Intellectual Property Rights - Basics

Intellectual Property: The property which is a creation of a mind, such as inventions, artistic &
Literary works, blueprints, layouts, designs, logos etc.

Why IP? A right over an intellectual property in the form of Patents, Copyrights and
Trademarks, helps the right holder to earn financial benefits or recognition in general regarding
the intellectual property they created.

1. Technological progress needs to be promoted in order to ensure a sustainable and

progressive future.
2. Legal Protection over abstract creations such as ides, thoughts, artworks etc encourages
the commitment of additional efforts for further innovation.
3. An efficient and equitable IP system may serve as a catalyst for economic as well as
social and cultural development across the world.
4. IP rights affect the common public life in many ways, such as-
i. Multimedia Films Industries, Animation Houses, Recording & Production
Studios or Software Developers would not be possibly operating without proper
framework for the protection of their creations by various encroachments.
ii. The rewards or the financial fortunes which may be earned by gaining patent
rights over a creation motivates the innovators and researchers in continuing the
betterment of the existing products.
iii. Setting a brand value of various goods and also differentiating branded goods
and counterfeit goods would become a difficult task for the consumers without a
reliable International trademark protection and enforcement mechanisms
discouraging piracy.

Patents
A patent is an exclusive right granted for an invention, i.e. a product or process that simplifies
human life by providing a new & more efficient way of doing something, or providing a
technical solution to a problem. An invention protected by a patent cannot be commercially
produced, used, distributed, sold or advertised without the patent holder's consent. The patent
holder may license other parties to use the invention on mutually agreed terms. The owner may
also sell the rights to the invention to someone else, who then becomes the new owner. These
rights are protected by the courts. A patent is generally granted for 20 years after the expiry of
which the protection ends and the invention becomes available in public domain being available
for commercial exploitation by others, beyond the control of the owner.
To get protection under patent, the patent owners are to publicly disclose information about their
inventions in order to enrich the knowledge available in the world, holistically. This ever
increasing database of public knowledge further promotes creativity and innovation.

How is it granted?

In order to get a patent, an application has to be filed for it directed to the concerned patenting
authorities. The application must contain the following-

 Title of the Invention.

 Indication to its technical field.
 A background description of the invention, detailed enough to enable a person with an
average understanding of the field to use or reproduce the invention.
 The above information may be accompanied with charts, visuals or plans for a better
understanding.

What can be patented?

The following conditions must be satisfied in order to be protected by patents-

 The invention should be of a practical use.

 It must add to the existing knowledge in that particular technical field.
 It must not be obvious, i.e. it should involve an inventive step which could not be
deduced by a person with average knowledge in the technical field.
 The invention must fall under the "patentable subject matter" under the applicable law.
Patentability of Scientific Theories, Mathematical methods, plants or animal varieties,
discoveries of natural substances, or methods of medical treatment etc may vary from
country to country.
 Protection of inventions under patent law does not require the invention to be represented
in a physical form.

Scope of a Patent

A patent granted by the national patent office of a country is enforceable and limited to the
country whose office granted the patent. However patents may also be granted by a regional
office which exercises jurisdiction in various countries, for example, European Patent Office
(EPO), or the African Regional Industrial Property Organization (ARIPO). The patents accepted
by such regional patent offices have the same effect as application filed, or patent granted in the
member states of the region. The enforcement of such regional patents, however, lies within the
jurisdiction of each Member state.

The World Intellectual Property Organization's- administered Patent Cooperation Treaty (PCT)
is an agreement for international cooperation for rationalization and cooperation with regard to
the filing, searching and examination of patent applications and the dissemination of the
technical information contained therein. PCT however does not provide for the grant of any
International Patents.

Exceptions & Limitation to Patent Rights

The World Trade Organization's Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS) has incorporated certain exceptions to the patent rights under the Article 30 of
TRIPS. The exceptions usually allowed by article 30 are as follows-

