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ABSTRACT
The standard literature on this subject generally relies on the thesis of the
incentive to create and/or disclose new ideas, traditionally linked to the solution of the
public goods provision problem. However, although this argument undoubtedly
remains valid in the general case, in several circumstances, it fails to satisfactorily take
into account various consequences arising from the dynamic effect of intellectual
property rights on the market structure and from the emergence of new social behaviors
which significantly affect the consumption and the production paradigm, such as
the case of peer-to-peer systems or the Open Source movement.
The main conclusion that seems to emerge from this review is that the
economic evaluation of intellectual property based on a more suitable representation of
facts and specific features of inventive and creative contexts might reveal a totally
different overall balance of welfare and therefore lead to different regulatory and
policy indications.
The problem of intellectual property protections has been seriously
discussed since the first launch of intellectual property negotiations within the
framework of the General Agreement on Tariffs and Trade (GATT). These
discussions have particularly centered on negotiations with regard to the
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) in
the eighth round of the GATT negotiations.
This round is often referred to as the Uruguay Round. Most of the Association of
South East Asian Nations (ASEAN) countries, such as Indonesia, Malaysia, and
Thailand, are members of the GATT.
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CHAPTER 1
INTELLECTUAL PROPERTY RIGHTS
1.1 INTRODUCTION AND OVERVIEW:-
Intellectual property is unique, as it is the fruit of personal creation and
inventiveness. It might be a poem that you write, the name your hairdresser thinks
up to sell his or her services, or a mother’s invention for a non-spill cup for
babies. It can also be a Picasso painting, an Akira Kurosawa film, a Naguib
Mahfouz novel, a new method of irrigation for farmers in arid regions, the
invention of the light bulb, a computer chip or a jet turbine engine. In the future,
intellectual property creators aim to deliver more abundant food resources, clean
energy and cures for illnesses from cancer to the common cold. In virtually every
instance, intellectual property stimulates progress, transforming society and adding
value to our lives. Intellectual property refers to creations of the mind: inventions;
literary and artistic works; and symbols, names and images used in commerce.
Intellectual Property Rights (IPR) is the collective name for new and unique
ideas, products and creations resulting from human creativity and innovation. Copyright,
Trademarks, Patents, Database Rights and Performance Rights are the most
relevant rights with regards to those that may apply to digital content. In most
cases, once a creative endeavor or innovation is protected, like property, the
associated rights can be traded, bought and sold, bequeathed and licensed.
1.2 WHY DOES INTELLECTUAL PROPERTY NEED PROTECTION:-
Society provides legal rights over intellectual property to encourage the
production of inventions and creative works that benefit society, and to help innovators
and creators make a living from their work. These rights, which can belong to
individuals or organizations, are recognized by governments and courts. The system is
designed to benefit society as a whole, in both developed and developing countries,
striking a delicate balance to ensure that the needs of both the creator and the user
are satisfied. This balance is maintained through checks within the intellectual property
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system itself and in the larger regulatory framework, to ensure that the system is
sustainable and beneficial to all stakeholders.
Intellectual property is divided into two categories:
• Industrial Property
• Copyright and related rights
Fig 1.1 Types Of Intellectual Property
Industrial Property includes patents for inventions, trademarks, industrial designs
and geographical indications.
Copyright covers literary works (such as novels, poems and plays), films, music,
artistic works(e.g., drawings, paintings, photographs and sculptures) and architectural
design. Rights related to copyright include those of performing artists in their
performances, producers of phonograms in their recordings, and broadcasters in
their radio and television programs.
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1.3 INTELLECTUAL PROPERTY RIGHTS:-
Intellectual property rights are like any other property right. They allow
creators, or owners, of patents, trademarks or copyrighted works to benefit from
their own work or investment in a creation. These rights are outlined in Article27 of the
Universal Declaration of Human Rights, which provides for the right to benefit from
the protection of moral and material interests resulting from authorship of scientific,
literary or artistic productions. The importance of intellectual property was first
recognized in the Paris Convention for the Protection of Industrial Property (1883) and
the Berne Convention for the Protection of Literary and Artistic Works (1886). Both
treaties are administered by the World Intellectual Property Organization (WIPO).
1.4 PROMOTE AND PROTECT INTELLECTUAL PROPERTY:-
There are several compelling reasons. First, the progress and well-being of
humanity rest on its capacity to create and invent new works in the areas of
technology and culture. Second, the legal protection of new creations encourages the
commitment of additional resources for further innovation. Third, the promotion and
protection of intellectual property spurs economic growth, creates new jobs and
industries, and enhances the quality and enjoyment of life. An efficient and equitable
intellectual property system can help all countries to realize intellectual property’s
potential as a catalyst for economic development and social and cultural well-being.
The intellectual property system helps strike a balance between the interests of
innovators and the public interest, providing an environment in which creativity and
invention can flourish, for the benefit of all.
