Intellectual Property Rights (IPR)
Questions & Answers
Ans. Intellectual property is an intellectual work, produced by the intellect of human brain.
For example : literary work produced by the authors, musical work produced by the musicians, coming of trade marks used in the course of business or trade, design of industrial products etc. are intellectual properties as they are created by the human intellect.
Intellectual property (IP) are legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets.
No one can make use of Intellectual property without the consent of the owner of the intellectual property. However, the owner of intellectual property may assign intellectual property itself or any interest in it in favour of any person in consideration of monetary gains.
For example : an author may assign the copyright in his literary work in the favour of any person in consideration of lump sum amount or royalty.
Ans. The main objective of intellectual property is to stimulate technological progress, to the benefit of society.
It encourages to build freely ideas and information conveyed by work.
Intellectual property rights grant exclusive rights to intellectual creations; they grant ownership over creations of the mind. These exclusive rights allow owners of intellectual property to reap monopoly profits. These monopoly profits provide a financial incentive for the creation of intellectual property, and pay associated research and development costs.
The legal monopoly granted by IP laws are credited with significant contributions toward economic growth.
Ans. KINDS OF INTELLECTUAL PROPERTY RIGHTS
Country desires to protect something as intellectual property which others may not accept as validly falling in the realm of intellectual property.
For example : sound trade marks prevalent in USA are not recognized as trade marks in India.
Intellectual Property consists mainly of two branches :-
¤ Industrial Property which deal with
¤ Trade marks
¤ Industrial Designs
¤ Patents etc.
Copyright which protects literary, musical, artistic work etc.
Copyright protects rights related to creation of human mind in the fields of literature, music, art, and audio-visual works. The owner of copyright has right only in the original work, but also in creative work that is derived from the original work, e.g. its translation or adaptation or the enactment or production of a film based on the original work. Such rights relating to a copyright, which protect performances of performing artists, phonograms and broadcasts. Related rights and neighboring rights are terms used interchangeably.
The WTO-TRIPS (World trade organization- Trade Related Intellectual Property Rights) is the most important treaty accepted by the largest number of nations till date. It lists seven Intellectual Property Rights which are as under :
• Copyright and Related Rights
• Trade Marks, Trade names and Service marks
• Geographical Indications;
• Industrial Designs :
• Patents :
• Layout Designs of Integrated Circuits; and
• Undisclosed Information
Ans. 1. World Intellectual Property Organization (WIPO) Convention (1967)
Convention Establishing the World Intellectual Property Organization, adopted at Stockholm on July 14, 1967 and as amended on September 28, 1979.
2. BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (1886)
The convention rests upon 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 which want to make use of them.
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 which were first published in 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.
(b) Such protection must not be conditional upon compliance with any formality.
(c) Such protection is independent of the existence of the protection in the country of origin of the work (principle of the independence of protection). If, however a contracting State provides for a longer term than the minimum prescribed by the convention and the work ceases to be protected in the country of origin, protection my be denied once protection in the country of origin cases.
3. PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY(1883)
The Convention applies to industrial property in the widest sense, including patents, marks, industrial designs, utility models (a kind of "small patent" provided for by the laws of some countries), trade names (designations under which an industrial or commercial activity is carried on), geographical indications (indications of source and appellations of origin) and the repression of unfair competition.
The substantive provisions of the Convention fall into three main categories : national treatment, right of priority, common rules.
The Convention provides that :-
(a) as regards the protection of industrial property, each contracting State must grant the same protection to nationals of the other contracting States as it grants to its own nationals. Nationals of non-contracting States are also entitled to national treatment under the Convention if they are domiciled or have a real and effective industrial or commercial establishment in a contracting State.
(b) for the right of priority in the case of patents (and utility models, where they exist), marks and industrial designs. This right means that, on the basis of a regular first application filed in one of the contracting States, the applicant may, within a certain period of time (12 months for patents and utility models; 6 months for industrial designs and marks), apply for protection in any of the other contracting States; these later applications will then be regarded as if they had been filed on the same day as the first application. In other words, these later applications will have priority (hence the expression "right of priority") over applications which may have been filed during the said period of time by other persons for the same invention, utility model, mark or industrial design. Moreover, these later applications, being based on the first application, will not be affected by any event that may have taken place in the interval, such as any publication of the invention or sale of articles bearing the mark or incorporating the industrial design.
The Convention lays down a few common rules which all the contracting States must follow. The more important are the following :
(a) As to Patents : Patents granted in different contracting States for the same invention are independent of each other : The granting of a patent in one contracting State does not oblige the other contracting States to grant a patent; a patent cannot be refused, annulled or terminated in any contracting State on the ground that it has been refused or annulled or has terminated in any other contracting State.
