Intellectual Property Rights
Property
Property is anything tangible or intangible over which a person has a
legal title. It can be tangible/ intangible, movable/ immovable etc.
which can be acquired, owned, utilized and alienated.
Following are the types of property
Movable Property which can be which can be taken from one place to
another. Eg. jewelry, shares, car etc.
Immovable Property which can be which cannot be taken from one
place to another. Eg. House, land etc.
Tangible property which can be seen, felt, which can be taken from
one place to another. Eg. House, jewelry, shares etc.
Intangible property which is not seen, but has value in monetary
terms. Eg. goodwill, patent, copyright, Trademark etc.
Intellectual Property is intangible kind of property.
Intellectual Property- It is a property which is developed through
human intellect.
IPR is not a new concept. It is believed that IPR initially started in North
Italy during the Renaissance era. In 1474, Venice issued a law
regulating patents protection that granted an exclusive right for the
owner. The copyright dates back to 1440 A.D. when Johannes
Gutenberg invented the printing press with replaceable/moveable
wooden or metal letters. Late in the 19th century, a number of countries
felt the necessity of laying down laws regulating IPR. Globally, two
conventions constituting the basis for IPR system worldwide had been
signed; Paris Convention for the Protection of Industrial Property (1883)
Berne Convention for the Protection of Literary and Artistic Works
(1886).
Protection of IPR allows the innovator, brand owner, patent holder and
copyright holder to benefit from his/her work, labor and investment,
which does not mean monopoly of the intellect. Such rights are set out
in the International Declaration of Human Rights, which provides for
the right to benefit from the protection of the moral and physical
interests resulting from the right holder's work; literal or artistic
product.
Intellectual property is the product of the human intellect including
creativity concepts, inventions, industrial models, trademarks, songs,
literature, symbols, names, brands,....etc. Intellectual Property Rights
do not differ from other property rights. They allow their owner to
completely benefit from his/her product which was initially an idea that
developed and crystallized. They also entitle him/her to prevent others
from using, dealing tampering with his/her product without prior
permission from him/her. He/she can in fact legally sue them and force
them to stop and compensate for any damages.
and TRIPs and becoming a member of WTO.
Nature of Intellectual Property
Intellectual property has its own features. These features of intellectual
properties may serve to identify intellectual properties from other types
of properties.
[Link] Right:- It creates ownership and possession of the
creation to the creator. Duration of IPR is specified by law. Thus, on the
expiry of the period for which the right is granted, the right shifts to
public domain.
[Link] property: Intellectual property is intangible in nature. IP
does not address the tangible as the material object in which the
creation of the mind is embodied.
[Link]: The IP law is not unified around the world. There are no
global patents, copyrights or trademarks. IP rights are granted extends
only by a country. Thus, the rights extends only far as to nation
However, under Trade Related Intellectual Property Rights (TRIPS)
Agreement required the signatories to provide minimum substantive
standard of and enforcement intellectual property protection and
enforcement. This has enabled the inventor or creator to enjoy the
benefits of his innovation or certain even in foreign countries.
[Link] Rights- It means others who are not owners, are prohibited
from using. using the right. Most intellectual property rights cannot be
implemented got exclusive tested in practice as soon as the owner’s
rights. Most of them need to be tested by some public law. The creator
or author of an intellectual property enjoys rights inherent in his work
to the exclusion of anybody else.
5. Assignable: Like any other property the intellectual property can be
brought, sold, licensed, hired or attached.
6. Interdependence:- Different intellectual property rights subsist in
the same kind of object. Most intellectual property rights are likely to
be embodies in object.
7. Uniformity: The Law of Intellectual property is not unified around
the world.
8. Divisible (Fragmentation) :- Several persons may, have legally
protected interest evolved from a single original work without affecting
the interest. of other right holders on that same item. Because of the
nature of indivisibility, intellectual property is an inexhaustible
resource. This nature of intellectual derives from intellectual property's
territorial nature.
Ex. An inventor who has registered his invention In India can use the
patent in India & license it in France and assign it in Germany.
Why Legal Protection for Intellectual Property?
Every human endeavour which promote economic, social, scientific and
cultural development of society must be encouraged and the creator
must be suitably rewarded by affording legal protection to his
intellectual creation. Thus, the Intellectual Property Rights (IPRs) are
the legal rights governing the use of creations of human minds.
The intellectual property law regulate the creation, use and exploitation
of mind or creative labour. It prevents third parties from becoming
unjustly enriched by reaping what they have not sown. This is a branch
of the law which protects some of the finer manifestations of human
achievement.
Scope of Intellectual Property Rights
The Convention establishing World Intellectual Property
Organization (WIPO) has given a wider definition of IPRs. According to
this definition, the IPRs shall include the rights relating to:
(i) Literary, artistic and scientific work;
(ii) Performances of performing artists, phonograms and broadcasts;
(iii) Inventions in all fields of human endeavour;
(iv) Scientific discoveries;
(v) Industrial designs;
(vi) Trademarks, service marks, and commercial names and
designations;
(vii) Protection against unfair competition and; all other rights resulting
from intellectual activity in the industrial, scientific literary or artistic
fields.