1.5 HOW IS INTELLECTUAL PROPERTY PROTECTED?
Different types of intellectual property – literary and artistic creations,
inventions, brand names, and designs, to name a few – are protected in different
ways:
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• Creations in the fields of literature and the arts, such as books, paintings,
music, films as well as software, are generally protected through copyright
or so-called neighboring rights;
• Technological inventions are typically protected by patents;
• distinctive features – such as words, symbols, smells, sounds, colours and
shapes – that distinguish one product or service from another, can be
protected by trademark rights;
• the specific external appearance given to objects, such as furniture, car body
parts, tableware, clothing or jewellery, may enjoy design protection;
• Geographical indications (e.g. Parma ham) and trade secrets are also
considered to be types of intellectual property and most countries provide
some form of legal protection for them;
• Legal protection for safety and efficacy studies data for certain regulated
products (e.g. plant science products and pharmaceuticals) is increasingly
provided in many parts of the world.
This wide array of tools can be used by people and businesses at all levels.
Almost all businesses in all countries – the vast majority of which are small
enterprises – use trademarks for marketing their goods and services. Copyrights are
even more easily available. The moment someone writes a text, composes some
music or draws an image, he or she will have copyright to the result. Intellectual
property law limits what can be protected and for how long. Intellectual property
rights do not protect ideas. They protect only expressions of ideas, in the case of
copyrights, and inventions fulfilling certain strict and well-established criteria in the
case of patents.
These limitations and conditions are built-in mechanisms to balance the
rights of intellectual property owners with the interests of society. Intellectual
property rights allow innovators and creators to choose the terms on which they
distribute their work. They can choose, for example, to license and sell their works
or inventions, to make them available for free, or to allow their use subject to
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certain conditions. In the patent area, patented technologies are shared on certain
terms as common technical standards to improve the interoperability of different
systems, thus simplifying the lives of consumers. Looking forward, as economies
develop, the use and value of intellectual capital will gradually replace the value of
raw materials as a percentage of capital input toward economic growth. As such,
intellectual property is an increasingly important asset that must be continually
nurtured, protected and stimulated to grow.
The World Economic Forum Global Competitiveness Report indicates
correlation between the protection of intellectual property rights and national
competitiveness. In 2004, the 20 countries that were perceived as having the most
stringent intellectual property protection were classed among the top 27 in the
WEF’s growth competitiveness index. Conversely, the 20 countries perceived as
having the weakest intellectual property regimes were ranked among the bottom
36 for growth and competitiveness.
Intellectual property rights (IPRs) affect international trade flows when
knowledge-intensive goods move across national boundaries. The importance of
IPRs for trade has gained more significance as the share of knowledge-intensive
or high-technology products in total world trade has doubled between 1980 and
1994 from 12 percent to 24 percent. At the international level, IPRs have
traditionally been governed by several conventions—most prominently the Paris
Convention for patents and trademarks and the Berne Convention for copyrights—which
are administered by the World Intellectual Property Organization (WIPO).
In the 1980s, mounting disputes over IPRs led to the inclusion of trade-
related IPRs on the agenda of the Uruguay Round of multilateral trade negotiations.
The resulting Agreement on Trade-Related Aspects of Intellectual Property Rights,
(TRIPS) of 1994 represents the most far-reaching multilateral agreement toward
global harmonization of IPRs. Several studies have attempted to estimate the extent
to which IPRs relate to trade . Maskus and Penubarti (1995) use an augmented
version of the Helpman-Krugman model of monopolistic competition to estimate
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the effects of patent protection on international trade flows. Their results indicate
that higher levels of protection have a positive effect on bilateral manufacturing
imports into both small and large developing economies. These results are
confirmed by Primo Braga and Fink (1997), whose results for a similar model
showed the same positive link between patent protection and trade flows. This
study provides new evidence regarding the effects of patent protection on
international trade. It uses a gravity model of bilateral trade flows and estimates
the effects of increased protection on a cross section of 89 by 88 countries. It
improves on previous studies in two respects.
First, we estimate the gravity model for two different kinds of aggregates: total
nonfuel trade and high-technology trade. Moreover, we address the problem of zero trade
flows between countries by adopting a bivariate probit model. Second, to measure
the strength of IPR regimes, we use a fine-tuned index on national IPR systems
developed by Parkand Ginarte (1997). Our results confirm previous findings
suggesting a positive link between IPR protection and trade flows for the
aggregate of nonfuel trade. However, IPRs are not found to be significant for
high-technology trade flows.
CHAPTER 2
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INDUSTRIAL PROPERTY
Industrial Property includes patents for inventions, trademarks, industrial
designs and geographical indications. The broad application of the term “industrial”
is clearly set out in the Paris Convention for the Protection of Industrial Property
(Article 1 (3)): “Industrial property shall be understood in the broadest sense and
shall apply not only to industry and commerce proper, but likewise to agricultural
and extractive Understanding Industrial Property industries and to all manufactured
or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals,
mineral waters, beer, flowers, and flour.”
These include patents to protect inventions; and industrial designs, which
are aesthetic creations determining the appearance of industrial products. Industrial
property also covers trademarks, service marks, layout-designs of integrated circuits,
commercial names and designations, as well as geographical indications, and
protection against unfair competition. In some of these, the aspect of intellectual
creation, although existent, is less clearly defined.
What counts here is that the object of industrial property typically consists of
signs transmitting information, in particular to consumers, as regards products and
services offered on the market. Protection is directed against unauthorized use of
such signs likely to mislead consumers, and against misleading practices in
general.
2.1 PATENT:-
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 provides patent owners with protection for their
inventions. Protection is granted for a limited period, generally 20 years.
