This article is written by Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law College, Greater Noida. The article discusses intellectual Property and its origin of IPR in particular.
Table of Contents
Introduction
Intellectual Property (IP) deals with any basic construction of human intelligence such as artistic, literary, technical or scientific constructions. Intellectual Property Rights (IPR) refers to the legal rights granted to the inventor or manufacturer to protect their invention or manufacture product. These legal rights confer an exclusive right on the inventor/manufacturer or its operator who makes full use of it’s his invention/product for a limited period of time.
In other words, we can say that the legal rights prohibit all others from using the Intellectual Property for commercial purposes without the prior consent of the IP rights holder. IP rights include trade secrets, utility models, patents, trademarks, geographical indications, industrial design, layout design of integrated circuits, copyright and related rights, and new varieties of plants. It is very well settled that IP plays an important role in the modern economy.Â
There are many types of intellectual property protection. A patent is a recognition for an invention that satisfies the criteria of global innovation, and industrial application. IPR is essential for better identification, planning, commercialization, rendering, and thus the preservation of inventions or creativity. Each industry should develop its speciality based on its IPR policies, management style, strategies, and so on. Currently, the pharmaceutical industry has an emerging IPR strategy, which needs better focus and outlook in the coming era.
IPR is a strong tool, to protect the investment, time, money, and effort invested by the inventor/creator of the IP, as it gives the inventor/creator an exclusive right for a certain period of time for the use of its invention/creation. Thus, IPR affects the economic development of a country by promoting healthy competition and encouraging industrial growth and economic growth. The present review presents a brief description of IPR with particular emphasis on pharmaceuticals.
Meaning of intellectual Property
Intellectual Property can be defined as inventions of the mind, innovations, literary and artistic work, symbols, names and images used in commerce. The objective of intellectual property protection is to encourage the creativity of the human mind for the benefit of all and to ensure that the benefits arising from exploiting a creation benefit the creator. This will encourage creative activity and give investors a reasonable return on their investment in research and development.
IP empowers individuals, enterprises, or other entities to exclude others from the use of their creations. Intellectual Property empowers individuals, enterprises, or other entities to exclude others from the use of their creations without their consent.
According to Article 2 of the WIPO (World Intellectual Property Organisation) – Central Organisation for the protection of Intellectual Property Laws and the expert organization of the UN, “”Intellectual Property shall include the rights relating to literary, artistic and scientific works, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service marks and commercial names and designations, protection against unfair competition, and all the other rights resulting from intellectual activity in the industrial, scientific, literary or scientific fields.””Â
Meaning of intellectual property rights
The intellectual property right is a kind of legal right that protects a person’s artistic works, literary works, inventions or discoveries or a symbol or design for a specific period of time. Intellectual property owners are given certain rights by which they can enjoy their Property without any disturbances and prevent others from using them, although these rights are also called monopoly rights of exploitation, they are limited in geographical range, time and scope.
As a result, intellectual property rights can have a direct and substantial impact on industry and business, as the owners of IPRs one can enforce such rights and can stop the manufacture, use, or sale of a product to the public. IP protection encourages publication, distribution, and disclosure of the creation to the public, rather than keeping it a secret and to encourage commercial enterprises to select creative works for exploitation.
Nature of intellectual Property
- Intangible Rights over Tangible Property: The main Property that distinguishes IP from other forms of Property is its intangibility. While there are many important differences between different forms of IP, one factor they share is that they establish property protection over intangible things such as ideas, inventions, signs and information whereas intangible assets and close relationships are a tangible object. In which they are embedded. It allows creators or owners to benefit from their works when they are used commercially.
- Right to sue: In the language of the law, IP is an asset that can be owned and dealt with. Most forms of IP are contested in rights of action that are enforced only by legal action and by those who have rights. IP is a property right and can, therefore, be inherited, bought, gifted, sold, licensed, entrusted or pledged. The holder of an IPR owner has a type of Property that he can use the way he likes subject to certain conditions and takes legal action against the person who without his consent used his invention and can receive compensation against real Property.
- Rights and Duties: IP gives rise not only to property rights but also duties. The owner of the IP has the right to perform certain functions in relation to his work/product. He has the exclusive right to produce the work, make copies of the work, market work, etc. There is also a negative right to prevent third parties from exercising their statutory rights.
- Coexistence of different rights: Different types of IPRs can co-exist in relation to a particular function. For example, an invention may be patented, and the invention photograph may be copyrighted. A design can be protected under the Design Act, and the design can also be incorporated into a trademark. There are many similarities and differences between the various rights that can exist together in IP. For example, there are common grounds between patent and industrial design; Copyright and neighbouring rights, trademarks and geographical indications, and so on. Some intellectual property rights are positive rights; the rest of them are negative rights.
