Intellectual property law

Introduction

As a result of the industrial revolution and the rapid developments made in the fields of science, technology and culture, new kinds of property apart from the traditional property came into existence. The concept of property has undergone a sea change especially after the second world war. New rights and properties like patents, copyright and industrial design came to be known as ‘Intellectual Property Rights’ (IPR) received attention due to their violation easily. These intellectual property rights differ from other forms of property because of uncertainties regarding their value and how they can be used. Intellectual Property Rights cannot be kept in a safe deposit vault or be deposited in a bank or locked up in a house.  The said property whether in the form of a copyright, trademark or a trade name or in any other form is easily and readily available to the general public and is therefore prone to theft and exploitation.

The unique and fragile nature of these rights and their possible exploitation the world over made made the Industrially and scientifically developed and the developing countries take note of the necessity to protect these rights by International cooperation and necessary legislation in respective countries. Consequently various International Conventions, Treaties and Agreements have been entered into and the states also passed necessary legislation. However in India, the realization as to the significance and the need to protect the Intellectual property rights seem to have dawned only in recent times.

What is intellectual Property

This term includes in the broadest sense all rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. Most often one thinks of property as either movable property (e.g.: car or a radio) or immovable property ( e.g.: a house or land). One characteristic of these forms of property is their tangible existence. In comparison, intellectual property law confers property rights on intangibles. Intellectual property has been characterized as: “ information which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information reflected in those copies”.

Classification of intellectual property

Intellectual property in general is broken down into two major branches: Industrial property and copyright law. A term of French origin, “Industrial property” (proprieties industrial) encompasses patents ( technological information) , trademarks (symbolic information) and “industrial designs”. Copyright law and neighboring rights (expressive information) cover artistic, musical and literary works. The term “intellectual property” has been given official recognition by the international community with the establishment of WIPO, a specialized agency of the United Nations.

The concept of intellectual property

In general the most important feature of property is that the proprietor or owner may use his property as he wishes and that nobody else can lawfully use his property without his authorization.  Of course, there are certain recognized limits for the exercise of that right.  For example, the owner of a piece of land is not always free to construct a building of whatever dimensions he wishes, but must respect the applicable legal requirements and administrative decisions.

  1. Generally speaking, there are three kinds of property :- property consisting of movable things, such as a wrist watch or a car. No one expect the owner of the the wristwatch or car may use those objects. This is a legal situation which is called an exclusive right, namely, the exclusive right, belonging to the owner, to use the thing which is his property.  Naturally, the proprietor may authorize others to use his property. But such authorization is legally necessary, and use without owner’s authorization is illegal. Moreover, the right to use is not unlimited; when exercising that right, rights of other persons, for example, in the situation where a road is privately owned by another person, and administrative regulations, for example, speed limits for car, must be respected.
  2. Immovable property, namely, land and things permanently fixed on it, such as houses. We have already seen an example of the limitations of such property, namely, the requirements to be respected when a building.
  3. Intellectual property :- The objects of intellectual property are the creations of the human mind, the human intellect. This is why this kind of property is called “intellectual” property. In a somewhat simplified way, one can state that intellectual property relates to pieces of information which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world.  The property is not in those copies but in the information reflected in those copies. Similar to property in movable things and immovable property, intellectual property too is characterized by certain limitations, for example, limited duration in the case of copyright and patents.

Intellectual property is usually divided into two branches namely “industrial property” and “copyright”.

The Convention Establishing the World Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967, provides that ‘intellectual property’ Shall include rights relating to :-

  1. Literary, artistic and scientific works;
  2. Performance of performing artists, phonograms and broadcasts ;
  3. Inventions in all fields of human endeavour ;
  4. Scientific discoveries  ;
  5. Industrial design ;
  6. Trademarks, service Marks and commercial names and designations  ;
  7. Protection against unfair competition  ;

And all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”

The objects mentioned under (1) belong to the copyright branch of intellectual property. The objects mentioned in (2) are usually called “neighboring rights” that is, rights neighboring on copyright. The objects mentioned under (3) , (5) and (6) constitute the industrial property branch of intellectual property. The objects mentioned under (7) may also be considered as belonging to that branch, more as to Article 1(2) of the Paris convention for protection of Industrial Property includes “the repression of unfair competition” among the objects of “the protection of industrial property” ; the said Convention states that “any act of competition contrary to honest practices in industrial and commercial matters constitutes an act of unfair competition”. The objects mentioned under (4) – scientific discoveries belongs to neither of two branches of intellectual property. The General treaty on the International Scientific Discoveries (1978) defines a scientific discovery as the “cognition of phenomena, properties or laws of the material Universe not hitherto recognized and capable of verification”. Inventions are new solutions to specific technical problems.