Components of IPRs
The various components of IPRs as envisaged by WIPO and TRIPs have
specific aims and objects. Although a detailed study of these specific
rights will be made in subsequent chapters, it is worthwhile to explain,
in brief, their meaning hereunder :-
1. Copyright and Related Rights
The word "copyright" is derived from the expression 'copier of words'
first used in the context according to the Oxford dictionary in 1586. The
subject- matter of copyright is the literary, artistic, dramatic, musical,
cinematographic films, sound recording. Literary works now also
include computer programs, tables, compilation including computer
database. In most European languages other than English, copyright is
called as author's rights.
The copyright is to original creation. Mere idea without tangible
expression is not granted legal protection. It is an intangible,
incorporeal right granted to author or originator of certain literary or
artistic production, whereby he is invested for a specified term with sole
and exclusive right of multiplying copies of his original work and
publishing and selling them.
2. Trademarks and Services Marks
Trademark is a symbol through which goods are sold in market. It is a
symbol which may denote and distinguish goods of competing traders.
They may consist of single letter, numerals, logo, design, word pictorial
devices or combination of words and devices.
When a trademark is used in connection with services such as banking,
telecommunication, airlines, tourism, etc. they are called service marks.
A new variety of marks, such as sound mark, smell mark, taste mark is
developing at global level. In India, claims of sound mark have also been
registered in recent times.
3. Industrial Property
The term Industrial Property is used to those clusters of innovation
which inter alia include, industrial designs, commercial names,
geographical indications etc. The object of industrial property consist of
signs transmitting information, in particular to consumers, as regards
products and services, offered in the market. Unauthorized use of
industrial property is protected under various I.P. Laws.
4. Patent
The term "patent" has its origin in the phrase "Letters Patent". These
were the instruments under the great seal of King of England addressed
by the Crown to all the subject at large in which the Crown conferred
certain rights and privileges on one or more individuals. However, in the
recorded history, the first patent was granted in the year 1449 to John
of Utynam in Russia for a process of making glass. Patent is granted for
inventions which have industrial and commercial value. Any person
whose invention has, novelty, involving inventive steps (non
obviousness) and is of industrial application, can be granted a
monopoly right for a certain term to commercially exploit his invention
and earn profit out of his invention.
It is worthwhile to mention here that ever since the TRIPs regime has
come into force, the patent has become a major subject of controversy
between developed and developing countries.
5. Geographical Indications
An indication which identifies goods, such as agricultural goods,
natural goods or manufactured goods as originating in the territory of a
country, or a region or locality in that territory are called as geographical
indications. These indications denote quality, reputation or other
characteristics of such goods essentially attributable to its geographical
origin. The right conferred on geographical indication confers the right
to prevent competition from commercially exploiting the respective
rights to the detriment of the owner of that property.
6. Plant Varieties
Scientific advancement in the field of biotechnology and tissue culture
has ushered in an agricultural revolution. Development of new plant
varieties and better quality of seeds has accelerated the agricultural
development. It has, therefore, been internationally recognized that
rights of plant breeders should not only be recognized but a sui generis
legal mechanism be evolved to protect their rights as well. At global
level, the International Convention for Protection of New Varieties of
Plant (UPOV) was concluded in 1961. The WTO- TRIPs also recognized
the need to develop legal system for protection of plant varieties either
through patent or an effective sui generis system. India being a member
of WTO also realized the need to protect interests of plant breeders,
farmers and promote conservation of genetic resources and seed
industry. It was thought proper to enact a separate sui generis
legislation for this purpose.
The enactment of Protection of Plant Varieties and Farmers' Rights Act,
2001 enables a new variety of plant with novelty, distinctiveness and
stability as registerable and ensures legal protection.
7. Industrial Designs
Industrial design means only the features of shape, configuration,
pattern, ornament or composition of lines or colour applied to any
article whether in two dimensional or three dimensional or in both
forms, by any industrial process or means whether manual, mechanical
or chemical, separate or combined which in the finished article appeal
to and are judged solely by the eye; but does not include any mode or
principle of construction and does not include any trademark. In the
case of industrial designs, the property consists in the exclusive right
to apply the design registered under the statute.
8. Layout designs of integrated circuits
Integrated circuits are integral part of electronic and information
technology. Integrated circuits are extensively used in products such as
television, watches, radio, washing machine, mobile and data
processing instruments. The layout designs of integrated circuits not
only reduce the space but enhance the capacity and performance of the
system.
In India, the Semiconductor Integrated Circuit Layout Design Act, 2000,
regulate the registration use and protection of original and distinct
layout design.
9. Trade Secrets
Trade secret is a confidential information of a business enterprise. It
offers potential economic advantage over others. Trade Secretes may
include designs, drawings, plans, data compilation, business strategies,
marketing plans, R & D related information, etc. The owner of trade
secretes has right to protect it from unauthorized leakage and maintain
secrecy.
10. Know How
Know-how means any form of technical information or assistance
relating to the manufacture or placing into operation of the said
products. It also means any practical knowledge, techniques, and skill
that are required to achieve some practical end. It is considered an
intangible property in which rights may be bought and sold. Know-how
also means the technical skill which large groups of men acquire
through extensively financed experimentation and cooperation.
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