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certain intangible products similarly to physical things. In most countries, IP laws grant certain kinds of exclusive rights over these intangibles on the analogy of property rights, some expiring after a set period of time, and others lasting indefinitely. Intellectual Property v/s Industrial property The “industrial property” is an integral part of the broader concept of “intellectual property.” It is not something tangible like factories, equipment and material for industrial production but something intangible though in most cases extremely valuable. Thus for the shareholders of a global food company – the internationally recognition is equally important. “Intellectual property” is a special kind of property. The most important feature of it 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 generally recognized limits of 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. To understand these issues, we can distinguish these properties in three kinds:
Moveable properties: One is property consisting of movable things, such as a food product or a car. No one except the owner, for example you yourself, owner of the car may use those objects. This is a legal situation which is called an exclusive right, namely, the exclusive right, belonging to the owner. But you may allow or authorize your friends to use your property. It is subject to a administrative constraints. Moreover, the right to use is not unlimited. Another type of property is Immovable property namely; land, and things permanently fixed on it, such as factory, houses etc. We have already seen an example of the limitations of such property, namely, the requirements to be adhered when constructing a building. There is third kind of property called intellectual property. The objects of intellectual property are the creation 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. Like movable and immovable properties, intellectual property, is also characterized by certain limitations,
for example, limited duration in the case of copyright and patents. Branches of Intellectual Property Intellectual property is usually divided into two branches, namely “industrial” property and “copyright.” Industrial Property Industrial property is sometimes misunderstood as relating to movable or immovable property used for industrial production, such as factories, equipment for production, etc. However, industrial property is a kind of intellectual property and thus relates to creations of the human mind. Typically, such creations are inventions and industrial designs. Simply stated, inventions are solutions to technical problems, and industrial designs are aesthetic creations determining the appearance of industrial products. Industrial property includes trademarks, service marks, commercial names and designations, including indications of source and appellations of origin, and the protection against unfair competition. Here, the aspect of intellectual creations–although existent–is less prominent, but what counts is that the object of industrial property typically consists of signs transmitting information to consumers, in particular, as regards products and services offered on the market, and that the protection is directed against unauthorized use of such signs which is likely to mislead consumers, and misleading practices in general. 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 trademarks, service marks, commercial names and commercial designations are of interest not only to industry but also to commerce. Notwithstanding this lack of logic, the expression “industrial property” has acquired, at least in the European languages, a meaning that clearly covers not only inventions but also the other objects just mentioned. 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 or with his authorization. That act is the making of copies of the literary or
conferred by law. Some use the term “intellectual monopoly” instead. can be delegate to other persons. they grant the public certain rights which are considered essential. sold. Patents give the holder an exclusive right to prevent third parties from commercially exploiting an invention for a certain period. which give the holder some exclusive rights to control some reproduction of works of authorship. such as a book. in some countries. such as the right to make copies. perhaps by enforcing a contract under which those given access to information are not permitted to disclose it to others. for a certain period of time. and not the intellectual work they apply to. in much the same way as physical property (especially real property). However. such as circuit design rights. because such so-called “intellectual property” is actually a government-granted monopoly on certain types of action. even mortgaged. Trade secrets. recognized in most laws. The second expression. but the invention that it covers is not owned at all. typically 20 years from the filing date of a patent application. industrial design rights. “author’s rights” refers to the person who is the creator of the artistic work. a photograph. the rights typically have limitations. Others object to this . phrases or marks used to identify products to consumers. sometimes including term limits and other exceptions (such as fair use for copyrighted works). a publisher who has obtained a license to this effect from the author. a motion picture. plant variety rights. for example. that the author has certain specific rights in his creation. patents. There are also more specialized varieties of so-called sui generis intellectual property rights. thus underlining the fact.artistic work. which can be exercised only by himself. whereas other rights. These rights. for example. Trademarks are distinctive names. Types of Intellectual property The four main types of non-physical things considered by this point of view are copyrights. rented (called “licensing”) and. plant breeder rights. such as books and music. a sculpture. Common types of intellectual property rights include conflicting areas of law: • • • • Copyrights. supplementary protection certificates for pharmaceutical products and database rights. A patent can be bought and sold. its author. For this and other reasons. some people think that the term intellectual property is misleading. These limitations are sometimes analogous to public easements. the right to prevent a distorted reproduction. trademarks and trade secrets. where a company keeps information secret. It is important to understand that it is the rights that are the property. a painting. can be given.
