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Introduction to Intellectual Property Right

Table of Contents

QUESTION BANK

What are intellectual property right? Explain the reasons for growth of IPR.
Origin and development of IPRs.
Define intellectual property. Explain the scope of intellectual property as expanded by WIPO and TRIPs.
What is intellectual property? Explain rational of protection of intellectual property.
Trace the development of intellectual property in India.
Define intellectual property right. Give reasons of growth and scope of intellectual property rights.

Short Notes

TRIPs.
WTO.

I. Introduction-

Property rights are very important in all societies. It plays a very important role in promoting the nation’s socio-economic and political development. Generally, what we understand as property is an object of property rights. In fact, property is a bundle of rights. It includes the right to use, enjoy and dispose of the property as he thinks fit. This right includes tangible as well as intangible property. Tangible property is visible, like a house, plot, car, etc. In contrast, intangible property includes invisible property like patents, copyrights, trademarks, goodwill, etc.

We may say that “man’s property is all that is his” in law. In fact, in the beginning, the state had come into existence to protect property. The concept of property at that time was “ownership in material things” only. Property rights were related to using, enjoying, and disposing of tangible property such as land, buildings, chattels, etc. However, nowadays, property also includes intangible property (as mentioned above).

II. Nature and Concept of Intellectual Property Rights[1]–

In modern times, the concept of property has a wider meaning. Now, “man’s property is all that which is his.” The subject of a right of property is not only material or corporeal objects but also immaterial or incorporeal things. Thus, land, buildings, and cattle are property, but goodwill and all intellectual properties (even intelligible) are property.

Intellectual property rights are the creation of the human mind for the protection of property rights, which are recognised worldwide by various modern laws. We will discuss some of the definitions of intellectual property rights as follows-

1. As per Art. 2 (vii) of WIPO[2]–

Intellectual property rights include “Literary, artistic and scientific works, performances of performing artists, phonograms and broadcasts, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service’s marks, and commercial names and designations; protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields.”

2. In R. C. Cooper v. Union Of India[3]–

The Supreme Court has defined property as the highest right a man can have to anything, being that right which one has to land or tenements, goods or chattels which does not depend on another’s courtesy; it includes ownership, estates and interests in corporeal things, and also rights such as trademarks, copyrights, patents and even rights in personam capable of transfer or transmission, such as debts; and signifies a beneficial right to or a thing considered as having a money value, especially concerning transfer or succession, and to their capacity of being injured”.

III. Reasons for the growth of intellectual property rights.-

Intellectual property contributes to the economy of the nation to a great extent. Many industries exist due to the effective protection of their patents, trademarks, etc. Similarly, consumers get quality products due to the effective implementation of intellectual property rights. We will summarise some reasons for the growth of intellectual property rights as follows-

1. Encourage innovation-

The protection of intellectual property rights encourages innovations in different fields. It ensures the protection of innovations; hence, people can take economic advantage of their innovation.

2. Creates jobs-

Due to the protection of intellectual property rights, hundreds of thousands of high-profile jobs are created.

3. Drives economic growth and competitiveness-

Intellectual property has a direct and indirect impact on economic growth. It has become an engine of economic growth for countries nowadays.

4. Protect consumers-

Intellectual property protection ensures original products and the safety, reliability, and effectiveness of their products to the consumer.

5. Generates solutions to global challenges-

Innovations specifically take place as a solution to global challenges. Intellectual properties are created specifically to resolve global problems.

Thus, protecting intellectual property rights is essential for the nation’s rising standard of living, technological growth, and economic growth. Nowadays, awareness of the protection of innovative and creative work has surged in India. Applicants for registration of these rights have increased many folds.

IV. Evolution and development of IPRs-

Industrial evolution in all fields has made realise the need for the protection of intellectual property rights. Therefore, in a true sense, at the international level, some serious steps were taken to protect them. We will discuss important international and national level efforts to protect intellectual property rights as follows-

1. Paris Convention-

The Paris Convention was held in Paris, France’s capital city and adopted in 1883. It was the first major step taken at the international level to protect intellectual property rights. The Convention applies to the protection of Industrial property, including patents, trademarks, industrial designs, utility models, service marks, trade names etc.