i. Private and Non-Commercial Use: The rights conferred by a patent do not

allow the holder to use the invention privately or to exercise commercial
monopoly over it. If the patentee is neither using nor vending the invention for
profit, the Government has the power to grant a license, known as compulsory
license to a third party to use the patented invention, restricting the rights of the
original patentee with the intent of preventing the abuse/misuse of the rights
conferred on such Intellectual Property leading to any negative effect on the
public.
ii. Experimental/Scientific use Exception: This exception imposes a condition that
any product or process over which a patent is granted, may-be made or used by
any person only for experimental or Scientific activities relation to the subject
matter of the patent. This exception is placed so that the patentee's right would not
interfere with any 'bona fide" research in the same field.
iii. Regulatory-use/ Prior-use Exemption: This exemption is referred to as the
Bolar Provision and is a statutorily created exemption to patent rights. It allows
the manufacturers of generic drugs to undertake steps reasonably related to the
development and submission of information required for obtaining marketing
approval anywhere in the world with respect of a patented product without the
consent of the patentee. This provision allows the generic manufacturers to
market and manufacture goods as soon as the patent term expires. This provision
under article 107A is made with an intent to offer a trade-off between incentives
to the innovators, and limited access and cost to the consumers. However this
exception does not allow for the use of patented drug to obtain the license to
manufacture and distribute the generic drug before the expiry of the patent.
iv. Foreign Vessels, Aircraft or Land Vehicles Exception: According to the
section 49 of the Indian Patent Act, the patent rights are not infringed when the
patented invention is used exclusively for the nopeeds of foreign vessels, aircraft,
or land vehicles and other accessories thereof, when such foreign vessels, aircraft,
or land vehicles temporarily comes to India. The term "temporarily" also includes
intentional and regular going into the territories, provided it does not stay
permanently in the territories of India. This provision is incorporated to facilitate
 uninterrupted international travel and reducing tensions between countries over
the treatment of vessels flying their flag.

Copyrights
The word copyright refers to the act of copying an original work which, in respect of literary and
artistic creations, ,may be done only by the author, or by the expressed permission of the author.
Copyright law applies to any literary and artistic creations, such as books, music, paintings and
sculptures, films and technology based works such as software programs and Electronic
Databases. The term "Literary and Artistic works" can be interpreted to include every original
work of authorship, irrespective of its literary or artistic merit.

The ideas in the work need not be original, but the form of expression must be an original
creation of the author. The legal protection of literary and artistic works under copyright law
prevents only unauthorized use of the expression of ideas. Due to this reason, the protection
offered by copyright law is of a much longer duration then that of the patent laws.

Copyright protection grants two kinds of rights-

i.) Economic Rights, which allow the owners to derive financial benefits from the use of their
works by others.

ii.) Moral Rights, which allows the authors and creators to take certain actions to preserve and
protect their link with their work.

Economic rights are freely transferrable to any 3rd party at the discretion of the author/creator,
however many countries do not allow transferability of Moral Rights.

Economic Rights
Under Economic rights, the author has the right to authorize or prohibit:

 Reproduction of the work in any form such as prints or sound recordings.

 Distribution of copies of the work.
 Public performance of the work.
 Broadcasting1 or other communication of the work to the public.
 Translation of the work into other languages, and

1
The right to broadcasting covers the transmission for public reception of sounds, or of images and sounds, by
wireless means, whether by radio, television or satellite. When the work is communicated to the public, a signal is
distributed by wire or wireless means for reception only by persons who possess the equipment necessary to
decode the signal. Cable transmissions is an example of broadcasting.
  Adaptation of the work, such as turning a novel into a screenplay etc.

Some other rights which the copyrighting law confers on the authors of a literary work are as
follows:

a. Distribution Rights: Right against reproduction would hold little value if the authors
couldn't control the distribution of the copies created with their consent. Thus they have
the right to determine the distribution of their created work. However this right usually
ends with the first sale of the work or when the ownership of a particular copy of the
work is legally transferred to another person.
b. Right to authorize rentals: This right allows the creator of certain categories of works,
such as musical works, audiovisual works and computer programming to authorize for
renting out the created works. Exercising this right became necessary in order to prevent
the abuse of the creator's right against piracy of the work when technological advances
made it easy for rental shop customers to copy the works.
c. Right to control importation: Some copyright laws include this right in order to prevent
territorial breach of the copyright. This is based on the premise that the legitimate
economic interests of the copyright owner will be endangered if the work is not prevented
from reproduction/distribution on a territorial basis.

Under the Translation and Adaptation rights, in order to publish a translation or an adaptation,
the permission of both, the owner of the copyright in the original work, as well as the permission
of the owner of the copyright in the translation or adaptation is needed.

Moral Rights
The following rights can be listed as the moral rights conferred over a copyright holder:

 The right to claim authorship of a work, aka. right of paternity/ right of attribution.
 The right to object to any distortion or modification of a work, or other derogatory action
in relation to a work, which could be prejudicial to the author's honor or reputation. aka.
right of integrity.