The inventor has the right to be named as such in the patent.
Each contracting State that takes legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exclusive rights conferred by a patent may do so only with certain limitations.
(b) As to Marks : The Paris Convention does not regulate the conditions for the filing and registration of marks which are therefore determined in each contracting State by the domestic law. Consequently, no application for the registration of a mark filed by a national of a contracting State may be refused, nor may a registration be invalidated, on the ground that filing, registration or renewal has not been effected in the country of origin. Once the registration of a mark is obtained in a contracting State, it is independent of its possible registration in any other country, including the country of origin; consequently, the lapse or annulment of the registration of a mark in one contracting State will not affect the validity of registration in other contracting States.
(c) As to Industrial Designs : Industrial designs must be protected in each contracting State, and protection may not be forfeited on the ground that the articles incorporating the design are not manufactured in that State.
(d) As to Trade Names : Protection must be granted to trade names in each contracting State without the obligation of filing or registration.
(e) As to Indications of Source : Measures must be taken by each contracting State against direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer or trader.
(f) As to Unfair Competition : Each contracting State must provide for effective protection against unfair competition.
4. THE GENERAL AGREEMENT ON TARIFFS AND TRADE (typically abbreviated 'GATT')
The history of the GATT can be divided into three phases :
1st from 1947 until the Torquay Round, largely concerned which commodities would be covered by the agreement and freezing existing tariff levels.
2nd encompassing three rounds, from 1959 to 1979, focused on reducing tariffs.
3rd consisting only of the Uruguay Round from 1986 to 1994, extended the agreement fully to new areas such as intellectual property, services, capital, and agriculture. Out of this round the WTO was born.
5. THE AGREEMENT ON TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS)
The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property.
6. SOME OTHER INTERNATIONAL TREATIES
1. Berne Convention
2. Brussels Convention
3. Film Register Treaty
4. Madrid Agreement ( Indications of source)
5. Nairobi Treaty
6. Paris Convention
7. Patent Law Treaty
8. Phonograms Convention
9. Rome Convention
10. Singapore Treaty on the law of Trademarks
11. Trademark Law Treaty
12. Washington Treaty
13. WCT
14. WPPT
15. Budapest Treaty
16. Hague Agreement
17. Lisbon Agreement
18. Madrid Agreement (Marks)
19. Madrid protocol
20. PCT
21. Locarno Agreement
22. Nice Agreement
23. Strasbourg Agreement
24. Vienna Agreement
Ans. Convention Establishing the World Intellectual Property Organization, adopted at Stockholm on July 14, 1967 and as amended on September 28, 1979.
OBJECTIVES
1. To promote the protection of intellectual property worldwide.
2. To ensure administrative cooperation among the intellectual property Unions established by the treaties that WIPO administers.
3. To contribute to better understanding and cooperation among states for their mutual benefit on the basis of respect for their sovereignty and equality.
ROLE OF WIPO :
Article 4 of WIPO Convention specifically defines the role of WIPO by laying down the function to be performed by the WIPO.
WIPO plays a role in developing various elements related to IP system which promotes innovations
a. I P legislations
b. I P culture and awareness
c. I P offices competences
d. I P automation and technical infrastructure
e. Patent information and documentation.
Ans. The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property.
The three main features of the Agreement are :
¤ Standards. In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection. The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions, must be complied with. With the exception of the provisions of the Berne Convention on moral rights, all the main substantive provisions of these conventions are incorporated by reference and thus become obligations under the TRIPS Agreement between TRIPS Member countries. The relevant provisions are to be found in Articles 2.1 and 9.1 of the TRIPS Agreement, which relate, respectively, to the Paris Convention and to the Berne Convention. Secondly, the TRIPS Agreement adds a substantial number of additional obligations on matters where the pre-existing conventions are silent or were seen as being inadequate. The TRIPS Agreement is thus sometimes referred to as a Berne and Paris-plus agreement.
¤ Enforcement. The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.
¤ Dispute settlement. The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.
The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.