Initially, the eleven countries signed the convention. The substantive provisions of the Convention fall into three main categories, viz. (i) National treatment, (2) Priority rights, (3) Common rules.

2. Berne Convention-

The Berne convention in Switzerland was another step taken towards protecting literary and artistic work. The Berne Convention was adopted in 1886 for the Protection of Literary and Artistic Work. The convention was meant to protect the work and rights of authors, poets, painters, musicians, etc., who are creators of literary and artistic work.

The convention made provisions as to how authors’ work is to be used, by whom, and at what terms. The convention has led down three basic principles for the protection of these rights. It also laid down some special provisions and concessions for developing countries.

Initially, ten states signed the convention, but presently, there are 178 state parties to the convention.

3. The Patent Cooperation Treaty (PCT)-

The Patent Cooperation Treaty (PCT) was concluded in 1970 but came into force in 1978. It provided a unified procedure for filing Patent applications to protect inventions in each of its contracting states. An application filed for a patent is called an ‘International Application for Patent”. Presently, more than 150 states are contracting with the treaty.

4. World Intellectual Property Organisation (WIPO)-

a. Introduction-

The first few conventions, like the Paris Convention and the Berne Convention, had set up the International Bureau to carry out administrative tasks under the respective conventions. In 1893, these two bureaus were united, and an international organisation, i.e. BIRPI[4] was constituted. The organisation was based in Berne, Switzerland. The BIRPI organisation has been called the predecessor of the present WIPO.

In fact, the convention created WIPO by the convention establishing the World Intellectual Property Organization,[5] signed in Stockholm, Sweden on 14^th July 1967. The WIPO is one of the seventeen specialised agencies of the United Nations. The convention was amended on 28^th September 1979 to suit intellectual property rights requirements.

b. Objectives of WIPO (Art. 3)-

WIPO has the following main objects-

to promote and protect intellectual property worldwide through cooperation among states and, where appropriate, in collaboration with any other international organisation.
to ensure administrative cooperation among Unions (Art. 3).

iii. to facilitate the transfer of technology related to industrial property to developing countries (Art. 7).

to harmonies national intellectual property legislation and procedures.
to exchange information on intellectual property.
to provide legal and technical assistance to developing countries, other countries, etc.

c. Functions of WIPO (Art. 4)-

WIPO performs the following functions-

1. To promote measures to protect IPR[6]–

To encourage the development of measures designed to facilitate the efficient protection of intellectual property worldwide and to harmonies national legislation in this field.

2. To perform administrative tasks[7]–

To perform the administrative functions of the conventions passed concerning intellectual property rights.

3. To assume or participate in administration[8]–

It may agree to assume or participate in the administration of any other international agreement designed to promote intellectual property protection.

4. To encourage International agreements[9]–

To encourage the conclusion of international agreements designed to promote intellectual property protection.

5. Offer cooperation[10]–

It offers its cooperation to the States requesting legal and technical assistance in the field of intellectual property.

To process information relating to intellectual property[11]–

To assemble and disseminate information concerning the protection of intellectual property. To carry on and promote studies in the field.

7. To maintain services facilitating the protection of intellectual property[12]–

To maintain services facilitating the international protection of intellectual property and, in appropriate cases, to provide for registration in this field. Facilitating publication of data concerning the registration.

8. Taking all other appropriate actions to protect intellectual property rights.

d. Membership of WIPO-

Membership of WIPO is open to any state a member of any Union. Even non-members of any Union state may become members of WIPO, provided it should be a member of the United Nations or other specialised agencies. Presently, WIPO has 193 member states.

e. Administrative organs of WIPO-

WIPO performs its functions through the following organs-

1. General Assembly-

The General Assembly consists of State parties to the convention, which has established WIPO. It is the main policy and decision-making body of the WIPO.

2. Conference-

The conference consists of the state parties to the WIPO convention, whether they are members or not of any of the unions.

3. Coordination Committee-

The Coordination Committee consists of the state parties to the convention members of the Paris, Berne Union Executive Committee.

4. International Bureau-

The International Bureau is the organisation’s secretariat. It comprises the Director General and two or more deputy Director Generals to assist the Director General. The Director General is the Chief Executive Officer of the WIPO.