- Exhaustion of rights: Intellectual property rights are generally subject to the doctrine of exhaustion. Exhaustion basically means that after the first sale by the right holder or by its exhaustion authority, his right ceases and he is not entitled to stop further movement of the goods. Thus, once an IP rights holder has sold a physical product to which IPRs are attached, it cannot prevent subsequent resale of that product. The right terminates with the first consent. This principle is based on the concept of free movement of goods which is in force by consent or right of the rights holder. The exclusive right to sell goods cannot be exercised twice in relation to the same goods. The right to restrict further movements has expired as the right holder has already earned his share by the act of placing goods for the first sale in the market.
- Dynamism: IPR is in the process of continuous development. As technology is rapidly evolving in all areas of human activities, the field of IP is also growing. As per the requirement of scientific and technological progress, new items are being added to the scope of IPR, and the scope of its preservation is being expanded. Bio Patents, Software Copyrights, Plant Diversity Protection, these are few names which reflect contemporary developments in the field of IPR. The importance of intellectual property and its mobility is well established and reflected at all levels, including statutory, administrative and judicial.
Scope of intellectual Property
The scope of IP rights is broad; two classification modes are used to determine whether IP is copyright or Industrial Property. Industrial properties include patents or inventions, trademarks, trade names, biodiversity, plant breeding rights and other commercial interests. A patent gives its holder the exclusive right to use the Intellectual Property for the purposes of making money from the invention.Â
An invention is itself a new creation, process, machine or manufacture. Having copyright does not give you the exclusive right to an idea, but it protects the expression of ideas that are different from a patent. Copyright covers many fields, from art and literature to scientific works and software.
Even music and audio-visual works are covered by copyright laws. The duration of copyright protection exists 60 years after the death of the creator. In other words, an author’s book is copyrighted for his entire life and then 60 years after his death. Unlike patent laws, there is no requirement of the administrative process in copyright laws.
Why promote and protect Intellectual Property?
There are several reasons for promoting and protecting intellectual property. Some of them are:
- Progress and the good of humanity remain in the ability to create and invent new works in the field of technology and culture.
- IP protection encourages publication, distribution, and disclosure of the creation to the public, rather than keeping it a secret.
- Promotion and protection of intellectual Property promote economic development, generates new jobs and industries, and improves the quality of life.
Intellectual Property helps in balancing between the innovator’s interests and public interest, provide an environment where innovation, creativity and invention can flourish and benefit all.
Kinds of intellectual Property
The subject of intellectual property is very broad. There are many different forms of rights that together make up intellectual property. IP can be basically divided into two categories, that is, industrial Property and intellectual property. Traditionally, many IPRs were collectively known as industrial assets.
It mainly consisted of patents, trademarks, and designs. Now, the protection of industrial property extends to utility models, service marks, trade names, passes, signs of source or origin, including geographical indications, and the suppression of unfair competition. It can be said that the term ‘industrial property” is the predecessor of ‘intellectual property”.
Copyright
Copyright law deals with the protection and exploitation of the expression of ideas in a tangible form. Copyright has evolved over many centuries with respect to changing ideas about creativity and new means of communication and media. In the modern world, the law of copyright provides not only a legal framework for the protection of the traditional beneficiaries of copyright, the individual writer, composer or artist, but also the publication required for the creation of work by major cultural industries, film; Broadcast and recording industry; And computer and software industries.
It resides in literary, dramatic, musical and artistic works in ”original’ cinematic films, and in sound recordings set in a concrete medium. To be protected as the copyright, the idea must be expressed in original form. Copyright acknowledges both the economic and moral rights of the owner. The right to copyright is, by the principle of fair use, a privilege for others, without the copyright owner’s permission to use copyrighted material. By the application of the doctrine of fair use, the law of copyright balances private and public interests.
Patent
Patent law recognizes the exclusive right of a patent holder to derive commercial benefits from his invention. A patent is a special right granted to the owner of an invention to the manufacture, use, and market the invention, provided that the invention meets certain conditions laid down in law. Exclusive right means that no person can manufacture, use, or market an invention without the consent of the patent holder. This exclusive right to patent is for a limited time only.
To qualify for patent protection, an invention must fall within the scope of the patentable subject and satisfy the three statutory requirements of innovation, inventive step, and industrial application. As long as the patent applicant is the first to invent the claimed invention, the novelty and necessity are by and large satisfied. Novelty can be inferred by prior publication or prior use. Mere discovery ‘can’t be considered as an invention. Patents are not allowed for any idea or principle.