A Patent is a legal monopoly, which is granted for a limited time by a
country to the owner of an invention. Merely to have a patent does not give the
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owner the rights to use or exploit the patented invention. That right may still be
affected by other laws such as health and safety regulation, or the food and drugs
regulation or even by other patents.
The patent, in the eyes of the law, is a property right and it can be given
away, inherited, sold, licensed and can even be abandoned. As it is conferred by
the government, the government, in certain cases even after grant or even if it
has been, in the meantime, sold or licensed, can revoke it.
• A Patent gives an inventor the right for a limited period to stop others from
making, using, selling or importing an invention without the permission of the
inventor. That is why patent is called a "negative right"
• Patents are generally concerned with functional and technical aspects of
products and processes and must fulfill specific conditions to be granted.
• Most patents are for incremental improvements in known technology –
evolution rather than revolution. The technology does not have to be
complex.
• Patent rights are territorial; an Indian patent does not give rights outside of
India.
• Patent rights last for up to 20 years in India and in most countries outside
India.
• Depending on where you wish your patent to be in effect, you must apply
to the appropriate body. In India, this is The Indian Patent Office. There
are various Patent Offices around the world. Alternatively , a Patent Agent
can apply on your behalf.
2.1.1 PROCEDURE FOR FILLING PATENT APPLICATION:-
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Fig 1.2 Procedure of filling patent application:-
• Legal Basis
 The Patents Act 1970, as amended by The Patents (Amendment) Act 2005.
 The Patents Rules, 2003, as amended by The (Amendment) Rules 2006.
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• Filing Application
Any person, even if he or she is a minor, may apply for a patent either alone or
jointly with any other person. Such persons include the inventor, or his assignee or legal
representative in the case of an ordinary application or, in the case of a priority
application, the applicant in the convention country or his assignee or his legal
representative. A corporate body cannot be named as an inventor. Foreigners and
nationals not living in India need an address for service in India for this purpose. They
may appoint a registered agent or representative whose address for service can be the
address for service in India.
• Place of filing:
An application for patent must be filed at the Patent Office branch within whose
territorial jurisdiction the applicant resides or has his principal place of business or
domicile. A foreign applicant must file in the Patent Office branch having jurisdiction
over the place where his address for service is located.
• Priority:
Priority can be claimed from the earliest corresponding application in a
convention country, provided that the Indian application is filed within twelve months of
the priority date. Multiple and partial priorities are allowed.
• Specification:
A priority application must be filed with a complete specification in the first
instance but a non-priority application may be filed with either a provisional specification
or a complete specification. Where a provisional specification is filed in the first instance,
a complete specification must be filed within twelve months. Where two or more
provisional specifications have been filed, the specifications may be cognated and all the
subject matter may be incorporated into a single complete specification to be lodged
within twelve months of the date of the earliest filed provisional specification.
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• Naming of inventor(s):
As regards non-priority applications, the inventor(s) must be named in the
application form. As regards priority applications, a declaration as to inventorship must
be filed with the application or within a maximum period of six months.
• Information of corresponding applications in other countries:
It is necessary at the time of filing a patent application in India, to inform the
Controller of the details of all corresponding applications in other countries and to
undertake to keep the Controller so informed up to the grant of the Indian application.
Failure to do so could result in the refusal of the application in case it is opposed, or even
revocation of a patent in proceedings before the High Court.
2.1.2 WHY ARE PATENTS NECESSARY?
Patents provide incentives to individuals by recognizing their creativity and
offering the possibility of material reward for their marketable inventions. These
incentives encourage innovation, which in turn enhances the quality of human life.
2.1.3 WHAT KIND OF PROTECTION DO PATENTS OFFER?
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.
2.1.4 WHAT RIGHTS DO PATENT OWNERS HAVE?
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 permission to, or license, other parties to use their inventions on mutually
agreed terms. Owners may also sell their invention rights to someone else, who then
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becomes the new owner of the patent. Once a patent expires, protection ends and the
invention enters the public domain. This is also known as becoming off patent,
meaning the owner no longer holds exclusive rights to the invention, and it becomes
available for commercial exploitation by others.
2.1.5 WHAT ROLE DO PATENTS PLAY IN EVERYDAY LIFE?
Patented inventions have pervaded every aspect of human life, from electric
lighting (patents held by Edison and Swan) and sewing machines (patents held by Howe
and Singer), to magnetic resonance imaging (MRI) (patents held by Damadian) and the
iPhone (patents held by Apple). In return for patent protection, all patent owners are
obliged to publicly disclose information on their inventions in order to enrich the
total body of technical knowledge in the world. This ever increasing body of public
knowledge promotes further creativity and innovation. Patents therefore provide not
only protection for their owners but also valuable information and inspiration for
future generations of researchers and inventors.
2.1.6 HOW IS A PATENT GRANTED?
The first step in securing a patent is to file a patent application. The
application generally contains the title of the invention, as well as an indication
of its technical field. It must include the background and a description of the
invention, in clear language and enough detail that an individual with an average
understanding of the field could use or reproduce the invention. Such descriptions
are usually accompanied by visual materials –drawings, plans or diagrams – that
describe the invention in greater detail. The application also contains various
“claims”, that is, information to help determine the extent of protection to be
granted by the patent.
