Legal Implications of the Intellectual Property Rights In The Field Of Copyright And Biotechnology Laws – A. Jonah Elisa Shiny

By | July 13, 2021
Legal Implications of the Intellectual Property Rights In The Field Of Copyright And Biotechnology Laws

This article on the ‘Legal Implications of Intellectual Property Rights In The Field Of Copyright And Biotechnology Laws’ by A. Jonah Elisa Shiny throws light on the features of Copyright Laws and their legal Implications. Further, it explains the emergence of innovative technologies in the field of Biology. Finally, it elucidates the basic relationship between Intellectual Property rights and Human Rights through the realization of Complex concepts and fields such as Sustainable Development, Food Security, Environmental Conservation, Genetic –Engineering, Energy Conservation laws.

I. Introduction

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson

In recent years, there has been increasing Public Interest in the subject of Intellectual Property Rights(IPRs) and their relationship with Sustainable development including the global environment along with human efforts and Innovations. The major legal Instruments for Protecting both tangible and intangible discoveries, Inventions, Innovations, technologies are Intellectual Property Rights.

They are grouped as Patents, Copyrights, Trademarks, Industrial Designs, Geographical Indications, Integrated Circuits, Plant variety Protection, Preservation of the Seeds etc. The adoption of the World Trade Organization (WTO) Agreement on Trade-related Aspects of the Intellectual Property Rights (TRIPs) has brought IPRs into the centre of debates in the era of globalization.

Biodiversity is the hallmark of Life on the Earth and is considered to be the backbone of Sustainable Development. The Current IPRs regime is encouraging the Commercialization of Biodiversity and related traditional Knowledge, Monocultures, Protection of new Plant varieties, Genetically Modified Organisms. The International treaties Constitute a necessary background to understand the role played by the IPRs in shaping domestic and International Policies for Biodiversity management.

The Intellectual Property has the Shelf Life of a Banana! – Bill Gates

Intellectual Property law deals with the protection and enforcement rights of the Creators, Owners of Inventions, Writing, Music, Designs and Other Works related to the Industrial and Copyright Protection. Intellectual Property is protected by laws specific to the expression of an idea. Copyright is a form of Intellectual Property and It is the law Specific to the expression of Ideas in visual or audio forms.

II. Categorization of Laws of Intellectual Property

Industrial Property is one of two subsets of Intellectual Property, and it takes a range of forms including Patents for Inventions, Industrial Designs for aesthetic creations related to the appearance of Industrial Products, trademarks, Service marks, Layout –designs of Integrated Circuits, Commercial names, designations, geographical Indications, Protection against Unfair Competition.

There are two main reasons generally for the Countries to Protect Intellectual Property.

  • To give Statutory expression to the rights of creators, Innovators in their Creations, innovations, balanced against the Public interest in accessing Creations, Innovations.
  • To promote Creativity and Innovation, so contributing to economic and social development.

An attempt is made to provide valuable insight into the multi-dimension laws of Intellectual Property Rights, differentiating the two Categorization of the Intellectual Property Laws such as Industrial Property and Copyright in the fields of Biodiversity, Food Security, Traditional knowledge, Process Involved in the expression of Ideas respectively. Intellectual Property Protection is critical to fostering innovation. Without the Protection of Ideas, Businesses, Individuals would not reap the benefits of their inventions and would focus less on research and development.

  • World Intellectual Property Organization and Intellectual Property Rights

The World Intellectual Property Organization provides a forum for its member States to create and harmonize rules and Practices for Protecting Intellectual Property Rights including Industrial Property. It assists its member States in developing IP systems through treaty negotiation, legal and technical assistance and training in various forms, including in the area of enforcement of IP rights. It Provides International registration systems for trademarks, Industrial Designs, Appellations of origin and an International filing System for Patents.

III. Commercialization and Valuation of IPR

The Importance of Protecting Industrial Property was recognized in the Paris Convention for the Protection of Industrial Property in 1883 and the Essentiality of the Copyright law was recognized in the Berne Convention for the Protection of Literary and Artistic Works in 1886. Both the International treaties are administered by the World Intellectual Property Organization (WIPO).

Intellectual Property is a key aspect for Economic Development! – – Craig Venter

Ownership of Intellectual Property can be owned by one entity, typically the creator, in the form of sole Ownership. One or more creators can also own ownership of Intellectual Property through Joint Ownership. The general features of Intellectual Property include the Intangible nature, Rights, duties, Creation of Statute, Territoriality, Assignability, Dynamism which are subjected to Public Policy and IPR protection.

