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Management of Intellectual Property Rights with special

reference to Information Technology sector in India

Thesis submitted to Berhampur University in partial fulfilment of the requirements for the
award of the degree of Doctor of Philosophy in the faculty of Management

By
S. Venkitachalam M.com, LL.B, ACS

Under the supervision of:

Dr. Prasantha Kumar Padhy, Ph.D


Professor & Head of the Department of Management, Berhampur University, Orissa
And
Dr. Bhagirathi Panigrahi, Ph.D
Head of the Department of Post Graduate Legal Studies, Berhampur University, Orissa

POST GRADUATE DEPARTMENT OF BUSINESS MANAGEMENT


BERHAMPUR UNIVERSITY, BERHAMPUR, ORISSA – 760 007

2009
Ph.D Reg. no: 322/07
Declaration

I, S. Venkitachalam, do hereby declare that this thesis entitled ‘Management

of Intellectual Property Rights with special reference to Information

Technology sector in India’ is a bonafide record of the research work done by

me under the guidance of Dr. Prasantha Kumar Padhy, Ph.D, Professor and

Head of the Department of Management, Berhampur University and Dr.

Bhagirathi Panigrahi, Ph.D, Head of the Department of Post Graduate Legal

Studies, Berhampur University. I also declare that no part of this thesis has

been presented before any degree, diploma or any other title of any other

university.

S. Venkitachalam
Berhampur
Dr. Prasantha Kumar Padhy, Ph.D,
Professor and Head of the Department of Management,
Berhampur University, Berhampur,
Orissa – 760007

Certificate

This is to certify that this thesis entitled Management of Intellectual


Property Rights with special reference to Information Technology sector
in India submitted for the award of the Degree of Doctor of Philosophy of the
University of Berhampur is an authentic record of the bona fide research
carried out by S. Venkitachalam under my supervision and Guidance, and
that no part of this thesis has been presented before any degree, diploma or
other title of any other university. This thesis is a genuine work of research
done in conformity with the rules and regulations relating to Ph.D of the
Faculty of Management, Berhampur University, Berhampur, Orissa.

Dr. Prasantha Kumar Padhy, Ph.D,


Research Supervisor

Berhampur
Dr. Bhagirathi Panigrahi, Ph.D
Professor and Head of the Department of Law,
Berhampur University, Berhampur,
Orissa – 760007

Certificate

This is to certify that this thesis entitled Management of Intellectual


Property Rights with special reference to Information Technology sector
in India submitted for the award of the Degree of Doctor of Philosophy of the
University of Berhampur is a record of the bona fide research carried out by
S. Venkitachalam under my supervision and Guidance, and that no part of
this thesis has been presented before any degree, diploma or other title of any
other university.

Dr. Bhagirathi Panigrahi, Ph.D


CO-GUIDE

Berhampur
Acknowledgements

This work was carried out under the supervision and inspiring guidance of
Dr.Prasantha Kumar Padhy, Ph.D, Professor and Head of the Tepar|ment of
Management, Berhampur Universitq and Dr. Bhagirathi Panigrahi, Ph.D, Head
of the Department of Post Graduate Megal Studies, Berhampur University. But for
their scholarly guidance and encouragem%nt, this Study would not have been
compm%ted on time. During my research tenure, I have never felt wanting for
timely advice, which had helped me a lot in boosting the momentum of my work. I
take this opportun)ty to place on record my gratitude and indebtedness to both of
them for their valuable guidance, scholarly interest, and singular attention shown
throughout this study.

I am very thankful to Dr. V. L. Mony, Ph.D, Deputy Director (IPR), National Law
University, Jodhpur, Rajasthan, who had encouraged me for the completion of this
thesis.

I am thankful to Mr.Vinit Saxena, Software Engineer, Jakarta, Indonesia and


Advocate K.P.K. Kasthuri Rangan for their support in compilation of this thesis.
I also thank Dr.Venkateshwara Rao Ph.D, Berhampur University, Orissa for his
academic guidance.
S. Venkitachalam
List of Cases

Amp Inc Vs. Utilux Pvt. Ltd RPC (1972) 103

Bookmakers Afternoon Greyhound Services Ltd. Vs. Wilf Gilbert


(Staffordshire) Ltd FSR (1994) 723

British Leyland Motor Corp Ltd. Vs. Armstron Patents Co. Ltd 2WLR
(1986) 400

Canon Kabushiki Kaisha Vs. Green Cartridge Co (Hongkong) Ltd FSR


(1997) 817

Chhidda Singh Vs. Deputy Director of Consolidation and others Arb. LR


1 (1998) 532

Delhi High Court (Microsoft Corporation vs. Ms. K. Mayuri and Ors.
2007 (35) PTC 415 (Del))

Electronic Technics (Anglia) Ltd. Vs. Critchley Components Ltd FSR


(1997) 401

Express Newspaper Inc. Vs. Liverpool Daily Post & Echo Plc 1WLR
(1985) 1089
Exxon Corp Vs. Exxon Insurance Consultants International Ltd ALL ER
(1981) (3), 241

G.A. Cramp & Sons Ltd Vs. Frank Smythson Ltd AC (1944) 329

Grama phone Co. of India Ltd. Vs.Mars Recording Pvt. Ltd & Another
KLT (1998) SC, 282

Gramaphone Co. of India Ltd, Vs. Birendra Bahadur Pande and


Others AIR (1984) SC 667

Hanfstaengl Vs. Empire Palace FSR (1894) 540

Ibcos Computer Ltd Vs. Barclays Mercantile Highland Finance Ltd FSR
(1994) 275

Indian Performing Right Society Ltd. Vs. Eastern India Motion Picture
Association and others AIR (1977) SC 1443

Ladbroke (Football) Ltd. Vs. William Hill (Football) Ltd 1 All ER (1964)
465

Macmillan & Co. Ltd Vs. K&J Cooper 40 TLR (1923) 186
Microsoft Corporation vs. Ms. K. Mayuri and Others 35 PTC (2007)
DEL,415

Noah Vs. Shuba FSR (1991) 14

Pizza Hut INC. Vs. Pizza Hut (India) Pvt. Ltd SCC (2) (1997) 2

Power Control Appliance and others Vs. Sumeet Machines Pvt. Ltd. With
Sumeet Research and Holdings Vs. Sumeet Machines & others SCC
(1994) (2) 448

R Vs. Gold 2 WLR (1988) 984

R.G.Anand Vs. M/S.Delux Films and others AIR (1978) SC 1613

RTE & ITP Vs. Commission FSR (1995) 530

Salvage Association Vs. CAP Financial Services Ltd FSR (1995) 654

Saphena Computing Ltd Vs. Allied Collection Agencies Ltd FSR (1995)
616

Saphena Computing Vs. Allied Collection Agencies FSR (1995) 616


South Indian Film Chamber of Commerce, Madras and others Vs.
Entertaining Enterprises, Madras and others SCC, 2 (1995), 462

St.Albans City & District Council Vs. International Computers Ltd FSR
(1997) 251

State of Andhra Pradesh Vs. Nagoti Venkataramana SCC (1996)(8) 282

State of Tamilnadu Vs. Thiru Murugan Brothers AIR (1988) SC 336


Meiyappen Vs. Deputy Commr. (1967) 20 STC 115

Total Information Processing Systems Ltd Vs. Daman Ltd FSR (1992)
171

Vicco Laboratories and Another Vs. Art Commercial Advertising Pvt. Ltd
and others SCC (2001)2, 180

West Rand Central Gold Mining Co. Vs. The King (1905) (2) KB 391
LIST OF ABBREVIATIONS

ACE - Advisory Committee on Enforcement

AIR - All India Reporter

BCA - British Copyright Act

BIRPI - Bureaux Internationaux Réunis pour la Protection


de la Propriété Intellectuelle, French acronym for
United International Bureaux for the Protection of
Intellectual Property

BSA - Business Software Alliance

CD - Compact Disc

CEO - Chief Executive Officer

DVD - Digital Video Disk

EULA - End User License Agreement


FICCI - Federation of Indian Chamber of Commerce
and Industry

FSR - Fleet Street Reports

GATT - General Agreement on Tariffs and Trade

IC - Industrial Circuits

ID - Industrial Design

IDSA - Industrial Design Society of America (IDSA)

IGC - Intergovernmental Committee

IMP - Intellectual Monopoly Privileges

IP - Intellectual Property

IPAM - Intellectual Property Asset Management

IPM - Intellectual Property Management

IPR - Intellectual Property Right

IT - Information Technology

NASSCOM - National Association of Software and Service


Companies

Pub - Publication
R&D - Research and Development

RPC - Reports of Patent, Design and Trade Mark Cases

SCCR - Standing Committee on Copyright and


Related Rights

SCC - Supreme Court Cases

SCP - Standing Committee on Patents

SKOTCH - Whisky of Scotland

SME - Small and Medium Enterprises

SWOT - Strengths, Weaknesses, Opportunities and Threats

TRIPS - Trade-Related Aspects of Intellectual Property


Rights

UCC - Universal Copyright Convention

UIB - United International Bureaux

UN - United Nations

UNESCO - United Nations Educational, Scientific and Cultural


Organisations.

