IPR Protection: A historical and current perspective

Introduction – IPR Protection

In the wake of globalisation it is of the utmost importance to be ahead in innovation and creativity in order to complete the rigid technological and commercial competition. India is well known for its intellectual capabilities. India, however, lags behind in the generation of IPR assets under the registered trademark. The Indian Constitution guarantees different fundamental rights such as the right to life, the right to equality and non-discrimination. India’s Supreme Court in “KT Plantation’s” landmark decision holds that intellectual property enjoys a high degree of protection. According to the Apex Court “In Article 300A, the possession of property is restricted not to land alone, involves intangibles such as copyrights and other intellectual property and embraces all potential interests recognised by law”. The courts have not consistently recognised that while it is imperative to make full efforts on the rights of IPR owners, the law plays an equally important role in balancing the public interest in allowing creativity and innovation. Intellectual Property Rights has developed into a position from which it has played a major role in the growth of the global economy over the past two decades. At the multilateral level, IPR’s are strengthened to the level of solemn International Committees due to the successful conclusion of Agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS) in World Trade Organization (WTO). To address the question related to growth of Intellectual Property in India, the article is broadly divided into three parts. The first part of the article looks into the brief understanding concept of Intellectual Property and Historical Perspective of IPR. The second part of the write up culminates the development of IPR laws in India. The article finally culminates into the legal framework of the Indian Legislators in protection of IPR.

The Evolution of Intellectual Property Rights (IPR)

The term Intellectual property is linked to the imagination and ingenuity applied to the human brain. Various efforts are needed to innovate or build something new in terms of manpower inputs, time, resources, ability, money etc. The ultimate concept from which an innovation or development happened is an intangible property of the person who has taken pains for innovation or development. Consequently, according to the law, the inventor or innovator is given legal or proprietary rights to reap the economic benefits of their invention or production. Intellectual Property Rights (IPR) are proprietary rights by which proprietors may sell, lease or license their Intellectual Property (IP) similar to physical property. Increasing form of IPR gives its inventor and/or  unique developer rights to maintain and reap economic benefits that further inspire skills and societal developments.

The idea of intellectual property is not a new one as it is considered to be the basis of the intellectual property system in Renaissance northern Italy. By the end of the 19th century, new innovative forms of manufacturing helped caused large-scale industrialisation followed by rapid urban development, capital spending, expansion of rail networks, and nationalism led many countries to lay down their current intellectual property laws. From this point, with the development of the Paris Convention for the Protection of Industrial Property in 1883 and the Berne Convention for the Protection of Literary and Artistic Works in 1886, the concept of International Intellectual Property also began to take shape. In 1266, a law was passed by the English Parliament specifying that each baker shall have his own mark which is considered as the first instance of intellectual property rights. Infringement was considered a misdemeanour as early as in the 13th century, and in some cases a felony. As in the 14th and 15th century’s merchant and artisan, guides appeared dramatically. The first time property rights of a person were argued in the court of law was as early as in 1617 in the landmark judgement of “Southern v How”. During this seminal decision, the dictum was written as “No one has the right to represent his goods as anyone else’s goods, and no one has the right to disregard other goods as his.” The British Trademark Act of 1875 provided for a formal trademark registration dependent on the fulfilment of criteria whether or not the trademark distinguished the products of the seller. Thus registration was considered prima facie evidence of ownership of a trademark.

Intellectual Property: Overview of TRIPS Agreement

In India, well-established legislative, administrative and judicial structures exist for the security of IPRs. It becomes important to mention here that India has fulfilled its obligations under the Trade Related Intellectual Property Rights Agreement (TRIPS) by enacting the statutes required and amending the existing laws. Software databases and software programs have been protected under and according to copyright laws in India and piracy have been successfully curtailed by software firms through judicial intervention. While trade secrets and know-how in India are not covered by any specific statutory law, they are covered under common law. The Indian Patents and Designs Act, 1911 was enacted in the year 1856, andremained in effect for more than 50 years and was later updated and revised. Upon Independence in the year 1970, a full patent law was passed, entitled “The Patents Act, 1970.” As well as being a signatory to the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), several new regulations have been passed to protect intellectual property rights in order to satisfy international obligations. The various acts in accordance to Intellectual Rights are  Designs Act, 2000; Trade Marks, referred to as the Trade Mark Act, 1999; the Copyright Act, 1957, has been amended many times; the latest is known as the Copyright (Amendment ) Act, 2012; and recent revisions to the Patents Act, 1970, introduced in 2005. Other than this, new laws also adopted plant varieties and regional indications.

Innovation and intellectual property rights law—an overview of the Indian law

As a result of international trade appeals and trade demands for the harmonisation of certain aspects of Indian law relating to intellectual property rights, the Establishment of the World Trade Organization followed. The TRIPS agreement set minimum standards for IPR rights protection and also set a timeline within which countries were required to make changes to their legislation in order to comply with the degree of protection required. In view of this, India has taken steps in recent years to review and update the various IP Acts.