Need for Intellectual Property Protection These laws grant the “owner” a monopoly on the use or copying of the protected “property”. and has attracted some opponents. . patent and trademark law. This was done historically to both grant a boon to a ruler’s or king’s favourite. These creators can demand a fee from those who wish to copy their invention or publish their compositions. as well as to resolve a free rider problem or coping someone else efforts without permission (“to promote the progress of science and useful arts”). patent law has had an unintended. Seen as an incentive to benefit the public. the public benefit idea has been downplayed in favour of the idea that the primary purpose of “property rights” is to benefit the holder. say. In the latter sense. but set it low enough and one could make a good living from the fees. ten years of penury while struggling to develop vulcanized rubber or a workable steamship. patents and copyrights serve as incentive to inventors and authors to produce works which benefit the public. even to the detriment of society at large. and try to be specific about which they are talking. In latter years. because of negative connotation of the term “monopoly” and the wideavailability of substitute goods. This view places a priority on the benefit of the patent or copyright holder. Others still prefer not to use a generic term because of differences in the nature of copyright. rather than aiding it.usage. could recoup his investment of time and energy. a perverse consequence: treating mental products like physical ones has stifled innovation in those fields. In some fields. patent rights in particular have sometimes promoted innovation by ensuring that someone who devoted. and others would simply try to make a competing invention. indeed. The inventor could demand a fee from those who wanted to make copies of his invention. Set it too high.
IP law deals with the rights assigned to owners of intellectual property. such creations of mind are intangible or nonmonetary assets with commercial value. it is not possible to recover or replace an intellectual property that is stolen. owners of intellectual property can benefit through protection of the moral and material interests of their creations. Such exclusive rights are called intellectual property rights. so that they benefit financially. These rights help them benefit from their creations and also enable them to protect their work. This concept was also mentioned in the famous 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. Intellectual Property Rights As mentioned earlier. Later. there must be laws to protect the moral as well as material interests of the owner over his/her intellectual property. The owners of such non-monetary assets (creations of mind) are assigned some exclusive rights over their creation. Here is a brief overview about the different types of intellectual property rights. The term 'intellectual property' increased in popularity after the enactment of the Bayh-Dole Act in 1980. Intellectual property rights also enable the owners or creators to protect their work. over his/her creation will get affected. Brown. like inventions. a movie. intellectual property is like any other real property which is financially beneficial for the owner. So. the creators or owners are granted certain exclusive rights over their creations or works. If stolen. Subsequently. it emerged after the French Revolution. Benjamin Constant.Types of Intellectual Property Rights An intellectual property can be defined as a creation of mind. the World Intellectual Property Organization (WIPO) was established in 1967. An intellectual property could be anything like a music composition. However. According to the concept of intellectual property. painting or even a brand name. the interests of the owner. literary or artistic production of which he is the author". So. In that way. with the French liberal theorist. which was introduced during that time. v. that has a commercial value. The monetary benefits are said to encourage people to come up with new inventions and creations. book. "everyone has the right to the protection of the moral and material interests resulting from any scientific. According to this statute. These rights can be related to Article 27 of the Universal Declaration of Human Rights. What is Intellectual Property The term intellectual property encompasses various types of creations of mind. opposing the idea ('of property which has been called intellectual'). It is believed that the concept of intellectual property (IP) has its roots in the early Jewish law. .