WCT - WIPO Copyright Treaty

WIPO - World Intellectual Property Organization


WPPT - WIPO Performances and Phonograms Treaty

WTO - World Trade Organsiation


CONTENTS AT A GLANCE

Acknowledgements i

List of Tables vi

List of Figures vii

List of Acronyms xiii


DETAILED CONTENTS

CHAPTERS

CHAPTER I.............................................................................................................19

INTRODUCTION.....................................................................................................19
1.3 Definition of Intellectual Property Rights (IPR) 24

1.4 Branches of Intellectual Properties 26


1.5 Industrial Property..................................................................................................................................27
1.6 Patents................................................................................................................................................27
1.7 Industrial Design................................................................................................................................28
1.8 Trademarks .......................................................................................................................................30
1.10 Layout-design of integrated circuits................................................................................................32
1.11 Geographical Indications.................................................................................................................33
1.12 Copyright..............................................................................................................................................34

1.13 Role of WIPO 37

1.14 Criticism of Intellectual Property 40

1.15 Significance of the Problem 43

1.16 Objectives of the Study 43

1.18 Review of Literature 45

Another Significant Analysis of IPR, in its Jurisprudential angle is made by economic incentive theory.
This Theory provides that “IPR is a protection given for efficient economic allocation of resources. . .46

IN the book Data Protection Law , An effective analysis of the Data Protection Act, 1998 along with
the principles of Data Processing and the related enforcement and practical aspect relating to software
industry is highlighted by the author. 47
In the book, Networks Communications, A Concise Guide to Compliance with the Law, the author
has considered matters relating to Network communications, its liabilities, misuse, liabilities of
employer and work man including its evidentiary aspects, applicable to the software companies. This
book analyses the IPR aspects of the networking, as a function. 49

In the book Patent Law by P. Narayanan , the author has dealt with Patent protection in general
Trade secret, Rights of publicity of celebrities, Computer related inventions, Plants and animals,
Patenting biotechnological products and DNA sequences. This book is useful guide for the study of
IPR. 51

1.19 Data Source and Methodology Adopted 54

1.20 Limitations of the Study 55

1.21 Chapterisation 56

CHAPTER - II..........................................................................................................72

HISTORIC EVOLUTION AND IMPORTANCE OF IPR.........................................72

HISTORY OF THE IPR SYSTEM...........................................................................72

3.2.1 PATENT.......................................................................................................127

THE PROVISION RELATING TO PATENT IS CONTAINED IN TRIPS


AGREEMENT AND IS AS FOLLOWS:...............................................................127

A PATENT IS ONE OF THOSE RIGHTS WHICH COME UNDER THE GENERAL


HEADING OF INTELLECTUAL PROPERTY RELATING TO INVENTIONS -
THAT IS, TO ADVANCES MADE IN A TECHNICAL FIELD. A PATENT FOR AN
INVENTION IS GRANTED BY THE GOVERNMENT TO THE APPLICANT, AND
GIVES HIM THE RIGHT FOR A LIMITED PERIOD TO STOP OTHERS FROM
MAKING, USING OR SELLING THE INVENTION WITHOUT PERMISSION THE
CREATOR OF THE INVENTION IS ENTITLED TO PROFIT FROM A
PARTICULAR INVENTION OR UNIQUE MANUFACTURING PROCESS, AND
MUST BE REGISTERED IN EACH COUNTRY IN WHICH THEY WISH THAT
INVENTION OR PROCESS TO BE PROTECTED BY LAW. IT IS USUAL THAT
AFTER REGISTERING THE PATENT, A LICENCE IS GRANTED TO A THIRD
PARTY TO EXPLOIT THE INVENTION OR PROCESS IN RETURN FOR THE
PAYMENT OF A FEE KNOWN AS A ROYALTY. THE APPLICANT MUST
DISCLOSE HOW HIS INVENTION WORKS IN SUFFICIENT DETAIL. WHEN A
PATENT IS GRANTED, THE APPLICANT BECOMES THE OWNER OF THE
PATENT. LIKE ANY OTHER FORM OF PROPERTY, A PATENT CAN BE
BOUGHT, SOLD, LICENSED OR MORTGAGED...............................................129

COMBINATION OF SUCH SIGNS. SHALL BE ELIGIBLE.................................131

A TRADE MARK CAN BE A LETTER, NUMBER, WORD, PHRASE, SOUND,


SMELL, SHAPE, LOGO, PICTURE, ASPECT OF PACKAGING OR ANY
COMBINATION OF THESE, WHICH IS USED TO DISTINGUISH GOODS AND
SERVICES OF ONE TRADER FROM THOSE OF ANOTHER, OR IS A WORD,
PHRASE, SLOGAN, SYMBOL OR DESIGN WHICH MAY BE USED TO
IDENTIFY THE SOURCE OF GOODS OR SERVICES. IT PROVIDES THE
HOLDER WITH THE EXCLUSIVE RIGHT TO USE THE MARK FOR THE
HOLDER'S GOODS AND SERVICES AND RESTRICTS OTHER PERSONS OR
BUSINESSES FROM USING THE SAME MARK FOR THEIR OWN GOODS
AND SERVICES AS A MEANS OF BENEFITING FROM THE HOLDER'S
EXISTING BUSINESS OR GOODWILL. TRADE MARKS MAY BE REGISTERED
UNDER STATUTE OR SIMPLY EXIST AT COMMON LAW..............................132

A DESIGN IS THE AESTHETIC OR THE ORNAMENTAL ASPECT OF AN


ARTICLE, LIKE A PARTICULAR DESIGN OF AN ORNAMENT OR A CAR. A
DESIGN REFERS TO THE APPEARANCE OF THE WHOLE OR A PART OF A
PRODUCT RESULTING FROM THE FEATURES OF, IN PARTICULAR, THE
LINES, CONTOURS, COLOURS, SHAPE, TEXTURE OR MATERIALS OF THE
PRODUCT OR ITS ORNAMENTATION..............................................................135

GEOGRAPHICAL INDICATION IN RELATION TO GOODS, MEANS AN


INDICATION WHICH IDENTIFIES SUCH GOODS AS ORIGINATING ,OR
MANUFACTURED IN THE TERRITORY OF A COUNTRY , OR A REGION OR
LOCALITY IN THAT TERRITORY, WHERE A GIVEN QUALITY, REPUTATION
OR OTHER CHARACTERISTICS OF SUCH GOODS IS ESSENTIALLY
ATTRIBUTABLE TO ITS GEOGRAPHICAL ORIGIN AND IN CASE WHERE
SUCH GOODS ARE MANUFACTURED GOODS ONE OF THE ACTIVITIES OF
EITHER THE PRODUCTION OR OF PROCESSING OR PREPARATION OF
THE GOODS CONCERNED TAKE PLACE IN SUCH TERRITORY, REGION OR
LOCALITY, AS THE CASE MAY BE. THESE MAY BE AGRICULTURAL
GOODS, NATURAL GOODS OR MANUFACTURED GOODS. ........................137

3.3.1 COPYRIGHT................................................................................................140

THIS IS AN EXCLUSIVE LEGAL RIGHT GRANTED BY A GOVERNMENT TO


AN AUTHOR, EDITOR, COMPOSER, PLAYWRIGHT, PUBLISHER, OR
DISTRIBUTOR TO PUBLISH, PRODUCE, SELL, OR DISTRIBUTE A
LITERARY, MUSICAL, DRAMATIC, OR ARTISTIC WORK, WITHIN CERTAIN
LIMITATIONS AND INCLUDES THE RIGHT TO PREPARE DERIVATIVE
WORKS, TO REPRODUCE A WORK OR PORTIONS OF IT, AND TO DISPLAY
OR PERFORM A WORK IN PUBLIC. THIS IS A COLLECTION OF RIGHTS
RELATING TO THE REPRODUCTION, DISTRIBUTION, PERFORMANCE AND
SO FORTH OF ORIGINAL LITERARY, MUSICAL, DRAMATIC OR ARTISTIC
WORKS, FILMS, SOUND RECORDINGS, BROADCASTS AND OTHER
MATTER. THESE RIGHTS CAN BE TRANSFERRED OR SOLD TO OTHERS.
THE WORK IS PROTECTED IN THE SPECIFIC FORM IN WHICH IT WAS
CREATED. IT IS VERY CLEARLY MENTIONED IN ARTICLE 9.2, OF THE
TRIPS AGREEMENT THAT IT IS NOT THE IDEA, THEME, OR CONCEPT
EXPRESSED IN THE WORK, (WHICH OTHER WRITERS ARE FREE TO
INTERPRET IN A DIFFERENT WAY) IS PROTECTED. A WORK NEVER
COPYRIGHTED OR NO LONGER PROTECTED BY COPYRIGHT GOES INTO
THE PUBLIC DOMAIN AND IS THE RIGHT OF MANKIND...............................141

THE COPYRIGHT OWNER HAS THE EXCLUSIVE RIGHT TO DO, OR ALLOW


OTHERS TO DO, THE ACTS SET OUT IN THE LEGISLATION. THERE IS NO
PROTECTION OF COPYRIGHT UNDER THE COMMON LAW........................142

Bibliography 231
Chapter I

Introduction

1.1 Introduction

The modern business, has undergone sweeping changes over the last

few decades and as a result, some of the existing management

approaches should undergo change. The success in any business

depends on the ability to achieve high level of innovations, ability to


reduce the time period in grasping knowledge, short product cycle,

adaptability to rapid changes in technology and capability for high

investments in research and development. Those who develop new

products and bring them to the market first or the early birds are in a

winning situation; shorter the time better are the chances of success.

Nevertheless, this leaves the market open for those who are capable of

copying the new inventions and obtaining benefits of the same.

1.2 Intellectual Property Rights (IPR): Meaning

The legal rights in the intellectual property generated are termed as

Intellectual Property Rights popularly referred to in short as IPR.

Protection of the legal rights of the intellectual property, by and large

has come to be recognized in the modern times, as an important tool

not only to promote inventiveness but also to ensure adequate returns to

the investments made. IPR has also become important for the

technological, industrial, and economic development of a country.


