IPR R13 EEE NOTES (UNIT I)
Introduction to Intellectual Property Law – Evolutionary past – Intellectual Property Law Basics -
Types of Intellectual Property - Innovations and Inventions of Trade related Intellectual Property
Rights – Agencies Responsible for Intellectual Property Registration – Infringement - Regulatory –
Over use or Misuse of Intellectual Property Rights - Compliance and Liability Issues.
Intellectual Property: Intellectual property refers to creations of the mind: inventions; literary and artistic
works; and symbols, names and images used in commerce.
Intellectual property is divided into two categories:
Industrial Property: These include patents for inventions, trademarks, industrial designs and
geographical indications.
Copyright: Copy right will covers literary works (such as novels, poems and plays), films, music, artistic
works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to
copyright include those of performing artists in their performances, producers of phonograms in their
recordings, and broadcasters in their radio and television programs.
Intellectual property rights
Intellectual property rights are like any other property right. They allow creators, or owners, of patents,
trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights
are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to
benefit from the protection of moral and material interests resulting from authorship of scientific, literary
or artistic productions. The importance of intellectual property was first recognized in the Paris
Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of
Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property
Organization (WIPO).
Intellectual Property Law
Intellectual property law deals with the rules for securing and enforcing legal rights to inventions, designs,
and artistic works. Just as the law protects ownership of personal property and real estate, so too does it
protect the exclusive control of intangible assets. The purpose of these laws is to give an incentive for
people to develop creative works that benefit society, by ensuring they can profit from their works without
fear of misappropriation by others.
History of Intellectual Property Law
The intellectual property is a result of human creativity such as, literature, songs, new innovation,
advertising slogans, etc., are known as intellectual property. Basically property is of three types. They are
as follows,
a) Real property: it includes land, buildings etc,
b) Personal property: it includes jeweler, cars and goods.
c) Intellectual property: it includes literature, songs, etc.,
Historical background: trademarks have been existing for at least 3500 years. Earlier the potters used to
mark their earthen pots, as their identity. But the legalization and protection of trademarks was done in
seventeenth century in England. Trademarks have been legalized and are being used from 350 years. The
inventors were the first, who got exclusive rights for their inventions early in the fifteenth century in
Venice. In the sixteenth century, the trademarks were also introduced in Germany, France, Netherlands
and England. The growing inventions further highlighted the importance of trademarks protection. The
trademarks were regarded as an importance need to encourage inventors to invent new products, to make
the product available to public and to invest in inventions.
In the year 1709, in England, the first copyright rule of Queen Anne was introduced. This provided
protection to the authors. This motivated people to enter into creative act of authorship. When information
is not available, maintaining trade secrets is an indication of fair business practice. Trade secrets are very
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valuable and proprietors practice all the necessary means to protect them. Therefore, trademarks ensure
free and secure exchange of trade secrets among the agreements parties.
Intellectual property laws are not fixed or static. They need to be revised with every change in
technology and society.
Intellectual property law dates at least as far back as medieval Europe. In those times, “guilds,” or
associations of artisans in a particular industry, were granted authority by the governments to control the
regulation and conduct of the various industries. These guilds exercised control over what items could be
imported, marketed and produced and the manner in which new inventions, devices and procedures could
be introduced to the stream of commerce. Because the authorities for these guilds were given by the
governments, and because they concentrated the power to regulate an industry in a select few, and were
not earned by innovation, skill or creativity, these guilds did far more to stifle creativity and invention than
to encourage it.
Intellectual property law at that time was driven not by an interest in creation and innovation, but rather by
political and religious motivations. For example, the 1556 establishment of the Stationers’ Company’s
monopoly in England was largely intended to help limit the Protestant Reformation movement's power. By
putting the entire printing industry in the control of this company, the government and church could
prevent the dissemination of ideas.
HISTORY OF IPR IN INDIA
George Alfred De Penning is supposed to have made the first application for a patent in India in the year
1856. On February 28, 1856, the Government of India promulgated legislation to grant what was then
termed as "exclusive privileges for the encouragement of inventions of new manufactures" i.e the Patents
Act. On March 3, 1856, a civil engineer, George Alfred De Penning of 7, Grant’s Lane, Calcutta petitioned
the government of India for grant of exclusive privileges for his invention - "An Efficient punkah Pulling
Machine". On September 2, De Penning, submitted the Specifications for his invention along with
drawings to illustrate its working. These were accepted and the invention was granted the first ever
Intellectual Property protection in India.