trademarks are protected legally and the owners can sue persons for unauthorized use of their trademarks. logos. In order to be patented. in most countries the timespan of a copyright extends through the entire life of the owner and lasts up to a period of about 50 to100 (70 years in the U. It is an exclusive right to control the publication. distribution and adaptation of creative works. industrial design rights. you can protect your work legally. these rights safeguard the interests of the owners of IP. The right lies with the owner-cum-copyright holder for a certain period. the work can be republished or reproduced by others. you can apply for a copyright for your work. A trademark can be a combination of words. The artistic works come under the category of copyright laws. who has written a new book. Likewise. music. trademarks. while the commercial ones (also known as industrial properties). Such rights are conferred on persons who invent any new machine. If you are an author. legal entity or business organization to distinguish their products from others. and trade secrets. which is embossed on their products. the right lasts for 95 years from the date of first publication or 120 years from the date of creation. Usually. Copyrights: A copyright is a right conferred on the owner of a literary or artistic work. patents can be obtained for inventions. but have an aesthetic or ornamental value. which may differ from country to country. images. In general. For example. Industrial Design Rights: These rights protect the visual design of objects that are not purely utilitarian. the invention should fit into specific criteria. It . article of manufacture or composition of matter and biological discoveries. Patents: Patents are rights related to new inventions. It may refer to the creation of a shape.Types of Intellectual Property Rights An intellectual property can be either artistic or commercial. you can identify the products of Nike Inc. which indicates its source. software and painting. trademarks. In case of anonymous works.) years after his/her death. using.S. Once registered. The person who receives a patent for his invention has an exclusive right to prevent others from making. symbols. from the logo. Industrial properties cover those created and used for industrial or commercial purposes. Trademarks: A trademark is a symbol generally used to identify a particular product. patents. industrial design rights and trade secrets. intellectual property is categorized into various types as per the nature of work. process. So. As stated earlier. include patents. As the time lapses. designs. Once you establish your IP right. color. The most common types are copyrights. Generally. used by an individual. the invention must be new and should be useful or can be applied in industries. the time limit of a patent is 20 years from the date of filing the application (for the patent). pattern or a combination of all these things. phrases. or devices. selling or distributing the patented invention without permission.. Copyright laws deal with the intellectual property of creative works like books.
or ideas which are used by a company to gain an economic advantage over its competitors. For example. Trade secrets differ from other types of intellectual property rights. an employer can protect trade secrets through contracts with his employees. originality and visual appeal. processes. Thus. Once the trade secret is leaked. . because it is the responsibility of the owner to keep the secret and it is not protected through government policies. recipes. The owner of a trade secret does not possess any right over anyone who gains access to that secret independently. patterns. Trade Secrets: Trade secrets are the designs. but he can prevent the use of the trade secret by anyone who has learned it through the owner. practices. formulas. The person who has an industrial design right has the exclusive right to make or sell any objects in which the design is applicable. The right is conferred for a period of 10 to 25 years.can be an industrial commodity or a handicraft. Intellectual property rights have encouraged people to come up with indigenous creations. colors and lines) or three-dimensional (as per shape and surface). instruments. An industrial design right is conferred after considering factors like novelty. The design can be either twodimensional (based on pattern. it can be used by any person. as the law protects their rights over their works. it is very important to respect these rights and refrain from infringing them.
The design on the bed sheet and the pillow covers.4 1.3 1.5 1.2 1.1 Introduction Objectives 1.9 The Concept of Intellectual Property Different Types of Intellectual Property Rationale behind Intellectual Property Balancing the Rights of the Owner of the IP and the Society Enforcement of IPRs IP and the Constitution of India Summary Answers and Hints to SAQs We encounter intellectual property at every step of our life today.8 1.6 1. the bed and other .7 1.Structure 1.
In this Unit we will discuss the basic concept behind the intellectual property rights and their rationale. These are different types of IP rights like copyright. and know the position of IP under the constitution of India. besides labour and capital. the refrigerator. trademarks. and the underlying premises. the personal computer. the books. patents. you should be able to: • • • • appreciate the concept of intellectual property (IP) vis-à-vis physical property. The concept of ownership is critical to the concept of property. After studying this unit. property means some material object belonging to a particular person. the weighing machine. the vehicles. the microwave oven. the soft drinks and their bottles. the paints. the gas stove. Understanding of this classification and identifying different rights is very important. to exclude the others. understand how a balance is sought to be achieved between the rights of the owner of IP on one hand and the rights of other individuals and the society in general on the other.items of furniture in the house. the cereals for break fast. • The concept of intellectual property (IP) will be understood better if we understand what is meant by the term property. the films. and practically everything we use is the product of man’s ingenuity. the pasteurised milk in tetra pack. the television. Ownership means the right to possess. industrial designs etc. use and dispose of the property and at the desire of the owner. recognize the different kinds of intellectual property. If a society does not recognise ownership. the tiles. . it will not have a concept of property. appreciate the rationale behind IP. knowledge and skill. and it falls under some kind of intellectual property that had to be respected before the item could be lawfully manufactured. To a lay mind. the music cassettes.