Compared to the rights in moveable & immovable properties,

Intellectual Property Rights (IPR) is relatively new. It is to be noted

that IPR is concerned with the rights which are not tangible.

Considering the role technology plays in the modern, highly

competitive world the subject of IPR demands much more and careful

attention and requires to be understood.

As mentioned earlier, the ownership and transactions in other forms of

property is governed by Property Laws, IPR is governed by IPR Laws

including Trade Mark, Patent and Copyright. It may be observed that

specific laws to protect IPR in a country are enacted based on the

degree of balancing of the conflicting interests. The degree of balance

to be maintained varies form country to country and in the same

country from time to time depending upon the state of development of

the country.
Mankind is always interested in promoting innovation and progress.

U.S. Constitution provides:1

Congress shall have the power to promote the

Progress of Science and useful Arts, by securing

for limited Times to Authors and Inventors the exclusive

Right to their respective Writings and Discoveries.

Society will not get benefited with newer and better products without

proper R&D and the resultant products coming out of it. R&D costs of

modern business entities run into millions of dollars, and they expect

proper returns by generating enough profits to continue with the R&D.

This in turn, can be achieved by closely guarding their innovations,

either as a secret or not exposed to others (which in this highly

technological era is next to impossible) or by protecting their

Intellectual Property Rights. With this, it is expected that, in the coming

1
U.S. Constitution
years a large number of intellectual property rights will be generated

and protected all over the world.

Intellectual property rights (IPR) have become more susceptible to

infringement leading to inadequate return to the innovators. Therefore,

there is urgency on understanding, managing and protecting knowledge

based assets such as innovations and know-how. Thus, Intellectual

Property Rights (IPR) has become important in this modern business

scenario, including IT and Software Industries.

Individual nations have laws to protect intellectual property rights for

two main reasons.

(i) To give statutory expression to the moral and economic

rights of creators in their creations and to the rights of the

public in accessing those creations.


(ii) To promote creativity, and the dissemination and

application of its results, and to encourage fair trade which

would contribute to economic and social development.

1.3 Definition of Intellectual Property Rights (IPR)

Intellectual property (IP) as defined by the World Intellectual

Property Organization (WIPO) as :

Creations of the mind: inventions, literary and artistic works,

and symbols, names, images, and designs used in commerce.

Intellectual property rights protect the interests of creators

by giving them property rights over their creations.

The Convention establishing the World Intellectual Property

Organization (1967) gives the following list of subject matter protected


by intellectual property rights:

• literary, artistic and scientific works;

• performances of performing artists, phonograms,


and broadcasts;

• inventions in all fields of human endeavour;

• scientific discoveries;

• industrial designs;

• trademarks, service marks, and commercial


names and designations;

• protection against unfair competition; and

• all other rights resulting from intellectual


activity in the industrial, scientific, literary or artistic fields.2

Intellectual property relates to items of information or knowledge,

which can be incorporated in tangible objects at the same time in an

unlimited number of copies at different locations anywhere in the

2
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world. The property is not in those copies but in the information or

knowledge reflected in them. Intellectual property rights are also

characterized by certain limitations, such as limited duration in the case

of copyright and patents.

1.4 Branches of Intellectual Properties

Intellectual property is usually divided into two branches, namely

industrial property, which broadly speaking, protects inventions, and

copyright, which protects literary and artistic works.

Historically patents for inventions, designs for industrial designs and

Trademark which are concerned with industrial products are commonly

referred to as Industrial Property. Copyrights are granted to literary,

artistic, and software. All these together are referred to as Intellectual

Property. However, the term Intellectual Property in modern times is


used to include all property resulting from the exercise of human

intellect. The rights accrued on such a property are termed as

Intellectual Property Rights.

1.5 Industrial Property

These include patents to protect inventions, and industrial designs,

which are innovations, with reference to industrial products. Industrial

property also covers trademarks, service marks, layout-designs of

integrated circuits, commercial names and designations, as well as

geographical indications, and protection against unfair competition.

1.6 Patents

A patent is one of those rights which come under the general heading

of intellectual property. A patent is the right of an individual or

company to profit from a particular invention or unique manufacturing

process, and must be registered in each country in which they wish that
invention or process to be protected by law. Once registered, a person

can grant to a third party a license to exploit the invention or process in

return for the payment of a fee usually known as a royalty.

Or

A patent is an intellectual property right relating to inventions - that is,

to advances made in a technical field. A patent for an invention is

granted by the government to the applicant, and gives him the right for

a limited period to stop others from making, using or selling the

invention without permission. In return for this right, the applicant must

disclose how his invention works in sufficient detail. When a patent is

granted, the applicant becomes the owner of the patent. Like any other

form of property, a patent can be bought, sold, licensed or mortgaged. 3

1.7 Industrial Design

Industrial designs are defined as:

the part of the intellectual property rights which confers


3
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the rights of exclusivity to the visual designs of objects

which are generally not popular or utilitarian.

It safeguards the appearance, style, design of the industrial object

such as spare parts, textiles, furniture. According to the Industrial

Design Society of America (IDSA), Industrial Design (ID) is the

professional service of creating and developing concepts and

specifications that optimize the function, value and appearance

of products and systems for the mutual benefit of both user and

manufacturer. As these designs consist of the aesthetic features

therefore they do not provide any protection to the technical

features of the article. The origin of design rights can be traced

back in the United Kingdom as Designing and Printing of

Linen Act (1787).4

4
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1.8 Trademarks

A trade mark can be a letter, number, word, phrase, sound, smell,

shape, logo, picture, slogan, symbol, aspect of packaging or any

combination of these, which is used to distinguish goods and services

of one trader from those of another. These are used to identify the

source of goods or services. It acts like a badge and provides the holder

with the exclusive right to use the mark for the holder's goods and

services and prevent other persons or businesses from using the same

mark for their own goods and services as a means of benefiting from

the holder's existing business or goodwill. Trade marks may be

registered under statute or simply exist at common law. 5

1.9 Service marks

A word, phrase, logo, symbol, colour, sound or smell used by a

business to identify a service and distinguish it from those of its


5
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competitors. In practice, the legal protections for trademarks and

service marks are identical.6

The Trade Marks Act, 1999 has introduced the registration of service

marks in India. A service mark is very similar in nature to a trademark.

Both are distinctive signs; trademarks distinguish the goods of one

enterprise from those of others, while service marks fulfil the same

function in relation to services. Services may be of any kind, such as

financial, banking, travel, advertising or catering, to name a few.

Service marks can be registered, renewed, cancelled, assigned and

licensed under the same conditions as trademarks.7

6
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7
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1.10 Layout-design of integrated circuits

The Semiconductor Integrated Circuits Layout-Design Act, 2000 was

passed to fulfil India’s obligations as a TRIPS signatory. It provides

protection for semiconductor IC layout designs. Layout design includes

a layout of transistors and other circuitry elements and includes lead

wires connecting such elements and expressed in any manner in a

semiconductor IC. The Act defines a semiconductor integrated circuit

as :

a product having transistors and other circuitry elements

which are inseparably formed on a semiconductor

material or an insulating material or inside the

semiconductor material and designed to perform an

electronic circuitry function.


The layout of transistors on the semiconductor integrated circuit or
topography of transistors on the integrated circuit determines the size of
the integrated circuit as well as its processing power. That is why the
layout design of transistors constitutes such an important and unique
form of intellectual property fundamentally different from other forms
of intellectual property like copyrights, patents, trademarks and
industrial designs.8

1.11 Geographical Indications

Geographical Indication in relation to goods, means an indication


which identifies such goods as agricultural goods, natural goods or
manufactured goods as originating, or manufactured in the territory of a
country, or a region or locality in that territory, where a given quality,
reputation or other characteristics of such goods is essentially
attributable to its geographical origin and in case where such goods are
manufactured goods one of the activities of either the production or of
processing or preparation of the goods concerned take place in such
territory, region or locality, as the case may be.

8
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1.12 Copyright

Copyright relates to artistic creations, such as books, music, paintings


and sculptures, films and technology-based works such as computer
programs and electronic databases. In most European languages other
than English, copyright is known as 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 work. The expression author’s
rights refer to the creator of the artistic work, its author. It thus
underlines the fact, recognized in most laws, that the author has certain
specific rights in his creation which only he can exercise (such as the
right to prevent a distorted reproduction).9 Other rights (such as the
right to make copies) can be exercised by other persons, for example, a
publisher who has obtained a license from the author.

While other types of intellectual property also exist, it is helpful for

present purposes to explore the distinction between industrial property

and copyright in terms of the basic difference between inventions and

literary and artistic works.


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Inventions may be defined in a non-legal sense as new solutions to

technical problems. These new solutions are ideas, and are protected as

such; protection of inventions under patent law does not require that the

invention be represented in a physical embodiment. The protection

accorded to inventors is, therefore, protection against any use of the

invention without the authorization of the owner. Even a person, who

later makes the same invention independently, without copying or even

being aware of the first inventor’s work, must obtain authorization

before he can exploit it.

Unlike protection of inventions, copyright law protects only the form of

expression of ideas, not the ideas themselves. The creativity protected

by copyright law is creativity in the choice and arrangement of words,

musical notes, colours and shapes. So copyright law protects the owner

of property rights against those who copy or otherwise take and use the

form in which the original work was expressed by the author.


From this basic difference between inventions and literary and artistic

works, it follows that the legal protection provided to each also differs.

Since protection for inventions gives a monopoly right to exploit an

idea, such protection is short in duration- usually about 20 years. The

fact that the invention is protected must also be made known to the

public. There must be an official notification that a specific, fully

described invention is the property of a specific owner for a fixed

number of years; in other words, the protected invention must be

disclosed publicly in an official register.