There are three methods of valuing Intellectual Property such as

  • Cost-based
  • Market-based
  • Income-based Valuations

Intellectual Property Rights are the rights given to Persons over the Creations of their minds. They usually give the creator an exclusive right over the use of his/her Creation for a certain Period of time. Businesses and Innovators need easy, Cost-effective ways to Protect their Inventions, their brands, and their designs in multiple Countries. WIPO offers a range of global services for protecting Intellectual Property(IP) across borders and for resolving Intellectual Property disputes outside the Courts.

IV. Development of Copyright Laws towards the Dynamic Progress of Globalisation

Copyright is ensuring Certain minimum safeguards of the rights of authors over their Creations thereby Protecting and rewarding Creativity. Copyrights are all about Profit-sharing by the Owner of the IP. The Object of Copyright law is to encourage authors, artists and Composers to create Original works, rewarding them with exclusive rights for a fixed period to reproduce the works for Commercial exploitation. An important concept to understand is that an author and Owner can be two different people. The author is the first Owner of Copyright. The author is either the creator of the work or the Person who employs someone to create the work.

Many authors do not retain their Copyright Ownership, they sell or transfer it to someone else in return for a lump-sum payment or Periodic Payment known as Royalty. In such a case, the author and Copyright Owner are two different Persons. Copyright gives the Owner the right to control the use of certain kinds of work which are the result of the author’s skill or for which there have involvement and investment of time, effort, money by the Owner.

  • Evolution Of Copyright Law

The Scholars of Ancient Greece and the Roman Empire were the first to be concerned about being recognized as the authors of their works, but they did not have any economic rights. The history of modern Copyright law dates back to the 18th Century with the enactment of the English Statute of Anne, which applied to England, Scotland and Wales.

Initially, the Copyright was given to books only. With the development in human creativity, Science & technology, the right was extended to a wide range of Works such as maps, Performances, paintings, Photographs, Sound recordings, motion Pictures, Computer Programs etc.

Internationally till the 19th Century, the Copyright laws varied according to Jurisdictions. To solve this problem in 1886, Berne Convention was adopted to provide mutual recognition of Copyright between nation-State and to Promote the development of International Standards for Copyright Protection. Great Britain developed Copyright as a Property Concept through the 18th & 19th Century and has the effort put into works as part of its Copyright value as well as the Original Creative Value. The United States Of America developed the Copyright law within their Own entrepreneurial Culture.

Copyright is granted to the original works of authorship, literary, dramatic, musical, architectural, cartographic, choreographic Pantomimic, Pictorial, graphic, sculptural and audio-visual Creations. Moral rights have been added to Copyright legislation in the United Kingdom since 1989. In 1518, the first Copyright Privilege was granted in England. The Privilege gave a monopoly for the term of two years. These Copyright Privileges were called monopolies.

The law of Copyright was introduced in India only when the British East India Company was established in 1847. The term of the Copyright was the lifetime of the author plus seven years after the death of the author. But in no case could the total term of Copyright exceed a period of forty – two years. The government could grant a compulsory license to Publish a book if the owner of Copyright upon the death of the author refused to allow its publication.

Registration of Copyright with the Home Office was mandatory for enforcement of rights under the Act. In 1914, the Indian legislature enacted the Copyright Act 1914, similar to U.K. Copyright Act,1911. A number of times amendments were brought to this act up till 1957. The Copyright Act, 1957 was enacted in order to suit the Provisions of the Berne Convention. The Act was enacted by Independent India by which the Indians are governed to date.

V. Essential Requirements of Copyright Laws and the Significant Case Laws

The Essential requirements that a work should have to get a Copyright needs the basic features such as follows :

  • Originality
  • Practically, It is impossible for any work, especially the works that needs Copyright Protection to be Original in literal terms.
  • Copyright is given only to the expression of the Ideas and not the Ideas in itself.

