Intellectual property rights (IPR) are the rights given to persons over the creations of their minds: inventions, literary and artistic works, and symbols, names and images used in commerce. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
These rights are outlined in Article 27 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).
- IPR Awareness: Outreach and Promotion – To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
- Generation of IPRs – To stimulate the generation of IPRs.
- Legal and Legislative Framework – To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
- Administration and Management – To modernize and strengthen service-oriented IPR administration.
- Commercialization of IPRs – Get value for IPRs through commercialization.
- Enforcement and Adjudication – To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
- Human Capital Development – To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
INTELLECTUAL PROPERTY SYSTEM IN INDIA
In 1485 the first system of protection of intellectual property came in the form on Venetian Ordinance historically. In England in 1623 it was followed by Statue of Monopolies, which extended rights of patents for Technology Inventions. In 1760, patent laws were introduced in The United States. Between 1880 and 1889 patent laws of most European countries were developed. In the year 1856 in India Patent Act was introduced which remained in force for more than 50 years which was later modified and revised and was called “The Indian Patents and Designs Act, 1911”. A complete bill on patent rights was enacted after Independence in the year 1970 and was called “The Patents Act, 1970”.
Specific statues protected only specific type of intellectual output; till very recently only four forms were protected. The protection was in the form of grant of designs, patents, trademarks and copyrights. In India, copyrights were regulated under the Copyright Act, 1957; trademarks under Trade and Merchandise Marks Act 1958; patents under Patents Act, 1970; and designs under Designs Act, 1911.
The establishment of WTO and India also being signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), many new legislations were passed for the protection of intellectual property rights to meet the obligations internationally. These included the following: Designs Act, 1911 was changed by the Designs Act, 2000; Trade Marks, called the Trade Mark Act, 1999; the Copyright Act, 1957 was revised number of times, the latest is known as Copyright (Amendment) Act, 2012; and the recent amendments made to the Patents Act, 1970 in 2005. Other than this, plant varieties and geographical indications were also enacted in new legislations. These are called Geographical Indications of Goods (Registration and Protection) Act, 1999, and Protection of Plant Varieties and Farmers’ Rights Act, 2001 respectively.
Intellectual property rights have developed to a stature from where it plays an important role in developing economy globally, over the last fifteen years. In 1990s, laws and regulations were strengthened I this area by many countries unilaterally. In the multilateral level, there was enhanced protection and enforcement of IPRs to the level of solemn international commitment because of successful conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in World Trade Organization. It is felt strongly that under the competitive environment globally, stronger IPR protection rises the incentives for innovations and raises returns to international transfer of technology.
TRIPS – the Game Changer
The TRIPS agreement has made way for the harmonization of Indian laws connected with Intellectual Property Rights. The agreement was implemented with the minimum standards for the protection of IPR. A time-frame has been specified within which the participating countries are required to effect changes in their respective laws to meet the requisite compliance standards. The rest of the article seeks to highlight the amendments brought forth by the agreement in intellectual property laws.
Patent was first introduced to the realms of Indian business in the year 1911 courtesy of the Indian Patent and Designs Act, 1911. This Act was superseded in the year 1972 with the enforcement of the Patents Act, 1970. The Act, which is now the governing Act for Patents in the country till now, went through an amendment in 2005 to be compliant with the TRIPS agreement and is now known as the Patents (Amendments) Act, 2005. The Amendment oversaw the extension of product patent to all fields of technology including foods, drugs, chemicals, and micro-organisms. Furthermore, the provisions pertaining to Exclusive Marketing Rights (EMRs) has been repealed and a provision enabling grant of a compulsory license has been framed as its replacement.
