INDEX

1. Acknowledgement 1
2. Introduction 2
3. Concept and nature of intellectual property rights 3
4. Objective and significance of IPR 4
5. Intellectual property rights in India 5
6. Types of IPR 7
• Copyright 7
• Patent 8
• Trade marks 10
• Industrial design 11
• Geographical indications 12
7. Copyright law of India 13
8. Conclusion 16

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ACKNOWLEDGEMENT
Firstly, I would like to express my profound sense of gratitude towards the almighty
“ALLAH” for providing me with the authentic circumstances which were mandatory for the
completion of my project.

Secondly, I am highly indebted to Prof. S.Z. Amani at Faculty of Law, Jamia Millia Islamia
University, New Delhi for providing me with constant encouragement and guidance
throughout the preparation of this project.

Thirdly, I thank the Law library staff who liaised with us in searching material relating to the
project.

My cardinal thanks are also for my parents, friends and all teachers of law department in our
college who have always been the source of my inspiration and motivation without which I
would have never been able to unabridged my project.

Without the contribution of the above said people I could have never completed this project.

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INTRODUCTION
Intellectual property (IP) is a term which refers to those creations of individual’s
mind which are distinct and different and for such creativity the individuals’
property rights are recognised. This unit will discuss the term and other related
topics in detail. In order to respect and regard the human resource, it is legal and
compulsory that the individuals are provided property rights for the originality
of their creations, inventions and discoveries as well as innovations. The unit
will also discuss the various issues and agenda of the intellectual property
rights. The unit starts with intellectual property and intellectual property rights
and their definition and description. We then delineate the concept of
intellectual property rights. We put for the form for intellectual property and
discuss the nature of intellectual property. This is followed by the nature and
objective of intellectual property rights and then we analyse the various issues
emerging out of the intellectual property rights.

Intellectual property (IP) refers to creations of the mind which are original in
nature and have not been duplicated from any one or any where. Some of the
examples of intellectual property can be for example inventions, literary and
artistic works, symbols, names, images and designs used in commerce. The
term intellectual property has been used since centuries. In one of the court
cases in 1845 Justice Charles L. Woodbury wrote that “only in this way can we
protect intellectual property, the labours of the mind, productions and interests
are as much a man’s own...as the wheat he cultivates, or the flocks he rears.

The concept of intellectual property can be broadly categorised in to two major

categories, viz,

(i) Individual property and

(ii) Copyright

Individual property: The properties which are original and intangible in nature
and are related to commercial as well as industry related products which
includes inventions (patents), trademarks, industrial designs, and geographic
indications of source comes under the category of individual property.

Copyright: The creations which are original and intangible in nature, such as the
literary and artistic works such as novels, poems and plays, films, musical
works, articles as well as artistic works such as drawings, paintings,
photographs and sculptures, and architectural designs.
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CONCEPT OF INTELLECTUAL PROPERTY
RIGHTS
Intellectual property rights is one of the most spoken word in scientific circles
and the importance of protecting scientific discoveries, with commercial
potential, is one of the most crucial aspects. In this era, when the humans are
being treated as valuable resources to the organisations, their knowledge is
equally worth which can lead the organisations’ progress to immense heights.

Knowledge is considered to be the product of individual creativity, based on

western scientific thought and systems of knowledge creation. In this paradigm
the intellectual property rights can be referred as property rights to the products
of mind, which are a result of an individuals’ knowledge and creativity.
Intellectual property rights there by gives legal rights over creations of the
mind, including both artistic and commercial creations. Intellectual property law
provides owners with certain exclusive rights to a variety of intangible assets, as
well the financial incentive of monopoly profits.

NATURE OF INTELLECTUAL PROPERTY

RIGHTS
IPR are largely territorial or geographical based rights (that is it may differ
from nation to nation) except copyright, which is global in nature in the sense
that it is immediately available in all the members of the Berne Convention.
These rights are awarded by the State and are monopoly rights meaning there by
that no one can use these rights without the consent of the right holder. Except
the copy rights and trade secrets, all the other intellectual property rights needs
to be regularly renewed. IPR can be assigned, gifted, sold and licensed like any
other property. It would however, be possible to utilise geographical indications
for protecting some agriculture and traditional products.

