In this blogpost, Haridya Iyengar, Student, Jindal Global Law School, Haryana writes about legal protection available for the intellectual property covering copyright, patent, trademark and trade secrets.

This paper seeks to understand the types of legal protections available for the intellectual property.  It will do this by – First, exploring the history of legal protection given to intellectual works. Second, it will look at the legal protection offered presently for intellectual property.

History of Intellectual Property

The first instance of legal protection for intellectual property was seen during Roman times. While there was no notable law about intellectual property in Roman law, jurists often discussed the rights associated with the ownership of intellectual work. There are three notable cases refer to by Bruce Bugbee in his work “The Genesis of American Patent and Copyright law”. One of these cases was Vitruvius exposing intellectual property theft during a literary contest in Alexandria. Vitruvius exposed a false poet for stealing words and phrases while serving as a judge in the contest. However, the Romans did not actually recognize intellectual rights, the person who committed intellectual property theft was merely disgraced.

The first law on intellectual property was issued by the republic of Florence. The statute not only recognized intellectual property rights of the authors and inventors but, also built in an incentive mechanism, a compensation system for infringement and a term limit on those rights was imposed[1].

The first modern copyright statute was the Statute of Anne of 1710 which, gave protection to authors by granting them a 14-year copyright and a renewal of 14 years was possible if the author was still alive.

The Domain of Intellectual Property

 The subject matter of intellectual property is largely codified in copyright, patent, trademark and continental doctrines. However, this is just starting point it does not map out the entire landscape. This paper will try to explain all the domains of intellectual property.

Copyright

Copyright is the protection of original work in any fixed tangible medium of expression. Works that come under copyright protection include music, computer software, literary works, artistic works, photographic works, architectural and cinematographic works. Copyright protection can only be given to original works it may not be given to anything that was produced due to a result of copying. Furthermore, the product must be “non-utilitarian” or “non-functional” in nature. Finally, only actual expression are protected and not abstract ideas.

There are five major rights enjoyed by the owner of copyrights – the right to reproduce the work, the right to adapt it or derive works from it, the right to perform it publicly, the right to distribute copies of the work and the right to display works publicly.

Copyleft and Creative Common License

The Copyleft ideology is a build on the copyright system which is already in place. There are four major freedoms which cause a distinction between the two – the freedom to use the software anyway one wishes, the freedom to modify the software any way one wishes, the freedom to distribute the software and the freedom to distribute the modifications made to the software. However, any software which has been modified through the Copyleft system must be similarly accessible and usable[2].

The creative commons licence is very similar to the Copyleft system. However, it is more flexible than the Copyleft system. It allows the author or creator of the work to set the level of restriction on his creation. There are different constraints that can be set under the creative common licence but, all of them share one attribute which is an acknowledgement of the author of the work[3].

Patents

Patent laws protect the inventions and discovery of new and useful machinery, processes, articles of manufacture, or composition of matter. There are three types of patent laws – utility patents, design patents and plant patents. Utility patents protect any new and useful machinery, processes, articles of manufacture, and composition of matter. This also includes improvements made on the creations. Design patents protect any new and original designs made on articles of manufacture. Plant patents protect a new variety of plants. The term of a patent in India lasts for 20 years from the date of filing the patent application.

The patent holder is granted the right to make, sell and authorize others to sell the patented item. However, unlike copyright protection others who independently invent the same process or machine may patent or market their invention.

Trade Secret

Trade secrets typically rely on private measures to be protected rather than state action. A trade secret is any information that helps make the operation and functioning of a business or any other enterprise smoother. The secret may be a formula, process of manufacturing, list of customers or a pattern of machines. An intellectual work is not a trade secret if it is generally known within the industry, published in journals, books, etc.
Businesses and enterprises usually ask new employees to sign a contract to safeguard their trade secrets before letting them join. However, an employee can always request a non-disclosure clause to be added to a contract whereby, he is not told any of the company’s trade secrets.

Trademark

A trademark is a symbol, name, word, device or any combination which is adopted by a company to distinguish their products from the rest. However, a trademark is restricted by whether or not the symbol or word is used in everyday language. For instance, a common word such as aspirin or water may not be trademarked.

Moral Rights

A moral right is the right to protect the personal and reputational value of something rather than the economic value. Moral rights signify the connection between the creator and his or her creation. The distinction between moral rights and copyright, patents or trademarks is that moral right are non-transferable.

Conclusion

In conclusion, the domain of the intellectual property is decided based not only on the utility of intellectual property but, also based on the thought process of the creator.

[1]  Colin Humphreys (1997). Review of Terence Kealey ‘The Economic Laws of Scientific Research’ European Review, 5, pp 443-445. doi:10.1002/(SICI)1234-981X(199710)5:4<443::AID-EURO204>3.0.CO;2-1.

[2] http://www.gnu.org/philosophy/pragmatic.en.html

[3] https://creativecommons.org/licenses/