Humaira Jasmin & Dr. Bilal A. Bhat
Intellectual property is a right pervading some material object. The intangible products of a man’s brain are as valuable as his land, building, goods, money, belongings etc. it is quite different from real property or a formal property. In fiction, it is a property. Hence it is called as intellectual property. The rights relating to the intellectual property are recognized by law as the subject matter of rights of various intangible or immaterial products is human intelligence, skills and labor. In short intellectual property is basically a creation of intellect or relates to intellect. The nature of intellectual property is as (a) Intellectual property is only a property in fiction or a fictional property and not a real property though it is pervading some real property. (b) Intellectual property includes the right relating to scientific discoveries, industrial designs, trademarks, service marks, literary, artistic and scientific works and all other rights resulting from intellectual activity in the industrial, scientific, literacy or artistic field. (c) Intellectual property rights are legal rights governing the use of creations of the human mind. Legal protection is granted to the owner or creator of the Intellectual property under different acts such as Patents act, Trademarks act etc. (d) Intellectual property can be divided mainly into four kinds or types i.e., (i) Patent rights (ii) Copy rights (iii) Trademarks right (iv) Design rights (e) Intellectual property rights are protected under related acts. (f) The owner of an intellectual property can earn income by selling the rights of using the same. Such rights can be confined or extended to some prescribed period according to the provisions of the related acts. A wide body of federal and state laws protects creative property such as writing, music, drawings, paintings, photography, and films. Collectively, this body of law is called “intellectual property” law, which includes copyright, trademark, and patent laws, each applicable in various situations and each with its own set of technical rules. When obtaining permission to use creative works, you’re concerned primarily with copyright law. However, trademarks, trade secrets, and publicity and privacy rights sometimes come into play when permission to use certain types of works is sought. Below is a summary of the various types of intellectual property laws that are relevant to the permissions process. (A) Copyright: Federal copyright law protects original creative works such as paintings, writing, architecture, movies, software, photos, dance, and music. A work must meet certain minimum requirements to qualify for copyright protection. The length of protection also varies depending on when the work was created or first published. Copyright protection in India is available for any literary, dramatic, musical, sound recording and artistic work. The Copyright Act 1957 provides for registration of such works. Although an author’s copyright in a work is recognised even without registration, it is advisable to get the same registered since it furnishes prima facie evidence of copyright in a court of law. Copyright in a literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author subsists for fifty years from the lifetime of the author.
An Amendment Bill is on the anvil to extend the term in favour of performers (at present twenty five years) to fifty years (in order to bring it in accord with the TRIPS Agreement). The amendment also aims to bring original works relating to satellite broadcasting, computer software and digital technology under copyright protection. With the issuance of the International Copyright Order, 1999, the provisions of Copyright Act have been extended to nationals of all World Trade Organization (WTO) Member countries. (B) Trademark: Brand names such as Nike and Apple, as well as logos, slogans, and other devices that identify and distinguish products and services, are protected under federal and state trademark laws. Unlike copyrighted works, trademarks receive different degrees of protection depending on numerous variables, including the consumer awareness of the trademark, the type of service and product it identifies, and the geographic area in which the trademark is used. The law relating to registration of trade marks is governed by the Trade and Merchandise Marks Act, 1958. A distinctive mark (as defined) can be registered under the said Act. In case of infringement of registered trademarks, the statutory remedies of injunction, damages, accounts and delivery up of infringing labels and marks are available. An action for “passing-off” would lie in relation to an unregistered mark under certain circumstances. In order to simplify the law and meet India’s international obligations under the TRIPS, a new law called the Trade Marks Act, 1999 has been passed but has not yet been brought into force. Extensive changes have been introduced by the new Act. The major changes are given below: (i) Definition of a ‘mark’ is extended to include the shape of goods, packaging, and combination of colours. (ii) Service Marks: These would now be allowed to be registered. (iii) Well Known ‘Mark’: An application for registration of a mark may be refused if it is similar or identical to a well known mark. (iv) Collective marks: The new Act will permit registration of marks in favour of associations of persons as “collective marks”. Collective marks are defined as signs which distinguish the geographical origin, material, mode of manufacture, quality or other common characteristics of goods or services used or intended to be used, in commerce, by the members of a co-operative, an association, or other collective group or organisation. (v) Duration of registration: The 7 years period available under the existing Act has been increased to 10 years, extendable by further periods of ten years each. (vi) Multiclass registration applications: Applicants would be able to file a single application for marks capable of registration in number of classes. (vii) Infringement of a mark: Offences relating to trade mark infringement have been dealt with more severely under the new Act. Patent: The subject is covered by the Patents Act, 1970. India recognises product patent protection for a period of 14 years. However, in three areas: food, chemicals and pharmaceuticals, it recognises only a process patent for a period of 7 years. With the signing of the GATT Agreement, the Patents Act, 1970 has been amended by the Patents (Amendment) Act, 1999 to bring it in line with the Trade TRIPS Agreement. The amended law would allow the filing of all product patents with a regulatory authority. It also contains provision for granting Exclusive Marketing Rights (EMRs) for five years or till the patent is granted or rejected whichever is earlier.