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OBJECTIVE OF INTELLECTUAL PROPERTY
RIGHTS
The following are the objectives of intellectual property rights:

1) It helps in protecting the ownership and originality of the individuals’

creation.

2) It provides recognition to the concerned person or authority.

3) It allows owners of intellectual property to have financial benefits from the

property they have created.

4) They are provided financial incentive for the creation of and also to incur the
cost of investment in intellectual property.

5) Such rights motivate individuals’ creativity and thus also contributes to

economic growth.

6) It can also offer some economic aid to the holder of the right, through the
monopoly of their creations.

7) It improves the financial status of the individual as well as of the economy of

the country.

SIGNIFICANCE OF INTELLECTUAL
PROPERTY RIGHTS
An intellectual property right is an important right and values the creativity and
originality which is a result of an individual’s mind and intelligence. Therefore,
it has several significance and importance. Some of them include the following:

• Intellectual property rights provides incentives as well as recognition to the

concerned persons/ authorities/ nations/institutions/ or organisations.

• Intellectual property rights encourages innovations and ensures a better

quality of life. Industrial designs are what make a product attractive and
appealing; hence, they add to the commercial value of a product and increase its
marketability

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 • Just like the elements of a good product or service, the elements of a good
advertisement are likely to be imitated or copied by others. So, it is hardly
surprising that one or more types of IP rights come into play in creating content
for an advertisement, or while deploying an advertising campaign.

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INTELLECTUAL PROPERTY RIGHTS IN INDIA
INTELLECTUAL PROPERTY RIGHTS
The importance of intellectual property in India is well established at all levels
statutory, administrative and judicial. India ratified the agreement establishing
the World Trade Organisation (WTO). This Agreement, inter-alia, contains an
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
which came into force from 1st January 1995. It lays down minimum standards
for protection and enforcement of intellectual property rights in member
countries which are required to promote effective and adequate protection of
intellectual property rights with a view to reducing distortions and impediments
to international trade. The obligations under the TRIPS Agreement relate to
provision of minimum standard of protection within the member countries legal
systems and practices.

The Agreement provides for norms and standards in respect of following areas
of intellectual property:

• Copyrights and related rights

• Trade Marks

• Geographical Indications

• Industrial Designs

• Lay out Designs of Integrated Circuits

• Protection of Undisclosed Information (Trade Secrets)

• Patents

• Plant varieties

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TYPES OF INTELLECTUAL PROPERTY
RIGHTS
Intellectual property refers to the right over the intellectual work and not the
work itself. Intellectual property rights can be categorised into various types as
per the nature of work. The most common types of intellectual property are
copyrights, trademarks, patents, industrial design rights and trade secrets which
can be explained as follows:

1. Copyright law
It is concerned with the protection and exploitation of the expression of ideas in
a tangible form. Copyright has evolved over several centuries keeping pace with
changing ideas about creativity and respect for new modes and medias of
communications. In the modern world, the law of copyright provides the legal
framework not only for the protection of the traditional beneficiaries of
copyright, the individual author, composer or artist, but also for the investment
required for the creation of works by the major cultural industries, the
publishing, film; broadcasting and recording industries; and the computer and
software industries.1

Copyright refers to a bundle of exclusive rights conferred by law on

authors/creators of original works for commercially exploiting the work. It is a
property right which subsists in certain specified types of creative work
conferred by statute to an author. In every case, therefore, the question whether
copyright subsists in a particular matter first involves the question whether the
subject matter falls within one of the specific categories of works.2 It subsists in
‘original’ literary, dramatic, musical and artistic works, in cinematographic
films and sound recording fixed in a tangible medium. To be protected as
copyright, idea has to be expressed in an original way. Originality is usually an
easy condition to satisfy. Originality means that the work exhibits independent
creation and some minimal degree of creativity either in the expression of
underlying facts or ideas or in the selection or arrangement of those facts.
Copyright protection extends to expressions and not to ideas, procedures,

