Basic Concept of Intellectual Property (IPR)

By | January 14, 2020
Concept of Intellectual Property (IPR)

This article deals with the basic concept of Intellectual Property. Intellectual Property Rights (IPR) include rights of Patents, Copyright and its related rights, Trademarks, Industrial Designs, Geographical indication.

Introduction

Property means the association between the owner of the property and each member of the society in relation to a tangible or intangible possession. Law gives a package of privileges to the owner of the property. This bundle of rights includes the right to possess the thing which he/she owns, the right to use and enjoy the thing owned and the right to consume, destroy or alienate the thing.

Intellectual property is the nation’s new wealth. Property jurisprudence’s main focus has shifted from material to intangible. Intellectual property has arisen as the nation’s new wealth. Intellectual property rights are people’s rights for their minds’ creations.  Typically, they grant the author an exclusive privilege over a certain period to use his / her work.

According to the definition of ‘Intellectual Property’ by the WIPO (World Intellectual Property Organization), “Intellectual property means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields.

Characteristics of Intellectual Property Rights (IPR) Laws:

  1. Intangible Property: Intellectual property does not cover the physical object, which was made, but it preserves the conceptual development behind the physical object.
  2. Creation of Statute: In fact, intellectual property is derived from common law, and it is covered under specific laws.
  3. Bundle of Legal Rights: Law recognizes and preserves separate and independent rights.

There are two main reasons why countries have intellectual property laws. One is to give legislative recognition to the creators’ moral and economic rights in their works and to the public’s rights in accessing them. The second is to promote creativity and the dissemination and use of the results as a deliberate act of government policy and to promote fair trade that would contribute to economic and social growth.

The purpose of intellectual property law is to protect creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use of such goods and services. Such privileges do not apply to the physical object in which the creation can be manifested, but to the creation of the mind as such. Traditionally, intellectual property is divided into “industrial property” and “copyright” branches.

Inventions and industrial designs are protected by the word “industrial property.” Inventions are simply described as new solutions to technical problems, and aesthetic innovations are designed to decide the appearance of industrial products. The industrial property also includes trademarks, service marks, trade names and designations, including source and appellation of origin signs, and protection from unfair competition.

Here it is a less prominent aspect of intellectual creation, although it is there, it is important here that the object of the industrial property consists typically of signs conveyed information to consumer products and services, in particular products and services on the market. Protection is directed against unauthorized use by consumers and in general misleading practices of such signs.

The Convention establishing the World Intellectual Property Organization (WIPO) concluded in Stockholm on 14 July 1967 (Article 2(viii)) provides that ‘ intellectual property shall include rights relating to literary, artistic and scientific works; performances of performing artists; phonograms and broadcasts; inventions in all fields of human endeavour; scientific discoveries; industry designs; trademarks, service marks and commercial names and designations; protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

The areas listed as works of literature, art and science belong to the intellectual property copyright branch. Areas referred to as performing artists, phonograms and broadcasts are usually referred to as’ related rights,’ i.e. copyright-related rights.

The fields referred to as inventions, product designs, trademarks, service marks and trade names and designations constitute the division of intellectual property of industrial property.

The area referred to as protection against unfair competition may also be considered to belong to that branch, the more so as Article 1(2) of the Paris Convention for the Protection of Industrial Property (the Stockholm Act of 1967) and (the ‘Paris Convention’) includes ‘repression of unfair competition’ among the areas of ‘ protection of industrial property.

Difference between Real Property & Intellectual Property (IPR)

Real property is protected by the property’s possession. It is not possible to protect intellectual property by mere possession. Mind creations, such as an idea for an invention or a piece of music, cannot be protected by mere possession of the object as physical objects, against the use of them by others.

Once the intellectual creation is made available to the public, it is no longer possible for its creator to exercise control over it.

Intellectual Property Rights

The rights of intellectual property are like any other right of property. These allow authors or owners to profit from their own work or investments in the creation of patents, trademarks or copyrighted content. These rights are outlined in Article 27 of the United Nations Declaration on Human Rights which sets out the right of the authorship of scientific, literary or artistic works to benefit from the protection of moral and material interests.

In the Paris Convention on the Protection of Industrial Property (1883) and the Berne Convention on the Protection of Literary and Artistic Works (1886) the importance of intellectual property was initially recognized. The World Intellectual Property Organization (WIPO) administered both these treaties.

These rights include rights of Patents, Copyright and its related rights, Trademarks, Industrial Designs, Geographical indication.

Patents

A patent is an exclusive right granted to an invention – a product or process that provides a new way of doing something or offers a new technical solution to a problem. A patent provides protection for the inventions of patent owners. For a limited period of time, usually 20 years, immunity is provided. A patent owner is entitled to decide who may or may not use the patented invention for the time during which it is licensed.

Patent owners may give other parties permission or license to use their inventions on terms agreed upon by each other. Owners can also sell their rights of the invention to someone else, who then becomes the patent’s new owner.

After expiry of a patent, protection is terminated, and the invention enters the public domain. This is also referred to as being off-patent, meaning that the creator no longer holds exclusive rights to the technology, and it becomes available to others for commercial exploitation.