5. World Trade Organization (WTO)-

a. Establishment-

WTO has come into existence by replacing GATT (General Agreement on Tariffs and Trade). WTO came into existence through an agreement in Morocco signed on 15^th April 1994.

b. Objectives of WTO-

The main objective of the WTO is to create, through talks among member states, an environment of trade with the least or no barriers. As per its object clause, the signatory states have agreed to improve their relations in the fields of trade and economics. It further agrees that endeavour should be made to raise the standard of living, ensuring full employment and growth in real income. To expand production of and trade in goods and services. To allow optimum use of the world’s resources to achieve sustainable development. Make an endeavour to protect the environment.

Functions of WTO-

WTO performs the following functions-

To Facilitate the objectives of the Agreement[13]–

The main function of the WTO is to facilitate the implementation, administration, and operation and to further the objectives of the WTO Agreement and the Multilateral Trade Agreements.

To Provide a forum for negotiations[14]–

The WTO provides the forum for negotiations among its member states on the matters relating to trade relations dealt with by the Agreement (WTO).

Provides a framework for implementation of results of negotiations[15]–

The WTO also provides a framework for the implementation of results of negations as discussed above.

Administers undertakings[16]–

The WTO administers the rules and procedures governing the settlement of disputes. It also administers the trade policy review mechanism.

Administration of WTO[17]–

The administration of WTO is carried through different bodies and secretariats as follows-

i. Ministerial Conference-

It is the governing body of the WTO. It consists of representatives from all the WTO members.

ii. General Council-

It is the highest rule-making body of the WTO.

iii. Dispute Settlement Body-

This body is composed of all the WTO members. It oversees the implementation and effectiveness of the dispute resolution process for all WTO agreements. It also oversees the implementation of WTO decisions in disputes.

Trade Policy Review Body-

The body is composed of the representatives of all the WTO members. It oversees the Trade Policy Review mechanism. It undertakes a periodical review of the trade policies and practices of the WTO among its member States.

Councils on Trade in Goods-

As other bodies, these Councils are also composed of representatives of all member Statas. These Councils have to provide a mechanism to oversee the implementation and facilitating of the general and specific agreements on trade in goods and services.

Secretariat-

The Director General heads the Secretariat of the WTO. The member states elect him. It supports all member states in carrying out the organisation’s activities. The Secretariat of WTO is in Geneva.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIP’s Agreement)-
Introduction-

The TRIP’s Agreement is the most comprehensive multilateral agreement on intellectual property. The agreement came into effect on 1^st January 1995. For the first time, the agreement created a multilateral framework for enforcing all intellectual property rights, which so far have been left to the states. TRIPs is a mandatory agreement attached to WTO. Every member of WTO must observe the agreement’s provisions. The agreement requires minimum intellectual property rights in their national laws. Failure to comply with the agreement’s requirements would make the state liable for penalties under the provisions of WTO.

The TRIPs agreement has brought uniformity in the laws relating to intellectual property rights. Protecting original goods and services from counterfeit goods and services has proved important.

Need and objects of TRIPs-

TRIPs mainly aimed to reduce distortions and impediments to international trade. To achieve this object, WTO has recognised the following measures-

to promote effective and adequate protection of intellectual property rights.
to frame new rules and disciplines concerning intellectual property rights.
to provide adequate standards and principles of trade related to intellectual property rights.
to provide effective and appropriate means for enforcing trade-related aspects of intellectual property rights.
Intellectual Property Rights covered by TRIPS-
1 to 7 of the TRIPs agreement covers seven types of IPRs as follows-
1. Copyright and Related Rights (Art. 9 to 14).
2. Trade Mark (Art. 15 to 21).
3. Geographical Indications (Art. 22 to 24).
4. Industrial Design (Art. 25 to 26).
5. Patent (Art. 27 to 34).
6. Layout designs of Integrated Circuits (Art. 35 to 38).
7. Protection of Undisclosed Information (Art. 39).

V. Enforcement of IPRs[18]–

Part III of the TRIPs contains provisions for the enforcement of IPRs. Part. III is divided into five sections and 21 articles, i.e. Art. 41 to 61. This part lays down the simple procedure and civil, criminal and administrative remedies for violating IPRs. These provisions are as follows-

1. General Obligations (Art. 41).
2. Civil and Administrative Procedure and Remedies (Art. 42 to 49).
3. Provisional Measures (Art. 50).