the more zealously it is guarded as a property. say. either in the form of ideas or technology. or to an intangible thing e.g. You may ask. the higher is its value. This brings us to the concept of intellectual property. With the advances in technology. By exertion of his intellect. It is non-physical (incorporeal) and it derives its value from idea(s). an invention or a book which can be reproduced without authorisation. The fact of possession of a physical object by the owner ensures that any other person is excluded from using it. . The higher the value of an object. a material object under one’s possession may not amount to much as property if it does not become a resource to satisfy some human want or need. The first is scarcity. in the latter case they are known as incorporeal property. use and enjoyment of the fruits of the application of property. In the former case they are referred to as corporeal property. It is not so with the creations of the mind. a copyright. and transfer of rights in the property. The second important factor influencing the value of an object is the knowledge of its use or uses. However. mass copying has become easy and the cost of reproduction has come down. man converts a natural resource into something of utility. The property can relate to a tangible thing e. The scarcer is a thing in relation to the demand for it. what rights constitute the bundle of rights that are termed as property? These rights deal with various aspects of the relationship between man and his property.In the legal sense. property refers to the bundle of rights that the law confers on a person by virtue of the ownership and possession of an object. exclusion of others from use and application of the property. Two factors significantly influence the value of an object as property.g. which refers to its availability in relation to the need. such as: ownership and possession. land or buildings. newer means of copying have become available. making it an item of property. It is simply the property created by the application of human mind. Corporeal property has a big advantage over incorporeal property.
For example. music. which has been recognised as an independent form of IP under the Agreement of Trade Related Aspects of the Intellectual Property Rights (TRIPS) of the World Trade Organisation (WTO). The domain of IP is expanding fast as knowledge and information become key drivers of techno-economic growth and of societal progress in general. and genetic resources. It is recognised that the term copyright cannot justifiably be applied to all these creations. therefore. Different types of IP rights like patent. and as competition for markets becomes ever more fierce. the category of related rights or neighbouring rights had to be introduced. trade mark. IP is a dynamic area. Among the successful new categories to be recognised as entitled to the status of IP are: • • geographical Indications which combine in themselves appellations of origin and indication of source and accord special treatment to wines and spirits. copyright originally was concerned with works of literature and art. design etc can protect these ideas and products. broadcasts and now computer programmes. cinematography. layout design (topography) of integrated circuits. audio-visual recordings. human ingenuity is throwing up ever new ideas and newer products. photography. and traditional knowledge and folklore have made strong claims for protection as IP. As science and technology make rapid advances. They have to be accommodated as IP either in one of the existing categories or in new categories that have to be created. Newer areas are emerging with claims for recognition as IP.There is no uniform definition of IP. gradually its scope expanded to cover works of drama. copyright. though it has suffered some dilution under the TRIPS Agreement which regards only undisclosed information as IP. Galloping advances in the realm of Internet and convergence may be the harbinger of new forms of IP. protection against unfair competition is a right recognised by World Intellectual Property Organization (WIPO) as IP. • • . performances.
Copyright protects rights related to creation of human mind in the fields of literature. The owner of copyright has rights not only in the original work. which protect performances of performing artists. Industrial property consists of rights relating to inventions.g.After understanding the concept of intellectual property and the need to protect it. its translation or adaptation or the enactment or production of a film based on the original work. IP has been generally divided into two main categories viz. . industrial designs and appellation of origin. There are neighbouring rights on copyright. Such rights relating to a copyright are called related rights.. (b) Copyright. but also in creative work that is derived from the original work. let us now discuss different types of IP. e. music. (a) Industrial Property. trade marks. Related rights and neighbouring rights are terms used interchangeably. phonograms and broadcasts. art and audio-visual works.
However. though the copyright subsists in works. the quality of the work is not an issue at all. adaptation and translation of work. playwrights. The copyright is in the painting. teaching and education. iii) Geographical Indications. Any other person can come up with a differently written story on the same idea and have a valid claim for a copyright over it. It is to be noted that. which includes use of the work for purposes of criticism. If a painter has a copyright in a painting. there is no copyright in the idea of sunrise and anybody is free to paint sunrise as per his or her own imagination.The TRIPS Agreement of the WTO recognises seven types of intellectual property rights (IPRs): i) ii) Copyright and Related Rights. vi) Layout Designs of Integrated Circuits. but merely the expression of the idea as fixed in a particular work. iv) Industrial Designs. and vii) Undisclosed Information Copyright is granted in respect of original literary. If an author thinks up the plot of a story. artists and filmmakers. not in the idea of sunrise. musical. Trade marks and service marks are distinctive symbols that help the consumer to . Trade marks. news reporting. comment. copyright confers no monopoly rights. communication to the public. Copyright comes with the doctrine of fair use. In fact if two persons can produce precisely similar work demonstrably working independently of each other. it is not the idea that the copyright protects. it is not the idea of the plot that is entitled for protection under a copyright but only the written form of the story flowing from the idea. We may also remember that unlike patents or registered designs. v) Patents. which depicts sunrise. no one else can legally copy that painting without his permission. The rights under copyright include: rights of reproduction. Though originality in expression is a requirement for copyright. and everyone will be entitled to copyright in one’s own creation. Fair use does not constitute infringement. Trade names and Service marks. Copyright is an inherent right that commences since the completion of the work as an expression of the idea. which are the creation of ideas. composers. each one will have the legal right to his or her own creation. scholarship and research. artistic or audio-visual works – the creations of authors. Copyright is now spoken together with the related or neighbouring rights as one category.
