This article is authored by Saumya Singh, a 1st year student of LLm in Govt.LawCollege, Rewa (M.P). In this article, you will learn about the basic concept of intellectual property rights, and other related aspects regarding the IPR under[Business law].
Table of content:-
1 Introduction.2 Meaning of intellectual property.
3 Meaning of intellectual property rights.
4 Nature of intellectual property rights
1. Creation of human mind
2. Intangible property
3. Exclusive Rights
4. Right to sue
5. Duties
6. Limitation of Rights
5 Objective and scope of intellectual property rights.
6 Types of intellectual property rights:-
1. Copyright
2. Trademark
3. Patent
4. Geographical indications
5. Industrial design
6. Plant varieties
7 Advantage of intellectual property rights.
8 Disadvantages of intellectual property rights.
9 Law governed in India for intellectual property rights.
10 Theories of intellectual property rights.
11 Name of Treatise and international convention of intellectual property rights.
12 Conclusion
1. Introduction :-
Intellectual property refers to any basic creation of human mind or intelligence such as literary, artistic, technological or scientific creation. Intellectual property rights (IPR) refers to the legal rights given to an inventor or creator to protect their invention or creation of product against third party who use without him consent. These legal rights provide a special right to the inventor/creator to benefit his/her invention or creations for a limited period of time.
Simply we can say that's the rights related to ownership of intellectual property are know as intellectual property rights. And it's include trademarks, geographical indications, copyright , industrial design, trade secrets, patents , utility models, layout design of integrated circuits, and new varieties of plants & Farmer rights . So here It is plays an important role to make a welfare state by encouraging industrial growth and economic growth.
Now we will try to understand the entire concept of intellectual property rights ( IPR) in simple language.
2. Meaning of intellectual property:-
Intellectual Property is the property which is the creation of human mind, intelligence or own creation. In another word's it is an intangible property that comes into existence through human intellect.
The (WIPO) “World Intellectual Property Organization” is a part of international convention introduced on 14 July 1967, on Geneva ,Switzerland. This convention states that “intellectual property” shall include the rights relating to: —
•literary, artistic, and scientific works,
• cinematography ,phonograms, and broadcasts, inventions in all fields of human endeavor.
•scientific discoveries, industrial designs,
trademarks, service marks, commercial names and designations.
• protection against unfair competition, and
all other rights relating from intellectual activity in the industrial, scientific, literary, or artistic fields.
• intellectual property also include geographical indications, rights in respect of undisclosed information, and layout designs of integrated circuits.
3. Meaning of Intellectual property rights :-
Under the IPR , Intellect means[ Mind /Creativity] , Property means [Any asset /Bundle of Rights] and the last one is Right which can refer to a [Power to use, , mortgage, change, sell, and destroy the object.]
The intellectual property right is a legal right that protects a person’s literary works, inventions, artistic works ,discoveries , symbol , brand name or design for a specific period of time. IP owners are given certain rights by which they can enjoy their Property rights without any disturbances , they can transfer his rights to publisher and to gets payment as royalty from publisher and prevent from others use without consent , although these rights are also called as monopoly rights of exploitation, they are limited in time and scope.
Ex:- Z wrote a Book. He has right to Print, publish in market, sell, make new edition, make movie on book.
4. Nature of intellectual property rights :-
1. Creation of human mind:- Intellectual property is creation of the human intelligence such as literary, inventions, artistic works,symbols, names, images, and designs used in business and commercial activities.
2. Intangible property:- intellectual property have a Intangible nature, is that a property without having a physical existence.. Examples of intangible property include trademarks, patents, copyrights, patent applications, trade names, , service marks, , trade secrets. It allows creators or inventor to reap profit from their works when they are used for commercially and economically growth.
3. Exclusive rights:- Intellectual property rights (IPR) refers to the legal rights given to the inventor/ creator / manufacturers to protect his invention or creation for a limited period of time.it is a legal rights to confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time. and also their have a one negative right to provide a protection against third parties from exercising their statutory rights using without inventor/ creator consent.
4. Right to sue:- Here, IPR provide a right to owner to file a suit against third party in the relevant national court, if it is infringed his rights without permission.
5. Duties - It is a duty of inventor/ creator to disclose all material fact for registration under IPR and pay maintenance Fees with regards to the registration process and all the necessary statutory fees. ...
6. Limitation of rights:-It is a time bounded After some time of registration under IPR, it has to be renewed again and a product registered by an intellectual property right, such as by a patent right, has been sold by the intellectual property right owner or by his assignee with the consent of the owner, the IP right is said to be exhausted and powerless. It can no longer be exercised by the owner. This limitation is also referred to as the first sale doctrine or doctrine of exhaustion .
5. Objective of intellectual property rights:-
The object of intellectual property rights is refer to human intellect by providing exclusive rights to the creators or inventor to protect their inventions, creations, artistic, literary, musical works, scientific and technology invention etc.
