What is Intellectual Property Rights?
Intellectual property is an indefinite creation of the human mind, usually conveyed or translated into a real form that is allocated certain rights of property. Examples of intellectual property include an author’s or publisher’s copyright on a book or article, a distinct logo design representing a soft drink company or garment company and its products, unique design elements of a website or App, or a process to manufacture of any eatable like Cadbury or any product for that matter.
Table of Content
- 1 What is Intellectual Property Rights?
- 2 Intellectual Property Rights
- 3 What is Copyright?
- 4 What is Patents?
- 5 What is Trademark?
Intellectual Property Rights
The rights given to people over the creation of their minds can be defined as Intellectual property rights (IPR). For a certain period, they usually give the inventor an exclusive right over the use of his/her creations. Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, names, images and symbols, and designs used in commerce and engineering.
With the rapid pace of technological, scientific, and medical innovation, intellectual property has gradually expected a vital role that we are observing today. Additionally, where intellectual property is a dominant and leading element establishing potential growth and value, changes in the global economic environment have influenced the development of business models.
Under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights in India much new legislation for the protection of intellectual property rights (IPRs) has been permitted to meet the international obligations. Thus necessitating the demand for IP professionals well-versed in this area to deal with IPRs across national and international borders. Intellectual property has consequently grown into one of the world’s largest and fastest-growing fields of law.
Categories of Intellectual Property
One can broadly classify of IPRs into two categories: 1. IPRs that awaken imaginative and creative activities (patents, utility models, industrial designs, copyright, plant breeders’ rights, and layout designs for integrated circuits) and 2. IPRs that deal with information to consumers (geographical indications and trademarks). IPRs in the above two categories pursue to address the private market certain failures to offer an efficient distribution of resources.
IP is divided into two categories for simplicity of understanding:
- Industrial Property: This comprises discoveries (patents), trademarks, industrial designs, and geographic indications of source.
- Copyright: This comprises fabricated and creative works such as novels, poems, and plays, artistic works such as sketches, films, musical works, paintings, pictures and statuaries, and architectural designs. Performing artists in their performances, creators of phonograms in their recordings, and broadcasters in their radio and television programs are the rights associated with copyright.
Intellectual property includes the right relating to:
- Discoveries in all fields of human endeavor
- Scientific innovations
- Literary, artistic, and scientific works
- Presentation of performing artists
- Trademarks, service marks, etc.
- Industrial designs
- Protection against unfair competition
What is a property?
Those things that are frequently known as the belongings of an individual or a group are described as property. A right of ownership is related to a property that creates good as being ‘one’s own thing’ relative to other individuals or groups, promising or assuring the owner, the right to dispense or distribute with the property in a way he or she believes fit, whether to use or not use, except others from using, or to transfer ownership.
Properties are of two types: tangible property and intangible property. e. one that is physically present and the other which is not in any physical form. Buildings, plots, houses, money, and jewelry are a few examples of tangible properties which can be seen and sensed physically. On the contrary, there is a kind of valuable property that cannot be sensed physically as it does not have a physical form which is intangible property. Intellectual property which orders a material value that can also be higher than the value of a tangible asset or property is one of the forms of intangible property.
Rights protected under Intellectual Property:
The following are different types of Intellectual Property Rights:
- Geographical indications of goods
- Industrial design
What is Copyright?
Copyright is a branch of law that awards authors or novelists (artists, musicians, writers, and other creators) protection over their works. Such safety involves providing authors or novelists with proprietorship or ownership or property rights (or exploitation rights), which takes into account their material benefits. Writers are acceptable to protection against illegal use of their works as well as to a possible share in any earnings from its use by the community under copyright.
On the other hand, copyright laws may also offer or protect another set of interests, of a more personal nature, which are normally called the ‘moral rights’ of authors. These rights let the authors or novelists claim authorship in their works as well as esteem for their honesty.
Under the Universal Declaration of Human Rights (1948) and the International Covenant on Economic, Social, and Cultural Rights (1966), the safety of moral and material interests resulting from any scientific, literary, or artistic invention is also recognized as a human right.
Designs, trademarks, patents, plant seed varieties, trade secrets, integrated circuits, topographies, and geographical indications of the source are other subject matters that are secured by Copyright which is a part of Intellectual property (IP). All subject matters that come under the headline of intellectual property have in common the fact that an assured amount of intelligence has been exhibited in achieving the results for which protection is approved.
