Introduction to Intellectual Property Law

Abhinaya Ramesh
School of Law
 INTRODUCTION
• IP- creative work of human intellect.
• Intellectual property (IP) is a category of property that includes intangible
creations of the human intellect.
• Intellectual property (IP) refers to creations of the mind, such as inventions;
literary and artistic works; designs; and symbols, names and images used in
commerce.
• Intellectual property protection is critical for fostering innovation. Without
protection of these IP’s, businesses and individuals would not reap the full
benefits of their inventions and would focus less on research and
development.
 Intellectual Property
is categories into:

Industrial property Artistic & Literary Property

Patents Trade Secrets

Trademarks

Copyright
Industrial Designs Geographical
Indications
 Intellectual Property

Geographical
Copyright Patents Trade Marks
Indications

Semiconductor Confidential
Industrial Designs Plant Varieties Information
Layout Designs
 Historical Development of IPR
• Property designates those things that are commonly recognized as being the
possessions of an individual or a group.
• Properties are of two types - tangible property and intangible property i.e. one that is
physically present and the other which is not in any physical form. Building, land,
house, cash, jewelry are few examples of tangible properties which can be seen and
felt physically.
• On the other hand there is a kind of valuable property that cannot be felt physically as
it does not have a physical form. Intellectual property is one of the forms of intangible
property.
• Intellectual Property may sound like a modern-world invention, but it has actually
been around since the development of civilization. Many sources pin the origins of
Intellectual Property rights to the year 1474 when the world's first modern patent was
awarded.
• The earliest records relating to Intellectual Property dates back to the 6th century BCE, from Sybaris in Ancient
Greece. It supposedly granted a yearlong exclusivity for bakers to make their culinary invention. In a manner of
speaking, the rise of Intellectual Property originated from the rising of bread.
• However, the resemblance of our values to ancient views would pause for a long time with the rise of the Roman
Empire. Religion came to the fore, and so the individualistic view on creatorship took a backstep and remained
there since. At around 480 CE, Emperor Zeno overthrew the whole concept of sole proprietorship on artistic and
agricultural produce. The Church gained absolute control over the entire Empire.
• However, through the centuries, religious influence over society waned as humanism reemerged through ancient
texts. This movement, which in many ways is traceable to Aristotelian and Platonic worldviews paved the way for
the Enlightenment. During that period people began to think that the knowledge came from the human mind
working upon the senses, rather than through divine revelation.
 The International
The Territorial Period The Global Period
Period
 Purpose of IP Protection
• The main purpose of intellectual property law is to encourage the creation of a wide
variety of intellectual goods. To achieve this, the law gives people and businesses
property rights to the information and intellectual goods they create, usually for a limited
period of time. This gives economic incentive for their creation, because it allows people
to profit from the information and intellectual goods they create. These economic
incentives are expected to stimulate innovation and contribute to the technological
progress of countries, which depends on it.
• IP protection encourages publication, distribution, and disclosure of the creation to the
public, rather than keeping it a secret.
• Promotion and protection of intellectual Property promote economic development,
generates new jobs and industries, and improves the quality of life.
• Intellectual Property helps in balancing between the innovator’s interests and public
interest, provide an environment where innovation, creativity and invention can flourish
and benefit all.
 NATURE AND SCOPE OF
INTELLECTUAL PROPERTY RIGHT
• Generally speaking, IP law aims at safeguarding creators and other
producers of intellectual goods and services by granting them certain time-
limited rights to control the use made of those productions. These rights
do not apply to the physical object in which the creation may be embodied
but instead to the intellectual creation as such. IP is traditionally divided
into two branches: “industrial property and copyright”.
• Intangible
• Rights
• Assignable
• Dynamism
 Theories on IP
1. John Locke’s Labour Theory:
In order to justify intellectual property, the natural rights
theory considers that everyone has a natural property right
on his ideas.
As a matter of fact, the creation comes from the effort and