S.4. Special Requirements Related to Border Measures (Art. 51 to 61).

5. Criminal Procedure (Art. 61).

Intellectual property rights oblige member states to enshrine those principles in their domestic laws or to make laws enshrining these procedures and remedies to ensure the effective enforcement of intellectual property rights by foreign and local rights holders. Art. 41 caste general obligation upon member states to ensure these enforcement procedures under their law to permit effective action against any infringement of intellectual property rights, including expeditious remedies, like civil, criminal and administrative.

The agreement requires the procedure to be just, fair, and reasonable and should not be dilatory.

VI. Dispute Settlement[19]–

Part. V Art. 63 to 64 provide mechanisms for dispute prevention and settlement. It has adopted the same mechanism that existed in the GATT agreement with certain exceptions (Art. 64).

The Dispute Settlement Board plays an important role in settling disputes between member states relating to intellectual property rights. Consultations, establishment of panels, etc., are applied to arrive at a settlement.

VII. Intellectual Property Rights Regime in India-

India, being a responsible, democratic state and member of TRIPS, has taken all necessary steps to implement international agreements on intellectual property rights. India has amended some earlier legislations to suit international agreements like the Patents and Designs Act, 1911, and the Copyright Act. 1957, etc. Moreover, India has enacted some new laws: the Trademarks Act, 1999; the Geographical Indications of Goods (Registration and Protections) Act, 1999; the Designs Act, 2000; the Protection of Plant Varieties and Farmers’ Rights Act, 2001; and the Biological Diversity Act, 2002.

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[1] For the sake of brevity henceforth called as “IPR”.

[2] World Intellectual Property Organisation.

[3] IPR 1970 SC 564.

[4] United International Bureau for the Protection of Intellectual Property.

[5] For brevity called as “WIPO”.

[6] बौधिक अधिकारांचे रक्षणासाठीचे उपायंना प्रोत्साहन देणे. /बौद्धिक संपदा अधिकारों की रक्षा के उपायों को बढ़ावा देना

[7] प्रशासकीय कामे पार पाडणे./प्रशासनिक कार्यों को करने के लिए

[8] बौधिक अधिकारांचे रक्षणासाठीचे करारात सहभाग घेणेs. बौद्धिक संपदा अधिकारों की रक्षा में भाग लेना.

[9] बौधिक अधिकारांचे रक्षणासाठीचे आंतरराष्ट्रीय करारास प्रोत्सहण देणे/अंतरराष्ट्रीय समझौतों को प्रोत्साहित करने के लिए.

[10] बौधिक अधिकारांचे रक्षणासाठीचे अंतराष्ट्रीय करार करणाऱ्या व तशी मागणी करणा-या राष्ट्रस सहकार्य देऊ करणे/s सहयोग प्रदान करें

[11] बौधिक अधिकारांचे रक्षणासाठीचे माहीतीवर प्रक्रीया करणे/s बौद्धिक संपदा से संबंधित जानकारी को संसाधित करना

[12] बौधिक अधिकारांचे रक्षणासाठी अवश्यक सेवा/ माहीतीचे संकलन करणे/ बौद्धिक संपदा की सुरक्षा को सुविधाजनक बनाने वाली सेवाओं को बनाए रखने के लिए

[13] WTO कराराच्या उद्धीष्टांची पूर्तता करणे/ समझौते के उद्देश्यों को सुविधाजनक बनाने के लिए

[14] वाटाघाटीसाठी/ चर्चे साठी मंच उपलब्ध करूण देने/ बातचीत के लिए मंच प्रदान करने के लिए

[15] वाटाघाटी/ चर्चे मधन्न ठरलेलया तडजोडनाम्याच्या बजावणी साठी रचना/व्यवस्था तयार करणे /वार्ताओं के परिणामों के कार्यान्वयन के लिए रूपरेखा प्रदान करता है

[16] तडजोडनाम्याच्या बजावणीची देखरेख करणे /उपक्रमों का संचालन करता है

[17] WTO च्या कार्याचे संचालन/ अंमलबजावणी

[18] TRIPs ची अंमलबजावणी/ बौद्धिक संपदा अधिकारों का प्रवर्तन

[19] वाद निवारण विवाद निपटान