The Berne Convention over copyrights requires these rights to be independent of the economic
rights of a copyright holder. These are rights accorded only to the creator of the content/work
and according to many national law, these usually remain with the authors even after they have
transferred their economic rights.
Limitations & Exceptions to the Right
The Berne Convention on copyrights provides for an exception of free use to the owner's right
of copyright. It provides that free reproduction of the work may be allowed in certain cases
where that act does not conflict with the normal exploitation of a work and does not
unreasonably prejudice the legitimate interests of the author. Some special cases of free use
includes:

 quoting from a protected work, provided that the source of the quotation and the name of
the author is mentioned.
 Use of work for illustrating, primarily for teaching purpose.
 Use of the work for news reporting.

Transfer of a Copyright
Authors usually transfer the economic rights of their works to individuals or companies which
are best able to market them, in return for payments. Such payments are made dependent on the
actual use of the works and are referred to as royalties. Transfer of copyright may be done in two
of the following forms:

i. Assignment: An assignment is a transfer of a property right. Under this form of transfer,

the owner of the work transfers the right to authorize or prohibit certain acts covered by
one, several or all rights under copyright. Since copyright rights are divisible, it is
possible to have multiple rights in the same work, or have multiple owners for the same
work. Some national laws prohibit the exercise of assignment as a mode of transfer of
copyrights.
ii. Licensing: This form of transfer means that the owner retains the ownership but
authorizes a third party to carry out certain acts covered by the economic rights, generally
for a specific period of time & for a specific purpose.

Enforcement of the Rights

The rights over copyrights are enforced in the following ways:

i. Provisional Measures: These are the interim orders issued by the courts in a civil
proceedings prior to the final judgment. These are primarily made with the objective of
preventing any interferences with court processes such as destruction of evidence, or any
other irreparable loss to the owner of the work before the court arrives to a judgment.
Provisional measures may even allow a court to order a search and seizure in the premise
of the alleged infringer where a reasonable apprehension of the infringer concealing or
 destroying the copyrighted goods exists. This order will hold valid even if thus
provisional measure is granted without advance notice to the defendant due to lack of
time or other practical reasons. However, the defendant is entitled to seek a review of the
order if he so wishes, after he becomes aware of such order.
ii. Final Remedies: These are the final orders or the final judgment that the court delivers
after weighing arguments from both the parties. It is made with an underlying objective
of restoring the injured right holder to his/her former position and prevent any
reoccurrence of the infringement. Court may award damages or compensation payable by
the infringer, and also make any profits made by him recoverable towards the original
right holder.
iii. Criminal Sanctions: These sanctions are aimed at punishing the infringer for willful
piracy committed on a commercial scale. The mode of punishment may be anything
ranging from a mere fine to prison sentence, depending on the gravity of the crime
committed and the repetitiveness of the offence.
iv. Border Measures: These measures involve activity from the Custom Authorities. Border
Measures allows the original owner of the work to request the custom authorities to hold
the goods suspected of infringing copyright with them, in order to suspend its release into
circulation. This is done with the intention to provide a reasonable time to the rightful
owner to approach a court and get judicial remedy, without the risk of the copied work
disappearing into circulation after custom clearance in another country. Usually the
following ingredients have to be met by the owner to exercise such measures:
a. To satisfy the custom authorities about the existence of a prima facie case of
infringement.
b. To provide a detailed description of the goods making them easy to recognize.
c. To provide security to indemnify the importer, the owner and the custom
authorities in case the goods are later found to be non-infringing.

v. Technological Protection Measures: This category of enforcement provisions is born

due to the advent of digital technologies. In the modern era, the most practical way of
preventing a work from its copyright infringement is to prevent the work from being
copied through copy-protection or copy-management systems. These are technical
devices which makes copying impossible or deter the quality of a copy in such a way as
to regard it unusable. Thus the protection system needs to be developed in such a way to
demote such copying and also the alteration of rights management information which are
used to identify the author or right owner, and may contain the terms and conditions
regarding the use of the work. Thus distortion of such right management information may
deem an infringement over a work undetectable.
Related Rights
Related rights are the rights that protect the legal interests of the persons & legal entities who
contribute in the creation of the copyrighted work but the subject matter of their own produce do
not qualify to be protected as "work" under copyright law. Despite the above fact, they contain
sufficient creativity or technical & organizational skills to justify their protection under a
copyright-like property right which came to be known as related rights. However, it is a known
facet of law that exercise of any related right should in no way hamper the protection of the
original copyright. Traditionally related rights have been granted to chiefly three categories:

 Performers, have the right to prevent fixation, broadcasting and communication of their
live performances without their consent. These rights may take the form of adequate
remuneration instead of the right to prevent.
 Producers of sound recordings, have the right to authorize or prohibit reproduction,
importation and distribution of their sound recordings and copies thereof, and the right to
equitable remuneration for broadcasting and communication to the public their sound
recordings.
 Broadcasting organizations, have the right to authorize or prohibit the re-broadcasting,
fixation and reproduction of their broadcasts.

Related rights have similar exceptions as to copyright rights. Such limitations allows the use of
protected performances, phonograms or broadcasts for teaching, scientific or private use, or use
of short excerpts for reporting current events.

Related rights were usually protected for 20 years from the creation of the work, according to the
classic treaties like Rome treaty on this matter. But newer agreements such as TRIPS and the
WPPT agreements, protection have been offered up to 50 years from the date of the creation. The
newest treaty, the Beijing treaty, which is an upcoming resolution on the matter of related rights
also aims to provide protection till 50 years from the creation.

Trademarks
A trademark is a sign that is used to identify certain goods and services as those produced or
provided by a specific person or enterprise. Thus, it helps to distinguish those goods and
services from similar ones provided by another.

A trademark can be anything, a word, a combination of words, letters or abbreviations, numerals

and names, or abbreviations of names. They may even consist of drawings, like a logo, or 3D
signs. They may even consist of an abstract combination of colors or a single color used in a
specific distinct manner. Even a non-visible sign such as a musical tone or a fragrance may
constitute a trademark. The only requirement for something to consist as a trademark is that it
should be distinctive. It should not be purely descriptive of the nature of the goods and services
that are offered, but it must be capable of distinguishing the goods or services with which it is
assigned.

Certification marks such as FICCI or ISI are also examples of trademarks.

Functions of a Trademark
The following are the primary functions of a trademark-

 Help consumers identify and distinguish products and services.

 Enable companies to differentiate between their products.
 Act as a marketing tool and the basis for building a brand image.
 May act as a direct source of revenue through licensing.
 May become crucial component in valuation of goodwill.
 Encouraging the companies to invest in maintaining and improving quality of the
products.
 Might become useful in obtaining finance.

Protection of a Trademark
A trademark is a territorial right. This means that it must be registered separately in each country
in which protection is desired. Unless a given trademark is protected in a given country, it can be
used by any third-party in that country. Also, trademarks are generally limited to specific goods
and services, this means that a similar trademark can be used for dissimilar goods and services.
Besides a registered trademark, an unregistered trademark may also be protected but in a less
reliable form then the protection of registered trademarks.

In order to do away with the problem of multiple registrations corresponding to different nations,
the WIPO provides for an international registration of trademarks. This system is governed by
two treaties namely the Madrid Agreement Concerning the International Registration of Marks,
and the Madrid Protocol. A person linked (through nationality, domicile or establishment) with a
member country may register its trademark in the trademark office of that country, having the
same effect of registration in all of the countries members to the Madrid Union.

The owner of a trademark can exercise the following rights:

 To use the trademark to identify his goods and services.

 To prevent others from using and marketing the same or a similar trademark for a similar
good
 To authorize others to use the trademark, usually by the way of franchising or licensing
agreements in return of a specific payment.
Registration of a Trademark
The application for registration needs to be filed with the appropriate national or regional
trademark office. The application should contain a clear reproduction of the sign filed for
registration, including any colors, forms or 3D features. It must also contain the list of goods or
services to which the sign would apply. Apart from this, the following conditions needs to be
fulfilled by a sign in order to constitute a valid trademark-

 It must be Distinctive, so that consumers can distinguish it as identifying a particular

product, thus differentiating it from every other similar good of a different brand or
company, available in the market.
 It must not be deceptive. It should in no probability be capable of misleading the
consumers about the nature or quality of the product.
 It should not be contrary to public order or morality.
 It should not be identical or confusingly similar to an existing trademark. This is to
be determined through search and examination by the national office of trademarks.

Initially, after registration, a trademark is protected for 10 years. Although it can be renewed
indefinitely on payment of the corresponding fee.