g. or of two-dimensional features such as patterns. Similarly in passenger cars a characteristic star enclosed in a circle. If you market goods of fake leather under the trade mark ‘Realeather’ you will be taken in by a deceptive trademark. Industrial designs are applied to a wide variety of products of industry or handicraft: watches. industrial and medical implements. vehicles and architectural structures. However. All producers who make their products in a place designated by the GI and share the same qualities can use it. A GI is different from a trade mark. Thus a trade mark is a sign that individualises the goods of a given enterprise and distinguishes them from the goods of its competitors. It becomes a kind of IP to be protected. If quality is not maintained. . displayed in the front and the rear of a vehicle immediately proclaims that the first vehicle is from the Mercedes and the second one is from the Tatas stable. Geographical indications (GI) is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that is solely due to the place of origin. The owner of a trade mark is entitled to exclude others from using the trade mark. Appellation of origin indicates not only the place of origin but also the essential quality link between the product and the area of its origin. A trade mark is required to be distinctive and not deceptive. Such goods enjoy an advantage over competing goods solely because of their geographical origin. India. You may be quite familiar with the distinctive marks of Pepsi-Cola and Coca-Cola Companies.distinguish between competing goods or services and are a major part of the goodwill a company enjoys in the trade. Indication of source on a product merely indicates that the product originates in the place indicated. it may consist of three-dimensional features such as shape or surface. furniture. or a characteristic treelike T. An industrial design is the ornamental or aesthetic aspect of an article. A trade mark is a sign that distinguishes the product and services of an enterprise from those of another. The design serves as a tool for product differentiation and lures customers by enhanced visual appeal. textile designs. A GI merely tells that a product is produced in a certain place and has certain characteristics which are due to the place of production. toys etc. lines or colour. fashion and other luxury items. Kolhapuri chappals from Kolhapur. They are therefore protected as IP. customers will shift to another brand. e. jewellery. Trade marks invariably come to symbolise quality of goods or services in the customer’s mind. there is no requirement in law that a trade mark has to meet any quality standards. which thus becomes a kind of IP and is protected. The Paris Convention uses two terms in the context of geographical indication: appellation of origin and indication of source. which also individualises the enterprise in the minds of the customers. electrical appliances. A trade name is the name of an enterprise. house ware. enclosed in an ellipse.
Design enhances the visual appeal and adds to the commercial value of the product. Designs must relate to the appearance of the object which is not determined by technical or functional necessity. It may also be noted that. A trade mark is necessarily to be distinctive to serve as a sign for product differentiation. Earlier to it. an industrial design can be protected under copyright law or the law against unfair competition. For registration. inventions in all fields of technology − whether products or processes − are patentable if they meet the criteria of novelty. Patents are one of the oldest forms of IP protection. which has appeared with computer technology and has acquired importance as the technology makes rapid advances. undisclosed information virtually restricts honest practices to protection of trade secrets. a design needs to be new and original. without due permission.An industrial design is distinguished from trade mark primarily because it is constituted by the appearance of a product. the TRIPS Agreement does refer to the control of Anti-Competitive Practices in Contractual Licences. Unfair competition includes all acts contrary to honest practices in industrial or commercial matters. . it also facilitates the marketing and commercialisation of the product. The aim of the patent system is to encourage economic and technological development by rewarding intellectual creativity. The functions of. while for claiming a patent. The programming instructions on a computer chip are implemented through a circuitry printed on semiconductor materials. identical with a protected design is permitted. and the justification for protecting industrial designs and trade marks are quite different. Layout design (topography) of integrated circuits is a relatively new area in IP. Under the TRIPS Agreement of the WTO. The right in topography aims to prevent copying of the layout design but reverse engineering to come up with improved design is regarded as fair. However. the WIPO treaty (1967) and the Paris Convention recognised unfair competition as a part of IP. The patent system started in the 1700s. involve an inventive step and are capable of industrial application. A patent is a statutory right granted for a limited period to an inventor in respect of an invention to exclude any other person from manufacturing. Protection of layout design confers no monopoly right. Independent development of a design. though the notion of these qualities may vary from country to country. The TRIPS Agreement also empowers member-States to make in their national legislation suitable provisions to prevent abuse of IPRs. using or selling the patented product or from using the patented process. The design of circuitry on the chip requires great investment of knowledge. In certain conditions. The shift in TRIPS to undisclosed information from unfair competition has important implication. which is not necessarily distinctive. skills and capital and it needs to be protected as IP. a layout design is only required to be original. Undisclosed information gets recognition as a kind of IP that needs to be protected under the TRIPS Agreement. an invention is required to meet the criteria both of novelty and non-obviousness.
