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Fundamental of IPRs

Revised by
Ms. Jaya V S
Asst. Res. Prof & Programme Co-ordinator

This paper will give you a basic idea about the philosophy behind IPR, its history,
various forms and significance in the modern era.

What is an Intellectual Property Right (IPR)?

Intellectual Property (IP) pertains to any original creation of the human intellect such as
artistic, literary, technical or scientific creation. Intellectual Property Rights (IPR) refers
to the legal rights given by the State to the inventor/creator to protect his
invention/creation for a certain period of time. These legal rights confer an exclusive
right to the inventor/creator or his assignee to fully utilize his invention/creation for a
given period of time.

Significance of IPR

Intellectual property rights illustrate the nations ability to translate knowledge and
thereby creating social good and wealth through innovations. These innovations hold the
key to any nations prosperity as well as processing of knowledge. It is very well settled
that intellectual property play a vital role in the modern economy. It has also been
conclusively established that the intellectual labour associated with the innovation should
be given due importance so that public good emanates from it. A detailed study about the
various forms of intellectual property rights will give you more idea about the subject.

Theories of IPR

Moral Desert Theory

According to John Locke, every man has a property in his own person. ie., the fruits of a
mans labour belong to him. In this scheme intellectual property would seem to follow
naturally since the individual must surely be permitted the fruits of his mental and
physical labour.

Personality Theory

According to Kant and Hegel, if ones artistic expressions are synonymous with ones
personality, then they are deserving of protection just as much as the physical person is
deserving of protection since in a sense they are a part of that physical person.

Utilitarian Theory

Advocated by economists such as Bentham and Mill, the utilitarian theories assume that
the objective of any policy should be the attainment of the greatest good for the greatest
number. The utility gains from increased incentives for inventions must be weighed
against the losses incurred from monopolization and their diminished diffusion

Forms of IPR
Patents are granted for various kinds of inventions, which fulfill the patentability
criteria of novelty, non-obviousness (inventive step) and industrial applicability
Copyright exists in original artistic and literary creations
Trademark rights exist for visual symbols including a label or a logo by which the
buyers can identify the goods / services of a particular seller / service provider

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Originally, only patent, trademarks and Industrial designs were protected as Industrial
Property, but now the term Intellectual Property has a much wider meaning.

Need for Intellectual Property Rights (IPR)

IPR is a strong tool, to protect investments, time, money, effort and the like invested by
the inventor/creator of an Intellectual Property, since it grants the inventor/creator an
exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in
a way, aids the economic development of a country by promoting healthy competition
and encouraging industrial development and economic growth. Further it also enhances
technology advancement in the following ways:

a. it provides a mechanism of handling infringement, piracy and unauthorized use

b. it provides a pool of information to the general public since all forms of IP are
published except in case of trade secrets .

A spurt in interest about intellectual property rights (IPR) has been visible in the country
for almost the last 15 years. The recent interest started with a curiosity and an element of
apprehension but it has now graduated to a need-based compulsion and desire to play the
new game introduced with the formation of the World Trade Organisation (WTO) and
the introduction of the Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS). With the opening up of trade in goods and services, the IPRs have
become more susceptible to infringement without adequate return to the creators of
knowledge. There has been a quantum jump in Research and Development (R&D) costs
with an associated jump in investments required for putting a new technology in the
market place. The stakes of the developers of technology have become very high and
hence the need to protect the knowledge from unlawful use has become expedient, at
least for a period, that would ensure recovery of the R&D and other associated costs and
adequate profits for continuous investments in R&D. Globalisation, multilateral trade and
new economic order are continuously reducing the geographical barriers to trade
rendering the global trade very complex. IPRs become important parameters influencing

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trade. Therefore, one expects that a large number of IP rights would be generated and
protected all over the world including India. The current importance of IPRs is dictated
by the following reasons:

(i)

Technologies are changing rapidly,

(ii)

Product life cycle is becoming shorter,

(iii)

Investments on R&D, production, marketing have become very high,

(iv)

Human resources should possess high level of skills, and

(v)

The industry is becoming very competitive.

What are the types of protection offered?

Intellectual property rights as a collective term includes the following independent IP

rights. IP protection can be sought for a variety of intellectual efforts including
Patents (Patents Act, 1970)
Industrial designs (Designs Act, 2000) relates to features of any shape,
configuration, surface pattern, composition of lines and colors applied to an article
whether 2-D e.g. textile or 3-D e.g. toothbrush,
Trademarks (Trademark Act, 1999) relates to any mark, name or logo under which
trade is conducted for any product or service and by which the manufacturer or the
service provider is identified,
Copyright (Copyright Act, 1957) relates to expression of ideas in material form and
includes Literary, Musical, Dramatic, Artistic, Cinematography work, audio tapes
& computer software
Geographical Indications (Geographical Indications of Goods Act, 1999) are
indications, which identify a good as originating in the territory of a country or a
region or locality in that territory where a given quality, reputation or other
characteristic of the goods is essentially attributable to its geographical origin.
Undisclosed Information/ Confidential Information/ Trade secrets (under Common
Law in India),
Plant breeding (the Protection of Plant Varieties and Farmers Rights Act, 2001) and

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Integrated Circuit layout designs (Semiconductor Layout Designs Act, 2000.)