Ans. (i) Patents : The Patents Act, 1970 as amended in 1999, 2002 and 2005
(ii) Design : The Designs Act, 2000
(iii) Trade Mark : The Trade Marks Act, 1999
(iv) Copyright : The Copyright Act, 1957 as amended in 1983, 1984 and 1992, 1994, 1999
(v) Layout Design of Integrated Circuits : The Semiconductor Integrated Circuits Layout
(vi) Design Act, 2000
(vii) Protection of Undisclosed Information : No exclusive legislation exists but the matter would be generally covered under the Contract Act, 1872
(viii) Geographical Indications : The Geographical Indications of Goods (Registration and Protection) Act, 1999
(ix) Plant Varieties : The Protection of Plant Variety and Farmers' Rights Act, 2001
Ans. Patents, designs, trademarks and geographical indications are administered by the Controller General of Patents, Designs and Trademarks which is under the control of the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry.
Copyright is under the charge of the Ministry of Human Resource Development.
The Act on Layout-Design of Integrated Circuits is administered by the Ministry of Telecommunication and Information Technology.
Protection of Plant Varieties and Farmers' Rights Authority is administered by Ministry of Agriculture.
For example : literary work produced by the authors, musical work produced by the musicians, coming of trade marks used in the course of business or trade, design of industrial products etc. are intellectual properties as they are created by the human intellect.
Intellectual property (IP) are legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets.No one can make use of Intellectual property without the consent of the owner of the intellectual property. However, the owner of intellectual property may assign intellectual property itself or any interest in it in favour of any person in consideration of monetary gains.
For example : an author may assign the copyright in his literary work in the favour of any person in consideration of lump sum amount or royalty.
It encourages to build freely ideas and information conveyed by work.
Intellectual property rights grant exclusive rights to intellectual creations; they grant ownership over creations of the mind. These exclusive rights allow owners of intellectual property to reap monopoly profits. These monopoly profits provide a financial incentive for the creation of intellectual property, and pay associated research and development costs.
The legal monopoly granted by IP laws are credited with significant contributions toward economic growth.
Country desires to protect something as intellectual property which others may not accept as validly falling in the realm of intellectual property.
For example : sound trade marks prevalent in USA are not recognized as trade marks in India.
Intellectual Property consists mainly of two branches :-¤ Industrial Property which deal with
¤ Trade marks
¤ Industrial Designs
¤ Patents etc.
Copyright which protects literary, musical, artistic work etc.
Copyright protects rights related to creation of human mind in the fields of literature, music, art, and audio-visual works. The owner of copyright has right only in the original work, but also in creative work that is derived from the original work, e.g. its translation or adaptation or the enactment or production of a film based on the original work. Such rights relating to a copyright, which protect performances of performing artists, phonograms and broadcasts. Related rights and neighboring rights are terms used interchangeably.
The WTO-TRIPS (World trade organization- Trade Related Intellectual Property Rights) is the most important treaty accepted by the largest number of nations till date. It lists seven Intellectual Property Rights which are as under :
• Copyright and Related Rights
• Trade Marks, Trade names and Service marks
• Geographical Indications;
• Industrial Designs :
• Patents :
• Layout Designs of Integrated Circuits; and
• Undisclosed Information
Convention Establishing the World Intellectual Property Organization, adopted at Stockholm on July 14, 1967 and as amended on September 28, 1979.
2. BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (1886)The convention rests upon 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 which want to make use of them.
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 which were first published in 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.
(b) Such protection must not be conditional upon compliance with any formality.
(c) Such protection is independent of the existence of the protection in the country of origin of the work (principle of the independence of protection). If, however a contracting State provides for a longer term than the minimum prescribed by the convention and the work ceases to be protected in the country of origin, protection my be denied once protection in the country of origin cases.
3. PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY(1883)The Convention applies to industrial property in the widest sense, including patents, marks, industrial designs, utility models (a kind of "small patent" provided for by the laws of some countries), trade names (designations under which an industrial or commercial activity is carried on), geographical indications (indications of source and appellations of origin) and the repression of unfair competition.
The substantive provisions of the Convention fall into three main categories : national treatment, right of priority, common rules.
The Convention provides that :-
(a) as regards the protection of industrial property, each contracting State must grant the same protection to nationals of the other contracting States as it grants to its own nationals. Nationals of non-contracting States are also entitled to national treatment under the Convention if they are domiciled or have a real and effective industrial or commercial establishment in a contracting State.
(b) for the right of priority in the case of patents (and utility models, where they exist), marks and industrial designs. This right means that, on the basis of a regular first application filed in one of the contracting States, the applicant may, within a certain period of time (12 months for patents and utility models; 6 months for industrial designs and marks), apply for protection in any of the other contracting States; these later applications will then be regarded as if they had been filed on the same day as the first application. In other words, these later applications will have priority (hence the expression "right of priority") over applications which may have been filed during the said period of time by other persons for the same invention, utility model, mark or industrial design. Moreover, these later applications, being based on the first application, will not be affected by any event that may have taken place in the interval, such as any publication of the invention or sale of articles bearing the mark or incorporating the industrial design.
