UNIT 1 INTRODUCTION TO INTELLECTUAL PROPERTY RIGHTS
Chapter Contents
Meaning, Nature, Classification and protection of Intellectual Property The main forms of Intellectual Property Copyright, Trademarks, Patents, Designs , etc. International instruments concerning Intellectual Property Rights The World Intellectual Property Organization (WIPO) and the UNEESCO, International Trade Agreements concerning IPR WTO TRIPS
Reading Material:
Berne Convention: https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
Paris Convention: https://www.wipo.int/treaties/en/ip/paris/summary_paris.html
TRIPS (Attached with the email)
What do we mean by “ Intellectual Property”? Intellectual property (IP) is a term referring to creation of the intellect is assigned to designated owners by law. In simple terms, anything and everything that you create through your knowledge, skill and intellect. For example: A poet writes a poetry. The poetry is his intellectual property. Some common types of intellectual property rights (IPR) copyright, patent and trademarks, trade secrets all these cover music, literature and other artistic works, discoveries and inventions and words, phrases, symbols and designs. Intellectual Property rights provide protection for creations and inventions, to enable creators and inventors to earn recognition and financial benefit from their work. Explanation Tip: Refer the above poetry example: in the above case poetry is the intellectual Property, poet is the writer/owner of that created intellectual property and he has the right called copyright (which is type of Intellectual property right) to protect his work from being stolen by other writers/poets. He can sue others for stealing his content of poetry because it is his own original creative work.
How does the average person benefit? Intellectual property rights reward creativity and human endeavour, which fuel the progress of humankind. Some examples: a) The multibillion dollar film, recording, publishing and software industries – which bring pleasure to millions of people worldwide – would not exist without copyright protection. b) Without the rewards provided by the patent system, researchers and inventors would have little incentive to continue producing better and more efficient products for consumers. c) Consumers would have no means to confidently buy products or services without reliable, international trademark protection and enforcement mechanisms to discourage counterfeiting and piracy.
Nature of Intellectual Property One important characteristics of intellectual property is that it is intangible. The word “ intangible” means something that you cannot touch because it has no physical appearance. Properties are of two types - tangible property and intangible property i.e. one that is physically present and the other which is not in any physical form. Building, land, house, cash, jewellery are few examples of tangible properties which can be seen and felt physically. On the other hand there is a kind of valuable property that cannot be felt physically as it does not have a physical form. Intellectual property is one of the forms of intangible property which commands a material value which can also be higher than the value of a tangible asset or property
Classification of Intellectual Property Although many of the legal principles governing IP and IPR have evolved over centuries, it was not until the 19 th century that the term intellectual property began to be used and not until the late 20 th century that it became commonplace in the majority of the world.
BROAD CLASSIFICATION IP is divided into two categories for ease of understanding: I. Industrial Property : which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; II. Copyright : which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.
TIP: One easy method to remember between the two types of IPR is to understand the basic structure of both types. Industrial property as the name suggests is related to business or manufacturing units. Copyright on the other hands deals with creative works of literary, music etc.
I. Types of Industrial property
Patents:
A patent is an exclusive right granted for an invention – a product or process that provides a new way of doing something, or that offers a new technical solution to a problem. A patent protection provides patent owners with protection for their inventions. Protection is granted for a limited period, generally 20 years. Patent protection means an invention cannot be commercially made, used, distributed or sold without the patent owner’s consent.
Patent rights are usually enforced in courts that, in most systems, hold the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party. A patent owner has the right to decide who may – or may not – use the patented invention for the period during which it is protected. Patent owners may give 5 permission to, or license, other parties to use their inventions on mutually agreed terms.
Explanation: Patent grants exclusive right to the owner/inventor to use/sell etc his invention. For example: A person invented a new process to make cancer medicine. He can apply for patent. If he gets patent over that process, only he will be able to use that process to make the cancer medicine; no other market players can use the technology for 20 years.
Please note that to get patent, there are certain criteria which needs to fulfilled that will be discussed in detail in the chapter exclusively dedicated to Patent.
Trade Marks
A trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company. Its origin dates back to ancient times when craftsmen reproduced their signatures, or “marks”, on their artistic works or products of a functional or practical nature
Over the years, these marks have evolved into today’s system of trademark registration and protection. The system helps consumers to identify and purchase a product or service based on whether its specific characteristics and quality – as indicated by its unique trademark – meet their needs.
Above are examples of trade marks, Nike swoosh is a trade mark of the company. The moment a customer enters the shop the trade mark will help him to distinguish between the Nike products with other similar products. The trade mark stands for quality and assurance of a particular trader. These trademarks are granted protection from infringement. For example: Nike swoosh logo cannot be used by other traders; if any trader will use the logo for their own products then Nike company can seek civil remedy i.e. can file case against that trader for trade mark infringement.
COPYRIGHT
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.
What is an industrial design?
In everyday language, an industrial design generally refers to a product’s overall form and function. An armchair is said to have a “good industrial design” when it is comfortable to sit in and we like the way it looks. For businesses, designing a product generally implies developing the product’s functional and aesthetic features taking into consideration issues such as the product’s marketability, the costs of manufacturing or the ease of transport, storage, repair and disposal. From an intellectual property law perspective, however, an industrial design refers only to the ornamental or aesthetic aspects of a product. In other words, it refers only to the appearance of an armchair. Although the design of a product may have technical or functional features, industrial design, as a category of intellectual property law, refers only to the aesthetic nature of a finished product, and is distinct from any technical or functional aspects
INTERNATIONAL ORGANIZATIONS, AGENCIES AND TREATIES
There are a number of International organizations and agencies that promote the use and protection of intellectual property.