creativity of its author. The essence of this theory
emanates mainly from John Lock’s idea that an author has
a natural right over the productions of their intellectual
labour.
In other words, this theory does not make any difference
between intellectual property and the traditional tangible
property including the right to use, to exclude others from
use and the right to transfer the owned object. Accordingly,
anyone who violates the intellectual right of an author,
creator or inventor is considered to commit a theft.
 2. The Utilitarian Theory
• The utilitarian theory applies economic constructs to propose how
intellectual property rights can achieve the Benthamite ideal of “the
greatest good for the greatest number.”
• By definition, this theory is based on the fact that the industrial
progress and cultural goods have a beneficial effect on the society.
Consequently, in order to promote the inventions and creations, the
titular needs a guarantee that the outcome will be superior to the
costs of his work.
• Utilitarian is socially beneficial. It states that we have intellectual
property systems because it has the effect on the betterment of the
economic of the society. Its correctness is to be assessed in the
economic success of the countries.
• The other version of utilitarian theory is incentive theory. The
protection given to intellectual property is an incentive to individuals
not only to create works of the mind but also to publicize and
disseminate them into the public. It is to encourage creativity and
publicity. Works of the mind are very important to a given society for
its social, cultural and economic development.
3. Personality Theory
• Intellectual property rights are important to create personal
self assertion. As propounded by Hegel and Kant, a person
would be more self assertive when she/he owns property. He
will feel more equal (equality).
• It is believed that the work is the personal expression of the
author’s or the inventor’s thoughts. So he should be given the
right to decide when and how his work may be produced or
performed in public, and the right to prevent mutilations and
changes. Intellectual property laws are to be there to protect
the author’s or the inventor’s manifestation of his personality.
This is also backed by the need for the safeguarding of the
individual’s freedom of expression.
• Hegel, who is the main source of this theory, claims that
intellectual rights permit and protect the developing of the
personality, which extends to the material things. In the same
way, the copier is considered as a thief who offers to the public
Immanuel Kant someone else’s spirit.
 4. Social Planning Theory
• According to William Fisher, the Social
Planning Theory is “rooted on the proposition
that property rights in general – and
intellectual property rights in particular – can
and should be shaped so as to help foster the
achievement of a just and attractive culture.”
• Social Planning theory views intellectual
property as a good that can be used to build
a just and attractive culture.
• “social planning theory”, differs from
utilitarian theory in that it seeks to go beyond
the notion of “social welfare” to a much
broader vision of society serviced by
intellectual property.
 World Intellectual Property Organization
• The World Intellectual Property Organisation or WIPO is a UN specialized agency
created in 1967 to promote intellectual property (IP) protection and encourage
creative activity all over the world. WIPO is basically a global forum for IP policy,
services, information and cooperation.
• The World Intellectual Property Organisation or WIPO is a global body for the
promotion and protection of Intellectual Property Rights (IPR).
• It acts as a global forum for IP Services.
• WIPO is a self-funded agency of the United Nations.
• With 192 members, WIPO’s motto is to encourage creative activity, to promote the
protection of intellectual property throughout the world.
• WIPO is headquartered in Geneva, Switzerland.
• WIPO has its origins in the United International Bureaux for the Protection of
Intellectual Property (BIRPI), which was established in 1893.
The World Intellectual Property Organisation (WIPO) was established with the
intent to perform the following functions:
• To assist the development of campaigns that improve IP Protection all over the
globe and keep the national legislations in harmony.
• Signing international agreements related to Intellectual Property Rights (IPR)
protection.
• To implement administrative functions discussed by the Berne and Paris Unions.
• To render legal and technical assistance in the field of IP.
• To conduct research and publish its results as well as to collect and circulate
information.
• To ensure the work of services that facilitate the International Intellectual
Property Protection.
• To implement other appropriate and necessary actions.
 WIPO Organs

