This article is written by Idhika A Agarwal.
Table of Contents
Intellectual Property, though cannot be confined into definite words, means the intangible asset created by the mental efforts of a person. The ‘expression of the ideas’ becomes necessary to avail protection. The monopolistic right of usage granted to the IP holder acts as a reward for the manifestation of his intellectual.
The common types of intellectual property known to mankind are:
- protects an invention as well as the process of obtaining the invention as a result of original thought. TRIPS mandated a minimum 20-year protection.
- Protects the Artistic/Literary original expressions by individuals of their intellect. The work must be a creative expression. Berne Convention grants a lifetime protection and additional 50 years.
- Related Rights/ neighbouring Rights of Broadcasting & Performances
- To protect the investment, effort and creativity of the people other than the creator when bringing the work to the public.
- Acts as a tool of communication used by the producers of an article and is the identification source used by customers to associate the good and its quality to a brand. They should be distinctive and not-deceptive.
- Industrial design
- Relates to the ‘new and original’ appearance of the articles and encourage creativity.
- Geographical Indicators
- Help to associate the products and not services from their source of origin (geographical region). Human factors and quality of the good is attributable to the particular region.
- Plant variety
- protects the new plant varieties as well as the skill and investments involved in breeding them.
- Unfair Competition & Trade Secrets
- protects the consumers against misleading and confusing tactics used by companies when referring to their competitors for boosting sales. It also includes advertising techniques used to derogate a competitor’s IP.
- Traditional Knowledge, Traditional Cultural Expression and Genetic Resource
- In furtherance of Article 31 of the UN Declaration, and Doha Declaration, the rights of people in this field were recognized. They should not maintain and develop IP over culture and trade. On the contrary, efforts should be made to preserve and promote the culture that fosters in the ancient history of each country.
Intellectual property in a nutshell means certain exclusive rights granted to the originator of a unique thing also known as ‘Intellectual capital’. According to the economic philosophy, the grants to individuals act as an encouragement for the laborious hours they put in as well as acts as a motivator for them to work for the public welfare. This is in furtherance of Locke’s labour theory of property, Nordhaus’s theory of incentive, and Mill’s theory of reward, it is collectively established that the State has a duty to enforce the rights of the individual and respect their efforts by all possible means.
International Framework of IP Laws
There are certain organisations like WIPO & WTO that administer treaties and various conventions related to the different IP Laws. The treaties lay down the:
- approach to the protection of a particular right of the creator.
- minimum standards of protection to be granted to such an IP.
- govern the amendments to be made to the domestic laws of the member nations.
There is no single Convention that caters to all types of IPR. Moreover, the specific pieces of legislation are also undergoing a continuous improvements and amendments to suit the needs of the present generation. For instance, recognition of computer software and databases within the regime of Copyright laws.
The common categorisation of IP that is followed across the globe along with their governing regulations are as follows:
- Berne Convention (1886): This is one of the oldest convention governing the copyright protection. It lays down the minimum standards for protection of copyrights that need to be followed by each member country. The latest version of this Convention in 1971 bars the discrimination of foreign works and promotes national treatment of the applicants in all the member nations.
- TRIPS Agreement (1994): As a result of the Uruguay round table conference, the WTO incorporated the TRIPS Agreement. It consisted of the compliance of the Berne Convention as well as incorporated the advanced intellectual works like computer program within the ambit of copyrights. It further excludes the moral rights as adopted in Article 6(b) of the Berne Convention.
- WIPO Copyright Treaty (1996): It recognized the transmission of works via the digital platforms including Internet or databases and provides for their protection thereof.
- Marrakesh Treaty (2013): this latest regulation, pays great emphasis to the limitations and possible exceptions that should be given from various copyrights such as reproduction of a work for the blind. It also facilitates the cross border exchanges of works.
Copyrights are closely linked to the Related or Neighbouring Rights. Laws that cater to these rights are:
- Rome Convention (1961): initiated the inculcation of protection of related rights into their domestic laws with certain limitations
- WIPO Performances and Phonograms Treaty (WPPT,1996): Article 5-10 give economic as well as moral protection to the producers and performers of a copyrighted material subject to limitations.
- Beijing Treaty on Audio Visual Performances (BTAP, 2012): deals with the protection of unfixed (live) performances with limitations. It will become active once there are 30 member states.
- TRIPS Agreement: Article 15.1 of the Agreement lays down the necessary conditions for the protection of a trademark, i.e. (i) Distinctive (ii) Not Deceptive.
- Trademark Law Treaty (1994): standardises the national and regional Trademarks registration and facilitates multijurisdictional registration of the trademarks.
- Singapore Treaty of Law of Trademark (2006): Administered by WIPO, it recognises the recent developments like holograms under the ambit of trademark law.
- WIPO- Madrid System- this governs the registration of marks in more than 100 countries.
- Multijurisdictional Registrations
- European Union IP Office (EUIPO, 1994) : All European Union Countries can register hassle free.
- Benelux Office of IP (BOIP, 2005): Belgium, Netherlands, Luxembourg nationals can avail this advantage.
