We live in a world, where competitiveness led to the flexibility to develop and commercialize that in terms describe the economic health of the country. Intellectual Property Rights (IPR) are outlined as inventions, expressions, creative ideas that are supported by willingness of public to bestow the status of their property. They ensure the safety of the investments and are legal instruments that inspire industrial development and growth. The creators or the inventors of the property have certain exclusive rights that enable them, the position to avail benefits of their creation. In India, these rights are protected and secured by well-established judicial and statutory bodies and authorities. There are several types of intellectual property rights that are recognized in India like –
The Copyright Act, 1957;
The Patents Act, 1970;
The Designs Act, 2000;
The Trademarks Act, 1999;
The Geographical Indications of Goods (Registration and Protection) Act, 1999;
The Protection of Plant Varieties and Farmers Rights Act, 2001;
The Semiconductor Integrated Circuits Layout Design Act, 2000;
The Biological Diversity Act, 2002;
For the protection of originality, creativity, true identification and development, IPR is a pre-requisite. It essentially provides the creator with the monopoly on his investments or innovations. Also, guarantees that the imitation of the innovator’s original ideas, work or thing is decreased. By, doing this it restricts the flood availability of the products and raise the price of these creations or innovations. The profit of the continuous investments in the Research & Development sector is associated with the innovator’s or technology creator’s knowledge. The administrative procedure like the rules, laws and regulations of the Intellectual Property Rights (IPR) can be traced back in the roots of Europe. This led to the emergence of patents in the 14th century and the rise of copyrights that was traced in Italy. These rules and laws were firstly created in Venice.
Types of Intellectual Property Rights
Patents – The right to make, use and sell an invention or creation is guaranteed with its author or creator in this type of intellectual property. This exclusive right is given to the creator or the inventor for a restricted period of time, by the government. In this event, there is a need for the creator to fully disclose his invention in return, for the exclusive rights he gets. The latest rules are the Patent Amendment Rules, 2016 that mandates the rights and states laws related to the patents in India. The authority by which the patents are registered is the registrar under Controller General of Patent, Design and Trade Marks. From the date of filing of the patent application, it remains valid for 20 years and is subjected to annual fee for the re-new.
Copyrights – It is the type of intellectual property that ensures that the owner or the creator of that copyright against the violators that infringe his legal rights. This exclusive right encourages the creators/authors to create the innovative and original work. It gives the author exclusive rights to protect the creation and the right to duplicate it. The Berne Convention on copyright is one of the famous international treaty related to this type of intellectual property, to which India is a signatory. By, registering a copyright we can ensure that there’s a protection in cases of criminal proceedings against the invention. The Ministry of Commerce and Industry of India is now the legal authority that head the copyrights in the country since 2016. The Department for Industrial Property and Promotion (DIPP) now, administers IPR in the nation.
Trademarks – The design, word, phrase, tagline or the combination that helps to make a creation unique and contributes to the identification of the goods or services. It is generally found on the product and the packaging itself. Generally, for a distinctive logo, image and name as, they represent a product and these rights over the product are controlled by the trademark owner itself. The Trademarks Act, 1999 and the Trademarks Rules of 2017 are the statutes that govern the trademark laws in the country. It is classified under ‘Classes’ which determines all the products that are grouped for the trademark application. Now, the police have the power to seize counterfeited goods or search the premises without the warrant. Generally, a trademark is valid for 10 years and then, can be renewed for the next ten years by application.
Geographical Indications - These are the indications that originate from a specific geographical territory. The goods from specific geographic region, having unique and special characteristics are protected under this. It identifies natural, manufactured or agricultural goods that are special for a region. The condition is that the product must have a reputation, quality or skill that is distinct. The Geographical Indications of Goods (Registration and Protection) Act, 1999 that came into force by the year 2003, was enacted by WTO, to which India is a signatory. The registrar of the Geographical Indications is responsible for applications as administered by the Controller General of Patents, Designs and Trademarks.
International treaties and agreements
The Paris Convention: It mandated that all signatory states will provide the same enforcement of rights and status for a patent or trademark so, any person can enforce it in any of the signatory state.
The Berne Convention: It mandated that all signatory states will provide the same enforcement of rights and status for a copyright so, the author can enforce it in any of the signatory state.
The WIPO Copyright Treaty: It was enforced so, that it complies with the Berne Convention. The Article 4 of this treaty extended to the rules of the Berne Convention and is applicable to computer software and protects it. Now, also includes computer software in e-sports.
The Patent Cooperation Treaty: All the national patent applications were bundled together into a central system of single applications that have different jurisdictions. So, there will be no need of filing for a separate application for the country’s interest.