Since the legal protection of literary and artistic works under copyright,
by contrast, prevents only unauthorized use of the expressions of ideas,
the duration of protection can be much longer than in the case of the
protection of ideas themselves, without damage to the public interest.
Also, the law can be - and in most countries is - simply declaratory, i.e.,
the law may state that the author of an original work has the right to
prevent other persons from copying or otherwise using his work. So
created work is considered and protected as soon as it exists, and a
public register of copyright protected works is not necessary.

1.13 Role of WIPO

The World Intellectual Property Organization (WIPO) is an

international organization dedicated to ensuring that the rights of

creators and owners of intellectual property are protected worldwide,

and that inventors and authors are thus recognized and rewarded for

their ingenuity.

As a specialized agency of the United Nations, WIPO exists as a forum

for its Member States to create and harmonize rules and practices to

protect intellectual property rights. Most industrialized nations have


protection systems that are centuries old. Many new and developing

countries, however, are now building up their patent, trademark and

copyright laws and systems. With the rapid globalization of trade

during the last decade, WIPO plays a key role in helping these new

systems to evolve through treaty negotiation, legal and technical

assistance, and training in various forms, including in the area of

enforcement of intellectual property rights.

The field of copyright and related rights has expanded dramatically as

technological developments have brought new ways of disseminating

creations worldwide through such forms of communication as satellite

broadcasting, compact discs, DVDs and the Internet. WIPO is closely


involved in the on-going international debate to shape new standards

for copyright protection in cyberspace.

WIPO administers the following international treaties on copyright and

related rights:

 Berne Convention for the Protection of Literary and Artistic Works

 Brussels Convention Relating to the Distribution of Program-

Carrying Signals Transmitted by Satellite

 Geneva Convention for the Protection of Producers of Phonograms

Against Unauthorized Duplication of Their Phonograms

 Rome Convention for the Protection of Performers, Producers of

Phonograms and Broadcasting Organizations

 WIPO Copyright Treaty (WCT)

 WIPO Performances and Phonograms Treaty (WPPT)


WIPO also provides an Arbitration and Mediation Centre, which offers

services for the resolution of international commercial disputes

between private parties involving intellectual property. The subject

matter of these proceedings includes both contractual disputes (such as

patent and software licenses, trademark coexistence agreements, and

research and development agreements) and non-contractual disputes

(such as patent infringement).

The Centre is also now recognized as the leading dispute resolution

service provider for disputes arising out of the abusive registration and

use of Internet domain names.

1.14 Criticism of Intellectual Property

Although the term is in wide use, some critics reject the term

intellectual property altogether. Richard Stallman argues that it

systematically distorts and confuses these issues, and its use was and is

promoted by those who gain from this confusion. He claims that the
term operates as a catch-all to lump together disparate laws [which]

originated separately, evolved differently, cover different activities,

have different rules, and raise different public policy issues.10 These

critics advocate referring to copyrights, patents and trademarks in the

singular and warn against abstracting disparate laws into a collective

term.

Some critics of intellectual property, such as those in the free culture

movement, point at intellectual monopolies as harming health,

preventing progress, and benefiting concentrated interests to the

detriment of the masses,11 and argue that the public interest is harmed

by protectionist legislation such as copyright extensions, software

patents and business methods patents. Other criticism of intellectual

10 Richard M. Stallman. "


Did You Say “Intellectual Property”? It's a Seductive Mirage". Free Software Foundation,
Inc. http://www.gnu.org/philosophy/not-ipr.xhtml. Retrieved on 2008-03-28.
11
On patents§ - Daniel B. Ravicher (August 6, 2008). "Protecting Freedom In The Patent System: The Public
Patent Foundation's Missi...". µhttp://www.youtube.com/watch?v=d0chez_Jf5A.
property law concerns the tendency of the protections of intellectual

property to expand, both in duration and in scope. The trend has been

toward longer copyright protection12 (raising fears that it may someday

be eternal13. In addition, the developers and controllers of items of

intellectual property have sought to bring more items under the

protection. Patents have been granted for living organisms, and colours

have been trademarked14. Because they are they are systems of

government-granted monopolies copyrights, patents, and trademarks

are called intellectual monopoly privileges, (IMP) a topic which several

academics, including Birgitte Andersen and Thomas Alured Faunce15

have written.

12
the U.S. Copyright Term Extension Act, Pub.L. 105-298.
13
Mark Helprin, Op-ed: A Great Idea Lives Forever. Shouldn’t Its Copyright? The New York Times, May 20,
2007.
14
For example, AstraZeneca holds a registered trademark to the color purple, as used in pill capsules.
AstraZeneca, Nexium: Legal. Accessed 2008.12.18.
15
Martin G, Sorenson C and Faunce TA. Balancing intellectual monopoly privileges and the need for
essential medicines Globalization and Health 2007, 3:4doi:10.1186/1744-8603-3-4.
1.15 Significance of the Problem

In the new IPR Regime, R&D centres and technology driven

businesses especially in the Information Technology sector will be

required to manage IPR in efficient and effective manner; failing which

they will face serious consequences in both monetary and legal aspects.

Failure to protect one’s IPR will lead to infringement of the IPR by

business competitors and thereby monetary loss. Violation of other’s

IPR will lead to legal consequences again resulting in monetary and

business loss. It is therefore, proposed to make a focused study on the

management of IPR in the context of the present scenario of

globalization and challenges existing in the Information Technology

sector in India.

1.16 Objectives of the Study

The objective of the study is to evolve suggestions for establishing and

improving effective IPR Management Policy in the modern context of


globalization, in Information Technology sector in India. The study has

the following objectives:

 To study the concept and practice of IPR, laws and policies.

 To assess the management of IPR in the corporate sector.

 To reveal through case studies and judicial decisions, the impact of

IPR in IT sector in India.

 To highlight the importance of Management of Intellectual Property

Rights as a function, and the setting up of the function in

organisations.

1.17 Hypothesis

This study is based on the hypothesis that a new dynamic management

orientation and policy are to be evolved in the new IPR regime with

reference to Information Technology sector in India. This is because,

the Indian software industry, which is the major component of the IT


sector in India, in order to remain competitive, will have to make a

shift in its strategies and move towards, developing and bringing out

products with higher value addition. In the process, more and more

IPRs, will be created, making it necessary for them, to look at

management of their IPR with more emphasis.

1.18 Review of Literature

Some of the excellent IPR history books, providing a richer history,

are, David (1993) on patents, copyrights and trade secrets; Penrose

(1951), Machlup (1958), Kaufer (1989) MacLeod (1988), and the

special issue of the journal Technology and Culture 1991 on patents;

Plant (1974), Rose (1993), Goldstein (1994) and Kretschmer (1997) on

copyrights; Coleman (1992) on trade secrets; and Diamond (1983) and

Wilkins (1992) on trademarks.


The Intellectual Property Rights have been discussed in various

international treaties including Paris Convention, Berne Convention,

World Intellectual Property Organisation, World Trade Organisation

and TRIPS Agreement. The TRIPS agreement provides the basic

literature, on the basis of which the entire IPR regime is focussed.

The jurisprudential analysis of IPR as property right is analysed by

Mr.John Locke in his theory of Natural Rights, in his book Natural

Rights Theory16.

Another Significant Analysis of IPR, in its Jurisprudential angle is

made by economic incentive theory. This Theory provides that “IPR is

a protection given for efficient economic allocation of resources.

It protects the rights of Authors, Inventors and Artists.

16
Natural Rights Theory, John Locke
Another significant analysis is the theory of consideration which

favours free market economies. According to consideration theory,

Intellectual Property Rights provides consideration to its creators,

including Authors and Artists. The software being mainly subjected to

copy right, an analysis of the above theories are significant in the

context of this study.

IN the book Data Protection Law 17 , An effective analysis of the Data

Protection Act, 1998 along with the principles of Data Processing and

the related enforcement and practical aspect relating to software

industry is highlighted by the author.

In the book Software Licensing,18, An analysis of the copy right

aspects in computer software, software licensing, drafting software

contract, issues in software procurement and facilities management is


17
David Bainbridge, Data Protection Law, Second Edition, Universal Publishing Co. 2007
18
David Bainbridge, Software Licensing, Second Edition, Universal Publishing Co. 2007
given great focus. In software industries, the most important area of

IPR protection is IPR licensing. The IPR licensing protects the new and

developing softwares, Softwares products, its maintenance, renewal of

software contracts and related activities. Considering all these aspects,

this book is of tremendous use for academic and professional analysis

of IPR in software industries.

In the book Law for IT Professionals 19, the author has analysed the

Licensing, Internet law, Contract Protection, Litigation and

International aspects of software, useful for the software companies.

In the Book E-mail, the Internet and the Law, Essential Knowledge

for Safer Surfing20, the author has provided an encyclopaediaic

Information technology Law, which includes matters relating to

19
Paul Brennan, Law for IT Profesionals, First Edition, Universl Publishing Co. 2007
20
Tim Kevan and Paul McGrath, First Edition, Universl Publishing Co. 2007
evidences, virtual liabilities, online contracts, which is very significant

for software companies, while analysing its IPR management.

In the book, Networks Communications, A Concise Guide to

Compliance with the Law, 21 the author has considered matters relating

to Network communications, its liabilities, misuse, liabilities of

employer and work man including its evidentiary aspects, applicable to

the software companies. This book analyses the IPR aspects of the

networking, as a function.

In the book Legal Protection of Software a handbook 22, the author has

analysed the aspects of IPR relating to software production, marketing

and licensing of software.

21
Stephen Mason, Networks Communications, First Edition, Universal Publishing Co. 2007
22
Richard Morgan and Kit Burden, Legal Protection of Software: A Handbook, First Edition, Universal
Publishing Co. 2007
23
In the book, The Copy Right Act, 1957 the authors have very

elaboratively discussed the concept of copy right law in its entirety.