The purpose of patent law is to encourage scientific research, new technology, and industrial progress. The economic value of patent information is that it provides technical information to the industry that can be used for commercial purposes. If there is no protection, then there may be enough incentive to take a free ride at another person’s investment. This ability of free-riding reduces the incentive to invent something new because the inventor may not feel motivated to invent due to lack of incentives.Â
Trademark
A trademark is a badge of origin. It is a specific sign used to make the source of goods and services public in relation to goods and services and to distinguish goods and services from other entities. This establishes a link between the proprietor and the product. It portrays the nature and quality of a product. The essential function of a trademark is to indicate the origin of the goods to which it is attached or in relation to which it is used. It identifies the product, guarantees quality and helps advertise the product. The trademark is also the objective symbol of goodwill that a business has created.
Any sign or any combination thereof, capable of distinguishing the goods or services of another undertaking, is capable of creating a trademark. It can be a combination of a name, word, phrase, logo, symbol, design, image, shape, colour, personal name, letter, number, figurative element and colour, as well as any combination representing a graph. Trademark registration may be indefinitely renewable.
Geographical indication
It is a name or sign used on certain products which corresponds to a geographic location or origin of the product, the use of geographical location may act as a certification that the product possesses certain qualities as per the traditional method. Darjeeling tea and basmati rice are a common example of geographical indication. The relationship between objects and place becomes so well known that any reference to that place is reminiscent of goods originating there and vice versa.
It performs three functions. First, they identify the goods as origin of a particular region or that region or locality; Secondly, they suggest to consumers that goods come from a region where a given quality, reputation, or other characteristics of the goods are essentially attributed to their geographic origin, and third, they promote the goods of producers of a particular region. They suggest the consumer that the goods come from this area where a given quality, reputation or other characteristics of goods are essentially attributable to the geographic region.
It is necessary that the product obtains its qualities and reputation from that place. Since those properties depend on the geographic location of production, a specific link exists between the products and the place of origin. Geographical Indications are protected under the Geographical Indication of Goods (Registration and Protection) Act, 1999.
Industrial design
It is one of the forms of IPR that protects the visual design of the object which is not purely utilized. It consists of the creation of features of shape, configuration, pattern, ornamentation or composition of lines or colours applied to any article in two or three-dimensional form or combination of one or more features. Design protection deals with the outer appearance of an article, including decoration, lines, colours, shape, texture and materials. It may consist of three-dimensional features such as colours, shapes and shape of an article or two-dimensional features such as shapes or surface textures or other combinations.
Plant variety
A new variety of plant breeder is protected by the State. To be eligible for plant diversity protection, diversity must be novel, distinct and similar to existing varieties and its essential characteristics under the Plant Protection and Protection Act, 2001 should be uniform and stable. A plant breeder is given a license or special right to do the following in relation to different types of promotional material:
- Produce and reproduce the materialÂ
- Condition the material for the purpose of propagation
- Offer material for sale
- Sell the materials
- Export the materials
- Import the materials
- The stock of goods for the above purposes
Typically, countries are protecting new plant varieties through the Sui Genis system. The general purpose of conservation is to encourage those who intend to manufacture, finance, or exploit such products to serve their purpose, particularly where they otherwise do not work at all.
The enactment of the Protection of Plant Varieties and ‘Farmers’ Rights Act 2001 is an outcome of the India’sIndia’s obligation which arose from article 27(3)(b) of the TRIPs Agreement of 2001 which obliges members to protect plant varieties either by patents or by effective sui generic system or by any combination thereof India declined to protect plant varieties by a sui generis law, i.e. the Plant Varieties Act.Â
 How an average person benefits?
There are many benefits of acquiring intellectual property rights. For example, protecting your IP may result in:
- The increased market value of your business – IP can generate income for your business through licensing, selling or commercializing protected products or services. This, in turn, can improve your stock market or increase your profit. In the case of a sale, merger or acquisition, registered and protected IP assets can increase the value of your business.
- Convert ideas into profitable assets – IP can help to convert creative ideas into commercially successful products and services. For example, licensing your patent or copyright can result in a steady stream of royalties and additional income that can result in profitable assets.
- Market the products and services of the business – IP is necessary to create an image for your business like trademark, logo, or design of your product. So, it will help in differentiating the product and advertise and promote it to the customers.
- Increase export opportunities for the business – IP can increase the competition in export markets. One can use their brands and design for marketing foreign goods and are looking for franchising agreements with foreign companies or to export your patented products. Consumers won’t be confident buying means without products or reliable services, international trademark protection and enforcement machinery to discourage counterfeiting and piracy.