This intellectual property is intangible. as their exercise has evolved in practice. To fully comprehend the consequences of a national legislation in matters of IPR. and other dealings. authors and other creative persons and is a powerful factor of production and wealth generation in a modern economy.The intellectual property thus vests in a creation of human mind involving knowledge. The IP is a significant factor in gaining competitive advantage over rivals in the trade and industry as the entire idea of IP is to protect the owner against its unlawful use by any person or party offering same or similar products or services. The IPRs. what IP protects is the use or value of ideas and not the abstract ideas themselves. . The State has to decide where it should intervene to grant exclusive rights to the owner to ensure just reward for creative activity and best techno-economic returns for the state and the society. exports/imports. The chain of production to distribution of goods involves the following major steps: manufacture. subsequent sales. use. over the ideas per se. there are no rights. hence no property. can secure for the owner a broad range of advantages depending on the national law. or they can be used to divide markets. labour and skill. first sale by the manufacturer. Again. or restrict movement of goods produced by an enterprise from one territory to another. IPRs can effectively block imports or exports of relevant goods. and though in each case it is associated with a tangible object. it is independent of the object itself. A point to appreciate here is that IP is concerned with man’s capacity to produce something new and offer it for public use. It is the result of sustained intellectual application and efforts of inventors. For example. The property does not lie in the thing so produced and offered but in the owner’s rights over the creation of his intellect. it is important to grasp the rationale behind the law.
Within the capitalist system such justification comes from two angles: the labour justification and the personality justification. Just as we go back to the concept of property to appreciate better the meaning of intellectual property we may look to the justifications advanced for protection of tangible property to appreciate the justification for IP. let us now discuss the rationale behind the protection of IP. .After understanding the different types of IP rights.
music and literature and trade marks may reflect the personality of their creator to a remarkable degree. The IPRs do not appropriate the public domain i. While products of art. A major recognition for the personality justification of property is seen in the moral rights under the copyright law. this justification may apply in varying degrees to subject matters of different kinds of IP. Labour adds value to the goods and converts commons into property. developed and perfected by local communities. however. The IP law takes care that no body unduly appropriates public domain by ensuring that the rights are available only for a limited period after which the intellectual creation comes to the public domain. In moving from the tangible property to the intellectual property. Thus property is a very personal and private thing and needs to be protected. the commons are no body’s private property. Locke’s idea of occurrence of commons in abundance in the primitive stage is apt in the consideration of intellectual property because ideas are always around us in abundance. this is the public domain. whether for the tangible property or the intellectual property reflect power relations in society. the traditional knowledge and folklore is yet to gain solid recognition as IP. both the views – rewarding innovation as well as rewarding value creation – have relevance. or highly extraordinary ideas like advances in mathematics. and enjoys no commensurate protection as the creation of knowledge. Slave labour remained unrecognised for long as a source of property rights. he creates property for himself. These are deemed to be the inalienable rights of the author to safe guard the integrity of the work against any change that would damage the author’s . over centuries. Similarly. Labour does not always count as generator of property. We can draw another parallel between the fields of tangible property and the intangible intellectual property.The labour justification was propounded by Locke who viewed the labour of an individual as belonging to the individual and when a person takes from the State what Nature has provided to it as a common resource and mixes his labour with it. and the labour of housewife fetches no remuneration. skills and ideas. that property laws. the inventions or engineering designs may not really conform to the personality thesis. The IP law takes care of it by ensuring that no protection is given to either the everyday ideas. and remains unrecognised even today as an economic activity. The creation of social value both by converting commons into goods and adding more value to goods by investment of labour deserves to be rewarded to encourage people to be innovative as also to perform better. in the realm of IP. In the case of the intellectual property. Hegel is the main proponent of this view: property is the embodiment of personality. The explanation for such neglect is to be found in the fact.e. The society has to encourage people to strive to be innovative and come up with creative solutions to generate wealth and welfare as also to add value to existing goods and services. The justification for IP from the personality angle regards property as a mechanism of expression of one’s persona.