WIPO General WIPO

Assembly WIPO Conference Coordination
Committee
India joined the WIPO in 1975.
India is a part of the following WIPO Treaties:
• IPO Convention (1975)
• Paris Convention (1998)
• Berne Convention (1928)
• Patent Cooperation Treaty (1998)
• Phonograms Convention (1975)
• Nairobi Treaty (1983)
• Nice Agreement (2019)
• Locarno Agreement (2019)
• Vienna Agreement (2019)
 Treaties on Copyright
1. Berne Convention for the Protection of Literary and Artistic Works (1886)
• The Berne Convention, adopted in 1886, deals with the protection of literary
and artistic works and the rights of their authors.
• It provides creators such as authors, musicians, poets, painters etc. with the
means to control how their works are used, by whom, and on what terms.
• national treatment principal is followed
• Automatic protection
• Provides the economic and moral rights of authors.
2. WIPO Copyright Treaty (WCT)
• The WIPO Copyright Treaty (WCT) is a special agreement under the Berne
Convention which deals with the protection of works and the rights of
their authors in the digital environment.
• The Treaty deals with two subject matters to be protected by copyright:
(i) computer programs, whatever the mode or form of their expression;
and (ii) compilations of data or other material ("databases").
• Rights granted to authors:
I. The right of distribution
II. The right of rental
III. The right of communication to the public
3. WIPO Performances and Phonograms Treaty
• The WIPO Performances and Phonograms Treaty (WPPT) deals with the rights of two kinds of
beneficiaries, particularly in the digital environment: (i) performers (actors, singers,
musicians, etc.); and (ii) producers of phonograms (persons or legal entities that take the
initiative and have the responsibility for the fixation of sounds).
• Provides Economic and Moral rights
4. Rome Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations
• The Rome Convention secures protection in performances for performers, in phonograms for
producers of phonograms and in broadcasts for broadcasting organizations.
• National treatment principal
• Rights- Art 7, Art 10, Art 13
• Term of protection-20 year period computed from the end of the year in which it took place.
Beijing Treaty on Audiovisual Performances:
• The Beijing Treaty on Audiovisual Performances was adopted by the Diplomatic
Conference on the Protection of Audiovisual Performances, which took place in
Beijing from June 20 to 26, 2012.
• It deals with the intellectual property rights of performers in audiovisual
performances.
• Grants performers economic rights and moral rights
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind,
Visually Impaired or Otherwise Print Disabled
• The Marrakesh Treaty was adopted on June 27, 2013 in Marrakesh and it forms part
of the body of international copyright treaties administered by WIPO.
• It has a clear humanitarian and social development dimension and its main goal is to
create a set of mandatory limitations and exceptions for the benefit of the blind,
visually impaired, and otherwise print disabled.
• The Marrakesh Treaty was adopted on June 27, 2013, and entered into force on
 Treaties on Industrial Property
Paris Convention for the Protection of Industrial Property
• The Paris Convention, adopted in 1883, applies to industrial property in the
widest sense, including patents, trademarks, industrial designs, utility
models, service marks, trade names, geographical indications and the
repression of unfair competition.
• This international agreement was the first major step taken to help
creators ensure that their intellectual works were protected in other
countries.
• National treatment Principle
• Right of Priority
• The Convention lays down a few common rules that all Contracting States
must follow.
Madrid Agreement for the Repression of False or Deceptive Indications of Source on
Goods, 1891
• According to the Madrid Agreement, all goods bearing a false or deceptive
indication of source, by which one of the Contracting States, or a place situated
therein, is directly or indirectly indicated as being the country or place of origin,
must be seized on importation, or such importation must be prohibited, or other
actions and sanctions must be applied in connection with such importation.
Madrid Agreement Concerning the International Registration of Marks and the
Protocol Relating to that Agreement, 1989:
• The Madrid System for the International Registration of Marks is governed by the
Madrid Agreement, concluded in 1891, and the Protocol relating to that Agreement,
concluded in 1989.
• The system makes it possible to protect a mark in a large number of countries by
obtaining an international registration that has effect in each of the designated
Contracting Parties.
Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of
the Registration of Marks
• The Nice Agreement establishes a classification of goods and services for the purposes of registering
trademarks and service marks.
• The trademark offices of Contracting States must indicate, in official documents and publications in
connection with each registration, the numbers of the classes of the Classification to which the goods
or services for which the mark is registered belong.
• https://www.wipo.int/classifications/nice/nclpub/en/fr/
