INTELLECTUAL PROPERTY

RIGHTS
 INTELLECTUAL
Literally means, application of ‘intellect’-

• Idea
• Invention
• Creation
• Innovation
• Imagination
• Expression

Thus, intellectual is about the ideas skilfully

expressed resulting in innovative and creative work.
 PROPERTY

TangibleProperty Intangible Property

(Corporeal) (Incorporeal)

• Includes immaterial and non-

physical objects.

Includes material and physical TangibleProperty

objects (Corporeal)

Eg., land, building, chattels etc.

Information,Knowledge & Intellect
Information Knowledge
• Information • Creation of knowledge
• Information as power • Dissemination of knowledge
• Knowledge as power • Regimentation/regulation of
• Knowledge economy knowledge
• Intellect • Liberalisation of knowledge
 RIGHTS

Bundle of rights In a thing or land :-

• right of possession
• right of ownership
• right to dispose of
• right to enjoy
• right to mortgage
• right of sale
• right to transfer
• right to gift
• right to lease
• right to assign
• right of will
INCORPOREAL
PROPERTY

INTELLECTUAL
PROPERTY
RIGHTS
INTANGIBLE
PROPERTY
RIGHTS
FEATURES OF INTELLECTUAL PROPERTY -I

• Intellectual property is defined as any “original creative work

manifested in a tangible form that can be legally protected.”

• Rights associated with Intellectual Property which gives legal

protection is referred to as Intellectual Property Rights.

• Intellectual Property has no corpus or animus physical form.

• Features of property rights partly applies to Intellectual

Property rights.
FEATURES OF INTELLECTUAL
PROPERTY -II
• Rights flowing from property in
encumbrances are not provided in
Intellectual Property.(example: lease,
mortgage, will, rent etc.)

• Principles underlying IPR includes

principle of ownership, possession,
enjoyment, disposition etc.

• When we speak of Intellectual Property

Rights, we refer to controlling the way
Intellectual Property is used, accessed or
distributed.
NATURE OF INTELLECTUAL PROPERT Y
RIGHTS (IPR)

 IPR empowers the right holder to exclude or

NEGATIVE prohibit all the others from using or exploiting
RIGHT the registered IP.
 One who conceives the idea/ invention enjoys
natural and positive right to exploit the same. It
is done by registering the Intellectual Property.

 IPRs are individual or private rights as opposed

INDIVIDUAL to societal or community rights.
RIGHT  It encourages the Capitalist notion of Individual
or private rights.
  They are enjoyed for temporary period,
Rule against thus comprehends RULE AGAINST
perpetuity PERPETUITY or prevents enjoyment over
the property for indefinite period of time.

 Law is the managerial/ administerial science

Protects and  IP law protects explicit knowledge which is
manages documented and evidence based as evidentiary
knowledge value is important to claim ownership rights.
 Non-documented Knowledge (Implicit
knowledge) is outside the purview of IP Laws.

 The use of property by the owner is conditional

Restricted rights upon the process of law.
 The right to exclude others does not
of the owner
automatically confers the exclusive and indefinite
rights upon the owner
 TRADITIONAL
PATENT
KNOWLEDGE

INDUSTRIAL
COPYRIGHTS
DESIGN
Intellectual property
rights
: Kinds and
components
PLANT
TRADE MARKS
VARIETIES

GEOGRAPHICAL TRADE SECRETS

INDICATIONS
Intellectual property rights (IPR) : Objects

Financial
incentives
To promote
progress

Economic
growth

Dissemination
Promote of knowledge
social/
common
good
 OBJECTS:

 PROMOTES INNOVATION

 Intellectual efforts in the fields of :- literature, artistic, engineering,

technology, business, science, manufacturing, agriculture, machinery etc. are
protected through the Intellectual Property Rights.

 They prevents unauthorized usage of these intellectual efforts of the creator

or the inventor, thus it encourages creativity and innovation.

 This is justified on the grounds of the Labour Theory propounded by John

Locke i.e., one who labours deserves certain awards. The labour includes
mental labour also.

 Thus, IPRs are the legal rights governing the use of creation of human
minds.
 DISSEMINATION OF KNOWLEDGE

 IPRs deals with the management of knowledge as it protects the knowledge

which is explicit in nature.

 It signifies the protection of evidence based documented knowledge. Thus,

it believes in liberalisation of knowledge so as to create more resilient
economy based on Intellectual(human) capital.

 Such evidence – based knowledge is sine qua none to claim the rights
flowing from such Intellectual Property.

 It, however, does not protect non–documented knowledge which is implicit

in nature. Thus, it withstands the traditional knowledge vested into the
community, society, native, folks or tribe and which is devoid of any
evidentiary value.
 ECONOMIC GROWTH

 Intellectual property Rights(IPRs) aims and endeavours for economic

development and not for the maximisation of profits.