Different kinds of IP would appear to derive different degrees of justification from different angles. Clearly a completely satisfactory rationale for intellectual property protection is not available either from the labour angle or the personality angle. The provisions of the global IP regime ensure just economic returns to the generators of wealth through IP. copyrights and trade marks would find better justification from the personality angle. 2. however. it is seen that the IPRs are based on three underlying premises: 1. Protection of individual property is important but it is equally important in a democratic polity that the State creates conditions and necessary structures for people to have wide spread access to opportunities. and safeguard the interest of other entrepreneurs and the society in general. It is the role of the state and the purpose of the law to harmonise conflicting claims and achieve a balance. In the case of patents even a person who arrives at the same invention independently of the right owner is prohibited to . Adequate economic benefits as just reward for the creation of IP can be ensured only through the grant of monopoly rights. is served better when both the views are taken together as justification for the protection of property. even if for a limited period. there can be no absolute rights in IP because all individual rights are subject to the recognition of the rights of other individuals and the rights of the society. Besides. Essentially IPRs are negative rights meant to stop others from copying or counterfeiting of the protected application. Patents and industrial designs would be better supported from the labour point of view.reputation or the message of the work. Creative activity culminating in IP can be increased by measures aimed to encourage it. and also. The property rights are therefore generally tempered with considerations of distributive justice. this activity will not be generated in economically adequate quantity for public use without economic incentives. it is no more a fundamental right. which is reflected in the Indian Law: while private property is strongly respected and legally protected. the State strives to reach definite goals in keeping with the aspirations of the society through the instrumentality of law. or expression of an idea. 3. The entire domain of the IP. It will be well to remember here that whatever be the justification for the protection of intellectual property. Underlying premises of IP From the foregoing discussions. It is this balancing responsibility of the State.
Piracy and counterfeiting are the scourge of the world trade. which must be included in the national IP laws and regulations of all member countries of the WTO to enable effective enforcement of IPR. making preservation of life. The effectiveness of IPRs is clearly dependent on how speedily they can be enforced with reasonable cost. which remains paramount. under certain circumstances e. If the IPR would have an adverse impact on any of these. environment. There are provisions for compulsory licensing. In other forms of the IP e. While most contracts lay down clearly and in detail the rights and obligations of contracting parties. While national laws provide legal remedies for violations of IPRs. it is not granted. computer programmes. it should be clear that the grant of IPRs is to be seen in the context of rights of others. As requirement of space for storage of information and means and cost of copying tumble down with the advance of information and communication technologies. The remedies are meant to deter incidence of future infringement without harming legitimate . What is different with IPR is the fact that it is aimed at excluding others from doing certain things as regards the IP even without the existence of a formal contract between them and the owner of the right. pharmaceuticals and consumer goods. infringement of IPR on commercial scale is rampant.exploit it without a licence from the owner of the right. if the owner abuses the right simply to block others from ensuring that the benefits of the IP flow to the public at a reasonable cost. any disputes that arise in connection with the contract can be resolved on the basis of provisions in the contract itself. the rights of the individual owner are sought to be balanced with the rights of others. the TRIPS Agreement lays down the provisions. which are not to be ignored.g. and the consideration of public interest. by several devices like limiting the period during which the IPRs are available to a reasonable limit. The Intellectual Property Rights also confer no privilege on the products of the person owning the right in trade. peace. or even revocation of license. absolute monopoly of the owner of the right may be suitably diluted. In the field of intellectual property. including the wider public interest. In books. for copyright or trade mark. morality as a paramount condition in granting IPRs. However. films. music. the scale and incidence of copying/reproduction have greatly increased.g.