1
P. Narayan, Law of Copyright and Industrial Design, 4th Ed., Eastern Law House, Kolkata, 2007, p.1
2
Kevin Garnett et al., Copinger and Skone James on Copyright, 14th Ed., Vol.1, Sweet & Maxwell, London,
1999. p.54

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methods of operation or mathematical concepts, etc. When copyright exists, it
subsists from the moment of creation and vests in the author of the work. The
central right which the law confers is to prevent unauthorized persons from
copying a work. The ownership of a valid copyright protects the author from
unauthorized use of his work, including copying, adaptation, public
performance, translation, modification, etc. The copyright confers both
economic and moral rights on the owner. Through the exercise of economic
rights, the copyrighted work can be commercially exploited. Apart form the
economic rights, the author has certain moral rights including, droit de
divulgation (right to decide whether to publish the work or not), droit a la
paternite (right of paternity) and droit au respect de loeuvere (the right of
integrity). The author has right to prevent any alteration that may damage his
reputation. These rights remain with the author even after the transfer of
copyright.3 Copyright also deals with the neighboring rights. Three kinds of
right neighbour upon copyright protection. These are the right of performing
artists in their performances, the right of producers of phonograms and the
rights of broadcasting organizations in the radio and television programs.4
Neighboring rights are similar to copyright with reference to its subsistence,
infringement and remedies.5 Copyright confers, by the doctrine of fair use, a
privilege in others, than the owner of the copyright to use the copyrighted
material in a reasonable manner without his permission. By the application of
the doctrine of fair use, the law of copyright balances private and public
interests.6

2. Patent
The patent law recognizes the exclusive right of a patentee to gain commercial
advantage out of his invention. A patent7 is an exclusive right granted by a
country to the owner of an invention to make, use, manufacture and market the
invention, provided the invention satisfies certain conditions stipulated in the
law.

Exclusive right implies that no one else can make, use, manufacture or market
the invention without the consent of the patent holder. This exclusive right

3
Supra note 18 at 101.
4
See, Michael Blackener (ed.), Border Control of Intellectual Property Rights, Sweet & Maxwell, London, 2004.
5
Richard Arnold Q.C., Performers’ Right, 3rd Ed., Sweet & Maxwell, London, 2004, p.35.
6
Theberge v.Galerie D’art DuPetit Champlain Inc., 2002 SCC 34 (Canada).
7
Part II, section 5, TRIPS. The Patents Act, 1970 regulates this area of law in India

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granted on the patentee is only for a limited period of time. To qualify for patent
protection, an invention must fall within the scope of patentable subject mater
and must meet the three statutory requisites of novelty, inventive step and
industrial application. The novelty requirement is, by and large, satisfied as long
as the patent applicant was the first to invent the claimed invention.8 The
concept of novelty jurisprudence lays down that only what is new at the time of
filing of the application for a patent is patentable. Novelty can be anticipated
either by prior publication or prior use. Mere discovery is not an invention.
Patent is not granted for an idea or principle. To be the subject matter of a
patent right, the article must be material and capable of being manufactured.9

The requirement on industrial application suggests that the invention must be

useful to the industry and it must serve some minimal human need. The
condition on inventive step (non-obviousness) requirement denies patentability
if the differences between the claimed invention and the relevant prior art are
such that the claimed invention would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which the
subject matter pertains. The invention may be a product or process and its scope
extends to all fields of technology.10The inventor, in order to obtain protection,
has to disclose the invention and also describe the method of performing it. The
patent confers on the patentee the right to exclude others from, among other
things, making, using or selling the invention. Countries may exclude from
patentability certain inventions to protect ordre public or morality or to protect
human, animal or plant life or health or to avoid serious prejudice to the
environment, provided that such exclusion is not made merely because the
exploitation is prohibited by such countries’ municipal laws.

The object of patent law is to encourage scientific research, new technology and
industrial progress. The patent system is premised on the reasonable assumption
that the public will enjoy additional benefits when the government takes
additional steps to encourage the creation, commercialization, and disclosure of
new inventions. The basic argument is that the society benefits when people
conceive of new inventions, develop and commercialize new products
incorporating these inventions and publicly disclose information about their
inventions, so that others may learn from and improve upon these inventions.
Inventing something new often requires a substantial investment of intellect,
8
M/s Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, AIR 1982 SC 1444 at 1448.
9
Article 27. 1 of TRIPS
10
See, article 27. 2 of the TRIPS Agreement and section 3 of the Indian Patent Act, 1970.