This book is an authoritative book on the copy right law in India, and

discusses various aspects including applications of copy right law to

Software Industries.

In the book Law of Trade Marks, Copyright, Patents and Designs24

the author has analysed the Trade mark, patent and copyright laws in

India relevant cases and decisions were also addressed in this book,

which is useful for a study of Intellectual Property Rights in India.

23
Dr.R.G.Chaturvedi and Sanjay Upadhyay, T.R.Srinivasa Iyengar’s The Copyright Act, 1957, Fifth Edition,
Butterworths, 1987
24
Salil K.Roy Chowdhury & H.K. Saharay, Law of Trade Mark, Copyright, Patents and Designs, First
Edition, Kamal Law House 1996
In the book Patent Law by P. Narayanan 25, the author has dealt with

Patent protection in general Trade secret, Rights of publicity of

celebrities, Computer related inventions, Plants and animals, Patenting

biotechnological products and DNA sequences. This book is useful

guide for the study of IPR.

In the book Law of Copyright and Industrial Designs by P.Narayanan


26
the author has tried to keep the reader abreast with the latest

development of the law and focused the problems that are usually faced

by the owners of copyright as well as others concerned by way of

assignment and licence; issues of infringement of copyright, criminal

proceedings, copyright society, industrial design, legal consequences of

copyright conventions and so on. The author with his erudition has also

extracted the principles that govern the Indian scenario as reported in

different cases and judicial pronouncements appearing in the Reports of


25
P. Narayanan, Patent Law, Fourth Edition, Eastern Law House, 2006
26
P. Narayanan, Law of Copyright and Industrial Designs, Fourth Edition, Eastern Law House, 2007
Patent, Design and Trade Mark Cases (RPC) and in Fleet Street

Reports (FSR).

27
In the book Law of Trade Marks and Passing off by P.Narayanan,

the author has dealt with exposition of the essential features of

European Law, Unfair Competition Law, Trade Dress and

Geographical Indication of Goods etc. Besides, the author has updated

the chapters which appeared in the previous edition and has

exhaustively referred to a large number of decisions on Trade Marks

Act 1994 of the U.K. meeting the needs of judicial interpretation of the

Act of 1999 which came into force only on 15th September 2003.

Further, the author has also referred to decisions of the U.S.A,

wherever relevant and instructive.

27 P. Narayanan,
Law of Trade Marks and Passing off, Sixth Edition, Easteren Law House, 2004
In the book Law of Trade Marks& Geographical Indications- Law,

Practice and Procedure” 28 The authors have endeavoured to deal with

all the provisions in a much detail as possible , giving the relevant case

laws in India, U.K and the EEC, besides indicating the practice of the

Registry at the appropriate places. Since the new law is largely based

on the reform process in U.K, the White Paper on trade Marks Law

Reform in U.K. the EC Directive, the new U.K .

Trade marks Act 1999

In the book Supreme Court on Trade Marks, Copyrights, Patents &


29
Designs (1950 to 2005) The author has dealt with almost all the

judgements duly annotated in full length pronounced by the Supreme

28
K.C. Kailasam & Ramu Vedaraman, Law of Trade Marks & Geographical Indications – Law. Practice &
Procedure, Second Edition, Wadhwa, 2005
29
P.K. Mittal & O.P. Chadha, Supreme Court on Trade Marks, Copyrights, Patents & Designs (1950 to
2005), Updated Edition, Om Law Book House 2006,
Court of India during the period from 1950 to 2005 on Trade Mark

Copy Right, Patent, Designs, Domain Names & Similar IP Rights.

30
In the book Intellectual Property Rights, the author offers the most

accurate statement in the law relating to specialised features of

Intellectual Property Law. He explores the foundation of Intellectual

Property Rights, origin and development, nature, scope and kinds,

Schools of thought and enforcement of Intellectual Property Rights,

which is helpful for analysing IPR as a management function.

1.19 Data Source and Methodology Adopted

The study is based on secondary analysis only as it is limited by

availability of resources relating to software sector and IT industries.

The secondary sources are further supplemented with judicial and

30
Dr.J.K. Das, Intellectual Property Rights, First Edition, Kamala Law House, 2008
managerial case studies and court orders for evolving a new IPR

management policy.

1.20 Limitations of the Study

The following limitations are to be considered while evaluating the


study:

a) Data Constraint: Limited data are available

b) Time Constraint: The time allotted for this research is too short due

to which an in-depth analysis of the issue cannot be undertaken.

c) Financial Constraint: Though we were interested in undertaking an

in-depth study, but it was limited by the lack of sufficient financial

resource at our disposal.

d) Accessibility Constraint.
1.21 Chapterisation

The research study is divided into the following six chapters.

1.21.1 First chapter: Introduction sheds light on the concepts,


definitions and branches of Intellectual Property
Rights ,
r
e
v
ie
w
o
f
li
te
r
at
u
r
1.21.2 Second chapter: Historic Evolution and

Importance of IPR is

a brief description of history and present scenario of IPR.

1.21.3 Third Chapter: Components of IPR analyses on the

components of IPR highlighting the IPR relating to software.

1.21.4 Fourth chapter: Judicial Decisions takes a look at some of the

IPR issues that were brought before the judicial authorities along

with the decisions.

1.21.5 Fifth chapter: Management of IPR in IT Sector in India deals

with management of IPR in the booming information technology

sector of India.
1.21.6 Sixth chapter: Conclusion deals with conclusions and

suggestions on IPR management in business especially in

Information Technology sector in India.

Chapter - II

Historic Evolution and Importance of IPR

History of the IPR system

2.1 Introduction
This chapter makes an attempt to briefly outline the historical evolution

of IPR systems from its early period, from the first codification of a

patent law in Venice 1474, which is considered as the starting point in

the history of IP laws till modern times. Man has been gifted with

wonderful thing called Brain and the Earth is full of physical and

biological resources on the earth waiting to be crafted, developed and

improved upon by the human brain. By using his brain and mind, and

also by utilising such gifts endowed by nature, man started creating his

own world. The same man has also been gifted with imagination and

creativity. With this he has been creating immense number and kinds of

articles or products for his needs, comfort and convenience and as days

passed started improvising and creating newer and newer products, In

older times, such creations and inventions and improvisations, were

given to a public domain. These were the common properties and could

be used and copied by anybody without any payment, restriction,

reservation. By a small spark in his brain, at some point of time, man


ultimately recognised, the importance and value of these creations and

by the passage of times this recognition became prominent. The

economic and commercial aspect started playing a significant roll in

shaping his thoughts in respect of these creations. At last, after so much

of deliberations, thoughts and discussion, by end of Twentieth Century,

creations and inventions of human mind, were recognized as an

intellectual property of the owner .The owner's right over these

properties was accepted and came to be known as an Intellectual

Property Right (commonly called I.P.R.). A new set of laws called

Intellectual Property Right Laws, were enacted to protect these

property rights. These I.P.R. laws provided a protection to the owners

under different categories and names like Patents, Industrial designs,

Copyrights and Trade- Marks.

The principles of IP notions have been evolved from pre historic times,

especially oriented around secrets, although identity-related symbols


are also of early origin.31 IP for gaining trade-related advantages was

less important in prehistoric times, but secrets and symbols as means to

gain and preserve power were important, especially in political,

military and religious settings. Ancient cultures, as in Egypt and

Greece, were not known to have had any patent-like institutions for

technical inventions, nor did the Roman Empire (Kaufer, 1989, p.1).32

Even during these periods, IPR were effectively managed by business

enterprises.

In ancient India, the origins of the IP regime can be observed even

from the Vedic Mantras wherein the rishis were the seers of the

different Mantras, like rishi Viswamitra, who is the seer of the most

famous Gayatri mantra and is mandatory to mention the name of the

rishi before starting chanting of a mantra, and thus even in those days

31
These symbols correspond to trademarks, but could also be seen as related to designs and copyrights since
they involved visual expressions. Copyright of written material requires a written language, of course.

32
Roman property law was strongly centered around physical property and physical possession.
there was a marked identification of findings, even though they made

no attempt to commercialise or create a property of the invention, and

made the finding available for the welfare of the whole mankind.

Table given below depicts the role of IPR in different cultures. It is

pertinent to note the use of trademarks and patent like systems for food

chemistry in the Greek colony Sybaris on the East coast of the Italian

peninsula.33 A brief historic analysis of management of IPR is analysed

as under:-

Table : Chronological overview of early major events in IPR


development34

33
Athenaeus in “Deipnosophistae”, book XII, p. 521 tells the following:
“The Sybarites”, Phylarchus says, “after drifting into luxury passed a law that….if any caterer or cook
invented a dish of his own which was especially choice, it was his privilege that no one else but the inventor
himself should adopt the use of it before the lapse of a year, in order that the first man to invent a dish might
possess the right of manufacture during that period, so as to encourage others to excel in eager competition
with similar inventions.” (As cited in Charles Burton Gulick's translation, Vol. I-VII, London/New York
1927-41, in Vol. V, p. 349).

34
Background paper to the Concluding Roundtable Discussion on IPR at the DRUID Summer Conference
2003 on CREATING, SHARING AND TRANSFERRING KNOWLEDGE.
The role of Geography, Institutions and Organizations. Copenhagen June 12-14, 2003
Innovation and Intellectual Property by Ove Granstrand
Year(s) Event
3,200 BC Potter marks found on fired clay pots, including jars buried in

tombs of the First Dynasty Egyptian kings, providing a

precursor to trademark protection. Stone seals or cylinder

seals bearing such marks were used from about this time

onward in both the Near East and Greece.