Types of intellectual property
Mostly there are four types of intellectual property rights. They are
1. Trademarks/Service marks.
2. Copyrights
3. Patents.
4. Trade secrets.
5. Geographical indications.
1. Trademark: trade-mark is a recognizable sign, design, or expression which
identifies products or services of a particular source from those of others, although trademarks used to
identify services are usually called service marks. The trademark owner can be an individual, business
organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the
product itself. For the sake of corporate identity, trademarks are often displayed on company buildings.
A trademark identifies the brand owner of a particular product or service. Trademarks can be
licensed to others. The owner of a trademark may pursue legal action against trademark infringement.
Most countries require formal registration of a trademark as a precondition for pursuing this type of action.
The United States, Canada and other countries also recognize common law trademark rights, which means
action can be taken to protect an unregistered trademark if it is in use. Still, common law trademarks offer
the holder in general less legal protection than registered trademarks.
A trademark may be designated by the following symbols:
™ (the "trademark symbol", which is the letters "TM" in superscript, for an unregistered trademark, a
mark used to promote or brand goods)
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℠ (which is the letters "SM" in superscript, for an unregistered service mark, a mark used to promote
or brand services)
® (the letter "R" surrounded by a circle, for a registered trademark)
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these
elements. There is also a range of non-conventional trademarks comprising marks which do not fall into
these standard categories, such as those based on colour, smell, or sound (like jingles). Trademarks which
are considered offensive are often rejected according to a nation's trademark law.
The term trademark is also used informally to refer to any distinguishing attribute by which an individual
is readily identified, such as the well-known characteristics of celebrities. When a trademark is used in
relation to services rather than products, it may sometimes be called a service mark, particularly in
the United States
2. Copyright: Copyright is a legal right created by the law of a country that grants the creator of an
original work exclusive rights for its use and distribution. This is usually only for a limited time. The
exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair
use. A major limitation on copyright is that copyright protects only the original expression of ideas, and
not the underlying ideas themselves.
Copyright is a form of intellectual property, applicable to certain forms of creative work. Some, but not all
jurisdictions require "fixing" copyrighted works in a tangible form. It is often shared among multiple
authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to
as rights holders. These rights frequently include reproduction, control over derivative works,
distribution, public performance, and "moral rights" such as attribution.
Copyrights are considered territorial rights, which mean that they do not extend beyond the territory of a
specific jurisdiction. While many aspects of national copyright laws have been standardized
through international copyright agreements, copyright laws vary by country.
Typically, the duration of a copyright spans the author's life plus 50 to 100 years (that is, copyright
typically expires 50 to 100 years after the author dies, depending on the jurisdiction). Some countries
require certain copyright formalities to establishing copyright, but most recognize copyright in any
completed work, without formal registration. Generally, copyright is enforced as a civil matter, though
some jurisdictions do apply criminal sanctions.
3. Patents: patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a
limited period of time in exchange for detailed public disclosure of an invention. An invention is a solution
to a specific technological problem and is a product or a process. Patents are a form of intellectual
property.
The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive
rights vary widely between countries according to national laws and international agreements. Typically,
however, a granted patent application must include one or more claims that define the invention. A patent
may include many claims, each of which defines a specific property right. These claims must meet
relevant patentability requirements, such as novelty, usefulness, and non-obviousness. The exclusive right
granted to a patentee in most countries is the right to prevent others, or at least to try to prevent others,
from commercially making, using, selling, importing, or distributing a patented invention without
permission.
Under the World Trade Organization's (WTO) TRIPS Agreement, patents should be available in WTO
member states for any invention, in all fields of technology, provided they are new, involve an inventive
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step, and are capable of industrial application. Nevertheless, there are variations on what is patentable
subject matter from country to country, even among WTO member states. TRIPS also provides that
the term of protection available should be a minimum of twenty years
4. Trade secrets: any confidential business information which provides an enterprise a competitive edge
may be considered a trade secret. Trade secrets encompass manufacturing or industrial secrets and
commercial secrets. The unauthorized use of such information by persons other than the holder is regarded
as an unfair practice and a violation of the trade secret. Depending on the legal system, the protection of
trade secrets forms part of the general concept of protection against unfair competition or is based on
specific provisions or case law on the protection of confidential information.
The subject matter of trade secrets is usually defined in broad terms and includes sales methods,
distribution methods, consumer profiles, and advertising strategies: lists of suppliers and clients, and
manufacturing processes. While a final determination of what information constitutes a trade secret will
depend on the circumstances of each individual case, clearly unfair practices in respect of secret
information include industrial or commercial espionage, breach of contract and breach of confidence.