The Convention lays down a few common rules which all the contracting States must follow. The more important are the following :
(a) As to Patents : Patents granted in different contracting States for the same invention are independent of each other : The granting of a patent in one contracting State does not oblige the other contracting States to grant a patent; a patent cannot be refused, annulled or terminated in any contracting State on the ground that it has been refused or annulled or has terminated in any other contracting State.
The inventor has the right to be named as such in the patent.
Each contracting State that takes legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exclusive rights conferred by a patent may do so only with certain limitations.
(b) As to Marks : The Paris Convention does not regulate the conditions for the filing and registration of marks which are therefore determined in each contracting State by the domestic law. Consequently, no application for the registration of a mark filed by a national of a contracting State may be refused, nor may a registration be invalidated, on the ground that filing, registration or renewal has not been effected in the country of origin. Once the registration of a mark is obtained in a contracting State, it is independent of its possible registration in any other country, including the country of origin; consequently, the lapse or annulment of the registration of a mark in one contracting State will not affect the validity of registration in other contracting States.
(c) As to Industrial Designs : Industrial designs must be protected in each contracting State, and protection may not be forfeited on the ground that the articles incorporating the design are not manufactured in that State.
(d) As to Trade Names : Protection must be granted to trade names in each contracting State without the obligation of filing or registration.
(e) As to Indications of Source : Measures must be taken by each contracting State against direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer or trader.
(f) As to Unfair Competition : Each contracting State must provide for effective protection against unfair competition.
4. THE GENERAL AGREEMENT ON TARIFFS AND TRADE (typically abbreviated 'GATT')The history of the GATT can be divided into three phases :
1st from 1947 until the Torquay Round, largely concerned which commodities would be covered by the agreement and freezing existing tariff levels.
2nd encompassing three rounds, from 1959 to 1979, focused on reducing tariffs.
3rd consisting only of the Uruguay Round from 1986 to 1994, extended the agreement fully to new areas such as intellectual property, services, capital, and agriculture. Out of this round the WTO was born.
5. THE AGREEMENT ON TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS)The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property.
6. SOME OTHER INTERNATIONAL TREATIES1. Berne Convention
2. Brussels Convention
3. Film Register Treaty
4. Madrid Agreement ( Indications of source)
5. Nairobi Treaty
6. Paris Convention
7. Patent Law Treaty
8. Phonograms Convention
9. Rome Convention
10. Singapore Treaty on the law of Trademarks
11. Trademark Law Treaty
12. Washington Treaty
13. WCT
14. WPPT
15. Budapest Treaty
16. Hague Agreement
17. Lisbon Agreement
18. Madrid Agreement (Marks)
19. Madrid protocol
20. PCT
21. Locarno Agreement
22. Nice Agreement
23. Strasbourg Agreement
24. Vienna Agreement
1. To promote the protection of intellectual property worldwide.
2. To ensure administrative cooperation among the intellectual property Unions established by the treaties that WIPO administers.
3. To contribute to better understanding and cooperation among states for their mutual benefit on the basis of respect for their sovereignty and equality.
ROLE OF WIPO :
Article 4 of WIPO Convention specifically defines the role of WIPO by laying down the function to be performed by the WIPO.
WIPO plays a role in developing various elements related to IP system which promotes innovations
a. I P legislations
b. I P culture and awareness
c. I P offices competences
d. I P automation and technical infrastructure
e. Patent information and documentation.
¤ Standards. In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection. The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions, must be complied with. With the exception of the provisions of the Berne Convention on moral rights, all the main substantive provisions of these conventions are incorporated by reference and thus become obligations under the TRIPS Agreement between TRIPS Member countries. The relevant provisions are to be found in Articles 2.1 and 9.1 of the TRIPS Agreement, which relate, respectively, to the Paris Convention and to the Berne Convention. Secondly, the TRIPS Agreement adds a substantial number of additional obligations on matters where the pre-existing conventions are silent or were seen as being inadequate. The TRIPS Agreement is thus sometimes referred to as a Berne and Paris-plus agreement.
¤ Enforcement. The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.
¤ Dispute settlement. The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.
The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.
Copyright is under the charge of the Ministry of Human Resource Development.
The Act on Layout-Design of Integrated Circuits is administered by the Ministry of Telecommunication and Information Technology.
Protection of Plant Varieties and Farmers' Rights Authority is administered by Ministry of Agriculture.