700-500 BC Chefs in Sybaris, a Greek colony in southern Italy known for

luxurious living, were granted one-year monopolies on the

preparation of an unusual or outstanding dish. This right

applied to no other art or science.


350 BC One of the first recorded unauthorized copying events

occurred when Hermodorus copied Plato´s speeches and

without passing them off as his own, he took them abroad to

sell for his own profit. An early “bootleg” incident.35

35
Copyright Theft, John Gurnsey, Aldershot 1995.
100 BC Trademarks used in Rome on an everyday basis to mark

products such as cloth, lamps, glass vessels, cheese, and

medicine.
40 – 100 AD the roman poet Marcus Valerius Martialis were so upset when

others used his poems without reciting his name that he

equalled it to kidnapping for which in Latin is the word

“plagium” (plagiarism). 36
100 AD An acknowledgement of intellectual work and effort in the

Roman empire is visible in the legal institute of specificatio.

Specificatio was a mtheod of acquiring ownership by the

36
Lärobok i Immaterialrätt (in Swedish), p. 25, Levin, M,Koktvedgaard, M, Norstedts Juridik,
2000.
creation of a new thing out of someone else’s materials. If

someone created a marble statue out of someone else´s marble

the statue could be considered a “nova species” (a new thing)

whereby the statue came to belong to the creator. 37


337 AD Roman emperor Constantine decrees that artisans of certain

critical trades are exempt from all civil duties. Chariot

makers, engineers, and locksmiths are especially favoured.


483 Roman emperor Zeno decrees that no monopoly can be

granted to clothing or food, even if the monopoly was

previously required by order of an emperor.


1297 A Venetian decree allows physicians to retain within their

37
Textbook on Roman Law,Andrew Borkowski LLB, Blackstone Press Ltd, 1994.
guild the secret for preparing new and novel medicines.
1323 Johannes Teuthonicus is granted a patent-like privilege by the

Venetian government for a grain-mill


1324 Edward II (England) grants letters of protection to skilled

German miners to induce them to come to England.


1331 John Kempe of Flanders receives a royal grant (patent) for the

purpose of building a clothing industry in England. The

policy is later extended to other skilled trades.


1332 The Venetian Grand Council establishes a special fund for a

foreign constructor of windmills.


1353 An English statute enables a foreign merchant to obtain

restitution for lost goods if his mark proved ownership.


1416 Franciscus Petri in Venice received letters patent for building

and maintaining a waterworks. 38

38
Lärobok i Immaterialrätt (in Swedish), p. 26, Levin, M,Koktvedgaard, M, Norstedts Juridik,
2000.
1450 Johann Gutenberg develops the printing press.
1451 The newly acquired ease of copying written materials creates

the necessity for copyright protection.


1452 Earliest recorded trademark litigation; a widow of a London

bladesmith is awarded a particular mark that formerly

belonged to her husband.


1469 Johann von Speyr receives the first printing privilege in

Venice which duration was five years. 39


1474 Venice enacts the first codified patent ordinance. Inventors

were permitted 20-year monopolies. Infringers would be fined

300 ducats. 40
1584 The first judicial recogniction of trademarks stems from the

common law system in England beginning with the

“Sandforth´s case”, where it was stated that a mark deserved

protection at common law to indicate source or origin of

goods.41
1624 The first legislation of patent law that to a large extent
39
Urheberrecht, Kohler, Stuttgart 1907,pp.34.

40
Patentskyddets omfattning, Godenhielm (in Swedish), Helsingfors, 1994, pp2.
resembles our present, were the Statute of Monopolies. 42
1709The first legislation of copyright law that to a large extent resembles ours

were the Statute of St Anne. This legislation were influenced from older

common law concepts that were formed during the 15th century.1712-

1737Legal protection of design rights for textile patterns were afforded in

France to silk weavers. 43

1751 In line with the French enlightenment movement, the French

encyclopedia was first printed, containing many never before

published trade secrets from different guilds.44


1790 USA’s first patent and statute, The Patent Act, was signed
into law on April 10, 1790 by President George Washington.45
41
How Early Did Anglo-American Trademark Law Begin? An Answer to Schechter´s Conundrum, Keith,
M. Stolte, 8 Fordham I.P., Media & Ent L.J. 505 (1998).

42
Lärobok i Immaterialrätt (in Swedish), p. 26, Levin, M,Koktvedgaard, M, Norstedts Juridik,
2000.

43
Lärobok i Immaterialrätt (in Swedish), p. 270, Levin, M,Koktvedgaard, M, Norstedts Juridik,
2000.

44
The business of enlightenment: a publishing history of the Encyclopédie,1775 – 1800. Cambridge
Mass.1979.2000.
The same year the Copyright Act was also enacted by the
U.S. Congress.

In the course of development of trade and technology in the Middle

Ages, economic notions about IPR also developed. The need for

protecting technological advantages, through means other than by trade

secrets, was felt. Usually a professional guild, an individual artisan, or

a clever weapon-smith would go to their grave with their secret

capabilities and which was not available to available to the society at

large.

As the power of technical know-how became increasingly important,

the idea of remunerating the disclosure by way of patent became

prevalent. The usual compensations of early times were prizes, grants

and patent privileges which made the patent particularly attractive. The

45
U.S Patent Report
privileges of the patent holders were that they were protected from

competition. Hence they could charge higher prices based on

competition.

2.2 Origin of IPR

In the old days, a number of intellectual property rights were known

collectively as industrial property and these include patents, trade

marks and designs. This description is used in the Paris Convention for

the Protection of Industrial Property 1883. Other rights such as

copyright were added to industrial property, and the phrase intellectual

property is now used to describe the entirety of rights. Thus, Article

1(2) of the Paris Convention for the Protection of Industrial Property

1883 (as revised, most recently at Stockholm in 1967).

Thus in modern times, the concept of IPR is developed thorough major

conventions and treaties and a brief outline and their importance in the

development of IPR in modern times is given below


2.3 Paris Convention

Historically, the Paris Convention is related to the Patent form of IPR.

The Paris Convention for the Protection of Industrial Property46, is one

of the first intellectual property treaties. The starting point for

international patent protection was in the late nineteenth century

through Congresses in Vienna and other European countries, finally

coming to the Paris Convention of 1883, After a diplomatic conference

in Paris in 1880, the Convention was signed in 1883 by 11 countries:

Belgium, Brazil, France, Guatemala, Italy, the Netherlands, Portugal,

El Salvador, Serbia, Spain and Switzerland.

46
Paris, France on 20 March 1883
The Treaty was revised at various countries such as Brussels47 Belgium.

The Hague, The Netherlands48, at London, United Kingdom49, at

Lisbon, Portugal50 and at Stockholm, Sweden51, and was amended on

September 28, 1979. The original Paris Treaty from 1883 has

undergone revision several times and today stands in the form of its

1967 Stockholm Revision. The Paris Convention is considered to be

the most important as a starting point for intellectual property rights in

any part of the world. .

As a result of this treaty, intellectual property, including patents, of any

contracting state are accessible to the nationals of other states party to

the Convention. This convention gave the inventors a rational base for

international patent protection.

47 Brussels Belgium on 14 Dec 1900


48
Netherland on 6 Nov 1925
49
London, U.K on 02 June 1934
50
Portugal on 31 Oct 1958
51
Stockholm, Sweden on 14 Jul 1967
The Paris Convention established the fundamental principles of certain

minimum protection, national treatment, and the right of priority. The

nationals of a country belonging to the Convention must enjoy in other

countries of the Convention the same rights with regard to intellectual

property as their own nationals. This rule guarantees not only that

foreigners will be protected, but assures non discrimination also.

National treatment rule is also guaranteed to nationals of non-member

countries, if they are domiciled or have an industrial or commercial

establishment in a member country52. This starting point in IPR has

prompted many countries to introduce patent system since this is likely

to attract foreign technology. Countries have been attracted to open

their system of filing to foreign applications and the origin of the

concept of national treatment can be traced to this logical need.

. TRIPS Agreement
52
The convention provided a base for patenting an invention in more

than one country. The Paris Convention has provided the frame work

for the Patent Co-operation Treaty, the European Patent Convention

and the Community Patent Convention. Contracting States are allowed

to enter into separate treaties provided that these agreements do not

contravene the provisions of the Paris Convention.53

2.4 The Berne Convention

Historically, another landmark convention in IPR is, The Berne

Convention. The convention is related to the Copyright form of IPR

and is known as The Berne Convention for the Protection of Literary

and Artistic Works, (Berne Convention). This is an international

agreement governing copyright, which was first accepted in Berne,

Switzerland in 1886.

. Preamble to Paris convention


53
The Berne Convention followed in the footsteps of the Paris

Convention for the Protection of Industrial Property of 1883, which in

the same way had created a framework for international recognition of

the Patent form of IPR. The Berne convention was the masterminded

by Victor Hugo of the Association Littéraire et Artistique

Internationale. This convention was influenced by the French principles

of Right Of The Author (droit d'auteur), The Berne Convention

mandates signatories to grant recognition the copyright of works of

authors from other signatory countries (known as members of the

Berne Union) in the same way it recognises the copyright of its own

nationals. For example, French copyright law applies to anything

published or performed in France, regardless of where it was originally

created.

The Berne Convention was revised in Paris in 1896, Berlin in 1908,

completed in Berne in 1914, revised in Rome in 1928, in Brussels in


1948, in Stockholm in 1967 and in Paris in 1971, and was amended in

1979. The UK signed in 1887 but did not implement large parts of it

until 100 years later with the passage of the Copyright, Designs and

Patents Act of 1988.

