What is Property?

◦ Ownership ?

◦ Possession. ?

◦ Property is an object where ownership extends.

◦ Corporeal and Incorporeal
What includes Intellectual Property?
◦ 2(viii) WIPO
◦ i. Literary, artistic and scientific
◦ ii. Performance of performing artists
◦ iii. Inventions
◦ iv. Scientific discoveries.
◦ v. Industrial designs
◦ vi. TM, SM, etc
◦ vii. Protection from unfair competition.
◦ viii. Rights Results from intellectual activity
Jurisprudential Aspect of Intellectual
Property?
Justification for Intellectual Property

◦ Utilitarian Principles (Bentham)– greatest good for the maximum

number of people.
◦ Labour Theory (John Locke)– one who labours upon has a
natural right to the fruits of it. Therefore, state has a duty to
enforce and respect those natural right.
◦ Personality Theory (Kant and Hegel) – What is the moral
justification of any private ownership? Why property rights? Will
and sphere of freedom – self actualisation(lack of dependence) –
Absolute right of appropriation over a property one put his will
into must be there for anyone to have self actualisation.
 Intellectual Property

Affirmatory Exclusive Right

Competition Law and Intellectual
Property Law
◦ CL – promotes and maintains competition.
◦ - protect the interest of the consumers.
◦ Therefore, Prohibits anti-competitive agreements

◦ IPL – confer exclusive rights and reduce competition between players.

◦ Justification
◦ - recognizes and rewards the creativity of the inventor.
◦ - acts as an inspiration or catalyst for further inventions or creative
works.
What happens after the expiry of the term of protection of IP?
Types of Intellectual Property

Copyright Industrial Property

International Legal Framework
◦ Reason for an International Framework – Distortion in
free trade, Insufficient legal framework in many
countries, discriminate against different foreign
nations, excessive protection, etc.

◦ Main treaties :
◦ Paris Convention 1883–covers Patents, TMs, and other
Industrial Properties.
◦ Berne Convention 1886 – Copyrights.
◦ GATT, 1947 and TRIPS Agreement, 1994.
Paris Convention 1883
◦ Deals with Industrial Property

◦ Established Paris Union (Bodies : Assembly and executive

committee)
Members of executive committee are elected from the Union.
Switzerland is ex officio member.
Paris Convention 1883
◦ Deals with Industrial Property Right of Priority

National Treatment
Application filed in any one of the contracting state will
be considered as the first application and the
Each contracting state to the treaty subsequent applications in other contracting states will
shall grant equal treatment to other be considered as if it had been filed on the same date as
contracting states. that of the first application. Applicable for a certain
period of time. Eg: 6 months or 1 year.
Common rules
There are some common rules, every states must follow.
In case patents: (1)Independency of patents between states. Patent granted or not granted in any
other state is not a ground for grant or refusal.
(2) Inventors Right to be named
(3) Patent cannot be refused based upon domestic laws.
(4) Rules regarding Compulsory License: Only after 3 years. May be done only after a requesting a
reason not to do that.
(5) Forfeiture of patent : shall not be done unless compulsory license is insufficient to prevent
abuse.
Paris Convention 1883
◦ Deals with Industrial Property

Common rules

There are some common rules, every states must follow.

In case Trade mark: Registration of a mark is independent of other contracting states.
Non-use will be liable for refusal to register only after a reasonable time.
Well known Trademark.

Protection of Industrial Designs : region of manufacture of the product is not relevant.

Unfair competition must be avoided.

Berne Convention for the protection of
Literary and Artistic works, 1886
◦Deals with the protection of the rights of
authors.
◦Principles.
◦ i. works originating in any one of the contracting state must be given
same protection in other contracting states as the country grant
protection to its own nationals.
◦ ii. Protection must not be conditional upon compliance with any
formality (principle of automatic protection).
◦ iii. Protection is independent of the existence of protection in the
country of origin (principle of independence of protection).
Berne Convention for the protection of
Literary and Artistic works, 1886
Minimum standards of Protection
◦ the right to translate
◦ the right to make adaptations and arrangements.
◦ the right to perform in public
◦ the right to recite
◦ The right to communicate to the public
◦ The right to broadcast,
◦ The right to make reproductions
◦ The right to use the work as a basis for an audiovisual work,
◦ moral rights- right to claim authorship of the work and the right
to object to any mutilation, deformation or other modification
Patent Cooperation Treaty
TRIPS Agreement
◦Trade Related Aspects of Intellectual Property
Rights.