Copyright laws also take into consideration and account the requirements of users and society at large for access to knowledge and information while not only aiming at starting individual rights only for the benefit of authors or novelists. Copyright protection is subject to several exclusions and limitations to sustain a fair balance between opposing interests. The interaction between exclusive rights, on the one hand, and exclusions and limitations to these rights, on the other, forms the legal outline within which originality and communication can be developed.
Who Can Claim Copyright?
Copyright protection comes into existence from the time the work is created in fixed form. The author or the novelist who has created the work instantly becomes the owner of the copyright in the work of authorship.
The author/ novelist or those developing their rights through the author can only rightfully claim its copyright. The employer and not the employee are considered to be the author in the case of works made for hire. Section 101 of the copyright law defines a “work made for hire” as:
- Within the scope of his or her employment work arranged by an employee; or
- A work specially ordered or commissioned for use as:
- Involvement in a combined work
- A part of a motion picture or other audio-visual work
- A conversion
- A supplementary work
- A compiling
- An instructional text
- A test
- Reply material for a test
- An atlas
- Involvement in a combined work
The work shall be considered a work made for hire if the parties expressly agree in a written instrument signed by them. The authors of a joint work are coowners of the copyright in the work unless there is a contract to the contrary. Copyright in each distinct contribution to a periodical or other collective work is separate from copyright in the collective work as a whole and vests initially with the author of the contribution.
Two General Principles
- It does not give the owner the copyright if mere ownership of a book, document, painting, or any other copy or phone record is claimed but not created by him/her. The law provides the provision that the transfer of ownership of any material object that represents a protected work does not of itself convey any rights in the copyright.
- State laws may regulate the business dealings involving copyrights owned by minors but minors may claim copyright.
Copyright protection is accessible for all unpublished works irrespective of the nationality or domicile of the author or novelist.
What Works Are Protected?
‘Original works of authorship’ that are fixed in a physical form of appearance are also protected under Copyright. So long as it may be connected with the aid of a machine or device the fixation needs not be directly noticeable. Copyrightable works comprise the following categories:
- Fictional works
- Musical works, including any related works
- Dramatic works, including any connected music
- Dramas and choreographic works
- Symbolic, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
These categories should be observed largely. For instance, computer programs and most ‘compilations’ may be registered as ‘fictional works’; maps and architectural plans may be registered as ‘picturesque, graphic, and sculptural works’.
What is Not Protected by Copyright?
Several categories of material are usually not qualified for federal copyright protection. These include among others:
- In a tangible form of expression works that have not been fixed (for instance, choreographic works that have not been composed or recorded, or improvisational speeches or presentations that have not been written or recorded).
- Titles, names, short phrases, and proverbs; familiar symbols or designs; mere differences of typographic ornamentation, inscription, or coloring; mere listings of components or contents.
- Thoughts, procedures, methods, systems, proceedings, ideas, ideologies, findings, or plans, as distinguished from a description, explanation, or illustration.
- Works comprising wholly of information that is common property and containing no original authorship (for example height and weight charts, standard calendars, tape measures and rulers, and tables or lists taken from public documents or other common sources).
In general, copyright registration is a legal formality intended to make a public record of the basic evidence of a particular copyright. Though, registration is not a condition of copyright protection. The copyright law offers several incentives or compensations to encourage copyright owners to make registration even though registration is not a responsibility for protection.
Amongst these are the following advantages:
- Registration creates a public record of the copyright entitlement.
- Registration is necessary for works before a violation suit may be filed in court.
- Registration will establish prima facie proof in court of the power of the copyright and of the facts stated in the certificate if made before or within five years of publication.
- Legal damages and attorney’s fees will be available to the copyright owner in court actions if registration is made within three months after publication of the work or earlier to a violation of the work. Else, only an award of actual indemnities and profits is available to the copyright owner
Section 11 of the Act offers for the establishment of the Copyright Board and authorizes the Central Government to establish the same consisting of a Chairman and not less than two, but not more than fourteen members.
The chairman of the Board should be a sitting or retired judge of the High Court or a person experienced to be appointed as judge of the High Court. The Registrar of Copyright acts as Secretary of the Copyright Board.