2.1.7 WHAT KINDS OF INVENTIONS CAN BE PROTECTED?
An invention must, in general, fulfill the following conditions to be
protected by a patent. It must be of practical use; it must show an element of
“novelty”, meaning some new characteristic that is not part of the body of existing
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knowledge in its particular technical field. That body of existing knowledge is called
“prior art”. The invention must show an “inventive step” that could not be deduced by a
person with average knowledge of the technical field. Its subject matter must be
accepted as “patentable” under law. In many countries, scientific theories, mathematical
methods, plant or animal varieties, discoveries of natural substances, commercial
methods or methods of medical treatment (as opposed to medical products) are not
generally patentable.
2.1.8 WHO GRANTS PATENTS?
Patents are granted by national patent offices or by regional offices that carry
out examination work for a group of countries – for example, the European Patent
Office (EPO) and the African Intellectual Property Organization(OAPI). Under such
regional systems, an applicant requests protection for an invention in one or more
countries, and each country decides whether to offer patent protection within its
borders. The WIPO- administered Patent Cooperation Treaty (PCT) provides for the
filing of a single international patent application that has the same effect as national
applications filed in the designated countries. An applicant seeking protection may
file one application and request protection in as many signatory states as needed.
2.2 TRADEMARK :-
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.
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A Trademark is any sign which can distinguish the goods and services of
one trader from those of another. A sign includes words, logos, colours, slogans,
three-dimensional shapes and sometimes sounds and gestures.
A trademark is therefore a "badge" of trade origin. It is used as a
marketing tool so that customers can recognize the product of a particular trader.
To be registrable in India it must also be capable of being represented
graphically, that is, in words and/or pictures.
2.2.1 CHANGES IN THE INDIAN TRADE MARK LAW:-
A new Trademark regime has been introduced in India since September 15,
2003. The new Trade Marks Act, 1999 has many innovative features:
• Service Marks:
A mechanism is now available to protect marks used in the service industry. Thus
businesses providing services like computer hardware and software assembly and
maintenance, restaurant and hotel services, courier and transport, beauty and health care,
advertising, publishing, educational and the like are now in a position to protect their
names and marks.
• Collective Marks:
Marks being used by a group of companies can now be protected by the group
collectively.
• Well-known marks:
Marks, which are deemed to be well known, are defined. Such marks will enjoy
greater protection. Persons will not be able to register or use marks, which are imitations
of well-known trademarks.
• Enlarged scope of registration:
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Persons who get their marks registered for particular goods in a particular class
and commence using their marks can sue and prevent other persons from
(i) Using the same or similar marks even for different goods falling in other classes;
(ii) Using the same or similar marks even only as part of their firm name.
(iii) Using the same or similar mark only in advertising or on business papers;
(iv) Unauthorized oral use of the said trademark.
• Stringent punishment:
Punishment for violating a trademark right has been enhanced. The offence
has now been made cognizable and wide powers have been given to the police to
seize infringing goods. At the same time the power of the Courts to grant ex
parte injunctions have been amplified.
• Appellate Board:
An appellate board (IPAB) has been constituted based in Chennai for
speedy disposal of Appeals and rectification applications.
• Expedited procedure:
Mechanisms have been set in place for expediting search and registration by
paying five times the normal fee.
• Enhanced renewal period:
Registered trademarks need to be renewed every ten years.
• License agreements do not need to be compulsorily registered.
• Marks may include the shape of goods.
• Marks may include a combination of colors.
2.2.2 WHAT DO TRADEMARKS DO?
Trademark protection ensures that the owners of marks have the exclusive
right to use them to identify goods or services, or to authorize others to use them
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in return for payment. The period of protection varies, but a trademark can be renewed
indefinitely upon payment of the corresponding fees. Trademark protection is legally
enforced by courts that, inmost systems, have the authority to stop trademark in
fringement. In a larger sense, trademarks promote initiative and enterprise
worldwide by rewarding their owners with recognition and financial profit. Trademark
protection also hinders the efforts of unfair competitors, such as counterfeiters, to use
similar distinctive signs to market inferior or different products or services. The
system enables people with skill and enterprise to produce and market goods and
services in the fairest possible conditions, thereby facilitating international trade.
2.2.3 WHAT KINDS OF TRADEMARKS CAN BE REGISTERED?
Trademarks may be one or a combination of words, letters and numerals.
They may consist of drawings, symbols or three dimension a signs, such as the
shape and packaging of goods. In some countries, non-traditional marks may be
registered for distinguishing features such as holograms, motion, color and non-
visible signs (sound, smeller taste).
In addition to identifying the commercial source of goods or services,
several other trademark categories also exist. Collective marks are owned by an
association whose members use them to indicate products with a certain level of
quality and who agree to adhere to specific requirement set by the association. Such
associations might represent, for example, accountants, engineers or architects.
Certification marks are given for compliance with defined standards but are not
confined to any membership.