Industrial Property

As regards industrial property, this expression is sometimes misunderstood as denoting movable or immovable property used for industrial production, such as machines, equipment for production, etc. However, industrial property is a kind of intellectual property and that relates to creations of the human mind. Typically, such creations are inventions and industrial designs. Simply stated, inventions are new solutions to technical problems, and industrial designs are aesthetic creations determining the characteristics of industrial products. In addition, industrial property includes trademarks, design Marks, service Marks, commercial names and designations, including indications of source and appellations of origin, and the protection against unfair competition.

The expression “industrial” property may appear as not entirely logical because it is only as far as inventions are concerned that the main segment of economy that is interested in them is industry. Indeed, in the typical situation, inventions are exploited in industrial plants. But Trademark, service mark, commercial name and commercial designations are of interest not only to industry but also and mainly to commerce.

The Paris convention provides that “the protection of industrial property has as its object (1) patents (2) utility models, (3) industrial designs (4) trademark (5) service mark (6) trade names (7) indications of source or (8) appellations of origin, and (9) the repression of unfair competition” (Article 1(2))

Copyright

Copyright relates to artistic creations, such as poems, novels, music, paintings, cinematographic works, etc. In most European languages other than English, copyright is called author’s rights. The expression “copyright” refers to the main act which, in respect of literary and artistic creations, may be made only by the author with his authorization. That act is the making of the copy of the literary or artistic work, such as a book, painting, a sculpture, a photograph, a motion picture.  The second expression “authors rights” refers to the person who is the creator of the artist work, its author thus underlining the fact, recognized in most laws, that the author has certain special rights in his creation, for example, the right to prevent a distorted reproduction, which can be exercised only by himself, whereas other rights, such as the right to make copies, can be exercised by other persons, for example, a publisher who has obtained a license to this effect from the author.

Generally speaking, it is the expression of the author’s ideas that is protected rather than the ideas themselves. For instance, if an author makes an expose of his ideas on how to build a radio receiver, the copyright he has in his expose when published in the form of an article in a review will not prevent a third party from using the author’s ideas to build such a receiver, but the copyright will protect the author against the reproduction of copies of his article without his consent.

For a work to enjoy copyright protection, however, it must be an original creation. The ideas in the work do not need to be new. But the form, be it literary or artistic, in which they are to the form. But, on the latter point the original character presents problems in certain cases. This is true for instance of artistic works ( essentially paintings and sculptures), for which the exercise of copyright is to a large extent based on the display or sale of the original. The fact of the author allowing himself to be separated from the original should not mean that he has to forgo subsequent profit. Thus certain legislatures give the author a share in the fortune of his work by creating a “adroit de suite” which allows him to collect a share of the selling price whenever the work changes owners.

The final fixation of the work in a material form (writing, printing, photography, sound or visual recording, sculpture, construction, painting graphic reproduction, etc.) is not necessarily a perquisite of protection. However, certain countries, notably those that follow the Anglo-American legal system, require mainly for reasons of proof, some fixation of the work before protection is assured.

Conclusion

However, the ownership of intellectual property may be distinguished from the ownership of other properties, eventhough as Salmond said “ in modern law every man owns that which he creates. That which he produces is his and he has an exclusive right to the use and benefit from it. The immaterial product of a man’s brain may be as valuable as his land or his goods. The law therefore gives him a proprietary right in it, and the unauthorized use of it by other persons is violation of his ownership, no less than theft or trespass is.” The above statement rightly sums up the nature of the subject of a right in re propria is either material or immaterial. An immaterial thing which is incorporeal as well as is a kind of right, namely any right which is not identified with some material timing which is its subject-matter. The days are changing fast and the material based society is changing into knowledge-based society. It is in this context that the Intellectual Property would play a very important role in the coming generations.

Reference

Intellectual Property Rights and the Law, Dr. G.B Reddy, 4th edition, Gogia law Agency, 2005

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