Lisbon Agreement for the Protection of Appellations of Origin and their International Registration
• The Lisbon Agreement, and its latest revision, the Geneva Act of 2015, provide for the international
protection of appellations of origin and geographical indications through a single procedure with
WIPO. Appellations of origin and geographical indications are distinctive product designations which
require a qualitative link between the product to which they refer and its place of origin. Together, the
Lisbon Agreement and the Geneva Act of the Lisbon Agreement form the Lisbon system.
Strasbourg Agreement Concerning the International Patent Classification
• The Strasbourg Agreement establishes the International Patent Classification
(IPC) which divides technology into eight sections with approximately 80,000
subdivisions. Classification is indispensable for the retrieval of patent
documents in the search for "prior art". Such retrieval is needed by patent-
issuing authorities, potential inventors, research and development units and
others concerned with the application or development of technology.
Nairobi Treaty on the Protection of the Olympic Symbol
• All States party to the Nairobi Treaty are under the obligation to protect the
Olympic symbol – five interlaced rings – against use for commercial
purposes (in advertisements, on goods, as a mark, etc.) without the
authorization of the International Olympic Committee.
Locarno Agreement Establishing an International Classification for
Industrial Designs
• The Locarno Agreement establishes a classification for industrial designs
(the Locarno Classification). The competent offices of the Contracting
States must indicate in official documents reflecting the deposit or
registration of industrial designs the numbers of the classes and subclasses
of the Classification to which the goods incorporating the designs belong.
Hague Agreement Concerning the International Registration of Industrial
Designs
The Hague Agreement governs the international registration of industrial
designs. First adopted in 1925, the Agreement effectively establishes an
international system – the Hague System – that allows industrial designs to
be protected in multiple countries or regions with minimal formalities.
Patent Cooperation Treaty (PCT)
• The Patent Cooperation Treaty (PCT) makes it possible to seek patent
protection for an invention simultaneously in each of a large number of
countries by filing an "international" patent application. Such an application
may be filed by anyone who is a national or resident of a PCT Contracting
State. It may generally be filed with the national patent office of the
Contracting State of which the applicant is a national or resident or, at the
applicant's option, with the International Bureau of WIPO in Geneva.
Convention on Biological Diversity
• The Convention on Biological Diversity (CBD) has three main objectives: the
conservation of biological diversity; the sustainable use of the components
of biological diversity; and the fair and equitable sharing of the benefits
arising out of the utilization of genetic resources.
Budapest Treaty on the International Recognition of the Deposit of Microorganisms
for the Purposes of Patent Procedure
• Adopted in 1977, the Budapest Treaty concerns a specific topic in the international
patent process: microorganisms.
• All states party to the Treaty are obliged to recognize microorganisms deposited as a
part of the patent procedure, irrespective of where the depository authority is
located.
• In practice this means that the requirement to submit microorganisms to each and
every national authority in which patent protection is sought no longer exists.
Vienna Agreement Establishing an International Classification of the Figurative
Elements of Marks
The Vienna Agreement establishes a classification (the Vienna Classification) for marks
that consist of, or contain, figurative elements. The competent offices of Contracting
States must indicate in official documents and publications relating to registrations and
renewals of marks the numbers of the categories, divisions and sections of the
 TRIPS Agreement
• The TRIPS Agreement, which came into effect on 1 January 1995, is to date
the most comprehensive multilateral agreement on intellectual property.
• The areas of intellectual property that it covers are: copyright and related
rights (i.e. the rights of performers, producers of sound recordings and
broadcasting organizations); trademarks including service marks;
geographical indications including appellations of origin; industrial designs;
patents including the protection of new varieties of plants; the layout-designs
of integrated circuits; and undisclosed information including trade secrets
and test data.
The three main features of the Agreement are:
• Standards: In respect of each of the main areas of intellectual property
covered by the TRIPS Agreement, the Agreement sets out the minimum
standards of protection to be provided by each Member.
• Enforcement: The second main set of provisions deals with domestic
procedures and remedies for the enforcement of intellectual property
rights. The Agreement lays down certain general principles applicable to all
IPR enforcement procedures.
• Dispute settlement: The Agreement makes disputes between WTO
Members about the respect of the TRIPS obligations subject to the WTO's
dispute settlement procedures.