• Patents Act, 1970

Patent is the right to intellectual property given to inventor of the government office concerned for its Novel technological innovation. The word invention means the solution of some problem about the product or process growth. Patents are considered the most important of the various forms of IPR, and understandably so.

The patentability of any invention needs to fulfil following criteria

1. Usefulness: Industrial invention Applicability, or practical application.
2. Novelty: New technology must be invention which weren’t published or available in State prior literature, or elsewhere in the world  in advance of patent filing deadline
3.  Non-evident: Innovation that can be made it is obvious to any ordinary qualified human, and cannot be patented and the patentability of the invention must not be apparent.

As per Section 3 of the Patent Act, 1970 the following are not patentable

1. Frivolous invention
2.  The invention of natural laws
3.  Inventions that are harmful to Human , animal, plant life as well as the climate
4. As against public order or morality
5.  Discovery of a living thing; discovery of a living thing
6. Non-living substances which occur in nature;
7. Formulation of some abstract theory;

The rules pursuant to the Patent Act, 1970 were subsequently also amended, which became effective from May 2003. Patents (Amendment) Rules 2005 w.e.f 01.01.2005 further modified those rules. The Patent Amendment Act, 2005 is thus now fully in force and fully operational.

• The Trademark Act, 1999

The trademark law is now also being modernised under the 1999 Trademarks Act. A trademark is a special emblem for distinguishing between products being offered for sale or put on the market by one dealer. In India, the trademarks have been protected for more than four decades under the 1958 Trade and Merchandise Mark Act provisions. From its inception India joined the World Trade Organization. India acceded to the Paris Convention in December 1998.

The Salient features of the Trademark Act, 1999

1. Only goods and services covered in the past were registered, but the infringement has broadened its meaning in this Act as it also includes unauthorised use of a similar mark or confusingly similar mark where goods and services are very similar and create confusion or confusion.
2. Although where the unauthorised use of a mark is made of any well-known Indian trademark and the owner’s interest is infringed in any way, the infringement action may be brought against the same
3. In addition, it gave police more power by allowing them to seize infringing content without issuing a warrant

Among other items, the Trade Marks Act provides for registration of service marks, filing multi-class applications, extending the registration period of a trademark to ten years, as well as acknowledgment of the definition of well-known marks, etc. The Indian judiciary has been proactive in the defense of trademarks and extended trademark rights to Domain Names as held in the landmark judgements of “Tata Sons Ltd. v Manu Kosuri”& Ors and “Yahoo Inc. v Akash Arora “

India accepts the “Well-known Brand” definition and the “Transboundary Credibility Theory.” A well-known trademark in relation to any goods or services is a mark that has become so in relation to a large segment of the population that uses such goods or provides such services that the use of such a mark in relation to other goods and services is likely to be taken as an indication of such goods and services.

• Copy Right Act, 1957

The 1957 Copyright Act is one of the oldest existing pieces of intellectual property law. It has been modified quite a few times to align with world trade and commerce. The act relates to the creativity of the individual, it preserves the right to literary, creative, musical works and recordings of sound and cinematographic films. For example, it grants author’s copyright for his lifetime and 60 years after his death. To be eligible for the registered under this act it does not require qualitative work, any unique work with very little in common with any other work may be considered eligible for that purpose.

The most important take away from the act is the Idea-Expression merger doctrine. This theory implies that enclosing the expression in copyright would deprive free use of the concept because there are few ways of expressing a concept, for example in mathematical questions etc. For example, the use of alpha numeric’s, describing articles or combinations etc. cannot lead to legitimate claims for copyright.

The Supreme Court, in its decision in “Indian Performing Right Society”, evocatively described copyright as “Felicitous Blend, beautiful totality, a constellation of stars that ensemble which is the finished orchestral production created by each of the various participants, although the components may often be elegant entities in themselves.”

• Design Act, 2000

Design can be defined as  features of the shape, pattern, arrangement, ornamentation or composition of colors or lines that are implemented in three-dimensional or two-dimensional or in both forms using either of the methods, whether manual, chemical , mechanical, separate or mixed, appealing to or entirely evaluated by the eye in the finished product.

The Salient features of the Design Act, 2000

1. The doctrine of Novelty and originality- Just when they’re original should a style be considered for registration. Only when the combination generates new visuals will a combination of previously registered design be considered as such. In the landmark judgement of “Hello Mineral Water PVT. LTD. v. Thermoking California Pure”, a cylindrical-shaped water dispenser design was not regarded as new on the grounds that mere form and form was not sufficient to prove innovation.
2. Design must be unique, a Prior publication is not acceptable- The design is not to be published one. If the design is published already then the design is not available for publication. If you are looking to register the design in digital format, there should be no tangible copy available already on the market. The publication of the design is the presentation of the design at any fashion show by the designer. Hidden and private use of the concept is not the publication and may be used for the purpose of experimentation. In the salient judgement of“Kemp and company v. Prima Plastics LTD”, it was held that disclosure of design by the proprietor to any third party could not be asserted as a publication because the disclosure had to be in good faith.
3. Giving a proper guideline for making application of design to an Article- the Layout should be specific to the article itself. On a three-dimensional figure it can be shown. Often included in this act are two-dimensional objects, i.e. any painting or graffiti on the walls or written on the bed sheets
4. The design must not be contrary to order and morality- Under the Design Act, 2000, the design must be register able. The Government of India or anybody so allowed does not forbid this. The design has to be able to register under Section 5 of this Act. This may not be permitted to file the design that can cause a breach of peace and damage people’s feelings.