Role of the Undiscovered Information in IPR
The most important form of IPR for the R&D, industries, agencies is the undiscovered information yet, it is the least known among all the others. It is commonly known as trade secrets, formula, programme, confidential information about the method, process or the technique used in the creation of the invention. But, this is not a new concept to the world as, the secret or confidential method/technique at any stage during the development is generally restricted. So, there is no separate existing law to protect these confidential data, trade secrets or information. Many countries protect these from unauthorized access and doesn’t make it necessary for registration but, mandates its protection. The globalization in the fields of IT, electronic, pharmaceutical or electronic resulted in huge developments for the R&D field. Different type of IPR’s require different planning, strategies, influence and the handling by the specialized persons as it require special knowledge. As per the Article 39 of the Trade Related Aspects of Intellectual Property Rights (TRIPS), which is the standard minimum globally has incorporated the protection of undisclosed information at international level.
Various fields of Intellectual Property
Sports and IPR: The rapid increase in this field has led to the need for creation of some protection for their legal issues as it is quite different from others as, it includes branding, celebrities, logos, codes, third-party content etc. which raise the need for the Intellectual Property protection. In a sport, a few things like origin, logo, tagline and characters needs to be protected and therefore, patented as, it builds the reputation of the sport and brand. The registration of the title, license, allies and representations of the sports are protected ultimately. E-sports is a type of a creation and a part to an invention therefore, it needs to be protected. In this case, the programming, methods, graphics, interface and icons of the players can cause damage to the brand if, not patented. This will ensure that the owner gets his rightful monetary damages if, someone infringes the policies or regulations of the sport. They are helpful against the unauthorized use or third-party interference that may harm the technology or the video streamers rights. So, the original work of the creator such as the computer software, graphics, sound recordings etc. are classified and unique therefore, needs to be protected as the legal rights of the creator.
IPR in Pharmaceutical industries: The pharmaceutical industry globally is driven by the bio-tech or scientific knowledge rather than the normal company or manufacturing know-how. The discovery of the undiscovered facts about the human genome and its secrets has developed its own competition. The personalized information, specialized medicines and data related to this are the components of highly confidential information and thus, there is a need to protect these databases. The procedure associated with the protection of these types of IPR is a little different from those which are not under Biotechnology. The protection of these drugs for a longer time can ensure that the government has met with its public health goals. This can lead to the reduced costs of the medicines and drugs for the public. The use for the Intellectual Property can be seen through an example of a microbial strain that contributed to development of a vaccine or a drug, it needs to be patented. The patent specification will help the creation get a unique registration number and will ensure smooth production facilities as well as manufacturing. The consumer welfare and the risk of innovations in the current field of pharmaceutical industry is based on the competitiveness of this industry.
National IPR Policy of 2016
The policy aimed to make IPR as an asset innovation or a financial asset for the market. The stakeholders will consult in every five years to review and renew the plans and policy. It aims to spread awareness about the legal rights of people as creators in the field of IPR and to enable them to understand their cultural, social, economic benefits. To balance the public welfare with the rights of the owners. There is no doubt that commercialization helps in values of the strong IPR. To enforce the mechanisms and adjudication process that leads violators or infringes IPR. It might help in strengthening and in the expansion of institution, capacities and human skills. The advantage of this is that India has improved its rank in the Global Innovation Index (GII) ranking, from 81st to 48th in the year 2021. The study shows that India has increased the number of applicants of patents and trademarks in past few years.
Enforcing IP Rights in India
By the means of criminal proceedings or the action maintainable in civil courts, these IPR can be enforced. However, the criminal proceedings are not applicable for the design and patent infringements. Also, the civil litigation is not very helpful in terms of large money involvements, for cases infringements. There are damages routinely awarded in the matters of trademark and copyright infringement. Strict punishment and rigorous fine is awarded to the person who infringed the rights of the creator and under the criminal proceedings. Other alternatives are negotiation, arbitration dispute redressal against the infringer, for the resolution of the conflict. The formal mediation process is mandated under the Civil Procedure Code, 1908.
The increase of the number of participants in every field is giving rise to competition and therefore, there is a need to protect the original, unique, new and creative ideas, thoughts, work, invention or innovation of the creator. The rapid increase in the development of different fields makes its laws quite complex to function and protect the creations. As, for the e-sports and other such fields, it is not a straightforward way as, they are not recognized as copyright’s work, not the way literary art, music or performance are recognized. So, these trademarks, copyrights and patents provide protection to the creator against all sorts of infringement and thus, it needs to be as dynamic as the creation. It is obvious that the management of the IPR is a multidimensional task. Therefore, there is a need that the industries develop their own specialized policies for IPR, depending on the area of its operation.
Intellectual Property India: https://ipindia.gov.in/
NCBI. Intellectual property rights: An overview and implications in pharmaceutical industry: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3217699/
Singh, D. (2004). Law relating to intellectual property.
What are intellectual property rights? World Trade Organisation: https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm#:~:text=Intellectual%20property%20rights%20are%20the,a%20certain%20period%20of%20time.
What is Intellectual Property? Wipo: https://www.wipo.int/about-ip/en/
By – Palak Sinha
3rd year, B.A.LL.B.
Symbiosis Law School, Noida