2.2.4 HOW IS A TRADEMARK REGISTERED?
First, an application for registration of a trademark must be filed with the
appropriate national or regional trademark office. The application must contain a clear
reproduction of the sign filed for registration, including any colors, forms or three-
dimensional features. It must also contain a list of the goods or services to which
the sign would apply. The sign must fulfill certain conditions in order to be
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protected as a trademark or other type of mark. It must be distinctive, so that
consumers can distinguish it from trademarks identifying other products, as well as
identify a particular product with it. It must neither mislead nor deceive customers
nor violate public order or morality.
Finally, the rights applied for cannot be the same as, or similar to, rights already
granted to another trademark owner. This may be determined through search and
examination by national offices, or by the opposition of third parties who claim to have
similar or identical rights.
2.2.5 HOW EXTENSIVE IS TRADEMARK PROTECTION?
Almost all countries in the world register and protect trademarks. Each
national or regional office maintains a Register of Trademarks containing full
application information on all registrations and renewals, which facilitates
examination, search and potential opposition by third parties. The effects of the
registration are, however, limited to the country (or, in the case of regional registration,
countries) concerned. To avoid the need to register separate applications with each
national or regional office, WIPO administers an international registration system for
trademarks. The system is governed by two treaties: the Madrid Agreement Concerning
the International Registration of Marks and the Madrid Protocol. Persons with a link
(be it through nationality, domicile or establishment) to a country party to one or both
of these treaties may, on the basis of a registration or application with the trademark
office of that country (or related region), obtain an international registration having
effect in some or all of the other countries of the Madrid Union.
2.3 INDUSTRIAL DESIGN:-
An industrial design refers to the ornamental or aesthetic aspects of an
article. A design may consist of three-dimensional features, such as the shape or
surface of an article, or two-dimensional features, such as patterns, lines or color.
Industrial designs are applied to a wide variety of industrial products and
handicrafts: from technical and medical instruments to watches, jewelry and other
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luxury items; from house wares and electrical appliances to vehicles and architectural
structures; from textile designs to leisure goods. To be protected under most national
laws, an industrial design must be new or original and non functional. This means that
an industrial design is primarily of an a esthetic nature, and any technical features of
the article to which it is applied are not protected by the design registration.
However, those features could be protected by a patent.
2.3.1 WHY PROTECT INDUSTRIAL DESIGNS?
Industrial designs are what make an article attractive and appealing; hence,
they add to the commercial value of a product and increase its marketability.
When an industrial design is protected, the owner – the person or entity that has
registered the design – is assured an exclusive right and protection against
unauthorized copying or imitation of the design by third parties .This helps to
ensure a fair return on investment. An effective system of protection also benefits
consumers and the public at large, by promoting fair competition and honest trade
practices, encouraging creativity and promoting more aesthetically pleasing products.
Protecting industrial designs helps to promote economic development by encouraging
creativity in the industrial and manufacturing sectors, as well as in tradition alerts
and crafts.
Designs contribute to the expansion of commercial activity and the export of
national products. Industrial designs can be relatively simple and inexpensive to
develop and protect. They are reasonably accessible to small and medium-sized
enterprises as well as to individual artists and crafts makers, in both developed and
developing countries.
2.3.2 HOW CAN INDUSTRIAL DESIGNS BE PROTECTED?
In most countries, an industrial design must be registered in order to be
protected under industrial design law. As a rule, to be registered, the design must be
“new” or “original”. Countries have varying definitions of such terms, as well as
variations in the registration process itself. Generally, “new” means that no identical
or very similar design is known to have previously existed. Once a design is registered,
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a registration certificate is issued. Following that, the term of protection granted is
generally five years, with the possibility of further renewal, in most cases for a
period of up to 15 years.
Hardly any other subject matter within the realm of intellectual property is
as difficult to categorize as industrial designs. And this has significant implications
for the means and terms of its protection. Depending on the particular national law
and the kind of design, an industrial design may also be protected as a work of
applied art under copyright law, with a much longer term of protection than the
standard 10 or15 years under registered design law. In some countries, industrial design
and copyright protection can exist concurrently. In other countries, they are mutually
exclusive: once owners choose one kind of protection, they can no longer invoke the
other. Under certain circumstances an industrial design may also be protectable under
unfair competition law, although the conditions of protection and the rights and
remedies available can differ significantly.
2.3.3 HOW EXTENSIVE IS INDUSTRIAL DESIGN PROTECTION?
Generally, industrial design protection is limited to the country in which
protection is granted. The Hague Agreement Concerning the International
Registration of Industrial Designs, a WIPO administered treaty, offers a procedure
for international registration of designs. Applicants can file a single international
application either with WIPO or the national or regional office of a country party to
the treaty. The design will then be protected in as many member countries of the
treaty as the applicant designates.
2.4 GEOGRAPHICAL INDICATION:-
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Fig 2.3 Geographical Indication
A geographical indication is a sign used on goods that have a specific
geographical origin and possess qualities or a reputation due to that place of origin.
Most commonly, a geographical indication consists of the name of the place of
origin of the goods. Agricultural products typically have qualities that derive from
their place of production and are influenced by specific local geographical factors,
such as climate and soil.
Whether a sign functions as a geographical indication is a matter of
national law and consumer perception. Geographical indications may be used for a
wide variety of agricultural products, such as , for example, “Tuscany” for olive oil
produced in a specific area of Italy, or “Roquefort” for cheese produced in that region of
France. The use of geographical indications is not limited to agricultural products.
