The concept of intellectual property (IP) will be understood better if we understand what is meant by the term property. To a lay person property means some material object belonging to a particular person. The concept of ownership is critical to the concept of property.
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Ownership means the right to possess, use and dispose of the property and exclude the others. If a society does not recognise ownership, it will have no concept of property. In the legal sense, property refers to the bundle of rights that the law confers on a person by virtue of the ownership and possession of an object.
However, a material object under one’s possession may not amount to much as property if it does not become a resource to satisfy some human want or need. Man by exertion of his intellect, either in the form of ideas or technology, converts a natural resource into something of utility, making it an item of property.
Two factors significantly influence the value of an object as property. The first is scarcity, which refers to its availability in relation to the need. The scarcer is a thing in relation to the demand for it, the higher is its value. The second important factor influencing the value of an object is the knowledge of its use or uses. The higher the value of an object, the more zealously it is guarded as a ‘property’.
What rights constitute the bundle of rights that are termed as property?
These rights deal with various aspects of the relationship between persons and their property, such as: ownership and possession; use and enjoyment of the fruits of its application; exclusion of others from use and application of the property; and transfer of rights in the property.
The property can relate to a tangible thing e.g. land or buildings, or to an intangible thing e.g. a copyright. In the former case they are referred to as tangible or corporeal property, in the latter case they are known as intangible or incorporeal property.
Tangible property has a big advantage over intangible property: the fact of possession of a physical object by the owner ensures that any other person is excluded from using it. It is not so with the creations of the mind, say, an invention or a book which can be reproduced otherwise.
This brings us to the concept of intellectual property. It is simply the property created by the application of human mind. It is non-physical (intangible) and it derives its value from idea(s).There is no uniform definition of IP.
The domain of IP is expanding fast as knowledge and information become key drivers of techno-economic growth and of societal progress in general.IP is a dynamic area; as science & technology make rapid advances, and as competition for markets becomes ever more fierce, human ingenuity is throwing up ever new ideas and newer products.
Newer areas are emerging with claims for recognition as IP. They have to be accommodated as IP either in one of the existing categories or in new categories that have to be created. Thus while copyright originally was concerned with works of literature and artistic works gradually its scope expanded to cover works of drama, music, photography, cinematography, audio-visual recordings, performances, broadcasts and now computer programmes.
Among the successful new categories to be recognised as entitled to the status of IP are: ‘Geographical Indications’ which combine in themselves appellations of origin and indication of source and accord special treatment to wines and spirits; lay out design (topography) of integrated circuits, which has been recognised as an independent form of IP under the Agreement on Trade Related Aspects of the Intellectual Property Rights (TRIPS Agreement) of the World Trade Organisation (WTO). Genetic resources, and traditional knowledge and folklore have made strong claims for protection as IP. Galloping advances in the realm of internet and convergence may be the harbinger of new forms of IP.
Types of IP :-
IP has been generally divided into two main branches viz., (a) Industrial Property, and (b) Copyright.
Industrial property consists of rights relating to inventions, trade marks, industrial designs and geographical indications. Copyright protects rights related to creation of human mind in the fields of literature, scientific, music, art and audio-visual works, etc. Related rights protect performances of performing artists, phonograms and broadcasts. Related rights and neighbouring rights are terms used interchangeably.
The TRIPS Agreement of the WTO recognises seven categories of intellectual property rights (IPRs), which had already been enshrined in various treaties administered by the World Intellectual Property Organization (WIPO) since the late 19th century:-
i) Copyright and Related Rights ii) Trade marks, Trade names and Service marks iii) Geographical Indications iv) Industrial Designs v) Patents vi) Layout Designs of Integrated Circuits vii) Undisclosed Information
Copyright is granted in respect of original literary, musical, artistic or audio-visual works – the creations of authors, playwrights, composers, artists, film makers. The rights under copyright include: rights of reproduction, communication to the public, adaptation and translation of work.
Copyright is now spoken together with the related or neighbouring rights as one category. Though originality in expression is a requirement for copyright, the quality of the works is not an issue at all. It is to be noted that though the copyright subsists in works which are the creation of ideas, it is not the idea that the copyright protects, but merely the expression of the idea as fixed in a particular form.