 It promotes Competition and Innovation and discourages the monopolistic

practices because basket of choices is wider through competition and
inventiveness in the market.

100
80 monopoly
60 perfect
40 competition
20
0
 SOCIAL OR COMMON GOOD

 Intellectual Property Rights(IPRs)aims to establish a welfare state and an

egalitarian society(according to its labours and means as in terms of Karl
Marx).

 Promoting economic development and low- cost innovative technology

through competitiveness in the market, the prices of goods tends to be
lower in comparison to the monopoly.

 Thus, when prices are low, the net accessibility of the consumer goods is
higher, thereby promoting its reach and service to maximum number of
people. It exploits the work commercially and makes it available to the
public.

 IPRs, thus, justifies the Utilitarian theory propounded by Jeremy Bentham

of maximum benefit to greater number of people.
 Patent & economic Development
• Patent > Economic • Economic Growth
Development> • National Income GDP
• Patent < Economic • Knowledge Economy V.
Development < Real /Monetary
• Patent >< Innovations Economy
 PROMOTES PROGRESS

 By exchanging limited exclusive rights for disclosure of inventions

and creative works, society and the patentee/ copyright owner
mutually benefit, and an incentive is created for inventors and
authors to create and share their work.

 Thus, by this mutually benefitting act, Intellectual property Rights

promotes social progress
 FINANCIAL INCENTIVES

 Intellectual Property Rights (IPRs) are exclusive rights of the

owner of an invention or a musical or literary work etc. to derive
benefits from his work thus giving him financial incentives to
innovate and create.

 These rights also Justifies the Labour Theory for the owner of the
idea or innovation to get his due reward.
 Constitutional dimensions of the
intellectual property rights (IPR’s)
CONSTITUTIONAL NOTION OF PROPERTY RIGHTS

Property Rights in the purview of the provisions of Indian Constitution is

a Legal Right but not the Fundamental Right, as the case was earlier.
However, there are direct as well as indirect references to Intellectual
Property. These are : -

 Direct provisions : Includes Article 300A and Entry 49th , List 1 of the 7th
Schedule to the Constitution.

 Indirect provisions : Includes provisions in the Fundamental

Rights(Article 19, 25, 26,29, 30, 21A etc.); Preamble to the Constitution;
Directive Principles(Article 45) and Fundamental Duties(Articles
51A(k) and (h)).
Direct provisions

 Article 300A :

-No person shall be deprived of his property save by

authority
of law.{inserted by the Constitution (Forty-fourth Amendment)
Act, 1978 }.
This provision directly provides the right of property,
including Intellectual Property as the Constitutional right.
Earlier Article 19(1)(f) .{omitted by the Constitution (Forty-
fourth Amendment) Act, 1978 }provided for the Right to
property as the Fundamental Right.

Entertainment Network India Ltd. v/s Super Cassettes Industries Case

(2008)
The Case stretched the concept of Property under Article 300A.It
Laid
down that ‘property’ not only includes real property but
 Entry 49, List 1(Union List)
Seventh Schedule

It provides that Parliament has exclusive power to make laws with

respect
to -
• Patents,
• inventions and designs;
• copyright;
• trade-marks and
• merchandise marks
Indirect Provisions

 Preamble provides for LIBERTY of thought, expression, belief, faith

and worship

 Article 19(1)(a) provides – All citizens shall have the right to freedom
of speech and expression.

 Article 25 provides Freedom of conscience and free profession, practice

and propagation of religion while Article 26 provides for Freedom to
manage religious affairs.

 Article 29 provides for Protection of interests of minorities while

Article 30 provides the Right of minorities to establish and administer
educational institutions.
 Article 21A {inserted by the Constitution (Eighty-sixth Amendment)
Act, 2002}provides that the state shall provide free and
compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine.

 Article 45 {substituted by the Constitution (Eighty-sixth Amendment)

Act, 2002}lays down the provision for early childhood care and education
to children below the age of six years.

 Article 51A(k) provides that it shall be the duty of every citizen of India
who is a parent or guardian to provide opportunities for education to his
child or ward between the age of six to fourteen years.