They may also highlight specific qualities of a product that are due to human factors
found in the product’s place of origin, such as specific manufacturing skills and
traditions. The place of origin may be a village or town, a region or a country. An
example of the latter is “Switzerland” or “Swiss”, perceived as a geographical
indication in many countries for products made in Switzerland and, in particular, for
watches.
2.4.1 WHAT IS AN APPELLATION OF ORIGIN?
An appellation of origin is a special kind of geographical indication used
on products that have a specific quality exclusively or essentially due to the
geographical environment in which the products are produced. The term geographical
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indication encompasses appellations of origin. Examples of appellations of origin that
are protected instates party to the Lisbon Agreement for the Protection of Appellations
of Origin and their International Registration are “Bordeaux” for wine produced in the
Bordeaux region of France, “Prosciutto di Parma” – or Parmaham – for ham
produced in the Parma province of Italy or “Habana” for tobacco grown in the
Havana region of Cuba.
2.4.2 WHY DO GEOGRAPHICAL INDICATIONS NEED PROTECTION?
Geographical indications are understood by consumers to denote the origin
and quality of products. Many of them have acquired valuable reputations which, if not
adequately protected, may be misrepresented by commercial operators. False use of
geographical indications by unauthorized parties, for example “Darjeeling” for tea that
was not grown in the tea gardens of Darjeeling, is detrimental to consumers and
legitimate producers. The former are deceived into believing they are buying a
genuine product with specific qualities and characteristics, and the latter are deprived
of valuable business and suffer damage to the established reputation of their
products.
2.4.3 WHAT IS THE DIFFERENCE BETWEEN A GEOGRAPHICAL
INDICATION AND A TRADEMARK?
A trademark is a sign used by a company to distinguish its goods and
services from those produced by others. It gives its owner the right to prevent
others from using the trademark. A geographical indication guarantees to
consumers that a product was produced in a certain place and has certain
characteristics that are due to that place of production. It may be used by all
producers who make products that share certain qualities in the place designated
by a geographical indication.
2.4.4 WHAT IS A “GENERIC” GEOGRAPHICAL INDICATION?
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If the name of a place is used to designate a particular type of product,
rather than to indicate its place of origin, the term no longer functions as a geographical
indication. For example, “Dijon mustard”, a kind of mustard that originated many years
ago in the French town of Dijon, has, overtime, come to denote mustard of that kind
made in many places.
Hence, “Dijon mustard” is now a generic indication and refers to a type of
product, rather than a place.
2.4.5 HOW ARE GEOGRAPHICAL INDICATIONS PROTECTED?
Geographical indications are protected in accordance with national laws and
under a wide range of concepts, such as laws against unfair competition, consumer
protection laws, laws for the protection of certification marks or special laws for the
protection of geographical indications or appellations of origin. In essence, unauthorized
parties may not use geographical indications if such use is likely to mislead the public as
to the true origin of the product. Applicable sanctions range from court injunctions
preventing unauthorized use to the payment of damages and fines or, in serious cases,
imprisonment.
2.4.6 WHAT IS WIPO’S ROLE IN THE PROTECTION OF GEOGRAPHICAL
INDICATIONS?
WIPO administers a number of international agreements that deal partly or
entirely with the protection of geographical indications (in particular, the Paris
Convention and the Lisbon Agreement).
WIPO meetings offer Member States and other interested parties the opportunity
to explore new ways of enhancing the international protection of geographical
indications.
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CHAPTER 3
COPYRIGHT AND RELATED ISSUES
Fig 3.1 Copyright
Copyright Registration in India gives the creators of a wide range of material,
such as literature, art, music, sound recordings, films and broadcasts, economic rights
enabling them to control use of their material in a number of ways, such as by making
copies, issuing copies to the public, performing in public, broadcasting and use on-line. It
also gives moral rights to be identified as the creator of certain kinds of material and to
object to its distortion or its mutilation. (Material protected by copyright is termed a
"work".)
However, copyright does not protect ideas, names or titles. The purpose of
copyright law in India is to allow copyright registrants to gain economic rewards for their
efforts and so encourage future creativity and the development of new material which
benefits us all. Copyright material is usually the result of creative skill and/or significant
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labor and/or investment and without protection, it would often be very easy for others to
exploit material without paying the creator. Most uses of copyright material therefore
require permission from the copyright owner. However there are exceptions to copyright,
so that some minor uses may not result in copyright infringements.
Copyright protection is automatic as soon as there is a record in any form of the
material that has been created. Under the Indian Copyright Act there is a provision to
register copyright although this is voluntary.
Copyright laws grant authors ,artists and other creators protection for their
literary and artistic creations, generally referred to as “works”. A closely associated field
is “related rights” or rights related to copyright that encompass rights similar or identical
to those of copyright, although sometimes more limited and of shorter duration. The
beneficiaries of related rights are: performers (such as actors and musicians) in their
performances; producers of phonograms (for example, compact discs) in their sound
recordings; and broadcasting organizations in their radio and television programs.
Works covered by copyright include, but are not limited to: novels, poems, plays,
reference works, newspapers, advertisements, computer programs, databases, films,
musical compositions, choreography, paintings, drawings, photographs, sculpture,
architecture, maps and technical drawings.
