Intellectual Property Rights (IPR)

1. Introduction: Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. Intellectual property rights include patents, copyright, industrial design rights, trademarks, trade dress, and in some jurisdictions trade secrets. According to The World Intellectual Property Organization (WIPO) (http://www.wipo.int), “Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce”.

            Violation of intellectual property rights, called infringement with respect to patents, copyright, and trademarks, and misappropriation with respect to trade secrets, may be a breach of civil law or criminal law, depending on the type of intellectual property involved, jurisdiction, and the nature of the action.

 

2. Need of IPR: According to the World Intellectual Property Organization (WIPO) “Copyright and related rights protect the rights of authors, performers, producers and broadcasters, and contribute to the cultural and economic development of nations. This protection fulfils a decisive role in articulating the contributions and rights of different stakeholders and the relation between them and the public. The purpose of copyright and the related rights is twofold: to encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.” The need of IPR can be looked from the following angles

a) Provide Recognition: IPR credit the owner for his/her creation.

b) Protect the Right of the Owner: Intellectual property is like other forms of property an asset which can be bought, sold, exchanged or gratuitously given away. So, owners of intellectual property also have the right to prevent the unauthorized use or sale of their property.

c) Encourage Continuous Development: IPR provide the facilities to the owner to get a value of their creation so that they can live a dignified life and it further motivates them to continue with their creation.

d) Provide Financial Incentive: IPR allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property, and, in case of patents, pay associated research and development costs.

 

3. Types of IPR: Intellectual property is divided into the following categories:

a) Patent: A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process.

Patent infringement typically is caused by using or selling a patented invention without permission from the patent holder. There is safe harbor in many jurisdictions to use a patented invention for research.

b) Copyright: A copyright gives the creator of original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or works. Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.

Copyright includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programmes.

Copyright is basically the individual right of an author to dispose of his / her work in return for remuneration. According to Christopher Scarles, “subject to certain exception, it is ownership of and right of control over all possible ways of reproducing a work”.

Copyright infringement is reproducing, distributing, displaying or performing a work, or to make derivative works, without permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work’s creator. It is often called “piracy”. There is a safe harbor to use copyrighted works under the fair use doctrine.

c) Industrial Design Rights: An industrial design right protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

d) Trademark: A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders.

Trademark infringement occurs when one party uses a trademark that is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services of the other party.

e) Trade Dress: Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.

f) Trade Secret: A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.

Trade secret misappropriation is different from violations of other intellectual property laws, since by definition trade secrets are secret, while patents and registered copyrights and trademarks are publicly available.

g) Geographical Indication: GI identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin.

4. IPR in International Context: The intellectual property system as we know today, commenced with the birth of the Paris Convention for the Protection of Industrial Property in 1883. The Paris Convention made it easier for individuals in one nation to obtain protection globally. This convention was followed by the Berne Convention for the Protection of Literary and Artistic Works. The IPR in International context can be looked from the following angles-

a) Paris Convention: The Paris Convention for the Protection of Industrial Property in 1883 applies to industrial property in the widest sense, including patents, trademarks, industrial designs, utility models (a kind of "small-scale patent" provided for by the laws of some countries), service marks, trade names (designations under which an industrial or commercial activity is carried out), geographical indications (indications of source and appellations of origin) and the repression of unfair competition. The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958 and at Stockholm in 1967, and was amended in 1979.

b) Berne Convention: The international convention for protection of literary and artistic works was first signed at Berne on 9th September, 1886, which later on came to be known as “Berne Convention”. It guaranteed protection for the life of the author plus fifty years after his death. The convention was revised and amended more than seven times. Berne remained essentially European. It could not attract the U. S. A. So, most civilized states except the U. S. became signatories to it.

c) Montevideo Convention: The Montevideo Convention on the Rights and Duties of States was a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codified the declarative theory of statehood as accepted as part of customary international law.

d) Universal Copyright Convention (UCC): In the early 1950s UNESCO set about devising a union that would combine Berne and Montivideo convention and the outcome was the establishment of Universal Copyright conventions in 1952. U. S. joined it in 1955.

e) Paris Revision of 1971: In 1971 both Berne and UCC was revised. This is what goes by the name of Paris revision of 1971. This has made some realistic concession to the developing countries with regard to reproduction and translation of material having great educational value.

f) World Intellectual Property Organization (WIPO): The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States (till 2009 there were 184 Member States, i.e. over 90 percent of the countries of the world) to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland.

The issue of Intellectual Property Rights was brought on an international platform of negotiation by World Trade Organization (WTO) through its Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). This agreement narrowed down the differences existing in the extent of protection and enforcement of the Intellectual Property rights (IPRs) around the world by bringing them under a common minimum internationally agreed trade standards. The member countries are required to abide by these standards within stipulated time-frame. India, being a signatory of TRIPS has set up an Intellectual Property Right (IPR) regime, which is WTO compatible and is well established at all levels whether statutory, administrative or judicial.