World Intellectual Property Organization (WIPO) was founded in 1883 and is specialized agency of the United Nations whose purposes are to promote intellectual property throughout the world and (Present 26 treaties) dealing with intellectual property. WIPO is one of the 17 specialized agencies of the United Nations. It was created in 1967, to encourage creative activity, to promote the protection of Intellectual Property throughout the world. More than 175 (Present 188) nations are members of WIPO. Its headquarters in Geneva, Switzerland. WIPO was formally created by the convention (meeting) establishing the world intellectual Property organization which entered into force on April261970. UNESCO : Copyright protection, as an important means for encouraging creativity and innovation and for development of culture, has been included in UNESCO’s. In 1952, the Universal Copyright Convention (UCC) was adopted, which is administered by UNESCO. Within this context, in 1967, the World Intellectual Property Organization (WIPO) was created, as a specialized agency of the UN system. Both organizations, WIPO and UNESCO collaborate and contribute to the advancement of copyright protection, co-administering a number of copyright related conventions. However, a repartition of their tasks has been established: WIPO has been basically dealing with normative action; while UNESCO has mainly focused on copyright teaching, awareness-raising, copyright enforcement and piracy eradication. １. Information and Awareness-building 2. Training and Teaching In the field of training and teaching. UNESCO has put emphasis on (i) the creation of copyright Chairs; and (ii) the development of study programmes and teaching materials. Studies and Research Within the context of study and research, UNESCO provides for the Secretariat of the Intergovernmental Committee of the Universal Copyright Convention and prepares studies on various issues such as digital environment, piracy etc for various sessions of the Committee. Enforcement and Management of Rights UNESCO provides legal and technical assistance concerning the elaboration or application of national laws on copyright and neighbouring rights, when requested by the respective Member States. UNESCO aims to contribute to the prevention and fight against piracy through training of copyright enforcement officials, as a training-for-trainers to obtain multiplying effect International Trademark Association (INTA) is a not-for-profit international association composed chiefly of trademark owners and practitioners. It is a global association. Trademark owners and professionals dedicated in supporting trademarks and related IP in order to protect consumers and to promote fair and effective commerce
IMPORTANT TREATIES
Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) An International copyright treaty called the convention for the protection of Literary and Artistic works signed at Berne, Switzerland in 1886 under the leadership of Victor Hugo to protect literary and artistic works. It has more than 145 member nations. It is administered by WIPO. The Berne Convention deals with the protection of works and the rights of their authors.
It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them. (1) The three basic principles are the following: (a) Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of "national treatment") [1].
(b) Protection must not be conditional upon compliance with any formality (principle of "automatic" protection) [2].
(c) Protection is independent of the existence of protection in the country of origin of the work (principle of "independence" of protection). If, however, a Contracting State provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases [3].
Paris Convention: The Paris Convention applies to industrial property in the widest sense, including patents, trademarks, industrial designs, utility models (a kind of "small-scale patent" provided for by the laws of some countries), service marks, trade names (designations under which an industrial or commercial activity is carried out), geographical indications (indications of source and appellations of origin) and the repression of unfair competition. Madrid Protocol : It is a legal basis is the multilateral treaties Madrid (it is a city situated in Spain) Agreement concerning the International Registration of Marks of 1891, as well as the protocol relating to the Madrid Agreement 1989. The Madrid system provides a centrally administered system of obtaining a bundle of trademark registration in separate jurisdiction. The protocol is a filing treaties and not substantive harmonization treaty. It provides a cost-effective and efficient way for trademark holder. It came into existence in 1996. It allows trademark protection for more than sixty countries, including all 25 countries of the European Union.
Trade Related Aspects Of Intellectual Property (Widely known as TRIPS) (VERY IMPORTANT TREATY)
TRIPs is considered as a major achievement of the Uruguay Round as an international trade agreement. At the trade negotiations, the developed countries were succeeded in linking intellectual property rights with trade. Until then, the World Intellectual Property Organisation (WIPO) was the exclusive international institution dealing with intellectual property. With TRIPs, the WTO also emerged as the institution for the protection and promotion of intellectual property globally. The TRIPS Agreement is Annex 1C of the WTO Agreement, which entered into force on 1 January 1995. The TRIPS Agreement is binding on each Member of the WTO from the date the WTO Agreement becomes effective for it. However, the TRIPS Agreement gave original Members transitional periods, which depend on the level of their development, to bring themselves into compliance with its rules1. The Council for TRIPS administers the TRIPS Agreement and is open to all WTO Members. The Council reports to the WTO General Council provide minimum standards in the form of common set of rules for the protection of intellectual property globally under WTO system. The TRIPs agreement gives set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights.
Member countries have to prepare necessary national laws to implement the TRIPs provisions. TRIPs cover eight areas for IPRs legislation including patent, copyright and geographical indications. As per the TRIPs provisions, the member countries are required to prepare the necessary legal framework spelling out the scope and standards of protection for rights in regard to intellectual property. Or in other words, the member countries have to adopt TRIPs provisions in their domestic intellectual property legislations like Patent Act, Copyright Act etc.