Due to the requirement of making major changes in its copyright law,

particularly with regard to moral rights, removal of general requirement

for registration of copyright works and elimination of mandatory

copyright notice, the United States initially did not become party to the

Convention., This led to the Universal Copyright Convention in 1952

to accommodate the wishes of the United States. However on March 1,

1989, the U.S. Berne Convention Implementation Act of 1988 came

into force and the United States became a party to the Berne

Convention. This, in turn made the Universal Copyright Convention

obsolete.
The convention brought into vogue a system of equal treatment by

internationaling copyright amongst signatories. Member States are also

required to provide strong minimum standards for copyright law.

Before the Berne Convention, national copyright laws usually only

applied for works created within each country. Consequently, a work

published in United Kingdom (UK) by a British national would be

covered by copyright there, but could be copied and sold by anyone in

France. Likewise, a work published in France by a French national

could be copyright there, but could be copied and sold by anyone in the

UK. The Berne Convention brought a change into this shortcoming in

copyright laws.

Like the Paris Convention, the Berne Convention set up a bureau to

handle administrative tasks. In 1893, these two small bureaus merged

and became the United International Bureaux for the Protection of

Intellectual Property (French acronym BIRPI), This Bureau is situated


in Berne. In 1960, BIRPI moved to Geneva, to be closer to the United

Nations and other international organizations in that city. In 1967, it

became the World Intellectual Property Organization (WIPO), and in

1974 became an organization within the United Nations.

The important aspect of the Convention is that copyrights for creative

works are automatically in force upon their creation and there is no

need to being asserted or declared. There is no need to register or apply

for a copyright in countries adhering to the Convention. As soon as a

work is fixed, that is, written or recorded on some physical medium, its

author is automatically entitled to all copyrights in the work and to any

derivative works, unless and until the author explicitly disclaims them

or until the copyright expires. In any country that signed the

Convention foreign authors are also given the same rights and

privileges to copyrighted material as domestic authors and there shall

not be any discrimination as far as the rights are concerned. As of


September 2008, there are 164 countries that are parties to the Berne

Convention. Since almost all nations are members of the World Trade

Organization, the Agreement on Trade-Related Aspects of Intellectual

Property Rights requires non-members to accept almost all of the

conditions of the Berne Convention.

2.5 Universal Copyright Convention (UCC)

As mentioned above, the United States initially did not become a party

to the Berne Convention, leading to the Universal Copyright

Convention in 1952 to accommodate the wishes of the United States.

The Universal Copyright Convention (or UCC)54, was adopted at

Geneva in 1952, for the protecting copyright.

Even though some states disagreed with some of the aspects of the

Berne Convention, and did not join the Berne Convention, they wished

to have some from of IPR protection and for the benefit of these states,
54
UCC Convention, Geneva 1952
the UCC was created and developed by United Nations Educational,

Scientific and Cultural Organization as an alternative to the Berne

Convention. These states included developing countries and the Soviet

Union, These states were of the opinion that the strong copyright

protections granted by the Berne Convention benefited Western

developed copyright-exporting nations, including the USA and the

most of Latin American countries who were already members of a Pan-

American copyright convention interestingly, the Berne Convention

states also became party to the UCC, so that their copyrights would

exist in non-Berne convention states.

The United States only provided copyright protection for a fixed,

renewable term. It also required that for copyrighting, there must be a

copyright notice and the same be registered at the Copyright Office.

The Berne Convention, on the other hand, provided for copyright

protection for a single term based on the life of the author, and did not
require registration or the inclusion of a copyright notice for copyright

to exist. Due to these major differences the USA did not become a

party to the Berne Convention. The UCC permits those states which

had a system of protection similar to the United States for fixed terms

at the time of signature to retain them. In the course of time, the United

States became willing to participate in the Berne convention, and

change its national copyright law as required. In 1989 it became a party

to the Berne Convention as a result of the Berne Convention

Implementation Act of 1988.

India being a member to the UCC, authors of software in US will get

protection in India also as per the terms and conditions laid down in the

Indian Copyright law. Since almost all countries are either members or

aspiring members of the World Trade Organization, and are thus

conforming to the Agreement on Trade-Related Aspects of Intellectual

Property Rights Agreement, the UCC has lost significance.


2.6 World Intellectual Property Organization (WIPO)

WIPO is one of the 16 specialized agencies of the United Nations.

WIPO was created in 1967 to encourage creative activity, to promote

the protection of intellectual property throughout the world. WIPO

currently has 184 member states, administers 24 international treaties,

and is headquartered in Geneva, Switzerland. Almost all UN Members

as well as the Holy See are Members of WIPO. BIRPI§ (Bureaux

Internationaux Réunis pour la Protection de la Propriété Intellectuelle,

µFrench acronym§ for United International Bureaux for the Protection

of Intellectual Property) is the organisation prior to WIPO, which was

established in 1893 to administer the and the Paris Convention§.

WIPO was formally created by the Convention Establishing the World

Intellectual Property Organization55. Under the Article 3 of this

Convention, WIPO seeks to promote the protection of intellectual

55
WIPO Convention on 26 Apr 1970
property throughout the world. WIPO became a specialized agency of

the UN in 1974. WIPO has significant financial resources independent

of the contributions from its Member States.

Much of the important work at WIPO is done through committees,

including the Standing Committee on Patents (SCP), the Standing

Committee on Copyright and Related Rights (SCCR), the Advisory

Committee on Enforcement (ACE), and the Intergovernmental

Committee (IGC) on Access to Genetic Resources, Traditional

Knowledge and Folklore, and the Working Group on Reform of the

Patent Cooperation Treaty

WIPO is not an elected body. WIPO usually attempts to reach decisions

by consensus. In the case of any voting, each Member State is entitled

to one vote, irrespective of population or contribution to the funding. This

factor has led to significant consequences over certain issues, During

the 1960s and 1970s, developing nations were able to block expansions
to intellectual property treaties, such as universal pharmaceutical

patents which might have occurred through WIPO. As a result of this,

In the 1980s, this led to the United States and other developed countries

started setting out of WIPO into the General Agreement on Tariffs and

Trade, which later evolved into the World Trade Organization, where

the North had greater control of the agenda. This strategy paid

dividends with the enactment of Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPS)

2.7 Trade-Related Aspects of Intellectual Property Rights§ (TRIPS)

The Agreement on Trade Related Aspects of Intellectual Property Rights

(TRIPS) is an international agreement administrated by the World Trade

Organization (WTO).

This prescribes minimum standards for many forms of µintellectual

property (IP) regulation. It was negotiated at the end of the Uruguay

Round of the General Agreement on Tariffs and Trade (GATT) in 1994.


TRIPS was negotiated at the end of the Uruguay Round of the General

Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the

culmination of a program of intense lobbying by the United States,

supported by the European Union, Japan and other developed nations.

Specifically, TRIPS contains the stipulation that that nations' laws must

meet the requirements of protection for copyright rights, geographical

indications, industrial designs; integrated circuit layout-

designs; patents; monopolies for the developers of new plant

varieties; trademarks; trade dress; and undisclosed or confidential

information and requires member states to provide strong protection

for intellectual property rights.

TRIPS also specifies enforcement procedures, remedies, and dispute

resolution procedures. The most important aspect of TRIPS agreement

is that it introduced intellectual property law into the international

system for the first time and remains the most comprehensive
international agreement on intellectual property to date. In 2001,

developing countries, concerned that developed countries were

insisting on an overly narrow reading of TRIPS, initiated a round of

talks that resulted in the Doha Declaration. The Doha declaration is a

WTO statement that clarifies the scope of TRIPS, stating for example

that TRIPS can and should be interpreted in light of the goal to promote

access to medicines for all.

Because ratification of TRIPS is a compulsory requirement of World

Trade Organization membership, any country seeking to obtain easy

access to the numerous international markets opened by the World

Trade Organization must enact the strict intellectual property laws

mandated by TRIPS. For this reason, TRIPS is the most important

multilateral instrument for the globalization of intellectual property

laws. States like Russia and China that were very unlikely to join

the Berne Convention have found the prospect of WTO membership a


powerful enticement. Furthermore, unlike other agreements on

intellectual property, TRIPS has a powerful enforcement mechanism.

States can be disciplined through the WTO's dispute

settlement mechanism.

Many of the TRIPS provisions on copyright were imported from

the Berne Convention and many of its trademark and patent provisions

were imported from the Paris Convention for the Protection of

Industrial Property.

Thus we can see that in the current scenario, TRIPS is the main

controller of all IPR in nations, which are entering the WTO for

increased volumes of trade.

Even though the obligations under TRIPS apply equally to all member

states, developing countries were allowed extra time to implement the

applicable changes to their national laws, in two tiers of transition

according to their level of development. The transition period for


developing countries expired in 2005. The transition period for least

developed countries was extended to 2016, and could be extended

beyond that. Developed countries are massive net-exporters of

copyright-, patent- and trademark-related royalties. It has therefore

been argued that the TRIPS standard of requiring all countries to create

strict intellectual property systems will be detrimental to poorer

countries.

2.8 Software Protection

Software is a product of human intellect and can be rightly termed as

intellectual property. Considering the very vital role it plays in today’s

world economy and development, protection of software is a very

crucial issue. There has been a demand worldwide for the protection of

software. Berne Convention, WIPO, TRIPS all have included

provisions for the protection of software.


In 1996, two copyright treaties were negotiated under the auspices of

WIPO. These treaties are: WIPO Copyright Treaty (WCT) and the

WIPO Performances and Phonograms Treaty (WPPT). The WCT of

1996 is a special agreement to the Berne Convention and requires

compliance with Berne Convention. This treaty makes explicit that

computer programs are protected as literary works under Berne

Convention. It also states that compilations of data for which the

selection or arrangement of the contents are sufficiently original are

protected as compilations. Software makers are granted a right to

control rentals of computer programs. It requires treaty nations to

provide adequate and effective protection against the circumvention of

technical measures that restrict the ability of others to exercise the

rights owned by the copyright owner.