 

5. IPR in Indian Context: India signed the Berne convention in 1886 when it was part of the British Empire. India also signed the Universal Copyright convention in 1952 of its own choice as a free country. Again, the Government has taken a comprehensive set of initiatives to streamline the intellectual property administration in the country in view of its strategic significance.

In the Ministry of Commerce and Industry, the office of the Controller General of Patents, Designs and Trade Marks (CGPDTM) has been set up under the Department of Industrial Policy and Promotion. The Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM) is located at Mumbai. The Controller General supervises the working of the Patents Act, 1970, as amended, the Designs Act, 2000 and the Trade Marks Act, 1999 and also renders advice to the Government on matters relating to these subjects. It administers all matters relating to patents, designs, trademarks and geographical indications and also directs and supervises the functioning of others. For complementing the administrative set up, several legislative initiatives have been taken. It includes,

i) The Trade Marks Registry (TMR) was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules thereunder. It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. The Head Office of the Trade Marks registry is at Mumbai and its Branches are located in Kolkata, Chennai, Ahmedabad and New Delhi.

ii) India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration & Protection) Act, 1999 has come into force with effect from 15th September 2003. In order to protect the Geographical Indications of goods a Geographical Indications Registry (GIR) has been established in Chennai to administer the Geographical Indications of Goods (Registeration and Protection) Act, 1999 under the CGPDTM. Example: Darjeeling (tea).

iii) The Design Office is located at Kolkata in the Patent Office and it look into the Designs Act, 1911 (2000).

iv) The Head Office of the Patent office is at Kolkata and its Branch offices are located at Chennai, New Delhi and Mumbai. The Patent office look into the Patents Act, 1970 (changes bought in 1994 and its subsequent amendments in 2002 and 2005).

v) “Copyright Office” has been set up in the Department of Education of the Ministry of Human Resource Development, to provide all facilities including registration of copyrights and its neighbouring rights. It looks into the Indian Copyright Act, 1957 and its amendment Copyright (Amendment) Act, 1999.

vi) As far as issues relating to layout design of integrated circuits are concerned, “Department of Information Technology” in the Ministry of Information Technology is the nodal organisation. It looks into the Semiconductor Integrated Circuit Layout Design Act, 2000.

vii) “Protection of Plant Varieties and Farmer’s Rights Authority” in Ministry of Agriculture administers all measures and policies relating to plant varieties or the Protection of Plant varieties and Farmer’s Rights Act, 2001.

The Offices of The Patent Information System (PIS) and National Institute of Intellectual Property Management (NIIPM) are at Nagpur.

The Rajiv Gandhi National Institute for Intellectual Property Management (NIIPM) is a Central Government Organization under the Ministry of Commerce & Industry engaged in conducting Training / Awareness programs relating to Intellectual Property Rights (IPR) i.e. Patents, Designs, Trademarks & Geographical Indications. The head office of NIPM is at Nagpur.

6. Criticism on IPR: In 2001 the UN Committee on Economic, Social and Cultural Rights issued a document called “Human rights and intellectual property” that argued that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. According to the Committee, when systems fail to do so they risk infringing upon the human right to food and health, and to cultural participation and scientific benefits.

The ethical problems brought up by IP rights are most pertinent when it is socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug. “An IPR driven regime is therefore not a regime that is conductive to the investment of R & D of products that are socially valuable to predominately poor populations”.

 

7. Conclusion: Intellectual property (IP) is a legal term that refers to creations of the mind. Examples of intellectual property include music, literature, and other artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Under intellectual property laws, owners of intellectual property are granted certain exclusive rights. It should also be noted that the exclusive rights given under IPR are generally subject to a number of limitations and exceptions, aimed at fine-tuning the balance that has to be found between the legitimate interests of right holders and of users. IP protection encourages the publication, distribution and disclosure of the creation to the public, rather than keeping it secret while at the same time encouraging commercial enterprises to select creative works for exploitation. Some common types of intellectual property rights (IPR) are copyright, patents, and industrial design rights; and the rights that protect trademarks, trade dress, and in some jurisdictions trade secrets.


How to Cite this Article?

APA Citation, 7th Ed.:  Barman, B. (2020). A comprehensive book on Library and Information Science. New Publications.

Chicago 16th Ed.:  Barman, Badan. A Comprehensive Book on Library and Information Science. Guwahati: New Publications, 2020.

MLA Citation 8th Ed:  Barman, Badan. A Comprehensive Book on Library and Information Science. New Publications, 2020.

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