaty, for protecting their investments. It may become a case of the old order taking over the new order because technological inputs have brought about a major shift in the publishing business. Venice

10 can be considered the cradle of intellectual property system as most legal thinking in this area was done here and laws and systems were made here for the first time in the world, and other countries followed them. Scholars feel that the first general copyright law in the world came in the form of a decree issued by the Venice Council around 1545, which prohibited the printing of any work with out the permission of the author. No steps were apparently taken to maintain a register for the copyrighted works. Similar laws also came into being in other European countries. Each country introduced an element of censorship to exclude from publication, material that was considered unacceptable by the society. (?) It is also important to realize that the laws were applicable to printing and publishing of material generated with in the country. There were practically no laws which prohibited publishing and printing of books, pamphlets etc. which were imported into the country. Obviously, the element of international obligation, which is becoming so pervasive and important in the present day IPR system, was completely missing. The character of IP management in countries has undergone a metamorphosis ever since the borders and barriers to global trade and commerce started becoming less rigid, which perhaps was driven if not consciously then unconsciously, by the spirit of promoting fair competition and attaching due honour to, let us say, the creators of knowledge. The process is an on going one, as more and more countries become a part of the international trade and new variables get introduced in international relations.

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