3.1 OWNER OF COPYRIGHT
• In the case of a literary, dramatic, musical or artistic work, the general rule is that
the author, i.e. the person who created the work, is the first owner of the economic
rights under copyright. However, where such a work is made in the course of
employment, the employer is the first owner of these rights, unless an agreement
to the contrary has been made with the author.
• In the case of a film, the principal director and the film producer are joint authors
and first owners of the economic rights and similar provisions as referred to above
apply where the director is employed.
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• In the case of a sound recording the record producer is the author and first owner
of copyright; in the case of a broadcast, the broadcaster; and in case of a published
edition, the publisher.
Copyright is, however, a form of property which, like physical property, can be
bought or sold, inherited or otherwise transferred, wholly or in part. So, some or all of the
economic rights may subsequently belong to someone other than the first owner. In
contrast, the moral rights accorded to authors of literary, dramatic, musical and artistic
works and film directors remain with the author or director or pass to his or her heirs on
death. Copyright in material produced by a Government department belongs to the
Government of India.
Copyright owners generally have the right to authorize or prohibit any of the
following things in relation to their works:
• Copying of the work in any way eg. photocopying / reproducing a printed page
by handwriting, typing or scanning into a computer / taping live or recorded
music.
• Issuing copies of the work to the public.
• Public delivery of lectures or speeches etc.
• Broadcasting of the work, audio / video or including it in a cable programme.
• Making an adaptation of the work such as by translating a literary or dramatic
work, transcribing a musical work and converting a computer program into a
different computer language or code.
Copyright is infringed when any of the above acts are done without authorisation,
whether directly or indirectly and whether the whole or a substantial part of a work,
unless what is done falls within the scope of exceptions to copyright permitting certain
minor uses of material.
There are a number of exceptions to copyright that allow limited use of copyright
works without the permission of the copyright owner. For example, limited use of works
may be possible for research and private study, criticism or review, reporting current
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events, judicial proceedings, teaching in schools and other educational establishments and
not for profit playing of sound recordings.
But if you are copying large amounts of material and/or making multiple copies
then you may still need permission. Also where a copyright exception covers publication
of excerpts from a copyright work, it is generally necessary to include an
acknowledgement. Sometimes more than one exception may apply to the use you are
thinking of. Exceptions to copyright do not generally give you rights to use copyright
material; they just state that certain activities do not infringe copyright. So it is possible
that an exception could be overridden by a contract you have signed limiting your ability
to do things that would otherwise fall within the scope of an exception.
It is important to remember that just buying or owning the original or a copy of a
copyright work does not give you permission to use it the way you wish. For example,
buying a copy of a book, CD, video, computer program etc does not necessarily give you
the right to make copies (even for private use), play or show them in public. Other
everyday uses of copyright material, such as photocopying, scanning, downloading from
a CD-ROM or on-line database, all involve copying the work. So, permission is generally
needed. Also, use going beyond an agreed license will require further permission.
3.2 WHAT RIGHTS DO COPYRIGHT AND RELATED RIGHTS
PROVIDE?
The creators of works protected by copyright, and their heirs and
successors (generally referred to as “right holders”), have certain basic rights under
copyright law. They hold the exclusive right to use or authorize others to use the
work on agreed terms. The right holder(s) of a work can authorize or prohibit :its
reproduction in all forms, including print form and sound recording; its public
performance and communication to the public; its broadcasting; its translation into
other languages; and its adaptation, such as from a novel to a screenplay for a film.
Similar rights of, among others, fixation (recording) and reproduction are granted under
related rights. Many types of works protected under the laws of copyright and
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related rights require mass distribution, communication and financial investment for
their successful dissemination (for example, publications, sound recordings and films).
Hence, creators often transfer these rights to companies better able to develop
and market the works, in return for compensation in the form of payments and/or
royalties (compensation based on a percentage of revenues generated by the work). The
economic rights relating to copyright are of limited duration –as provided for in the
relevant WIPO treaties – beginning with the creation and fixation of the work, and
lasting for not less than 50 years after the creator’s death. National laws may establish
longer terms of protection.
This term of protection enables both creators and their heirs and successors to
benefit financially for a reasonable period of time. Related rights enjoy shorter terms,
normally 50 years after the performance, recording or broadcast has taken place.
Copyright and the protection of performers also include moral rights, meaning the
right to claim authorship of a work, and the right to oppose changes to the work that
could harm the creator’s reputation.
Rights provided for under copyright and related rights laws can be enforced by
right holders through a variety of methods and for a, including civil action suits
,administrative remedies and criminal prosecution. Injunctions, orders requiring
destruction of infringing items, inspection orders, among others, are used to enforce
these rights.
3.3 WHAT ARE THE BENEFITS OF PROTECTING COPYRIGHT AND
RELATED RIGHTS?
Copyright and related rights protection is an essential component in fostering
human creativity and innovation. Giving authors, artists and creators incentives in the
form of recognition and fair economic reward increases their activity and output and
can also enhance the results. By ensuring the existence and enforceability of rights
,individuals and companies can more easily invest in the creation, development and
global dissemination of their works. This, in turn, helps to increase access to and enhance
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the enjoyment of culture, knowledge and entertainment the world overhand also
stimulates economic and social development.