If an author thinks up the plot of a story, it is not the idea of the plot that is entitled for protection under a copyright but only the written form of the story flowing from the idea. Any other person can come up with a differently written story on the same idea and have a valid claim for a copyright over it. If a painter has a copyright in a painting which depicts sunrise no one else can legally copy that painting without his / her permission.
However, there is no copyright in the idea of sunrise and anybody is free to paint sunrise as per his / her own imagination, and everyone will be entitled to copyright in one’s own creation. The copyright is in the painting, not in the idea of sunrise. Copyright is an inherent right that commences since the completion of the work as an expression of the idea. Copyright comes with the doctrine of ‘fair use’, which includes use of the work for purposes of criticism, comment, news reporting, teaching and education, scholarship and research. Fair use does not constitute infringement.
We may also remember that unlike patents or registered designs, copyright confers no monopoly rights. In fact if two persons can produce precisely similar work demonstrably working independently of each other, each one will have the legal right to his / her own creation. It should be reiterated that registration is not required for a work to be protected. A copyright work is protected from its creation.
Trade marks and service marks are distinctive symbols, signs, logos that help the consumer to distinguish between competing goods or services and are a major part of the goodwill a company enjoys in the trade. A trade name is the name of an enterprise, which also individualises the enterprise in the minds of the customers. They are therefore protected as IP.
Thus a trade mark is a sign that individualises the goods of a given enterprise and distinguishes them from the goods of its competitors. You may be quite familiar with the distinctive marks of Pepsi-Cola and Coca-Cola Companies. Similarly in passenger cars a characteristic star in front, or a characteristic treelike T, enclosed in an ellipse and displayed in the front and the rear of a vehicle immediately proclaims that the first vehicle is from the Mercedes and the second one is from the Tatas stable. Trade marks invariably come to symbolise quality of goods or services in the customer’s mind. However, there is no requirement in law that trade mark has to meet any quality standards. If quality is not maintained, customers will shift to another brand. A trade mark is required to be distinctive and not deceptive. If you market goods of fake leather under the trade mark ‘Realeather’ you will be taken in by a deceptive trademark.
A geographical indication (GI) is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due solely to the place of origin e.g. its specific climate, soil or method of production. Such goods enjoy an advantage over competing goods solely because of their geographical origin, which thus becomes a kind of IP and is protected. A GI is different from a trade mark. A trade mark is a sign that distinguishes the product and services of an enterprise from those of another. The owner of a trade mark is entitled to exclude others from using the trade mark. A GI merely tells that a product is produced in a certain place and has certain characteristics which are due to the place of production like specific soil, or climate or method of production. It can be used by all producers who make their products in a place designated by the GI and share the same qualities. Some best known examples of GI are: Champagne (special kind of sparkling wine originating in the French region of that name; Kolhapuri chappals from Kolhapur, India).
The Paris Convention for the Protection of Industrial Property uses two terms in the context of geographical indication: appellation of origin and indication of source. Indication of source on a product merely indicates that the product originates in the place indicated. Appellation of origin indicates not only the place of origin but also the essential quality link between the product and the area of its origin.
Protection of GI can be done in many ways: through a sui generis legislation or through decrees, or through registration or through reliance on tort of ‘passing off’ (which basically says that unfair trade practices should not be used). GI can also be protected by collective marks belonging to a group of traders or producers or a certification trade mark that does not belong to any one; the understanding for its registration is that anyone who meets the specified conditions can use it.
An industrial design is the ornamental or aesthetic aspect of an article; it may consist of three dimensional features such as shape or surface, or of two-dimensional features such as patterns, lines or colour. The design serves as a tool for product differentiation and lures customers by enhanced visual appeal.
Industrial designs are applied to a wide variety of products of industry or handicraft: from watches, jewellery, fashion and other luxury items to industrial and medical implements; from houseware, furniture, electrical appliances to vehicles and architectural structures; from practical goods and textile designs to leisure items such as toys.