Intellectual Property rights deals with laws and enforce rights to protect the creators and owners of inventions . As such , intellectual property help to promote their ideas / invention to encourage Commercial Value and economy growth. When they are sure that their works are protected, creators are more likely to come up with more new creations. There are many different forms of intellectual property , each one of protected by a certain type of intellectual property rights.
6. Types of intellectual property :-
The concept of intellectual property is very broad. There are many different kinds of rights that work together to make up intellectual property. So here we will understand easily to all the different types of IPR .
1. Copyright:-
Section 14 in The Copyright Act, 1957 define the term of copyright. It is a set of exclusive rights which can be granted by the law of IPR to the author or creator of literary, dramatic, musical or artistic works ,producers of cinematograph films ,sound recordings an original work and also including the right to copy, distribute and adapt the work.
its a product of human skill & his mental capacity to do something creative. and owner distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending to perform the work publicly in person or through audio transmission. And for a validity of copyright registration is not mandatory but recommended. Valid through the lifetime of the author and 60 years after his/her death. And The Copyright Act, 1957 is a comprehensive legislation dealing with copyrights in India.
2. Trademark / Service mark :-
A trademark can be any Signs & Symbols, Tagline, logo, abbreviation , word, phrase, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors. Trademarks used in connection with services such as tourism, banking, etc., are called Service Marks. The owner has the exclusive right to the use of a registered trademark. There are 45 classes of trademarks, consisting of 34 classes of products and 11 classes for services.
Under Section 2(zb) of the Trademarks Act, 1999 defines “trademark” as a mark capable of graphical representation that can distinguish goods or services of one person from those of others. It is further provided that a Trademark may include the shape of goods, their packaging and a combination of colours.
The Law regulating to trademarks in India that is the Trademarks Act, 1999 . It's Identifies the source of your goods or services. Provides legal protection for your brand. And also helps you guard against counterfeiting and fraud.
Trademark owners have the privilege to extend their trademark's validity every decade. Before the end of these 10 years, the Registrar offers a six-month grace period, during which the trademark holder can renew their mark and retain its advantages. If the renewal doesn't occur, the Registrar will announce the trademark's removal in the Trademark Journal.
3. Patent:-
Section 2(1)(m) of the Indian Patent Act, 1970 defines patent as: patent means a patent for any invention granted under this Act. Simply we can say that the , patent is a set of exclusive rights granted by government of India to an inventor for a limited period of time, excluding others from making, using, selling, importing the patented product or process producing that product for these purposes. A person to whom the patent is granted is known as patentee.
In other words, it is a right of monopoly granted to a person who has invented a new and useful article, or improvement of an existing article, or a new process of making an article.
A patent is granted for inventions having industrial and commercial value. And the duration of invented process for a limited period of time usually 20 years from the filing date of the application in exchange for disclosure of the invention. A patent owner can sell his patent or grant licence to others to exploit the same.
Law regulating fir patent under IPR that is the Patents Act, 1970. The Act contains provisions for rights and obligations of the patentee, term of the patent, transfer, surrender, revocation, and restoration of patent, infringement of patent, and remedies thereof.after the Patent (Amendment) Act, 2005 product patents can be issued for manufacturing these products.
4. Geographical indication :-
Section 2(e) define the concept of geographical indications under the The Geographical Indications of Goods (Registration and Protection) Act, 1999.
Geographical Indications of Goods are defined as that aspect of industrial property which refer to the geographical indication referring to a country or to a specific place situated therein as being the country or place of origin of that product.Generally, geographical indications are used for foodstuffs, agricultural products, wine, industrial products and handicrafts materials. For examples of Geographical indication include Basmati Rice, Darjeeling Tea etc.
The Geographical Indications of Goods (Registration and Protection) Act, 1999 prescribed law regarding (GI )in India , and it's Promotes the economic well-being of producers of items produced in a specific geographic area .The Act contains provisions relating to the establishment of a Geographical Indications Registry, registration of geographical indications of goods, rights conferred by registration, registration of authorised users of registered geographical indications, provisions for renewal, rectification and restoration of geographical indications, and prohibition of registration of geographical indication as a trade mark, etc.
Geographical indications registered as collective and certification marks are generally protected for renewable ten-year time~ periods.
5. Industrial design:-
Under the IPR an industrial design registration is a form of intellectual property protection available to protect the unique appearance of a product. It is focused on protecting the visual features of an article, namely its design, shape, pattern or ornament, or any combination of two or more of those features. It is necessary to provide legal protection to the creative originality of an industrial design to prevent others from copying it.
Law relating to designs in India that is the Designs Act, 2000 which can be promote the creation of novel, original designs along with balancing competing interests by granting the time-bound monopoly right to use registered industrial design by the owner. The Act prescribed provisions regarding registration of designs, copyright in registered designs, industrial and international exhibitions, restoration of lapsed designs, the penalty for infringement of registered designs, remedies, and time duration etc. And The duration of the registration of a design is initially 10 years from the date of registration .