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time and capital. The technology disclosed serves to stimulate ideas for further
invention and innovation. The economic value of patent information is that it
provides industry with technological information that can be used for
commercial purposes. If there is no protection, there may be a substantial
incentive to take a free ride on someone else’s investment. This potential for
free-riding reduces the incentive to invent something new because the inventor
may be unable to recoup the investment.

3. Trademark
A trademark is a badge of origin. It is a distinctive sign used in connection with
goods or services for identifying the source of goods and services to public, and
to distinguish the goods and services from those of other entities. It establishes a
link between the proprietor and the product. It portrays the nature and quality of
a product.11

The essential function of a trademark is to indicate the origin of the goods to

which it is attached or in relation to which it is used. It identifies the product,
guarantees unchanged quality and helps to advertise the product. Trademark is
also the objective symbol of goodwill that a business has built up.

Any sign, or any combination of signs, capable of distinguishing the goods or

services of one undertaking from those of other undertakings, is capable of
constituting a trademark. It can be a name, word, phrase, logo, symbol, design,
image, shape, color, personal names, letters, numerals, figurative elements and
combinations of colours as well as any combination of such signs which can be
graphically represented. The registration of a trademark can be renewable
indefinitely.

The intellectual property in the trademark consists in the right of the owner to
use the mark in relation to specific goods and under certain circumstance to
prevent others from using it. Ownership in a trademark entails the owner with a
right to exclude others from the commercial use of the mark that is likely to
cause confusion with the owner’s mark as to the origin of the goods or its
quality. The registered proprietor of a mark has a monopoly right to that mark.

The registration of a mark confers on the registered proprietor the right to take
action in case of infringement and obtain relief. Though no action could be

11
Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., AIR 2001 SC 1952

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taken for infringement of an unregistered trademark, action could be taken
against any person for passing off goods or services as the goods or services of
another person.12

4. Industrial Design
A design refers to the features of shape, configuration, pattern, ornamentation or
composition of lines or colours, applied to any article in two or three
dimensional form. Design protection covers the outward appearance of an
article, including decoration, lines, colours, shape, texture and materials. An
industrial design is that aspect of a useful article, which is ornamental or
aesthetic. It may consist of three-dimensional features, such as the shape or
surface texture of an article or of two-dimensional features, such as patterns,
lines or color or a combination thereof. This may be applied by any industrial
process or means separately or by a combined process, which in the finished
article appeals to and judged solely by the eye.

To be protectable, a design must be new, original and significantly

distinguishable from known designs or combinations of known design features.

Usually, design protection does not extend to designs dictated essentially by

technical or functional considerations. Design does not include any mode or
principle of construction, or anything which is a mere mechanical devise.
Designs that are primarily literary or artistic in character are not protected under
the Designs Act.

Similarly, it does not include any trademark or artistic work.49 The registration
of a design confers upon the registered proprietor the exclusive right to apply a
design to the article in the class in which the design has been registered. The
owner of a protected industrial design has the right to prevent third parties not
having the owner's consent from making, selling or importing articles bearing or
embodying a design which is a copy, or substantially a copy, of the protected
design, when such acts are undertaken for commercial purposes.13

12
Part II, section 4, TRIPS. The Designs Act, 2000 regulates this area of law in India.
13
Castrol India Ltd. v. Tide Water Oil Co. (1) Ltd., 1996 PTC (16) 202 Cal

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 5. Geographical Indication
Geographical indications (GI) are indications which identify a good as
originating in the territory of country, or a region or locality in that territory,
where a given quality, reputation or other characteristic of the good is
essentially attributable to its geographical origin. GI is a sign used on goods that
have a specific geographical origin and possess qualities or a reputation that are
due to that place of origin. Basmati rice and Darjeeling tea are examples of GI
from India. By virtue of their universal reputation for quality, these indications
have acquired great and enviable commercial value. Certain GIs such as
Malabar pepper, Aleppy cardamom, Aranmula Mirror, Aleppy coir etc. are of
GIs belonging to Kerala.