See TRIPs Agreement

http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm

These are different forms of IPR, each being independent of the other and governed by a
separate law. Their mutual exclusiveness and independence can be gauged by the fact
that it is possible to protect different aspects of an original or inventive work with
different rights.
IPRs are awarded by a country and most of the rights are territorial in nature.

copyright generated in a member country of the Berne Convention is automatically

protected in all the member countries, without any need for registration. However, the
copyright will not be automatically available in countries that are not the members of the
Berne Convention. Therefore, copyright may not be considered a territorial right in the
strict sense. Like any other property IPR can be transferred, sold or gifted. One of the
main underlying principles of IPR is that protection is not given for what is already
known in the public domain. IPR are meant to benefit creators of work, inventions and
designs. These rights are granted for a limited period of time, except that in the case of
trademark, the protection period could be extended indefinitely by a process of renewal.
IPR are monopoly rights and thus prohibit unauthorised use of the protected
work/invention. In return for such rights, the State expects that the invention/ original
work should be made public for use by others after the rights have expired or during the
period of protection with proper authorization from the right holder. However, protection
of undisclosed information falls in a different category; the above principle of public
disclosure is not applicable in this case. On the contrary, in order to protect the right, the
information has to be kept secret and it has to be ensured that it does not come in the
public domain.
A patent is awarded for an invention, which satisfies the criteria of global
novelty, non-obviousness and industrial application. Patents can be granted for products
and processes. As per the Indian Patent Act 1970, the term of a patent was 14 years from
the date of filing except for processes for preparing drugs and food items for which the

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term was 7 years from the date of the filing or 5 years from the date of the patent,
whichever is earlier. No product patents were granted for drugs and food items.

India is a signatory to the Berne Convention and has a very good copyright
legislation comparable to that of any country. Copyright is awarded to literary, dramatic,
musical, artistic, cinematographic film and sound recoding. Computer programmes and
databases are considered literary work and hence, are protected by copyright in India; in
fact, these are also considered copyrightable items under TRIPS. It may be noted that
copyright protection extends to an expression of an idea but not to the idea itself. To get
protection, these works should be in a tangible form, which means in a form capable of
either visually or audibly recreating the representation of the original work. Works are
not copyrightable if they are merely ideas or sounds or gestures.

A trademark is any word, name, symbol, or device or any combination thereof

used by persons to distinguish their goods and services, including a unique product, from
those manufactured or sold by others and to indicate the source of goods / services. This
gives an opportunity to consumers / buyers to assess the quality of the goods being
bought by them. The purpose of awarding a trademark is also to benefit the public as it
could make an informed choice while opting for different products and services.

Industrial design is connected with the protection of external shape, appearance

and configuration of an article.

Protection of IC layout design and geographical

indications are the most recent laws passed by the Indian Parliament. Protection of IC
layout design is associated with protection of mask designs in integrated circuits.

Geographical indication is a name granted by the State to a product, natural or

man made, identifiable with a specific geographical location for the uniqueness of the
product. Once a geographical indication has been granted to a product then no similar or
identical product made / produced elsewhere can be sold under that geographical
indication. As per the Indian law, violation of geographical indication would invite heavy
penalty including fine and imprisonment.

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Undisclosed information, generally known as trade secret / confidential
information, includes formula, pattern, compilation, programme, device, method,
technique or process. Protection of undisclosed information is least known to players of
IPR and also least talked about, although it is perhaps the most important form of
protection for industries, R&D institutions and other agencies dealing with IPRs.
Protection of undisclosed information / trade secret is not really new to humanity; at
every stage of development people have evolved methods to keep important information
secret, commonly by restricting the knowledge to their family members. Laws relating to
all forms of IPR are at different stages of implementation in India, but there is no separate
and exclusive law for protecting undisclosed information / trade secret or confidential
information.
History of IPR system
Human beings, and even animals, have a tendency to protect and possess a physical thing
they have. Thus, a child will not part with her toys, a person with his property and a dog
with his dog-bone. Similarly, most people will not like the idea that any one with out
their permission, and with out a simple acknowledgement copies their writings, designs
or products made by them. By not having a system in place to formally protect the
intellectually created work of an individual, a society would strike at the root of ingenuity
and innovation of its own people. The society is always in need of new ideas, products,
processes, designs, recipes and so on to improve the quality of life, have better health for
its people, produce new things and have a trade advantage by increasing the size and
quality. Trade and commerce have emerged to be the major deterministic factor for
achieving the above goals. Pressures of globalisation or internationalisation were not
intense during 1950s to 1980s, and many countries, including India, were able to manage
without practising a strong system of intellectual property rights. Globalisation driven by
chemical, pharmaceutical, electronic and IT industries has resulted into large investment
in R&D. This process is characterized by shortening of product cycle time and high risk
of reverse engineering by competitors. Industries came to realize that trade secrets were
not adequate to guard a technology. It was difficult to reap the benefits of innovations
unless uniform laws and rules of patents, trademarks, copyright etc existed. That is how