Functions of the Copyright Board
The chief functions of the Copyright Board are as under:
- Clearing of differences as to whether copies of any literary, dramatic, or artistic work or records are delivered to the public in satisfactory numbers
- Clearing of differences as to whether the term of copyright for any work is lesser in any other country than that provided for that work under Act
- Clearing of differences concerning the assignment of copyright as dealt with in Section 19A
- In respect of Indian works withheld from public authorization of compulsory licenses
- To publish unpublished Indian works authorizing compulsory license
- To produce and issue conversion of literary and dramatic works authorizing of compulsory license
- To replicate and issue literary, scientific, or artistic works for certain purposes authorizing of compulsory license
- Determination of royalties allocated to the owner of copyright
- Determination of opposition lodged by any person as to the fees charged by Performing Rights Societies
- Reorganisation of Register on the application of the Registrar of Copyright or any person distressed
The Copyright Board has no powers to limit the user of copyright to any particular territorial area. The appeal against orders passed by the Copyright Board except under Section 6 lies to the High Court within whose Jurisdiction the appellant resides or carries on business.
What is Patents?
The creative and original work of the human mind is protected through several measures and the key inspiration for the same is that such protection is a definite measure of inspiration for the creative activity. Numerous forms of protection of the creative activity are being originated including those which are of precise interest in industrial development, Patentis being one of them.
Patent means a monopoly grant and it permits the inventor to control the output and within the bounds set by demand, the price of the patented products. Fundamental economic and commercial justification for the patent system is that it acts as a motivation to invest in Industrial innovation. Innovative technology leads to the conservation and maintenance of an increase in countries’ stock of valuable, tradable, and industrial assets.
As far back as 500 B.C. the grant of the first patent can be traced. To promote culinary art it was the city dominated by gourmands, and possibly the first, to grant what we nowadays call patent rights. They first invented a delicious dish and deliberated exclusive rights of sale to any confectioner for it. It acquired the name ‘monopoly’, a Greek Portmanteau word from mono (alone) and pole in (sale) as the practice was extended to other Greek cities and other crafts and merchandise.
From making, using, or selling the invention without its approval a patent for an invention is permitted by the government to the inventor providing the inventor the right to stop others for a limited period. When a patent is granted the invention becomes the property of the inventor, which like any other form of property or business asset can be bought, sold, rented, or hired. Patents are regional rights: a UK patent will only provide the holder rights in the UK and rights to stop others from presenting the patented products in the UK.
To be Patentable your invention must:
- Be New – Never been made public in any way, anywhere in the world, earlier than the date on which the application for a patent is filed.
- Involve an inventive step – If when associated with what is earlier known, it would not be understandable to someone with good knowledge and experience of the subject.
- Be capable of industrial application – An invention must be capable of being made or used in some kind of industry. This means that the invention must take the applied form of a gadget or device, a product such as some new material, or an industrial process or method of operation.
An invention is not patentable if it is:
- An innovation
- A scientific theory or calculated method
- An artistic creation, literary, dramatic, or artistic work
- A scheme or method for performing a mental act, playing a game, or doing business
- The presentation of information or a computer program
It may be patentable if the innovation involves more than these intellectual aspects so that it has physical features (such as a special device to play a new game).
In addition for plant variety, a method of treatment of the human or animal body by surgery or therapy or a method of analysis it is not possible to get a patent.
Layout of Patents
Based on characteristic layouts in patent specifications since the late 1970s, before this, they were likely to lack a front page and search report.
- Frontpage – A patent will have a front page, used in the same way as a book will have a title page which gives useful bibliographical details. It uses two-letter country codes and INID codes to recognize pieces of information.
- An Abstract – (collected nowadays by the applicant) and may be an illustration. This layout is becoming gradually reliable but the information given can differ from nation to nation.
- Opening Statement – Usually states the problem.
- Background Information – Patents in the US are likely to have a discussion of the ‘state of the art’ with situations to key patents, books, or journal articles.
- Problem – The nature of the problem is outlined.
- Description of the invention – Explains the creative step and how it works.
- Claims – The numbered claims cover the legal aspects of the domination, with the first being the main claim and the later dependant claims mentioning back to earlier claims in telling what is new about the invention.
In a published application the claims are simply an effort to get protection while the granted patent has the claims that are recognized in law.
What Rights Does a Patent Give?
- A patent gives you the right to stop others from using your innovations and discoveries. Howsoeverunder decided terms you can choose to let others use it.
- A patent also gives the right to take legal action against others who might be intruding and to claim entitlement damages.
- To put an invention into practice an inventor is not obliged to get a patent, but once the invention is made public, you would be unable to obtain a patent and there will be no protection against others using the invention.
- Others do not copy a patented invention is not guaranteed by the Intellectual Property Office. To ensure an idea is not infringed it is up to the owner to take any necessary action. Any ideas may not be reregistered once ‘Granted’ or in the public domain.