• The Protection of Plant Varieties and Farmers’ Rights Act, 2001

India has seen the growth of the plant breed research industry, providing protection to researchers and promoting their interest in seeking a better plant breed idea of the Plant Breeders’ Right. It promises to maintain agricultural development, as it is very important to have vast portion of India’s land as agricultural land. In the wake of TRIPS pursuant to Article 27 thereof, it was appropriate to grant protection to plant varieties by patenting or by an effective sui generis program or by some combination thereof to encourage the production of new plant breeds to the same extent that the government enacted the Plant Varieties Protection and Farmers’ Right Act, 2001.

Term of protection as provided by Section 24 of the Act, the cumulative registration period shall not exceed eighteen years for trees and vines; fifteen years for established varieties; and fifteen years, in any other case. The registration certificate issued under this Act is valid for nine years for trees and vines, and for six years for other crops, and a registrant is expected to renew the same for the remaining registration period.

• Semiconductor Integrated Circuits Layout Design Act, 2000

In the last three decades, the information technology and digital industry have seen the greatest development, the development is also becoming pace by day, and the fastest growing sector of the century can be called. The industry has witnessed significant changes in electronic equipment, computers, telecommunications, etc., and in many ways it has also affected human life in the greatest way. The registration certificate issued under this Act is valid for nine years for trees and vines, and for six years for other crops, and a registrant is expected to renew the same for the remaining registration period. On the other hand, Semiconductor Integrated Circuit Semiconductor Integrated Circuit means a device that has transistors and other circuitry elements that are inseparably placed on semiconductor material or insulating material or within the semiconductor material and built to perform an electronic circuitry feature. Microelectronics, which primarily refers to Integrated Circuits (ICs) ranging from Small Scale Integration (SSI) to Very Large Scale Integration (VLSI) on a semiconductor chip, can rightly be defined as the core strategic technology worldwide , particularly for a society focused on information technology (IT).

• Geographical Indication of Goods (Registration and Protection) Act, 1999

The subject of geographical indications was highlighted most during the last decades. It is the intellectual chattel that not only protects the local goods but also serves as a tool for pastoral community growth and preserving the artistic legacy. It is also claimed to be “intellectual property world’s sleeping beauty“. This had been a hot topic because many developing and developed countries are targeting their goods on the market by connecting them to the source of origin.

It is possible to describe the word geographical indication (GI) as any label or label used on items directly or indirectly purchased from some source, and some assets are found to have its place of origin. This reflects that the goods in question had some of their intrinsic property had some heritage value which isn’t found anywhere other. In general, these are the words, icons or geographical names.

• Trade Secrets and Utility Models

Confidential business information which gives an edge to a competition to a company can be considered as a trade secret. This knowledge can be the cornerstone of both manufacturing and trade. A trade secret can be covered for an indefinite amount of time, but there must be a significant element of confidentiality, such that it will be impossible to access the information even by using illegal means. Given the vast availability of traditional knowledge in the country, the security under this will be crucial in gaining benefits from this kind of knowledge

A utility model is an exclusive right granted for an invention, which enables the right holder to prohibit others from freely using the licensed invention for a limited period of time without his authorisation. Only a small but substantial number of countries and regions offer the option of preserving the utility model. India currently has no legislation on utility models.

Conclusion

Over the last decade or so, over India, the system for intellectual property law has seen dramatic change. Today, the legal community and the courts are more aware — in the aftermath of the country’s accession to TRIPS, that IPR is a major engine of economic growth. This knowledge can be seen both in the bar and at the bench. As regards legal capacity building, younger generation lawyers are gradually showing a greater and more complex understanding of the different problems in intellectual property law as well as the importance of India’s global IPR security commitments. That can also be seen from the rise in the number of law firms focused specifically and dedicatedly on IPR practice. The changing jurisprudence on the side of the bench shows that the courts are wary about adopting a doctrinaire approach in accepting all concepts — especially legal remedies. The courts have so far tried to balance innovator’s rights and have acted to protect them from exploitation by those who have no right to do so. At the same time, there is a growing trend in the Indian judiciary to recognise that technological evolution also means that IP rights are increasingly susceptible to infringements of various kinds, beyond those traditionally recognised. Indian courts have now provided a number of remedies to deal with these forms of violation which were previously unknown in the field of civil law. The granting of exparte injunctions against unknown defendants, the granting of interim royalties, etc., are some examples of an evolving judicial trend which seeks to align itself with global practice in IPR infringement cases. In some sense, the legal system regulating IPR in India is still in its infancy, and Indian courts’ role and potential in shaping and chiselling the course of IPR law still needs to go a long way to be in a stable form.