The Organization has encouraged the World Intellectual Property Day community to move celebrations to virtual channels. The Registry will play its part in pursuing innovative ways of building awareness among the citizenry, by virtual and other means. It is concluded that earth is our home, and we need to care of it. We wish whole world, a Happy World Intellectual Property Day!
The Patents (Second Amendment) Act 20022 recently passed by the Parliament provides protection for new micro organisms and proposes a uniform 20 year term from filing date for all patents granted after commencement of the Act. It also provides for publication of all patent applications within 18 months of filing or priority date, whichever is earlier. Industrial Design: The Designs Act, 2000 protects certain designs. The features of shape, configuration, pattern, ornament or composition of lines or colours applied to any ‘article’ whether in two or three dimensional forms (or both), by an industrial process which appeals to the eye can be registered under the said Act. The Designs Act 2000 brought into force in May 2001 entitles an applicant to apply for registration in more than one class. However, registration is granted for only one class. Furthermore detailed classification of designs has been incorporated conforming to the international regime. Geographical Indication: The Geographical Indication of Goods (Registration and Protection) Act, 1999, was enacted to register and protect geographical indicia of goods that originate from or are manufactured in a particular territory, region or even locality. These goods include agricultural, natural or manufactured goods that are distinct from similar products due to quality, reputation or any other characteristic that is essentially attributable to their geographical origin. Under the Act, such distinctive geographical indicia can be protected by registration. The Act thus facilitates promotion of Indian goods when exported overseas and in turn protects consumers from deception. An application for registration of a geographical indication can be made by any authority, organization or association of persons representing the interest of the producers of the concerned goods. Registration would entitle a registered proprietor, or a duly authorized user, to the exclusive right of usage of that particular geographical indication with respect to the goods for which it is registered and to obtain relief for any infringement thereof. It may be pointed out however, that non-registration does not mean non-protection of a rightful user. Registration affords better protection in an action for infringement. The validity of bona fide registration of a geographical indication as a trade mark prior to the coming into force of the Act will not be affected by this enactment and will be treated as valid under the laws relating to trade marks. Right of Publicity: A patchwork of state laws known as the right of publicity protects the image and name of a person. These laws protect against the unauthorized use of a person’s name or image for commercial purposes—for example, the use of your picture on a box of cereal. The extent of this protection varies from state to state. Trade Secrets: State and federal trade secret laws protect sensitive business information. An example of a trade secret would be a confidential marketing plan for the introduction of a new software product or the secret recipe for a brand of salsa. The extent of trade secret protection depends on whether the information gives the business an advantage over competitors, is kept a secret, and is not known by competitors. Right of Privacy: Although not part of intellectual property laws, state privacy laws preserve the right of all people to be left alone. Invasion of privacy occurs when someone publishes or publicly exploits information about another person’s private affairs. Invasion of privacy laws prevent you from intruding on, exposing private facts about, or falsely portraying someone.