In a case of any restriction on speech and expression. such challenge has not yet been mounted. Copyright. Property. However. and the constitutionally guaranteed freedom of speech and expression. judicial review etc. The defendant may be asked to deliver up the infringing material for destruction as a requirement of justice. • The concept of intellectual property follows the concept of physical property. and the transfer of rights in the property. while safeguarding against the abuse of IPRs. which is inalienably linked to the concept of ownership of an article and means the right to possess. The Constitution of India under entry 49 of the Union list of matters falling within the Union Government for purpose of legislation mentions about Patents. in the constitution generally means tangible property. use and enjoyment of the fruits of application of the property. right to be heard and give evidence. not being unduly complicated or costly and not entailing unreasonable time limits or unwarranted delays. the perspective of the rights of viewers and listeners. However. Intellectual property is the creation of human intellect and is intangible (incorporeal) whereas the physical property is tangible (corporeal). (ii) trademarks and service marks. including indemnification of defendant against abuse of enforcement procedures. The TRIPS Agreement prescribes a number of requirements for a due process in IP law like fair and equitable procedures. It makes no specific mention of intellectual property. use and dispose of the article (property). The remedies that the Courts may grant can be both injunctive and compensatory relief.trade. Trade Marks and Merchandise. The Courts have zealously upheld this fundamental freedom. Experts have spotted possibilities of a conflict between the IP. IP as a form of property can be put under Article 300A dealing with property and be entitled to a legal right. is strongly poised to get precedence over the perspective of the rights of broadcasters. Any rights (monopolies) that undermine the right to freedom of speech and expression may face a challenge. specially the copyright. They concern ownership and possession. Inventions and Designs. and the exclusion of others from such use and enjoyment. (iii) geographical indication (iv) • • • . The TRIPS Agreement under the WTO recognises seven kinds if IP viz. (i) copyright and related rights. Property means a bundle of rights in relation to the object owned. right to written decision.
The devices that ensure this balance are: grant of monopoly/exclusive rights generally for a limited period. (v) patents. The personality view regards the creation of intellect as an expression of the creator’s persona. Either way he is to be encouraged and rewarded. The former sees labour as belonging to the individual who creates new goods by mixing his labour with the common resources or adds value to the goods with investment of labour. speedy and cheap remedies against violation of IPRs. seeks to strike a balance between the interests of the creator of the IP and the interests of the other entrepreneurs and the Society in general. provision for compulsory licensing and even revocation of licence under certain conditions. rather than in any of them singly. The State. The remedies can be injunctive and compensatory. A possible area of conflict may arise between copyright and the freedom of speech and expression which is a right constitutionally guaranteed and zealously upheld by the court. While ensuring justice. it should create no barriers for world trade nor should it lead to abuse of enforcement. The process is to be fair and equitable and conscious of time and cost. While inventions may have little that will qualify them as expression of the inventor’s persona. and thus a very personal thing that needs to be regarded and protected as property. However. if deemed necessary. the domain of IP is expanding and soon new claimants may arise due to rapid advances in science and technology. The TRIPS Agreement of the WTO prescribes civil procedure to be incorporated in national laws for ensuring effective. The Constitution of India makes no specific mention of IP. and through it the global IP regime. Thus the rationale for IP has to be sought both in the labour angle and the personality angle together. to meet the ends of justice. morality as of paramount consideration while granting IPRs. a literary or artistic or musical composition is likely to bear the stamp of the author in a substantial measure. However. there is nothing in the constitution that would prohibit treatment of IP under property clauses. the courts can also order infringing material to be delivered up for destruction. environment.industrial designs. • The rationale behind IP flows from the labour angle or the personality angle. • • • SAQ 1 (a) T . (vi) layout designs of integrated circuits and (vii) undisclosed information. Neither of the two angles can satisfactorily serve as justification for all kinds of IP. and making preservation of life. peace. after which the intellectual creation comes into the public domain.
unqualified statement. . and even for revocation of license. which include availability of patented goods at a reasonably affordable price to the general public. There are statutory provisions for compulsory licensing in favour of a third party. the Intellectual Property Rights do not cover the product as such but whatever the creator’s intellectual contribution is to make the creation a reality. The term of the IPR is limited to a reasonable period after which the intellectual creation comes to the public domain. SAQ 4 By several devices designed to ensure that the owner’s rights are not unqualified monopoly to continue indefinitely. it is true only for a limited period not as a general. No IP is recognised if its subject matter goes against the preservation of life & environment and peace & morality.(b) F. SAQ 2 (c) SAQ 3 No. under certain conditions.
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