5) Geographical indications: A geographical indication (GI) is a sign used on products that have a
specific geographical origin and possess qualities or a reputation that are due to that origin. In order to
function as a GI, a sign must identify a product as originating in a given place. In addition, the qualities,
characteristics or reputation of the product should be essentially due to the place of origin. Since the
qualities depend on the geographical place of production, there is a clear link between the product and its
original place of production.
INNOVATION AND INTERVANTIONS ON TRADE RELATED IPR
The Agreement on Trade related Aspects of Intellectual Property Rights of the WTO is commonly
known as the TRIPS Agreement or simply TRIPS. TRIPS is one of the main agreements comprising the
World Trade Organisation (WTO) Agreement. This Agreement was negotiated as part of the eighth round
of multilateral trade negotiations in the period 1986-94 under General Agreement on Tariffs and Trade
(GATT) commonly referred to as the Uruguay Round extending from 1986 to 1994. It appears as Annex 1
C of the Marrakesh Agreement which is the name for the main WTO Agreement. The Uruguay Round
introduced intellectual property rights into the multilateral trading system for the first time through a set of
comprehensive disciplines.
The TRIPS Agreement is part of the “single undertaking” resulting from the Uruguay Round negotiations.
This implies that the TRIPS Agreement applies to all WTO members, mandatorily. It also means that the
provisions of the agreement are subject to WTO dispute settlement mechanism which is contained in the
Dispute Settlement Understanding (the “Understanding on Rules and Procedures Governing the Settlement
of Disputes”). The TRIPS Agreement is one of the most important agreements of the WTO.
TRIPS included in WTO
The precursor to the WTO was the General Agreement on Tariffs and Trade (GATT) which sought
to address issues related to international trade in goods. The operation of the GATT over the years resulted
in lowering of tariffs in general in international trade. As a result, increasingly, other domestic policies of
nations came into focus of the trading nations. The developed countries, including the United States started
facing increasing competition in manufactured exports from Newly Industrializing Countries (NICs) of
Asia.
For intellectual property issues in general, the negotiators were required to “clarify GATT provisions and
elaborate as appropriate new rules and disciplines” in order to reduce distortions and impediments to
international trade. As technology became more important in goods and commodities, having higher
proportion of invention and design (intellectual creativity) in their value, IPR became important in
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international trade. As a result, in the Uruguay Round negotiations, the intellectual property rights
dominated the discussions.
Intellectual property rights (IPRs) and protection to the owner of an IPR
Intellectual property rights or IPRs are rights given to people over the creations of their minds. These
rights are given by society through the State as an incentive to produce and disseminate ideas and
expressions that will benefit society as a whole. Unlike Fundamental Rights of citizens which are
guaranteed by the Constitution of a country, IPRs are statutory rights enacted by the law-making authority
in a country.
Conventionally, many forms of IPRs are recognized. They are traditionally classified into two main
categories:
• Copyright and related rights: i.e., rights granted to authors of literary and artistic works, and the
rights of performers, producers of phonograms and broadcasting organizations. The main purpose of
protection of copyright and related rights is to encourage and reward creative work. The distinguishing
feature of this category of rights is that they protect only the tangible expression of an idea and not the idea
itself. Further, these rights generally come into existence the moment a work is created and need not be
registered with any central authority.
• Industrial property: This category includes: (1) the protection of distinctive signs such as
trademarks and geographical indications, and (2) industrial property protected primarily to stimulate
innovation, design and the creation of technology which are protected through laws on protection of
inventions (patents), industrial designs and trade secrets.
IPRs grant protection to the owner as they give the creator an exclusive right over the use of his/her
intellectual creations generally for a limited period of time. However, in the case of certain categories of
IPRs the rights e.g. trade secrets and geographical indications can exist indefinitely so long as the right
holder takes steps to protect his right. In the case of certain other time limited IPRs, it is possible to renew
the rights periodically either for an indefinitely long period as in the case of trademarks or for a pre-
specified maximum limit as in the case of industrial designs.
IPRs covered under TRIPS
The IPRs covered by the TRIPS Agreement are:
• Copyright and related rights (i.e. the rights of performers, producers of sound
recordings and broadcasting organizations)
• Trademarks, including service marks
• Geographical indications including appellations of origin
• Industrial designs
• Patents including the protection of new varieties of plants
• Layout-designs (topographies) of integrated circuits
• Undisclosed information, including trade secrets and test data