A trademark is a unique symbol that differentiates one brand from the other and is considered essential for protecting the brand from being illegally replicated. The TRIPS agreement for the protection of trademarks incorporates the protection of distinguishing marks, recognition of service marks, indefinite periodical renewal of registration, abolition of compulsory licensing of trademarks, etc. In view of enacting the newly fabricated laws, the Indian Trade and Merchandise Marks Act, 1958 was annulled to pave the way for the Trade Marks Act, 1999. The newly introduced governing regulation is designed in accordance with the international systems and practices mandated by the TRIPS agreement. The Trademarks Act of 1999 provides for the registration of service marks, the filing of multiclass applications, enhancing the term of trademark registration to 10 years, the recognition of the concept of well-known marks, etc. The Indian legal framework has also extended the protection to Domain Names.
While the previous regulation merely included Goods and Services for the purpose of registration, the infringement rules for the current regulations have been modified to include the unauthorized use of similar or confusingly similar marks.
These amendments provide lesser room for defaults. The police are now entitled to seize any infringing materials without producing a warrant. Trademark infringement could impose the defaulter with imprisonment for a term of at least 6 months, which may extend to three years. This would be coupled with a fine of not less than Rs. 50,000 which may even go up to Rs. 2,00,00.
The Madrid Protocol
The Amendment of the Trademark Act in 2010 led to India’s foray into the Madrid Protocol in 2013, thereby enabling Indian entities to register their trademarks in 97 countries by filing a single application form. Likewise, foreign entities of the member countries are also allowed to register their marks in India.
Not many Acts in India has passed the test of time, but the Copyright Act falls among such exceptions. The Act was formulated in the year 1957 and has been amended from time-to-time to be on par with the international standards as specified in TRIPS.
The Act preserves the right of artistic endeavors which includes painting, sculpting, drawing, engraving, photography, artistic craftsmanship, dramatic work, literary work, musical work, sound recording, and cinematography. and is reflective of the Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention. Apart from these two conventions, the country is a party to the Geneva Convention for the protection of rights of Producers or Phonograms. The country is also an active member of the World Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
The TRIPS agreement has accorded India with the ingredients that help in the protection of industrial designs. The Designs Act, 2000, caters to these requirements by providing protection to original and aesthetically appealing designs which have the potential for commercial applications and is in consonance with the evolvements in technology and economical advancements.
A Geographical Indication (GI) is utilized on goods with a specific geographical origin and it consists of qualities or reputation that are due to the place of origin. Rights in terms of GI are valuable and needs to be protected against misuse by dishonest commercial operators.
The TRIPS agreement has listed out the minimum standards of protection of GIs and additional protection for wines and spirits. In view of this, India has adopted legislative measures by enacting the Geographical Indications of Goods (Registration and Protection) Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Rules, 2002.
The Geographical Indications of Goods (Registration and Protection) Act, 1999, describes “Geographical Indication,”, with respect to goods, as “an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.”
The use of GIs in India is widespread as the indication can be seen in a variety of products such as Basmati Rice, Darjeeling Tea, Feni, Alphonso Mago, Allepey Green Cardamom, Coorg Cardamom, Kanchipuram Silk Saree, Kolhapur Chappal, and a host of other commodities.
Entities registered with GIs can prevent unauthorized use of the registered geographical indication by initiating infringement procedures through a civil suit or criminal complaint.
DEVELOPMENT OF TRIPS IN INDIA
- PATENT ACT, 1970
- TRADE MARK ACT, 1999
- THE DESIGN ACT, 2000
- THE GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999
- COPYRIGHT ACT, 1957
- THE PROTECTION OF PLANT VARIETIES AN FARMERS RIGHTS ACT, 2001
- THE SEMI CONDUCTOR INTEGRATED CIRCUITS LAYOUT DESIGN ACY, 2000
India has made a number of changes in its IPR regime to increase efficiency and has cut down the time required to issue patents.The culture of innovation is taking centre stage in the country. India is well poised to focus on R&D. This has been reflected in its improved ranking in Global Innovation Index over the years. Government’s effort to strengthen National IPR policy, IP appellate tribunal, e-governance and commitment to abide by the TRIPS agreement of WTO in letter and spirit will help in improving perception of India globally. 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 & cultural well-being.
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