6. Plant variety:-
Plant variety protection provides legal protection of a plant variety to a breeder in the form of Plant Breeder's Rights (PBRs). PBRs are intellectual property rights that provide exclusive rights to a breeder of the registered variety.
The Protection of Plant Varieties and Farmers’ Rights Act, 2001 deal with the legal protection to plant varieties, plant breeders,rights of farmers, and also encourages the development of new plant varieties. The Act prescribe provisions regarding the establishment of Protection of Plant Varieties and Farmers’ Rights Act Authority, registration of plant varieties and essentially derived variety, duration, and effect of registration, rights conferred by registration, framers’ rights, compulsory, infringement of any right provided under the Act and relief thereof.
Duration of Protection for a Registered plant Variety is for Trees and vines -18 years from the date of registration of the variety. Extant varieties -15 years from the date of notification of that variety by the Central Government under Seed Act, 1966. And Other crops -15 years from the date of registration of the variety.
7. Advantage of Intellectual property rights
• It encourage healthy competition for invention/innovation among the intellectuals and to protect the ideas and innovations.
• It leads to faster development of industries/ organizations engaged in research and development work and Promotion in research and development.
• Owner is rewarded and can control its use and IPR also helps to attract clients and creates your brand value. For example, the consumers start identifying your products with the unique logo or registered trademark.
• IPR protection allows to prevent unauthorized use of owner intellectual property and works.
• IPR enhances the value of company and also opens avenues for collaborations and opportunities for generating income such as by entering into licensing agreements to exploit/work the invention/work.
8. Disadvantages of intellectual property right
• IP rights aren't absolute ,there are certain limitations and conditions imposed by law on the exercise of these rights (such as a limited period of protection, cost and compulsory licensing provisions) in the interests of the general public.
• The procedure of registration is very lengthy example patent registration.
• It involves a high cost and court fees in registration, renewal and licensing under IPR.
• Limited to very little protection. It invites lots of court cases due to infringements.
• Even after getting the IP right , you might still face a lot of difficulties in curbing the copying and unauthorized use of your work. Moreover, sometimes an attempt to enforce IP rights could lead to a reduction in the consumer base.
9. Laws relating to Intellectual Property Rights in India:-
Intellectual properties rights in India is governed under the following Acts:
1. The Copyright Act, 1957.
2. The Patents Act, 1970, (amended in 2005).
3. Trade Marks Act, 1999.
4. The Designs Act, 2000.
5. The Geographical Indication of Goods (Registration and Protection) Act, 1999.
6. The Protection of Plant Varieties and Farmers Rights Act, 2001.
7. The Information Technology Act, 2000.
8. The Semiconductor Integrated Circuits Layout Designs Act, 2000.
9. The Biological Diversity Act, 2002.
10. Theories of intellectual property rights:-
1. Natural Right theory :-
It is also known as 'Labour theory' or 'Locke's theory'. A person has a natural right to the fruits of his/her labour. Everyone has property right over his/her labour. This should be recognized as his/her property whether in tangible or intangible term.
2. Utilitarian theory:-
This means Socially beneficial. Intellectual property right exists because it creates beneficial and better economic effect on society. Society should care about its creators because the ultimate beneficiary is the society.
3. Personality theory:-
This theory is propounded by Hegel. Work is the expression of the author's or inventor's thoughts. He should have the right to decide, when and how his work be produced in public. It safeguards individual's freedom of expression.
11. Major treatise and international convention of intellectual property rights:-
It covers all the possible international treaties and conventions on intellectual property rights, namely-
1. Paris convention for the protection of Industrial Property, (1883).
2. Berne Convention for the Protection of Literary and Artistic works,(1886).
3. The WIPO Treaty ,(1996).
4. Patent Co-Operative Treaty,(1970).
5. Budapest Treaty on the International Recognition of the deposit of microorganisms for the purpose of Patent Procedure.
6. Madrid Agreement concerning the International registration of marks, (1891).
7. The Hague agreement concerning the international deposit of industrial design, (1961).
8. Universal copyright convention,(1952).
9. Rome convention,(1961).
10. Industrial design,(1925).
11. TRIPS Agreement,(1994).
12. Marrakesh Treaty, (2013).
12. Conclusion:-
Thus intellectual Property is a property that arises from the human intellect / intelligence. It is a product of human creation and various forms of IPR includes Patents ,Copyrights, Trade mark, Designs, Trade secrets and Geographical indications. Any invention which is new, non obvious and useful is included in IPR. Indian government has initiated various steps towards Intellectual Properties Rights Protection. These rights support innovation and help the innovators at every stage of the business development, competition, and expansion strategy. It is also noteworthy that registered and enforced IP rights enable the consumers to make an informed choice about the quality, safety, reliability of their purchase. Understanding the country's IP Rights and following the best practices can be reduce the risk of losing the company's intellectual property.