Relevancy of Case Laws

  • University of London Press Ltd v. University Tutorial Press Ltd (1916) 2 Ch 601
    It was held that to be Original, the work must Originate from the author and not copied by him from another work.
  • Ladbroke (Football) Ltd v. William Hill (Football) Ltd (1964) 1 ALL ER 465
    The Court observed that the requirement of Originality means that it is the result of a substantial degree of Skill, Industry or Experience employed by him.
  • Donoughue v. Allied Newspapers Ltd (1937) 3 CH.D. 503
    It was held by the Court that the Copyright exists in Particular form of language in which or in case of pictured in the Particular form of Picture by which, the information or idea is conveyed to those who are intended to read it or to look at it.
  • S.G. Siddhanti v. Venkateshwara Publishing House (1968) 1 Andh. W.R. 323.6
    It was held that the Copyright means the sole and exclusive right to Publish the work or any substantial part thereof or reproduction of the Publication or transaction of the work as per Section 14 of the Copyright Act,1957.
  • Zee Entertainment Enterprises Ltd v. Mr. Gajendra Singh & Ors (2008 (36) PTC 53 (Bom).
    The Court held that the Copyright of a Cinematograph film is only affected when a ‘Physical Copy ‘ or ‘an actual Copy’ is made.

VI. Rights Recognized Under Copyright Law

Economic Rights

They are of economic importance and Profits can be gained such as

  • Right to Reproduce
  • Right to Prepare Derivative Works like translations & Adaptations.
  • Right to Distribute
  • Right to Display Publicly related to Artistic Works
  • Right to Perform Publicly related to musical or dramatic works.

Moral Rights

They are given to the author irrespective of the economic importance of creation.

  • Rights of Paternity
  • Rights of Integrity

Moral rights can never be transferred. Moral rights will always stay with the original creator of the works.

  1. Sree Gokulam chit & Finance Company (p) Ltd v. Johny Sagariga Cinema Square, Proprietary 2011(3) CTC 747
  2. Societe Des Produits Nestle v. Continental Coffee Ltd 185 (2011) DLT 752
  3. Microfibres Inc v. Girdhar & co Anr 2009 (40) PTC 519 (Del)
  4. G.Anand v. Delux Films ( AIR 1978 SC 1613)
  5. R.F Limited v. Metro Tyres Limited CS (Comm ) 753/2017
  6. Yash Raj Films Pvt Ltd v. Sri Sai Ganesh Productions CS (comm.) 1329/2016
  7. Venkatesh Films Pvt Ltd v. Vipul Amrutlal Shah (2009 SCC Online (cal) 243.
  8. Indian Performing Rights Society Ltd v. Eastern Indian Motion Pictures Association (1977) 2 SCC 820
  9. Star India Pvt Ltd v. Leo Burnett ( India) Pvt (2003 (2) Bom CR 655
  10. Alexander v. Haley (460 F.Supp.40 ( S,D.N.Y 1978).

Intellectual Property is an important legal and Cultural Issue. Society as a whole has Complex issues to face such as Private Ownership v. Open Source and so on. – Tim Berners Lee

VII. Improvisation of Food Security Laws through Intellectual Property Rights

Food Security remains an Overwhelming Concern for developing Countries even though some countries classified as developing countries have Virtually eradicated Lawyer. Food Security at an Individual level implies that People must either have a sufficient income to Purchase food or the Capacity to feed themselves. Subsequently, there is a direct link between Poverty and Food Security. The Consistency in the Sustainable Development is Possible only when there is a link between Food Security, Agriculture, Environmental Management along with the Proper Protection to the Intellectual Property Rights.

Food Security, as defined by the United Nations Committee on World Food Security means that all People at all times have physical, social and economic access to sufficient, safe and nutritious food that meets their food preferences and dietary needs for an active and healthy life.

Food Security is the combination of the following three elements:

  • Food Availability
  • Food Access
  • Food Utilization

Food Sovereignty implies the recognition of the freedom and Capacity of People, their Communities to exercise and realize their right to food, the right to Produce food and the assurance of access to Productive resources. Nearly 47 million or 4 out of 10 children in India do not meet their full human potential because of Chronic under nutrition. According to FAO estimated in ‘The State of Food Security and Nutrition in the world, 2018 report about 14.8% of the population is undernourished in India.

The major challenges to Food Security are as follows:

  • Climate Change
  • Lack Of Access to remote Areas
  • Increase in Rural to Urban Migration
  • Over-Population, Poverty, Lack of Education, Gender Inequality
  • Inadequate Distribution of Food through Public Distribution of Food through Public Distribution Mechanisms.
  • Reduction of the Bio-fuels
  • Unmonitored Nutrition Programmes
  • Lack Of coherent Food & Nutrition Policies
  • Corruption