The extent of this protection may vary if the subject is a public figure—for example, a celebrity or politician. Intellectual property legislations in India: India is a member of almost all international conventions. The obligation of the member state arising out of the conventions can be enforced on the basis of reciprocity only. No right or obligation is enforceable unilaterally. Therefore to pass own laws on Intellectual property is in the interest of every country. In 1999, a considerate passage of major legislations with regard to protection of Intellectual property rights in harmony with international practices and in compliance with India’s obligations under TRIPS. These include, The Patents (Amendment) Act, 1999 to amend the patents act of 1970 that provides for establishment of a mailbox system to file patents and accords exclusive marketing rights for five years; The Trade marks Act, 1999 which repealed the Trade and Merchandise Act, 1958; The Copyrights (Amendment) Act, 1999; A sui generis legislation for the protection of geographical indications called the Geographical Indications of Goods (Registration and protection) Act, 1999; The Industrial Designs Act, 2000 which replaced the Designs act, 1911; The patents (Second Amendment), 1999 further to amend the Patents Act, 1970. This was a beginning of a new era in the field of Intellectual property. To streamline and strengthen the Intellectual property administration system in the country, the government has taken several measures. Projects relating to the modernization of patent information services and trademarks registry have been implemented with the help from WIPO/UNDP. The government has implemented projects for upgrading of patent office’s incorporating several components such as human resource development, recruiting additional examiners, infrastructure support and strengthening by the way of computerization and re-engineering work practices and eliminating backlog of patent applications, an amendment to the patent rules also was notified to simplify the procedural aspects. The first Indian patent laws were first promulgated in 1856. From time to time these were modified. New patent laws Indian Patent Act 1970 were made after the independence. The Act has now been radically amended to become fully compliant with the provisions of TRIPS. The most recent amendment was made in 2005 which were preceded by the amendments in 2000 and 2003. In India, the Department of Industrial Policy and Promotion under the Ministry of Commerce & Industry is responsible for Intellectual Property Rights relating to Patents, Designs, Trade Marks and Geographical Indication of Goods and oversees the initiative relating to their promotion and protection. These include the outlining of policy and its implementation through the Office of the Controller General of Patents, Designs and Trade Marks. Promoting awareness regarding protection of the Intellectual Property Rights is inherent in industrial property in conjunction with the World Intellectual Property Organization (WIPO) and apex industry organizations apart from similar initiatives involving regional industry associations. It also provides inputs on various issues relating to the Agreement on Trade Related Aspects of Intellectual Properties (TRIPS) related to World Trade Organization (WTO) in these fields. The Department undertakes technical cooperation programs with the World Intellectual Property Organization (WIPO), Geneva for the modernization and up gradation of Intellectual Property (IP) administration. World Intellectual Property Day sometimes referred as World IP Day is observed annually on April 26 with a variety of events and activities worldwide. The day was established by the World Intellectual Property Organization (WIPO) in 2000 to raise awareness of how patents, copyright, trademarks and designs impact on daily life and to celebrate creativity, and the contribution made by creators and innovators to the development of societies across the globe. This event has been also criticized by a number of activists and scholars as one-sided propaganda in favor of traditional copyright, ignoring alternatives related to copyleft and the free culture movement. WIPO promotes a general theme each year and this year’s theme is “Innovate for a Green future”. In light of the COVID-19 pandemic and the need to keep everyone safe and well, WIPO has not organized any physical events to mark the event. However, the Organization has encouraged the World Intellectual Property Day community to move celebrations to virtual channels. The Registry will play its part in pursuing innovative ways of building awareness among the citizenry, by virtual and other means. It is concluded that earth is our home, and we need to care of it. We wish whole world, a Happy World Intellectual Property Day!
( DR Bilal Ahmad is an Associate Professor at S K University of Agriculture Sciences & Technology- SKUAST Srinagar and Humaira Jasmin Research Scholar at Law Department, University of Kashmir Srinagar. Views are their own)
[email protected]