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intellectual property rights became an important constituent of the World Trade
Organization.
Patents began as instruments for attracting and introducing new products, technologies
and techniques in European countries. If you look at the old patents granted by some of
the countries you will find that they were just a replication of the technologies available
elsewhere. Artisans were invited from one country to the other and given special rights,
amongst them being the exclusive right to exploit the technology. The laws and
administrative procedures related to intellectual property rights have their roots in
Europe. The trend of giving patents started in the fourteenth century. In comparison to
other European countries, in some matters England was technologically advanced and
used to attract artisans from elsewhere on special terms. Once such people decided to
come and settle, they would need to employ the locals who would get trained over time in
the relevant trade and craft; but such trained locals were likely to become competitors to
the knowledge holder and consequently a threat to the monopoly. Therefore, protection
was given to the immigrant to have a monopoly for few years, to enable him to exploit
the economic returns of his art, special expertise, or technological innovation. It is
interesting to note that the original period of protection of 14 years for a patent was not
with out reasons. Seven years was the term of service of an apprentice, so the protection
for fourteen years meant protection for two generations of apprentices. For some reasons,
this period continued until recently, even though the concept of seven years
apprenticeship was no longer valid. As early as 1332, the Venetian Grand Council
established a privilege fund for providing loans and other rewards to a foreign constructor
of windmills who offered to bring knowledge of this art to the city. In 1416 the Council
awarded to Fransciscus Petri, from the Island of Rhodes, a patent for a superior device for
fulling (shrinking and thickening) of fabrics, this patent gave exclusive rights for 50 years
to Petri and his heirs to build, alter and reconstruct the apparatus.
In this period of introducing new art and technologies a thought process slowly started
taking roots, on the question of disclosing secrets of the art or craft or technologies. It
really did not matter whether the inventor was from the same land or from a foreign
country. When in 1421, the Florentine commune awarded a patent to Brunelleschi for a

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new design of ship, he claimed that the ship could haul loads more cheaply on the Arno
River; the nature of bargain for disclosure was spelled out candidly in Bruelleschis
petition He refuses to make such machine available to the public in order that the fruit of
his genius and skill may not be reaped by another with out his will and consent, and that,
if he enjoyed some prerogative concerning this, he would open up what he is hiding and
would disclose it to all.

The rights of literary works involving published works were not protected until the
advent of printing machines, which made copying of literary works much easier.
Otherwise some one would have to write the complete manuscript for making a copy,
which from commercial angle, was not profitable. From the beginning copyright laws
have been designed more by the economics of publication than by the economics of
authorship. The first known copyrights appeared in Italy. The craft of printing was
introduced in Rome and Venice by the end of 1460s. A number of privileges were
allowed by Venice in terms of import of franchise, exclusive licenses to print or sell an
entire class of books, prohibition of import of books printed abroad and patents for the
improvement of printing and typography. As the focus was on printing books in public
domain (such as the Bible), the rights of authorship were not considered important. The
first franchise for printing was taken from a German printer Johann von Speyer. In 1493
the Venetian Cabinet gave Daniele Barbaro an exclusive 10-year grant of proprietary
rights for the publication of a book authored by his deceased brother. Such cases were
very few and copyrights were by and large issued to the publishers for works written by
others. This is an interesting aspect of copyrights. In the last few centuries, the emphasis
of ownership shifted from that of publisher to creator / author of the work. With the
advent of digital technologies and new forms of works being created, especially for
internet purposes, publishers stakes seem to be increasing each day as the quality of
replication and ease of replication have become extremely simple. The publisher lobby is
therefore seeking new treaties such as the Data Protection Treaty, for protecting their
investments. It may become a case of the old order taking over the new order because
technological inputs have brought about a major shift in the publishing business. Venice

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can be considered the cradle of intellectual property system as most legal thinking in this
area was done here and laws and systems were made here for the first time in the world,
and other countries followed them. Scholars feel that the first general copyright law in the
world came in the form of a decree issued by the Venice Council around 1545, which
prohibited the printing of any work with out the permission of the author. No steps were
apparently taken to maintain a register for the copyrighted works. Similar laws also came
into being in other European countries. Each country introduced an element of censorship
to exclude from publication, material that was considered unacceptable by the society. (?)
It is also important to realize that the laws were applicable to printing and publishing of
material generated with in the country. There were practically no laws which prohibited
publishing and printing of books, pamphlets etc. which were imported into the country.
Obviously, the element of international obligation, which is becoming so pervasive and
important in the present day IPR system, was completely missing. The character of IP
management in countries has undergone a metamorphosis ever since the borders and
barriers to global trade and commerce started becoming less rigid, which perhaps was
driven if not consciously then unconsciously, by the spirit of promoting fair competition
and attaching due honour to, let us say, the creators of knowledge. The process is an on
going one, as more and more countries become a part of the international trade and new
variables get introduced in international relations.

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