Initiatives of International and National Institutions to Enhance Food Security

At National Level

  • National Food Security Mission
  • Rashtriya Krishi Vikas Yojana
  • Integrated schemes on OilSeeds, Pulses, Palm oil & Maize (ISOPOM)
  • Pradhan Mantri Fascal Bima Yojana
  • E-marketplace
  • Water Harvesting Programme
  • Mid-Day Meals Scheme
  • Anganwadi Systems
  • Subsidized Grains
  • Food Fortification
  • National Food Security Act (NFSA,2013)

At International Level

  • Food and Agricultural Organisation(FAO)
  • World Food Programme (WFP)
  • International Fund for Agricultural Development (IFAD)
  • World Bank
  • United Nations Environment Programme (UNEP)
  • High-Level Tack Force(HLTF)
  • Global Food and Nutrition Security
  • First Millennium Development Goal (MDG-1)
  • Zero Hunger Challenge
  • Sustainable Development Goal – 2

Intellectual Property Rights were for a long time under-developed in the context of Agriculture. Firstly, in many Countries at the International level, agricultural management was premised on the basis of the free exchange of germplasm, knowledge, a system wherein IPRs did not fit well. IPRs have been progressively been introduced in agriculture in two min phases. Firstly, IP protection for plant varieties and the IP right Protection for the Plant breeder which is derived from the patent model. Secondly, the development of Genetic Engineering, the Progressive introduction of Patents over life forms has constituted a major incentive for the Overall growth of agro-biotechnology.

Internationally, the Agreement on Trade-related aspects of IP rights (TRIPS Agreement) provides a number of specific minimum levels of Protection that all WTO member states must respect. Therefore, IPRs can be involved to foster Food Security in developing countries. The legal Protection Offered by IPRs is one of the most important incentives for Private sector involvement in agro-biotechnology.

“Japan is a well-educated, technological society. It is a free society, Protects Intellectual Property” – John Roos

The Potential of transgenic Plant varieties to foster food Security is partly linked to the development mechanisms to foster their transfer and ways to ensure that they are affordable for Poor farmers. The Introduction and Strengthening of IPRs in Agriculture foster two kinds of concerns linked to Research and development. Biodiversity and Agricultural management are of Primary importance for the Sustainability of Agricultural Systems.

International treaties and Conventions deals with food security, the IPR treaties deal directly with food security, their implementation has significant impacts for food security in developing Countries; the Environmental treaties have important implications for food security, Human right treaties focusing on the Right to Food have a central place in the Overall framework.

In 1992, Agenda 21 called for strengthening of the FAO Global System on Plant Genetic Resources, and its adjustments in accordance with the outcome of negotiations on the Biodiversity Convention. Article 27(3) b of the TRIPS Agreement describes the legal regime for food Security, Environmental Management and human rights. The Plant breeder’s rights provide exclusive commercial rights to the right holder, reward an inventive process, and are granted for a limited period of time after which they pass into the Public domain.

VIII. Relation between Intellectual Property Rights & Human Rights in the Field of Biotechnology with Relevant Case Laws

The recent important development related to agro-biotechnology from the point of Food Security is the Possibility to modify varieties to improve their nutritional value such as in the case of Pro-Vitamin A rice, Genetic Engineering, Hybrid Fruits and Vegetables, Gene Mutation etc. The realization of Food Security at the Individual Level and the Societal level are gaining importance through the improved legal implications in the field of basic human rights and Intellectual Property Rights.

Intellectual Property Laws & Treaties relating to Agro-Biotech in India

  • UPOV – The International Union for the Protection Of New Varieties Of Plants,1961
  • ITPGR – International treaty on Plant Genetic Resources for Food And Agriculture
  • CBD- Convention On Biological Diversity,2002
  • STEM- Society of Technology Mangers
  • SMART- Selection with Markers & Advanced Reproductive Technologies.
  • PPV & FR Act – Protection of Plant Varieties & Farmer’s Rights Act 2001
  • Seeds Act 1966
  • BT Egg Plant (Brinjal) Genetically engineered via cloning of the Bacillus thuringiensis Insecticidal Protein gene)
  • BT Brassica (Genetically Engineered in cloning of the Bacillus thuringiensis insecticidal Protein gene) is an important vegetable crop in India
  • BT Cotton – Genetically engineered via cloning of the Bacillus thuringiensis insecticidal protein gene, only agro biotech crop, widely commercialized and produced in India.

To ensure the realization of the CBD’s goals and Sustainable Development goals, Parties should consider:

  • Insisting on the Permanent Observer Status in the Council of TRIPS.
  • Developing Strong guidelines for access and Benefit-sharing.
  • Supporting the emerging International Instruments related to benefit-sharing and technology transfer.