An industrial design is distinguished from trade mark primarily because it is constituted by the appearance of a product, which is not necessarily distinctive, whereas a trade mark is necessarily to be distinctive to serve as a sign for product differentiation. The functions of, and the justification for protecting industrial designs and trade marks are quite different. Designs must relate to the appearance of the object which is not determined by technical or functional necessity.
Designs enhance the visual appeal and add to the commercial value of the product; they also facilitate the marketing and commercialisation of the product. For registration a design needs to be new and original, though the notion of these qualities may vary from country to country. In certain conditions, an industrial design can be protected under copyright law or the law against unfair competition.
A patent is a statutory right granted for a limited period to an inventor in respect of an invention to exclude any other person from manufacturing, using or selling the patented product or from using the patented process, without due permission. Under the TRIPS Agreement of the WTO, inventions in all fields of technology, whether products or processes are patentable if they meet the three criteria of novelty, involving an inventive step and being capable of industrial application. Patents are one of the oldest forms of IP protection.
Layout design (topography) of integrated circuits is a relatively new area in IP which has appeared with computer technology and has acquired importance as the technology makes rapid advances. The programming instructions on a computer chip are implemented through a circuitry printed on semiconductor layers. The design of circuitry on the chip requires great investment of knowledge, skills and capital and this needs to be protected as IP.
The right in topography aims to prevent copying of the layout design but reverse engineering to come up with improved design is regarded as fair. It may also be noted that while for claiming a patent an invention is required to meet the criteria both of novelty and inventive step, a layout design is only required to be original. Protection of layout design confers no monopoly right; independent development of a design, identical with a protected design is permitted.
Undisclosed information gets recognition as a kind of IP that needs to be protected under the TRIPS Agreement. Earlier to it, the WIPO treaty (1967) and the Paris Convention recognised unfair competition as a part of IP. Unfair competition includes all acts contrary to honest practices in industrial or commercial matters; undisclosed information restricts honest practices to protection of trade secrets.
The TRIPs Agreement (Article 40) does refer to the control of Anti-Competitive Practices in Contractual Licences; the Agreement also empowers member-States to make in their national legislation suitable provisions to prevent abuse of IPRs.
The intellectual property thus vests in a creation of human mind involving knowledge, labour and skill. It is the result of sustained intellectual application and efforts of inventors, authors and other creative persons, including first adapters and is a powerful factor of production and wealth generation in a modern economy.
The IP is a significant factor in gaining competitive advantage over rivals in the trade and industry as the entire idea of IP is to protect the owner against its unlawful use by any person or party offering same or similar products or services.
IPRs, as their exercise has evolved in practice, can secure for the owner a broad range of advantages depending on the national law; for example, IPRs can effectively block imports or exports of relevant goods, or they can be used to divide markets, or restrict movement of goods produced by an enterprise from one territory to another. To fully comprehend the consequences of a national legislation in matters of IPR, it is important to grasp the purpose the law seeks to serve by creating these private rights in property.
The chain of production to distribution of goods involves the following major steps: manufacture; first sale by the manufacturer; subsequent sales; exports/imports; use, other dealings. It is for the state to decide in which steps it should intervene to grant exclusive rights to the owner to ensure just reward for creative activity and best techno-economic returns for the State and the society.
A point to appreciate here is that IP is concerned with the human capacity to produce something new and offer it for public use. The property does not lie in the thing so produced and offered but in the owner’s rights over the creation of his/her intellect. This intellectual property is intangible, and though in each case it is associated with a tangible object, it is independent of the object itself. Again, what IP protects is the use or value of ideas and not the abstract ideas themselves; there are no rights, hence no property, over the ideas per se.
Should Intellectual Property be protected ?
More often , it is argued that if intellectuals deliberations and manifestations are protected through Laws and conventions , it harms the creativity of human genius.This line of argument is often found in the context of debate between “Open source” vs “Licensed products ” (For example – Linus Operating system VS Microsoft ).
Hence to understand the rationale behind the rights is important.