Need for Sui Generis protection in IPR
“Sui Generis” stands for its own kind and includes a set of laws which are nationally recognized and ways of extending plant variety protection other than through patents. TRIPs themselves do not define what the meaning of Sui Generis is or should be. One of the main purposes of the sui generis protection is that the exclusive monopoly granted by the State should enable the real owners of traditional knowledge to be adequately compensated for their contribution. It also refers to a law that can protect images contained in construction, inventions, models, drawings, designs, innovations, figures, emblems, petroglyphs, art, music, history and another traditional artistic feeling.
One of the main objectives of Sui generis protection granted by that exclusive monopoly of the State should enable traditional ‘owner’s knowledge for adequate compensation of their contribution towards economic growth. In general, it refers to a particular form of protection, a form that is specifically adapted to a specific subject or specific circumstances, which is specifically made for specific needs, priorities, and reality.
The “effective sui generis system” referred to in Article 27.3 (b) of the TRIPS Agreement is clearly intended as an alternative to the patent system. In this regard, it is useful to remember that the UPOV system was also established in 1961, which, as a special type of protection, would cover only plant varieties and especially adapted plant varieties, instead of the patent system. In this sense, the UPOV system was already conceived as an alternative to the patent system in 1961 as a Sui Generis protection with different provisions.
The need to Develop a suitable regime in the case of IPR to include traditional medicine adequate measures for ‘sharing profit”. Codified System and measures of Traditional Medicines are TKDL(Traditional Knowledge Digital Library) like databases is expected to play a major role in preventing for bio-theft but non-codified.
Such as regulation of traditional medicine folklore practices, tribal practices etc. New rules are urgently needed for creating patented ‘and Sui generis” system for the preservation and promotion of our traditional knowledge Like some national-level programs initiated by the National Innovation Foundation to enable non-traditional traditional medical practices Identified, documented, standardized and better used for therapeutic benefits as well as ailing mankind.
Can a person get IP rights for Tribal songs, if yes, then how?
India is a diverse country when we talk about folk and ethnic culture with ethnic, linguistic and religious groups with hundreds of origins and lifestyles, divided over time, into parts and over the centuries. The notion of folklore in India is associated with various art forms, mainly tribal and simple rural people, rather than raw and ephemeral. Folklore and its laws are complicated by the presence of hundreds of ethnic groups with their languages ​​and dialects, costume styles, paintings, mythology, legends, songs, music, dance and theatre. To simplify this folklore, some common denominators such as economics, community size, etc.
In recent times there has been a strong resurgence of interest in folk arts, and indiscriminate entrepreneurs have used expressions of folklore for commercial gain in India. These are not linked in any way to the origins of exploitative communities, nor do they accept or contribute monetarily to the welfare of the communities generated by their earnings. This is a sign of a lack of laws and implementation despite the formulation of laws to protect folklore in India. The WIPO program and the 1998–1999 budget were initiated to address growing concerns about the intellectual property rights of indigenous knowledge holders.
The Constitution of India, Part III, Article 29 states that the protection of the culture of minorities is a fundamental right, which states in a broad sense that a citizen of any specific language, script or culture has the right to protect it. The Constitution provides for the preservation of the cultural identity of the tribal population, although Schedule 6 to Article 371 empowers such groups to have an autonomous council for self-government in accordance with their customs and traditions. Legislative bodies have the power to make laws to protect traditions and customs.
There is also Article 51A (f) which makes it a fundamental duty of every citizen to value and preserve the rich heritage of India’s culture, but no legislative, or codified law, which means that it is written on paper only. The Constitution provides for the preservation of the cultural identity of the tribal population, although Schedule 6 to Article 371 empowers such groups to have an autonomous council for self-government in accordance with their customs and traditions.
Such councils have the power to make laws to protect traditions and customs. In order to prevent commercial exploitation of folk cultures and to maintain originality, it is necessary for folklore to establish intellectual property laws today.
Conclusion
Intellectual property rights are monopoly rights that grant temporary privileges to their holders for the exclusive exploitation of income rights from cultural expressions and inventions. There must be good reasons for a society to grant such privileges to some of its individuals, and so proponents of these rights provide us with three widely accepted justifications to protect today’s inter-global intellectual property rights.
It is clear that the management of IP and IPR is a multi-disciplinary task and calls for many different functions and strategies that need to be aligned with national laws and international treaties and practices. It is no longer fully driven from the national point of view.
Different forms of IPR demand different treatment, handling, planning and strategies, and individuals’ engagement with different domain knowledge such as science, engineering, medicine, law, finance, marketing, and economics. Intellectual property rights (IPR) have social, economic, technical and political implications.
Leading rapid technology, globalization and fierce competition to protect against infringement of innovations with the help of IPRs such as patents, trademarks, service marks, industrial design registrations, copyrights and trade secrets. But there is still a violation of intellectual property rights. The government is also taking measures to stop them. There are laws regarding the prevention of infringement of intellectual property rights.
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