◦Established in 1994 and came in effect from 1st

Jan 1995 onwards in GATT.
◦GATT is replaced by WTO presently in 1995.
TRIPS Agreement
◦ Important Points relating to TRIPS Agreement

◦ Recognizes all Intellectual Properties (Copyright,

Patents, Industrial Designs, TM, GI, layout designs
of IC, and undisclosed information)
◦ Raises the level of protection
◦ .MFN
◦ Substantial levels of protection for domestic laws.
◦ Procedure for enforcement of IP laws
◦ Dispute settlement procedures.
TRIPS Agreement
◦ TRIPS Protection
◦ --- Minimum standards of protection (subject matter)

◦ --- Rights to be conferred and permissible exceptions to those

rights.

◦ --- minimum duration of protection.

◦ --- provisions for enforcement (civil criminal and

administrative).

◦ --- Dispute settlement between member states. (violation

leads to suspension of tariff concessions or other benefits in
trade sector).
TRIPS Agreement
◦ TRIPS Protection
◦ --- Minimum standards of protection (subject matter)

◦ --- Rights to be conferred and permissible exceptions to those

rights.

◦ --- minimum duration of protection.

◦ --- provisions for enforcement (civil criminal and

administrative).

◦ --- Dispute settlement between member states. (violation

leads to suspension of tariff concessions or other benefits in
trade sector).
Patent Law Treaty 2000
◦ Harmonize and streamline procedures with respect to National
and regional patent applications.
◦ Make the requirements more generous(mainly regarding
obtaining filing date) from the applicants point of view.
◦ Obtaining filing date made easier. It can be obtained if i. if its an
application for patent. ii. If there’s a contact of applicant. iii.
Description of invention.
Reduces the procedural gaps between international, regional and
national patent system.
Implementation of electronic filing of patent applications.
WIPO
◦ One of the 17 specialised agencies of UN.

◦ Created on 1970.

◦ Seeks to promote the protection of IP throughout the world.

◦ Daren Tang
WTO
◦ Commenced on 1st Jan 1995, Marakkesh Agreement

◦ GATT is replaced by WTO

◦ Most important contribution: TRIPS Agreement

◦ TRIPS is binding on all WTO members.

◦ Regulation of Trade b/w member countries by providing a

framework for negotiating trade agreements and dispute
resolution process.
Function of WTO
◦ Oversees implementation, administration and operation of the multilateral
trade agreements
◦ Forum for negotiations among its members concerning multilateral trade
relations.
◦ Reviews and propogates the national trade policies and ensures coherence,
transparency of trade policies through surveilence in global economic policy
making.
◦ Assists developing least developed and low income countries in transition to
adjust to WTO rules and disciplines through technical cooperation and
training.
◦ WTO Works together with IMF and World Bank.

◦ Bottomline : WTO provides that IP needs to be protected when trade is

involved.
Doha Declaration
◦ Reasons lead to Doha Decl.
Stringent TRIPS rules – lead to over priced pharma products.
Limited or no access to essential medicines in affordable prices in
developing countries.

Purpose: Declaration of TRIPS in context of public health.

Doha Declaration
Changes made in Doha:
1. Made provisions in TRIPS for member states can take
measures to protect its public health.
2. Member can take exceptions in IP laws to enable it to grant
compulsory licensing for manufacture essential goods like life
saving drugs even without the consent of IP owner.
3. Grounds to which Compulsory licensing can be granted can be
decided by member countries.
4. Compulsory license can be granted at the time of national
emergency – national emergency can be decided by states.
TRIPS Plus
TRIPS provides for a minimum standards and give exceptions as
well.

TRIPS plus provisions are taken by some developed countries :

means they are moving ahead of the TRIPS mandates. Eg:
avoiding provisions for Compulsory licensing.