Just as one goes back to the concept of ‘property’ to appreciate better the meaning of intellectual property, one may look to the justifications advanced for protection of tangible property to appreciate the justification for IP. Within the capitalist system such justification comes from two angles: the labour justification and the personality justification.
The labour justification was propounded by Locke who viewed the labour of an individual as belonging to the individual and when one takes from the State what Nature has provided to it – some ‘goods’ akin to ‘commons’ – and mixes one’s labour with it, one creates property for one self.
Labour adds value to the goods and converts ‘commons’ into property. The creation of social value both by converting commons into goods and adding more value to goods by investment of labour deserves to be rewarded to encourage people to be innovative as also to perform better.
In moving from the tangible property to the intellectual property, both the views – rewarding innovation as well as rewarding value creation – have relevance. The society has to encourage people to strive to be innovative and come up with creative solutions to generate wealth and welfare as also to add value to existing goods and services.
Locke’s idea of occurrence of commons in abundance in the primitive stage is apt in the consideration of intellectual property because ideas are always around us in abundance; this is the public domain. The IPRs do not appropriate the ‘public domain’ – the ‘commons’ are no body’s private property.
The IP law takes care of it by ensuring that no protection is given to either the everyday ideas, or highly extraordinary ideas like advances in mathematics. The IP law takes care that nobody unduly appropriates ‘public domain’ by ensuring that the rights are available only for a limited period after which the intellectual creation comes to the public domain.
Lets draw the attention to a rather subtle parallel between the fields of tangible property and the intangible intellectual property. In the field of tangible property the rights of slaves as generators of property were not recognised. Even now the labour of housewife fetches no remuneration, and remains unrecognised as generator of wealth.
Similarly, in the realm of IP the traditional knowledge and folklore, is yet to gain solid recognition as IP, and enjoys no commensurate protection as the creation of knowledge, skills and ideas, developed and perfected by local communities over centuries. This only confirms the view that property laws, whether for the tangible property or the intellectual property reflect power relations in society.
The justification for IP from the ‘personality’ angle regards property as a mechanism of expression of one’s persona. Hegel is the main proponent of this view: property is the embodiment of personality. Thus property is a very personal and private thing and needs to be protected. In the case of the intellectual property, however, this justification may apply in varying degrees to subject matters of different categories of IP.
While products of art, music and literature and trade marks may reflect the personality of their creator to a remarkable degree, the inventions or engineering designs may not really support the personality thesis.
A major recognition for the personality justification of property is seen in the moral rights under the copyright law. These are deemed to be the inalienable rights of the author to safeguard the integrity of the work against any change that would damage the author’s reputation or the message of the work.
Clearly a completely satisfactory rationale for intellectual property protection is not available either from the labour angle or the personality angle. Different categories of IP would appear to derive different degrees of justification from different angles. Patents and industrial designs would be better supported from the labour point of view; copyrights and trade marks would find better justification from the personality angle. The entire domain of the IP, however, is served better when both the views are taken together as justification for the protection of property.
IPRs are based on three underlying premises:-
1. Creative activity culminating in IP can be increased by measures aimed to encourage it. Also, it will not be generated in economically adequate quantity for public use without economic incentives.
2. Grant of legal monopoly powers, even if for a limited period is the only way to ensure adequate economic benefits as just reward for the creation of IP.
3. The provisions of the global IP regime ensure just economic returns to the creation of IP while safeguarding the interest of other entrepreneurs and the society in general.
Constitution of India and IPR :-
The Constitution of India makes no specific mention of intellectual property. Property in the Constitution generally means tangible property. However, IP as a form of property can be put under Article 300A which deals with property and be entitled to a legal right.
Experts have spotted possibilities of a conflict between the IP, specially the copyright, and the constitutionally guaranteed freedom of speech and expression. The Courts have zealously upheld this fundamental freedom. In a case of any restriction on speech and expression, the perspective of the rights of viewers and listeners, is likely to get precedence over the perspective of the rights of broadcasters. Any rights (monopolies) that undermine the right to freedom of speech and expression may face a challenge.