The Question of access and benefits sharing clearly illustrated the Close links between Intellectual Property Protection and Sustainable Development. In the era of genetic Engineering, the increased value ascribed to genetic resources and traditional knowledge. The development of biotechnology and its capacity to create Genetically Modified Organisms (GMOs) has posed a threat to Environment Protection. The Cartagena Protocol on Bio-safety recognizes the adverse impact and the Conservation along with Sustainable use of Biodiversity. The bio-safety regulatory systems are being revamped amidst Popular protests against GMs.

Significant Case Laws

  1. Ayahuasca Patent dispute protecting the Traditional Knowledge.
  2. Azadiracha indica Patent case
  3. Curcuma longa Patent case
  4. Bio-piracy case of Region’s famed Basmati, Jasmine Rices.
  5. Enola bean Patent case
  6. Bajaj Electricals Limited v. Gourav Bajaj & Anr (COMMERCIAL IP SUIT (L) NO.195 OF 2020)
  7. Marico Limited v. Abhijeet Bhansal ( COMIP NO 596 OF 2019 )
  8. Sameer Wadekar & Anr v. Netflix Entertainment Services Pvt Ltd & Ors ( 2020 SCC ONLINE BOM 659)
  9. Star India Pvt Ltd v. Movies trunk .com & Ors CS (COMM) 408/2019
  10. International Society for Krishna Consciousness (ISKCON) v. Iskcon Apparel Pvt Ltd & Ors (COMMERCIAL IP SUIT (L) NO 235 OF 2020

IX. Conclusion and Suggestions

Copyright means the rights of Organizations and Individuals to works they have created or own. Intellectual property is the sum of the rights that the State grants to human creations, either artistic or Industrial as well as the recognition of the holder’s authorship and of his exclusive right to obtain economic benefit from those rights. Intellectual Property can be defined as “ the exclusive rights granted by the State over Creations of the human mind, in particular inventions, literary and artistic works, distinctive signs and designs used in Commerce. Industrial property deals primarily with Industry –related Creations such as Trademarks, Patents, Utility Models, Industrial Designs. Copyright deals with Art, Paintings, Literary Works and Computer Programs.

Justice Krishna Iyer through his verbose Judgment tried to convey that in addition to various artists acquiring Copyrights over their respective underlying works, the Producer also acquires a similar Copyright in lieu of being a ‘ Master of his Combination of artistic Pieces. In Copyright, the Ideas should be new and need not be novel but the expression of new creative Ideas which are Original. The Copyrighted work should be a result of man’s own skill. labour, Judgment and must be expressed in different modes. The Originality of the Ideas need not be the revolutionary ideas.

Copyright Protects expression, Creativity but not Innovations. In general, Copyright does not Protect Individual words, Short Phrases, Slogans, familiar Symbols, designs or mere Variations of typographic Ornamentation, lettering or colouring, mere listings of ingredients or contents.

Intellectual Property is the Oil of the 21st Century – Mark Getty !

The Industrial Property of the IP rights involves the Protection of agro-biodiversity technology, benefit-sharing, technology transfer, dissemination of technology. The challenge of securing the World’s Food Supply calls for further research and incentives to develop Innovative Agricultural Solutions. The revenue Potential of Intellectual Property (IP) rights is a key driver of Innovation. In the sphere of agriculture, Patents, Plant Variety Protection rights (breeder’s rights),rights over genetic resources are particularly relevant.

Genetically Modified (GM) crops and SMART breeding have a key role to play in accelerating breeding activities on the one hand and adapting Plants for enhanced biotic and abiotic stress tolerance and use on marginal soils on the other hand. Better Varieties, healthy Seeds and Propagation material, Operational Sanitary and Phyto sanitary systems, effective Pest management Systems and farming techniques, fertilization and trained farm personnel are critically important for food security.

Enhanced food security also requires effective regulatory frameworks for agriculture in areas such as soil and water management. Plant Variety Protection, Land tenure, Market Intervention including Public Storage, traceability and Geographical Indications. As the global Population Peaks, the impact of Climate Change Plays out, and food security issues dominate Political discourse, governments may also need to review International trade regulations and Support measures.

By 2050, the global Population is expected to reach 8.9 Million and average Per capita food Consumption to rise above 3100 kcal per day with increased Consumption of livestock Products. This anticipated 40 % increase in global Population will require a 70% increase in agricultural Productivity with a further expansion in crop Production to support the increased demand for livestock Products.


References

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