 Article 51A(h) provides that it shall be the duty of every citizen of India
to develop the scientific temper, humanism and the spirit of inquiry and
reform.
AGREEMENT ON TRADE Related
intellectual property rights(trips)
 TRIPS AGREEMENT
• Reference point to all kinds of Intellectual Property.
• Governs the Administrative structure of Intellectual Property.
• International Agreement administered by World Trade Organisation
(WTO; modelled on UNICITRAL) which sets down minimum
standards for many forms of IP regulation.
• Negotiated at the end of Uruguay Round of GATT (General
Agreement on Trade and Tariff) in 1994. It is referred as Bretton Woods
Institution, examined through Arthur Drunkel Proposal. Rounds of talks
resulted into Marrakesh Agreement and Mastricht Treaty.
• India Signed it on 15th March 1994.
 Wto G at t
Wipo (UNICITRAL (Bretton W
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Institution
(fo MODEL) )

ibrd
unido imf

Arthur
Drunkel
Proposal

Marrakesh Agreement & Mastricht Treaty

TRIPS Agreement
 Trips agreement : an Overview

• In 1990s, International trade Jurisprudence(consisting of GATT, IMF,

UNIDO, World Bank, WTO, WIPO etc.) witnessed a radical shift due to
LPG – (Liberalisation, Privatisation and Globalisation) and Free
Trade Policies.
• TRIPS tries to establish Monastic Legal order.
• It became binding on all the members of WTO.
• Tacitly incorporated provisions of previous Conventions.
• It tried to envelop all countries by one law of IP.
• Thus, it establishes new International policies of Particularism, in the
manner conducive to social, economic and cultural context.
 Trips Agreement : basic principles

• Recognition to previous treaties : (Article 1)

• Integrated Approach - It incorporated substantive provisions of :-Paris
Convention(1967); Berne Convention(1971);Rome Convention(1961).

• National Treatment :(Article 3)

• To adjust national regime in compliance with TRIPS Agreement.
• Forbids discrimination between a member’s own nationals and nationals of other
members.

• Most – Favoured Nation (MFN) Status :(Article 4)

• Do not provide regime of subsidy but gestation period to the members in
compliance with TRIPS Agreement.
• Forbids discrimination between the nationals of other members.
 Trips Agreement : Objectives
(article 7)
The Objectives of the TRIPS Agreement provides for the Protection and
enforcement of Intellectual Property Rights. It provides that the members:
1) Should contribute to the promotion of technological Innovations;
2) And to transfer and dissemination of technological knowledge;
3) To the mutual advantage of producer and users of technological
knowledge;
4) In a manner conducive to social and economic welfare;
5) To balance rights and obligations.
 Trips agreement : principles
(Article 8)

Article 8 (1) provides that :

“Members may, in formulating and amending their laws and regulations,

adopt measures necessary to protect public health and nutrition, and to
promote the public interest in sectors of vital public importance to their
socio – economic and technological development, provided that such
measures are consistent with the provisions of this agreement.”

Article 8(1) is important to the Less- Developed Countries as it provides justification for special
exceptions that promote the public interest in sectors of vital importance to socio- economic
and technological development. It focusses on :-
• Public Health
For eg. In patenting of drugs, access to medicine.

• Nutrition
To achieving nutritional security (quality) along with food security
(quantity) by bringing food under patent law.

• Public Interest
It includes :
Promotion of innovation; technology transfer; Competition policy; Human rights;
development; fight against poverty; environment protection; education. Thus, it is
vital factor in socio- economic development.
patentable subject matter:
(article 27)
 Patentable Subject Matter : Concept

• Patentable Subject Matter Is Central To Intellectual Property.

• Us Law Provided That ‘Everything Under The Sun Can Be Protected’.

• It Included Genes, Various Life Forms Which Can Be Protected.

• The Authority In Diamond Vs. Chakravarti Held That ‘Everything Cannot

Be Patented’.

• This Led To The Incorporation Of Patentable Subject Matter Providing What

Can And What Cannot Be Patented.

• Article 27(2) And (3) Of The Trips Agreement Provides For The Things That
Can Be Excluded From Patentability.
Article 27(2)
Article 27(2) provides that ‘members may exclude from patentability:
Inventions, the prevention within their territory of the commercial exploitation of which is
necessary to protect public order and morality and to leave no confusion including
protection of human, animal or plant, life(health) or to avoid serious prejudice to the
environment.’

 Thus, no leverage has been granted to the developed states in the

development of their IP laws and sovereignty cannot be fully
mortgaged upon.
 The Court in Novartis AG vs. Union of India held that India is an
endemic capital of deistic and it is necessary to prevent serious
commercial exploitation as well as to avoid serious prejudice to
environment.
 Article 27(3)
The Article further classified the health provision as provided under Article
27(2). It provides that members may exclude from patentability,

(a) diagnostic, therapeutic and surgical methods of patent of human being and
animals.
(b) plants and animals, other than microorganisms and essentially biological
processes.

However, members shall provide for the protection of Plant varieties

• by patent;
• by effective sue generis (system of its own at National level);
• by any combination thereof.
 Sec 3(d) of The Patent Act rests on three
principles:
• Evergreen
• Non-use of a drug or such substance
• Non-efficacy
•Agriculture cannot be kept outside the purview of Patent law.

•Seeds having the patent becomes the farmer’s inherent right.