The function of a GI is that it points to a specific place or region of production

that determines the characteristic qualities of the product that originates from
there. It is important that the product derives its qualities and reputation from
that place. Since those qualities depend on the geographical place of production
a specific link exists between the products and place of origin.14

14
K. C. Kailasm & Ramu Vedaraman, Law of Trade Marks and Geographical Indications, Wadhwa & Co.,
Nagpur, 2003, pp. 720-21.

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COPYRIGHT LAW OF INDIA
Copyright is a right given by the law to creators of literary, dramatic, musical
and artistic works and producers of cinematograph films and sound recordings.
In fact, it is a bundle of rights including, inter alia, rights of reproduction,
communication to the public, adaptation and translation of the work.

"Copyright" means to do or authorise the doing of any of the following acts in

respect of a work, such as literary, dramatic or musical work, not being a
computer programme, computer programme, an artistic work, cinematograph
film, sound recording (Indian Copyright Act of 1957). Copyright in India is
governed by the Copyright Act, 1957, which was came into effect from January
1958. Further, the act was revised and amended time to time in the years, 1983,
1984, 1991, 1994, 1999, and 2012.

Term of Copyright
Term of copyright subsist in published literary, dramatic, musical and artistic
works (other than photograph) published within the lifetime of the author until
sixty years from the beginning of the calendar year next following the year in
which the author dies and in case of joint authorship, be constructed as a
reference to the author who dies last. Term of copyright in case of a literary,
dramatic, musical or artistic work (other than photograph), which is published
anonymously or pseudonymously, copyright will exists sixty years from the
beginning of the calendar year 15

Infringement of Copyright
Infringement of intellectual property happens when someone attempts to exploit
the rights conferred on the respective owners under different forms of IP
without the assent of the owners or persons authorized by them. Copyright is
one of the form of intellectual property.

According to the section 51, Indian Copyright Act, 1957, copyright in a work
shall be deemed to be infringed-

a) When any person, without a license granted by the owner of the

copyright or the Registrar of Copyrights under this Act or in

15
Indian Copyright Act of 1957

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contravention of the conditions of a license so granted or of any
condition imposed by a competent authority under this Act

i) Does anything, the exclusive right to do which is by this Act

conferred upon the owner of the copyright or
ii) ii) Permits for profit any place to be used for the
communication of the work to the public where such
communication constitutes an infringement of the copyright in
the work, unless he was not aware and had no reasonable
ground for believing that such communication to the public
would be an infringement of copyright, or

b) When any person

i) Makes for sale or hire, or sells or lets for hire, or by way of trade
displays or offers for sale or hire, or

ii) Distributes either for the purpose of trade or to such an extent as to

affect prejudicially the owner of the copyright, or

iii) By way of trade exhibits in public, or

iv) iv) Imports into India, any infringing copies of the work

Provisions related to Protection of technological measures, under

section 65A(1) of The Copyright (Amendment) Act, 2012, states, any
person who circumvents an effective technological measure applied
for the purpose of protecting any of the rights conferred by this Act,
with the intention of infringing such rights, shall be punishable with
imprisonment which may extend to two years and shall also be liable
to fine.

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CONCLUSION
It can thus be concluded that there exists an immense significance of originality
and creativity of human beings. The intellectual property rights is one of the
way by which the worth of human resource is being valued. It also says that no
one can duplicate the intellectual property without prior permission from the
concerned persons. Such misuses or violations will be considered as a criminal
activity and may lead to penalties or imprisonment.

Intellectual Property Rights empowers creator or researcher through giving their

rights through laws of Intellectual Property Law. Copyright is the law which is
basically related to libraries among intellectual property rights laws, which
protects author rights.

Library is the store house of knowledge viz., books, journals, manuscripts etc.
which are protected by copyright and providing access through various means,
to provide such knowledge is the primary service of libraries. It is observed,
The Copyright law of India related to libraries is very vague and there is a need
for clear provisions regarding libraries.

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