Tuesday, July 3, 2012

Intellectual Property Rights and its Relevance in India

In earlier times, the concept of property meant something tangible. Man used to be in possession of property and property became the source of wealth and status in the society for him. As time went by, property created by the scope of one’s intellect became what is known as Intellectual Property Right. The problem with Intellectual Property was that it was intangible in nature.

Property has always been a symbol of power and strength for every individual and that is why every individual tries to maximize his property.

A human being is the sole proprietor of his brains and even law gives him a proprietor right in it. Just as John Locke had pointed out, a person has his property, two things:-
  1.         The person himself or to say the human body.
  2.         The skill of doing labour with his body and the work of his hand.
Similarly, intellect too is an integral part of his personality and it plays vital role in deciding what works his body can engage into or what works his hands would do or in other words we can say that a person intellect is exclusively his own.

Every object whether it is material/ non material, owns its existence to ideas and hence to the origin of ideas, that is intellect. This also holds further that any property in the generic sense, which can claim a proprietary right, is called Intellectual Property.

Further, if intellect or intellectual works is one’s personal characteristic or property, then anything that is the outcome of this application of his intellect is equally his own. This provides the law to give a person the right to own what he has created or produced. And this proprietor right over a product produced out of his intellect is called Intellectual Property Right.

The Twenty First Century is a century of knowledge, indeed the centaury of the Intellect. A nation’s ability to translate knowledge into wealth and social good through innovation hold the key to creation as well as processing of knowledge consequently issues generation, evaluation, exploitation of Intellectual Property would become critically important all over the world. Intellectual Property can be characterized as the property in Idea or their expression. It’s a creation of mind for example:  A technological Innovation, a poem or a design. It protects the rights of individuals and business who have transformed their ideas into property by granting rights to the owner of those properties.

The need arose for laws to protect such kinds of Intellectual Property laws to protect the various forms of Intellectual Property like Trade Marks, copy Rights, Designs, Patent & Geographical Indication.

For instance Tata Nano car: The entire car and its innovative engineering are protected by patents. The name “TATA NANO is protected by Trade Marks”. The design of car has design protection and all the pamphlets made for advertisement of car are protected of copy right.

The rights have been modified and new provisions have been created in order to cover new areas of Science and Technology like Information Technology, Biotechnology and Non Service Sector.  It may be observed that World Trade Organization (WTO) agreement on Trade-Related Aspects of Intellectual Property Right( popularly known as TRIPS) has extended minimum standards for protection globally. Hence India is under a pressure to increase the level of Intellectual Property protection in its own regime, based on standards in developed countries.

There are various forms of IPR. The Trade Related Aspects of Intellectual Property Rights (popularly known as TRIPS) in the Agreement of the World Trade Organisation (WTO) recognises seven forms of IPR, namely, patents, designs, trademarks, copyrights, geographical indications, integrated circuits and trade secrets.

Patents: These are legal rights granted for new inventions employing scientific and technical knowledge. Example: A new drug for the treatment of AIDS and a new cell phone.

Industrial Designs: A design is an idea or conception as to the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article, two or three-dimensional or both, by any industrial process or means which in the finished article appeal to and are judged solely by the eye or product. Examples: Designs as applied to shoes, TV, textiles.

Trade Marks: A trade mark is a visual symbol in the form of a word, device or label applied to an article of manufacture or commerce with a view to indicating to the public the origin of manufacture of the goods affixed with that mark .It distinguishes such goods from others in the trade. Examples: Coca Cola in soft drinks, SONY in electronic goods.

Copyrights: A copyright is basically the right to copy and make use of literary, dramatic, musical, artistic works, cinematographic films, records and broadcasts. It is a proprietary right and comes into existence as soon as the work is created. The concept had its origin in the Common Law. Subsequently it came to be governed by the statutory laws of each country. Examples: Poems, artistic drawings, paintings, computer / programs.

Protection for new plant varieties: TRIPS provisions of the WTO Agreement make it mandatory for member countries to provide protection for new plant varieties. Examples: New variety of rice or wheat. The provisions have given member countries two options for providing protection to new plant varieties —:

(i) Under the patent law itself and;
(ii) By a separate system (called Sui generis system).

Geographical Indications: These are indications that identify goods as originating in the territory of a country, a region or a locality in that territory, where a specific quality, reputation or other characteristic of the goods is essentially attributed to their geographical origin. Examples: Darjeeling tea, Kancheepuram sari.

Indian Government has taken a comprehensive set of initiatives to modernize the intellectual property administration in the country in view of the strategic significance assumed by intellectual property in the context of globalisation and liberalization of the Indian economy and the increasing administrative steps to create a modern and facilitative set up. The Designs Act, 2000, the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act 1999 have already been enacted to harmonize the Indian IP administration with the global system. In the Ministry of Commerce and Industry, the office of the 'Controller General of Patents, Designs and Trade Marks (CGPDTM)' has been set up under the Department of Industrial Policy and Promotion.

It administers all matters relating to patents, designs, trademarks and geographical indications and also directs and supervises the functioning of :-
  •     The Patent Office (including Designs Wing)
  •     The Patent Information System (PIS)
  •     The Trade Marks Registry (TMR), and
  •     The Geographical Indications Registry (GIR)
Besides, a 'Copyright Office' has been set up in the Department of Education of the Ministry of Human Resource Development, to provide all facilities including registration of copyrights and its neighbouring rights.

As far as issues relating to layout design of integrated circuits are concerned, 'Department of Information Technology' in the Ministry of Information Technology is the nodal organisation. While, 'Protection of Plant Varieties and Farmers' Rights Authority' in Ministry of Agriculture administers all measures and policies relating to plant varieties.

For complementing the administrative set up, several legislative initiatives have been taken. It includes, the Trade Marks Act, 1999; the Geographical Indications of Goods (Registration and Protection) Act 1999; the Designs Act, 2000; the Patents Act, 1970 and its subsequent amendments in 2002 and 2005; Indian Copyright Act, 1957 and its amendment Copyright (Amendment) Act, 1999; Semiconductor Integrated Circuit Layout Design Act, 2000; as well as the Protection of Plant varieties and Farmer's Rights Act, 2001.

A human endeavour which promotes Social, Economical, Scientifical or Cultural Development of the society must be encouraged and the creator or the innovator needs to be rewarded by suitable legal protection for his intellectual creation. Consequently Intellectual Property Right are those legal rights which govern the use of creation of Human Brains. Protection of Intellectual Properties is a very critical element in the offshore business model. There have been many cases where companies have lost their position in the market due to the loss of intellectual property. Understanding the country’s IP Rights and following the best practices described in this paper can drastically reduce the risk of losing the company’s intellectual property. Commitment to protect the intellectual property of a company should be developed and nurtured at all levels of the organization.

The bottom-line is that India considers itself a responsible member of the WTO which suggests that international class IPR protection should be in place. For instance even Bill Gates, the chief executive officer of Microsoft Corporation, has distinguished India as a most promising base for software development. If such an IPR-conscious business leader like Gates is of this opinion, one can only conclude that India's IPR scene is no deterrent. And in near future India will formulate more effective law in order to cope up with new areas which are yet to come in the field of IPR. Intellectual Property Rights (IPRs) play an important role in the social, economic and cultural development of a society. Intellectual Property Rights in India (IPRs in India) are gaining lot of attention and importance in India. India has begun to see some positive results as awareness of the need for greater IP protection has increased. India must continue to improve its IPR protection, or risk being left behind as other countries in the developing world implement protections and build their own knowledge based economies.what is a patent.

Biswajit Sarkar