In general, an invention must meet the following conditions for a patent to be protected. It must be of practical use; it must show an element of “novelty”, meaning some new characteristic that in its technical field is not part of the body of existing knowledge. That existing body of knowledge is called “prior art.”

The invention must demonstrate an “inventive step” that a person with average technical knowledge could not deduce. Under the law, it must accept its subject matter as “patentable”.  Scientific theories, mathematical methods, plant or animal varieties, natural substance discoveries, commercial methods or medical treatment methods (as opposed to medical products) are generally not patentable in many countries. In India, the rights of the patent holders are protected under the Patents Act, 1970.

Copyrights and related rights

Copyright laws provide protection for authors, artists and other creators of their literary and artistic creations, commonly referred to as “works.” A closely related field is “related rights” or copyright rights which include rights similar to or identical to those of copyright, although sometimes more limited and of shorter duration.

The recipients of such freedoms are artists (such as actors and musicians) in their performances; phonogram manufacturers (such as compact disks) in their sound recordings; and journalists in their radio and television programming.

Works protected by copyright include, but are not limited to books, poetry, plays, reference works, magazines, advertisements, computer programs, libraries, animations, musical compositions, choreography, sculptures, sketches, photos, sculpture, design, maps and technical drawings.

The creators of copyrighted works and their heirs and successors (usually referred to as “right holders”) have certain fundamental rights under copyright law. They are solely entitled to use or authorize others to use the work under agreed terms. In India, the rights of the copyright owners are protected under the Copyrights Act, 1957.

Trademarks

A trademark is a distinctive sign identifying certain goods or services that an individual or a company produces or provides. The history dates to ancient times when craftsmen copied their signatures or “marks” on actual or useful works or items. These marks have evolved over the years into today’s trademark registration and protection system.

Trademark protection ensures that trademark owners have the exclusive right to use them to identify goods or services or to authorize others to use them for payment purposes. The protection period varies, but a trademark may be indefinitely renewed upon payment of the fees.

Trademark protection is enforced by courts that have the authority in most systems to stop the infringement of trademarks. In a broader sense, by rewarding their owners with recognition and financial profit, trademarks promote initiative and enterprise worldwide.

Trademark protection also hinders unfair competitors, such as counterfeiters, in their efforts to use similar distinguishing signs to market inferior products or services. The system allows people with skills and business to produce and market goods and services in the fairest conditions possible, thus facilitating international trade. In India, the rights of the trademark proprietors are protected under the Trademarks Act, 1999.

Industrial Design

An industrial design refers to the ornamental or aesthetic elements of an object. A design can consist of three-dimensional objects such as the outline or surface of an article or two-dimensional features such as shapes, lines or colours.

Industrial designs are extended to a wide range of manufacturing and handcrafted products: from bags and containers to furniture and household goods, from lighting equipment to clothing, and from electrical and wearable devices. Graphic icons, graphical user interfaces (GUI) and logos may also be applicable to industrial designs.

The owner of a licensed industrial design or design patent has the power, in practice, to prohibit third parties from making, distributing or importing products containing or embodying a design that is a duplicate, or substantially a copy, of the covered design when such actions are carried out for commercial purposes.

An industrial design must be licensed in most countries in order to be protected as a “registered product” under industrial design legislation. In some countries, industrial designs are covered under patent law as Design patents.

Industrial design laws, in some countries, grant limited protection to so-called unregistered industrial designs without registration. Industrial designs may also be protected as works of art under copyright law, depending on the specific national law and the type of design. In India, the industrial designs are protected under the Designs Act, 2000.

Geographical Indications (GI)

A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to that place of origin. Most commonly, a geographical indication consists of the name of the place of origin of the goods. Typically, agricultural products have qualities derived from their place of production and are influenced by specific local geographic factors such as climate and soil.

It is a matter of national legislation and public understanding of whether a sign acts as a geographical indication. Geographical labels can be used for a wide range of agricultural products, such as “Tuscany” for olive oil produced in a particular area of Italy, or “Roquefort” for cheese made in that region of France. It is not limited to agricultural products to use geographical indications.

It may also emphasize the specific qualities of a product, such as specific production techniques and customs, due to human influences present in the place of origin of the product. Consumers consider geographical indications to indicate the origin and quality of products. Many have gained desirable reputations that may be misrepresented by commercial operators if not adequately protected.

The abuse by unauthorized parties of geographical labels, such as “Darjeeling” for tea not produced in Darjeeling’s tea gardens, is harmful to customers and legal producers.

Intellectual Property Laws in India (IPR)

  1. The Patents Act,1970
  2. The Copyright Act,1957
  3. The Trademarks Acts,1999
  4. The Designs Act,2000
  5. The Geographical Indications of Goods (Registration and Protection) Act,1999
  6. The Semiconductor Integrated Circuits Layout‐Designs Act, 2000
  7. The Protection of Plant Varieties and Farmers’ Rights Act, 2001
  8. Trade Secret (undisclosed or confidential information) ‐No codified law yet but covered by the contract and Common Law.
  9. The Biological Diversity Act, 2002 (Take into consideration certain aspects of Traditional Knowledge)

References:

  • Swayam.gov.in
  • Wipo.int

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