IP and Indian Scenario :-
The tradition of scholarship and intellectual creativity in India goes back to a fewmillennia. Yet the concept of Intellectual Property Rights in the modern sense is rathernew and would appear to have no cultural moorings or sanction in our country. Thehistory of intellectual property rights in India backed by enforceable legal provisionsscarcely goes back to 150 years.
IP acts enacted by India :-
1. The Patents Act, 1970, as amended by the Patents (Amendment) Act, 1999, anthe Patents (Amendment) Act, 2002
2. The Copyright Act, 1957 as amended in 1999
3. The Trade marks Act, 1999
4. The Designs Act, 2000
5. The Geographical Indications of Goods (Registration and Protection) Act, 1999
6. The Protection of Plant Varieties and Farmers Rights Act, 2001
7. Integrated Circuit Layout Designs Act, 2000
8. The Biological Diversity Act, 2002
Major international treaties signed by India :-
1. The Convention Establishing the World Intellectual Property Organisation
2.The Paris Convention for the Protection of Industrial Property
3.The Berne convention on Protection of Literary and Artistic works
4.Patent cooperation Treay
5.The Geneva Convention for the Protection of Producers of Phonograms againt Unauthorised Duplication of their Phonograms.
6.The Budapest Treaty on the International Reorganition of the Deposit of Micro organisms for the Purposes of Patent Procedure
7.The Universal Convention of Copyrights
Emerging Issues in IP :-
The global intellectual property system has constantly to cope with new challenges as on the one hand advances in science and technology give rise to ever new unprecedented issues and, on the other, new, legitimate claims crop up from commercialisation of knowledge embedded in traditional systems.
The emergence of information and communication technology (ICT), and biotechnology (BT), the two fields of knowledge which have seen staggering advances at breath-taking pace, has posed new issues before the IP protection system.
The progress in these two fields has literally transformed the way one had known the world, transacted business and carried out other activities even only a quarter century ago. Similarly as the conduct of R & D as mega business brought out predatory forays into commercialisation of knowledge embedded in traditional systems and exploitation of cultural heritage of indigenous communities without any share or acknowledgement going to the traditional communities that owned these resources, several issues of ethics and equity have come to the fore.
Summary of Issues :-
Advances in ICT have changed the way people live, work and conduct business. Reproduction with high fidelity, in very large numbers, has become easy and cheap. It can be done anywhere and transmitted from any where to anywhere on the globe across national boundaries. Enforcing IPR under these circumstances is difficult.
Multiple user computer systems enable pirated digital works to be used by several persons simultaneously.
Manipulation of digital works is easy, leading the resulting work to be claimed as new and original.
Protection of IP over digital products is following two approaches: control of access; metering usage. Protecting integrity of work is an area of concern.
WIPO through its Digital Agenda is helping in crystallising all issues and evolving their solutions through international consensus.
A domain name is the address of a website. Disputes arise due to cybersquatting. WIPO is the leading ICANN accredited agency for resolution of domain name disputes.
Biotechnological processes and products have vast economic potential, and thus they are hot items of IP. It is full of ethical questions and moral debates.
Access to rich biodiversity and traditional knowledge of developing nations for developing biotechnological processes and products raises questions of ownership and benefit sharing.
Extension of IP to living things is recent. It raises question of discovery vs invention besides the propriety of appropriating natural living organisms as private property.
The USPTO (United States Patent and Trademark Office) does not grant patent on a fundamental gene, ESTs (Expressed-sequence tags or SNP) (Single nucleotide polymorphisms,), unless they have a role in human health and a commercial potential.
Traditional Knowledge covers knowledge of a community to deal with all life situations i.e. its science and technology, agriculture, medicine, biodiversity, folk art and craft, folk music and dance, drama, folk motifs, designs and symbols, in fact all moveable cultural material.
Traditional Knowledge (TK) and the folk lore, on the one hand, and the IP system on the other, are products of two very different cultural and value systems, one regarding knowledge and folklore as belonging to the community, the other seeing creations of ones own mind and skills as belonging to the individual, as personal property. Areconciliation of the two views is engaging serious attention at the international level with WIPO playing a lead role.