3.4 HOW HAVE COPYRIGHT AND RELATED RIGHTS KEPT UP WITH
ADVANCES IN TECHNOLOGY?
The field of copyright and related rights has expanded enormously during the last
several decades with the spectacular progress of technological development that has, in
turn, yielded new ways of disseminating creations by such forms of communication as
satellite
Broadcasting, compact discs and DVDs. Widespread dissemination of works via
the Internet raises difficult questions concerning copyright and related rights in this
global medium. WIPO is fully involved in the ongoing international debate to shape new
standards for copyright protection in cyberspace. In that regard, the Organization
administers the WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT), known as the “Internet Treaties”. These treaties clarify
international norms aimed at preventing unauthorized access to and use of creative work
son the Internet.
3.5 HOW ARE COPYRIGHT AND RELATED RIGHTS REGULATED?
Copyright and related rights protection is obtained automatically without the
need for registration or other formalities. However, many countries provide for a
national system of optional registration and deposit of works. These systems facilitate,
for example, questions involving disputes over ownership or creation, financial
transactions, sales, assignments and transfer of rights. Many authors and performers do
not have the ability or means to pursue the legal and administrative enforcement of their
copyright and related rights, especially given the increasingly global use of literary,
music and performance rights. As a result, the establishment and enhancement of
collective management organizations(CMOs), or “societies”, is a growing and necessary
trend in many countries. These societies can provide their members with efficient
administrative support and legal expertise.
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CHAPTER 4
WORLD INTELLECTUAL PROPERTY ORGANIZATION
Established in 1970, the World Intellectual Property Organization (WIPO) is
an international organization dedicated to helping ensure that the rights of creators and
owners of intellectual property are protected worldwide, and that inventors and authors
are therefore recognized and rewarded for their ingenuity. This international
protection acts as a spur to human creativity, pushing back the limits of science
and technology and enriching the world of literature and the arts. By providing a
stable environment for marketing products protected by intellectual property, it
also oils the wheels of international trade.
WIPO works closely with its Member States and other constituents to ensure the
intellectual property system remains a supple and adaptable tool for prosperity and well-
being, crafted to help realize the full potential of created works for present and future
generations.
4.1 HOW DOES WIPO PROMOTE THE PROTECTION OF
INTELLECTUAL PROPERTY?
As part of the United Nations system of specialized agencies, WIPO serves as a
forum for its Member States to establish and harmonize rules and practices for the
protection of intellectual property rights. WIPO also services global registration
systems for trademarks, industrial designs and appellations of origin, and a global
filing system for patents. These systems are under regular review by WIPO’s Member
States and other stakeholders to determine how they can be improved to better serve the
needs of users and potential users.
Many industrialized nations have intellectual property protection systems that are
centuries old. Among newer or developing countries, however, many are in the process of
building up their patent, trademark and copyright legal frameworks and intellectual
property systems. With the increasing globalization of trade and rapid changes in
technological innovation, WIPO plays a key role in helping these systems to evolve
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through treaty negotiation; legal and technical assistance; and training in various forms,
including in the area of enforcement. WIPO works with its Member States to make
available information nonintellectual property and outreach tools for a range of audiences
–from the grassroots level through to the business sector and policymakers – to ensure its
benefits are well recognized, properly understood and accessible to all.
4.2 HOW IS WIPO FUNDED?
WIPO is a largely self-financed organization, generating more than 90 percent of
its annual budget through its widely used international registration and filing systems, as
well as through its publications and arbitration and mediation services. The remaining
funds come from contributions by Member States.
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CHAPTER 5
CONCLUSIONS
Intellectual property rights are often confusing and sometimes the topic of heated
debates. There are those who question the worth of creative products and projects,
claiming design and art are something anyone can do, regardless of training, experience,
or any inherent ability. As creative, a deterioration of intellectual property rights is a
dangerous possibility. By going public with our work, we have no recourse to prevent
others from using our designs, our photos, or our other artwork without paying us or even
offering proper credit.
And yet, creatives are just as often guilty of violating these rights as those who
aren’t in a creative profession (and sometimes, I think, more likely). We need to have
more respect for our fellow creators and their work, regardless of our perceptions of what
we think about their work and their process. If it was created by someone else, we need to
respect that and abide by their wishes when it comes to use, credit, and compensation.
As creative professionals, we often have a good idea of what goes into the things
we create. A web designer can look at a website and have a good idea of what went into
designing it. A graphic designer can look at a logo and get a sense of what tools were
used to create it. Outside design fields, other creatives also have a good sense of what
goes into their respective art forms.
But all too often, we don’t understand what goes into parallel creative professions.
Web designers don’t necessarily know what goes into creating a stock photograph.
Photographers might not have any clue what goes into creating a typeface. We look at
different creative pursuits and careers from within our own, narrow focus, often
overlooking important aspects of different creative industries.
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CHAPTER 7
BIBLIOGRAPHY AND REFERENCES
Websites:
[1]http:// en.wikipedia.org/wiki/Intellectual property
[2]http://www.ipmag.com/
[3]http:// www.rkdewan.com/
[4]http://www.wipo.int/about-ip/index.html
[5]http://www.wipo.int/freepublications/en/intproperty/
[6] http://www.nipo.in/
[7] http://www.ipindia.nic.in/
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