- African IP Organization (OAPI, 1977): 17 African Member States can file for the trademark in the office.
3. Geographical Indications (GI) & Appellations of Origin
- Paris Convention (1883)- uses the words ‘indications of sources’ and ‘appellations of origin’, instead of GI for referring to a country/region to widen the ambit of laws and protection.
- TRIPS Agreement (1994): Article 22 identifies goods to originate in a particular place and thereby attributing it the quality and reputation of the particular geographic location.
- Hague System: deals with the international application for the registration of Appellations of Origin.
4. Industrial Design (ID):
- Hague System: facilitates a single international application for the Designs.
- EUIPO, BOIP, OAPI, ARIPO also facilitate multijurisdictional registrations in the regions as mentioned above.
- Paris Convention (1883)- lays down the right to priority given to an IP holder for a period of 12 months over other applicants for a similar Patent.
- European Patent Organisation: aims at providing single European Patent in the region.
- Patent Cooperation Treaty (1970)- facilitates a multijurisdictional filing mechanism by virtue of one single application which follows a 3 step procedure. i.e. (i) Filing, (ii) International Phase, (iii) Optional National/ Regional Phase
6. Trade Secrets and Unfair Competition:
- TRIPS Agreement: lays down general standards for Trade Secrets as well the conditions, i.e. (i)Secret (ii) Commercial Value (iii) Ensuring confidentiality
- Paris Convention (1883): As per the Convention, Unfair Competition is defined as any act of competition, contrary to honest practices in industrial practice. The Article 10 bis (3) also lays down that (i) Creating Confusion, (ii) Making False Allegations, and (iii) Misleading Conduct are the 3 things that companies should avoid when dealing with customers.
7. New Plant Variety:
- International Union for Protection of New Plant Varieties (UPOV, 1961): ensures the acknowledgement of new plant varieties by member states by laying down principles and guidelines that govern the breeding, rights of the breeders.
Development, as described by The World Bank means to “improve the quality of life… better education, higher standards of health and nutrition, less poverty, a cleaner environment, more equality of opportunity, greater individual freedom, and a richer cultural life.“
The broad categories of development are as follows:
- Social Development– The influence on the lives of the people of the society.
- Economic Development– Concerned with the average rise in the incomes of people and their standard of living.
- Political Development-Type of governance followed in the country.
- Environmental Development– Concerned with protection of nature as a whole.
IP is one such arena that is widely used by all industries/sectors; namely: education, health care, environment, etc. For instance Samsung’s surgical robots, IIT Ropar’s Stubble removing machines, Walmart’s Robotic Bees. IP strives to enhance the culture of the society and creativity of people such that individuals keep making better and innovative products. The International domains provide enough flexibility to the member states such that their national laws ensure the maintenance of biodiversity, public policy as well as micro and macroeconomics that further the aim of development.
The most important advances were made by:
WIPO – mandated a formal initiative in 2004 called “Development Agenda”
- Administers processes for International Applications
- Training & Assistance for technical and legislative processes
- Maintains databases for information that is made available to all.
- At the 2007 general assembly, 45 suggestions were adopted related to IP and Development. The same were divided into 6 clusters:
- Cluster A- Technical Assistance and capacity building
- Cluster B- Norm-setting, flexibilities, public policy and public domain
- Cluster C- Technology Transfer, Information and Communication Technologies (ICT) and Access to Knowledge
- Cluster D- Assessment, Evaluation and Impact Studies
- Cluster E- Institutional Matters including Mandate and Governance
- Cluster F- Other Issues
- In a nutshell, these clusters conduct yearly reviews, foster domestic innovation, incorporates health, trade, science, competition and increase transparency in all processes.
- WIPO has also introduced a special unit to cater to the Least Developed Countries to ensure that they attain all possible levels of socio-economic development and are able to partner up with developed countries for their future ventures.
Berne Convention for Protection of Literary and Artistic Works (1886)- Fosters compulsory licensing for translation of certain works in different languages. The same may go against the will of the owner and his authorise reproduction
To conclude, the International Domain provides for all possible types of IP. They are ever evolving and incorporate new developments on a regular basis. For instance: inclusion of transfer via the internet, computer programming, translations, provisions for specially abled (blind) as well as providing multijurisdictional protection by member states. Thus, the national laws should further on the guidelines provided by the Global Organizations to ensure a streamlined procedure for registration and enforcement of rights.
International Regime and Indian IP Development
As noticed by WIPO, developing countries lack the requisite skill as well as knowledge to manage a proper IP Office for the purpose of registration and the protection of the exclusive rights.
India being a signatory to almost all the International Conventions is bound to follow the minimum standard laid down by them. India being one of the developing nations has lagged in formulating laws. The Basmati Rice Controversy with RiceTec is a stark example of lenient Indian laws. However, the country has now managed to incorporate the IP India Office under the Ministry of Commerce & Industry. Its portal has information about registration as well and Acts and Rules relating to the particular IP in the country for the ease of the public.