Application of Patent
Section 6 of the Act provides that an application for a patent for an invention may be made by any of the following persons either alone or jointly with another:
- By any person pleading to be the true and first inventor of the invention;
- By any person being the assignee of the person appealing to be the true and first inventor in respect of the right to make such an application;
- By the legal representative of any dead person who instantly before his death was permitted to make such an application.
As per Section 2(1) (y), “true and first Inventor” does not include either the first importer of an invention into India or a person to whom an invention is first communicated from outside India. The applicant should reveal the name, address, and nationality of the true and first applicant.
A natural person or other than a natural person like a registered company, research organization, educational institute, or Government can be an Assignee (S.2 (1)(s)). Assignee includes the assignee of the assignee also (S. 2(1) (ab). To apply such as assignment deed ‘Proof of right’ should be submitted by the assignee.
A person who in law represents the estate of a deceased person means Legal representative (S.2 (1) (k)). In such a case, as proof of right, they should file a death certificate, etc.
The legal representative or assignee of the applicant in the Convention Country can also file a Patent Application in India in case of an agreement application.
Types of Patent Applications
- Ordinary Application, i.e., an application that has been filed directly in the Indian Patent Office.
- Convention Application.
- PCT Application.
- Divisional Application, which can result from the division of a Patent Application.
- Patent of addition, which may be filed after the Filing of an Application for a Patent, for an improvement or modification. [Section 7, 54,135].
What is Trademark?
A sign capable of differentiating the goods or services created or provided by one enterprise from those of other enterprises is known as Trademark. Any distinctive words, letters, numbers, drawings, pictures, shapes, colors, logotypes, labels, or combinations used to distinguish goods or services may be considered a trademark. In some nations, advertising slogans are also considered trademarks and this may be registered as such with national trademark offices.
An increasing number of nations also allow for the registration of fewer traditional forms of trademarks, such as audible signs (sounds), single colors, olfactory signs (smells), or three-dimensional signs (shapes of products or packaging),. However, on what can be registered as a trademark many nations have set limits, usually only allowing for signs that are visually noticeable or that can be characterized graphically.
What Are Trademarks for?
The main purpose of a trademark is to permit its customers to identify a product (whether a good or a service) of a specific company to distinguish it from other identical or similar products provided by competitors. Consumers who are satisfied with a specified product are probable to buy or use the product again in the future. For this, they need to be able to distinguish merely between identical, matching, or look-alike products.
Trademarks play a vital role in the branding and marketing strategies of companies, contributing to the meaning of the image, and reputation of the company’s products in the eyes of consumers by letting companies distinguish themselves and their products from those of the competition. The image and status of an enterprise create trust which is the foundation for creating a loyal customer and enlightening the company’s goodwill. Regular Consumers often develop an emotional attachment to definite trademarks, built on a set of favored qualities or features exemplified in the products bearing such trademarks.
To safeguard that products bearing their trademark have a positive reputation trademarks also inspire for companies to invest in preserving or improving the quality of their products.
Value of Trademarks
For most companies, a carefully designated and encouraged trademark is a valuable business asset. It may be the most valuable asset for some that they possess. An approximated value of some of the world’s most renowned trademarks such as IBM or Coca- Cola exceeds 50 billion dollars each.
This is because their position, their look trademarks, and a set of preferred qualities they subordinate with the mark, are valued by the customers and they are willing to pay more for a product bearing a trademark that they identify and which meets their capacities. Therefore, with a good image and status, the very ownership of a trademark provides a company with a competitive edge.
Selecting or Creating a Trademark
As it is an essential element of the marketing strategy of any business choosing or creating an appropriate trademark is a thoughtful and serious step. So the question arises, what is an appropriate trademark for your product(s)? Undoubtedly, there are no specific hard and fast rules. But the subsequent five-point checklist is valuable and useful.
Five Point Checklist for Selecting Your Trademark
- Check that all the legal necessities for Registration are met by your trademark of choice.
- To make sure that it is not alike or bewilderingly similar to existing trademarks do a trademark examination.
- Make sure the trademark is easy to read, write, spell, and remember and is appropriate to all types of advertising media.
- Make sure in your language or any of the languages of potential export markets the mark does not have any undesired meanings.
- Check that the consistent domain name (i.e. Internet address) is available for registration.
After the publication of trade mark in the Trade Marks Journal, within three months if the trade mark is not opposed by a third party, it will progress for registration and the Trade Marks Registry will thereafter issue a certificate of registration.