The Indian courts have started granting interim injunctions in matter that are sensitive in nature and have also incorporated the ‘National Intellectual Property Rights Policy’. Furthermore, as evident in the case of Tata Sons & Yahoo Inc, Courts have been rather proactive in the field of trademarks protection. India also recognizes the trans-border reputation as highlighted in the Whirlpool Case.
Pursuant to the Madrid Protocol, India inserted Chapter IVA and now can register their trademarks in 97 other countries. The 1957 Indian Copyright Act (along with the Amendment of 1999) encompasses the ideology of the Berne Convention, Rome Convention and Geneva Convention, thus, India is bound to provide ‘national treatment’ to the foreign national as well.
TRIPS mandated product patent protection as well as suggested changes in the plant variety protection. By virtue of the same, changes in the Indian Patent Law were incorporated in due time. Following this, a new legislation called Plant Varieties Protection and Farmers Right Act, 2001 was adopted that catered to the sui generis system for protection of plants.
India has taken various measures to strengthen the enforcement of IP Rights of individuals, for instance:
- National Police Academy, Hyderabad and National Academy of Customs, Excise and Narcotics in collaboration, have conducted several training programs on copyright laws for the police and customs officers.
- Copyright enforcement Advisory Council (CEAC) has been set up to look after training programs of the individuals.
- Special cells in 23 states have been inaugurated for the purpose of recognizing copyright infringement.
However, the measures are inclined towards copyright protection more than any other IP. India needs to work on the other types of IP prevalent t have a more holistic protection.
Conclusion & Suggestions
Relying on the case of Novartis AG v. Union of India, the Supreme Court has reiterated that patent products should be prevented from ‘ever-greening’ since the same is exploited by the pharmaceutical companies to sell life-saving drugs at high prices. The simple interpretation of this is that, the IP in India should be utilized to help the public at large rather than fill the pockets of the corporate giants.
We live in a world that constantly evolves as every second passes by. In terms of technology, the research does not pause at any instant. All Multinationals and technology giants have invested huge amounts in R&D departments, that work to increase the efficiency of the production and thereby the returns on investments made. IP aims at ensuring ease of doing commercial business at lower costs.
For instance: Created by Aaron Baughman, Arun Joseph, Brian O’Connell, and Diwesh Pandey (2017), the adaptable all weather clothes, under the name of IBM have made it to the most interesting inventions. The clothes’ fabric is patented and consists of various sensors and make the clothes optimal to the external conditions and heart rate. When such investments in R&D are made, they can be recouped by offering investors exclusive rights on the technologies developed: this is usually achieved by either granting patents covering the ESTs or protecting such technologies as confidential information.
According to the US Chamber of Commerce’s Global Intellectual Property Index, India got a score of 8.75/35 due to a ‘fundamental weakness’ in its IP framework.
In furtherance of the same, I would like to discuss the loopholes in protection of IP laws in India in a 3-fold manner.
- Lack of awareness: the trademarks and copyrights can by enforced in criminal courts as well as civil. It is said that due to the lack of awareness among the police personnel, the initial investigation stage becomes lenient and therefore not effective.
- Judicial Delays: needless to say India has a backlog of cases that affects immensely with the right of IP holders since speedy trial is a matter of right.
- Population: The abundant population makes is very difficult to keep a track of the registered marks and associated companies. Small market players make ample infringements day in and day out. However, there is no record of the same.
- Film Industry: It is noted that Bollywood contributes majorly to piracy of other regional works and pays $2.5Billion each year. The same leads to reduction of profits earned by this industry.
In order to combat these hardships, India should focus on enhancing:
- Dispute resolution mechanisms: The corporates should appoint legal practitioners that shall indulge into arbitration, mediation and other Alternate Dispute Resolution Techniques that can give a faster yet binding adjudication of matters.
- Dedicate a special unit: Like the advent of IP tribunals into the judicial mechanism of India, the moment a claim infringement is filed, the dedicated unit should investigate the claims instead of the police. IP Rights are a matter of expertise and thus cannot be undertaken like a more common unlawful activity like murder.
If not, there should be training centres that provide a basic level of knowledge to the police to improve their investigation techniques.
To conclude, India, being a country with huge population and great skill, shall work for the benefit of the world at large like the IIT Ropar’s Stubble removal machine. According to Dubillier Condenser Case, innovations should utilize the natural laws for some beneficial purpose in any form. India should focus on improving the quality of life and health of people as well as various fields like environment and healthcare. For instance, Patents related to solar photovoltaic energy have already been granted in abundance in US and Japan.
These two nations play a significant role in the bio-mass to electricity, solar power, coal fields, carbon storage fields. India should also step into this sector. Samsung’s Surgical Robots (2015) Invented by Kyung Won Moon and Tae Sin Ha, Samsung’s electronic surgeon would possess greater mobility and articulation than pre-existing robots. This is an important step in the field of healthcare. Microsoft’s Data Reef: An Environmentally-Conscious Underwater Data Center (2016) plans on taking their data centers underwater, for an artificial reef. The same will improve their work as well as the environment.
Thus, firms and individuals across the globe should work for the improvement of the living standards of people rather than focus on their personal gains.
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