Although the availability of legal protection for software has increased

rapidly around the world over the years, the scope and the feasibility of
enforcement of that protection continue to vary significantly in

different countries. The use of the U.S. Trade Act56 has resulted in

greater protection for software in several countries. These give more

emphasis on proscription of piracy rather than providing injunctive

measures against infringement. M/s. Business Software Alliance and

Software & Information Industry Association have been effective

forces for monitoring software piracy around the world, promoting

various changes in legislation and taking legal actions to enforce

copyright protection. The accession of the US to the Berne Convention,

which fosters the protection of intellectual property rights through the

TRIPS Agreement, were important milestones in the use of multilateral

agreements for dealing with protection for software. These multilateral

efforts are intended to promote adequate and effective protection of

intellectual property rights while ensuring that national laws enforcing

such rights do not themselves become barriers to trade

56
USA Special 301 Provisions, 1988
2.9 Indian Scenario of IPR

In India, computer software does not qualify for patents, as the

requirement of the patent law is that the process must result in

something tangible and vendible. Though not many in India demand

Patent protection , it is a much needed protection considering the

growth of the Information Technology industry in the country. India

has adopted most of the particulars of the international instruments

discussed above and has incorporated its own law on software

protection based on the essentials of these instruments. National

Association of Software and Service Companies (NASSCOM) is an

ardent supporter of strong intellectual property laws in India. In 1990,

NASSCOM began an active public awareness campaign to educate

users about the lawful use of software. NASSCOM has also been

actively working towards providing various anti-piracy measures it has

also successfully facilitated enforcement laws against software piracy


in India and has continuously engaged with the government of India for

required changes in the IPR laws, keeping in line with WIPO and other

international laws and treaties.

The major statutes that cover IT sector in India are Copyrights Act,

1957, Information Technology Act and Patents Act, 1970.

2.10 Copyrights Act, 1957

India has one of the most modern copyright protection laws in the

world. Major development in the area of copyright during 1999 was the

amendment to the Copyright Act of 1957 to make it fully compatible

with the provisions of the TRIPS. The provisions of this Act are a

reflection of the international instruments discussed above.


The Act defines computer and computer programs as :

a set of instructions expressed in words, codes, schemes


or in any other form, including a machine readable
medium, capable of causing a computer to perform a
particular task or achieve a particular result.
Literary work is defined as that which includes
computer programs, tables and compilations including
computer databases.

These additions in the Act have widened the scope of protection under
the Copyright Act, 1957. The provisions contained in the WCT are
well reflected here, though India is not a signatory to the WCT.

To do any of the following acts related to the computer program or to

use it, a license is required from its owner :-


(1) To reproduce the work in any material form including the storing of it
in any medium by electronic means;

(2) To issue copies of the work to the public not being copies already in
circulation;
(3) To perform the work in public, or communicate it to the public;

(4) To make any cinematographic film or sound recording in respect of the


work;

(5) To make any translation of the work;

(6) To make any adaptation of the work;

(7) To do, in relation to a translation or an adaptation of the work any of


the acts specified in relation to the work in the above;

(8) To sell or give on commercial rental or offer for sale or for commercial
rental any copy of the computer program.
However, commercial renting does not apply to computer programs

where the program itself is not the essential object of the rental.

Any person who knowingly makes use on a computer of an infringing

copy of a computer program is liable to be punished with imprisonment

for a term of at least seven days and can be extended to three years and

with fine of at least Rs. 50,000.

2.11 Acts not Amounting to Infringement:

In compliance with the provisions of the TRIPS, the Act has clarified

that the following acts do not constitute infringement of copyright in

software:

(a) Making copies or adaptation of a computer program by a lawful

possessor of a copy of such computer program from such copy in

order to utilize the program for the purpose for which it was
supplied or to make back-up copies purely as a temporary

protection against loss, destruction or damage in order only to

utilize the computer program for the purpose for which it was

supplied.

(b) Doing any act necessary to obtain information essential for

operating inter-operability of an independently created computer

program with other programs by a lawful possessor of a

computer program provided that such information is not

otherwise readily available.

(c) Observation, study or test of functioning of the computer

program in order to determine the ideas and principles which

underline any elements of the program while performing such

acts necessary for which the computer program was supplied.


(d) Making copies or adaptation of the computer program from a

personally legally obtained copy for non-commercial personal

use.

2.12 Patents Act, 1970

The Patents Act, 1970 states that a computer program per se other than

its technical application to industry or a combination with hardware is

not patentable. Thus, software can be registered as a patent only if it is

in combination with hardware and not otherwise.

Pirated software affects software developers, retail store owners and

also all software users. Furthermore, the illegal duplication and

distribution of software has a significant impact on the economy. This

calls for its stronger legal protection. The primary protection of

software in India is found in the Copyrights Act, 1957. There are very

few cases pertaining to protection of software in India, most of them

with Microsoft Corporation as the aggrieved party. In one of these


cases, the Delhi High Court awarded punitive and exemplary damages

against the wrongdoer who were involved in piracy activities by hard-

disk loading. With the growing concept of software technology parks

and the importance of software in every business, more and more

companies want protection under the legal regime to obviate software

piracy. The availability of injunctive relief and criminal remedies are

particularly vital to the software industry. Software developers often

rely on civil ex parte injunctive procedures to identify infringers.

However, civil procedures in many developing nations are time-

consuming, cost-prohibitive, and largely ineffective against

professional criminals. Therefore, software developers are often forced

to rely on criminal prosecutions by public authorities to deter rampant

piracy of their products.

In India, the requirements of patentability as per the Patents Act, 1970

as amended to date, are that the invention must be new, useful and non-
obvious. Invention means a new product or process involving inventive

step and capable of industrial application. Reverse engineering is the

process of discovering the technological principles of a device or object

or system through analysis of its structure, function and operation. It

often involves taking something like a mechanical device, an electronic

component, a software program apart and analyzing its workings in

detail, usually to try to make a new device or program that does the

same thing without copying anything from the original.

2.13 Importance of IPR

2.13.1 Intellectual capital drives the world

Intellectual property plays an important role in an increasingly

broad range of areas, ranging from the Internet to health

care to nearly all aspects of science and technology and literature

and the arts. In modern times, mere possession of land, labour


and capital are not sufficient for a country to succeed. Creativity

and innovation are the very basis for modern day development.

In fact, these are the new drivers of world economy, as

technology is improving and at the same time getting outdated

day by day. The technologies of today will be seen as most

obsolete within a matter of few weeks or even months. Such is

the rapidity of the progress of technology. Hence, policies

adopted by a country shall determine well being of the nations,

and this depends on how efficiently a country is able to bring out

the trapped intellectual capital. An effective intellectual property

system is the foundation of such a strategy. Within high

powered, technology driven, knowledge-based, innovation-

prompted economies, the intellectual property system is a most

important tool for wealth creation by creating an incentive and

motivation for enterprises and individuals to create and innovate;

There is a most urgent need for strong regime for setting up the
development and trade in, intellectual assets; and a stable

environment for domestic and foreign investment. Without such

regime, the intellectual capital of the countries will remain

dormant and the country at large will remain in dark ages.

2.13.2Economic Growth and IPR

Intellectual property protection is the vital for economic

growth and advancement, especially in the high

technology sector. IPRs are essential for growth of

business. They benefit the public at large and act as

catalysts for technical progress. The protection of IPR acts

as a motivator for the intellectual creator, thereby

prompting and bringing out the creativity in people.

Whether IPRs are a good or bad, thing, modern world has

come to accept, acknowledge and accommodate with them

over a long period. Even accepting the argument that their


disadvantages sometimes slightly outweigh their

advantages, the developed world has the technological and

economic power and have set legal and judicial processes

to overcome the problems so caused. The developed world

has also the wealth and infrastructure to take advantage of

the opportunities provided.

2.13.3 Research and Investments in IPR

IP rights provide benefits to the owner of the IP and add

values to all the industrial as well as business concerns and

laboratory discoveries. They in turn provide incentives for

private sector investment into their development.

Organisations in technology driven business should have

an independent Research and development (R&D) centre

and maintaining one requires huge funding. The additional

benefit derived out of the income generated out of IPR


asset will prompt to invest further in capital and revenue

expenditure on Research ad Development. Without

Research and Development nations will remain in dark

ages. Hence it can be inferred without doubt that the level

of development we have so far achieved is mainly on

account of the protection and the incentives given for the

holding of IP assets by major nations of the world.

2.13.4 Small and Medium Enterprises and IP rights

Globalization and the rapid dissemination of knowledge

has resulted in and the rapid proliferation of technology,

and in modern times, nothing can be kept a secret for long.

This has elevated the importance of intellectual property

protection for Small and Medium Enterprises (SMEs). The

only way for such enterprises to reap the benefits out of

their innovations and research is to offer protection their


intellectual property. Inconsistencies of standard practices

create difficulties for those businesses concerns s wishing

to protect their inventions, brands, and business methods

in foreign markets.

2.13.5 Values creation and IPR

In the era of knowledge age or information age, the

fundamental unit of most products and services is

information which in one or another form. Innumerable

websites, virtual enterprises and virtual products exist and

upon the cornerstone of information: in digital or non-

digital form. These have become the top IPR issues, and

the Internet brings several new IPR issues to the fore. In

several cases such information is of proprietary nature,

hence, the investment in that information product,

knowledge product or the virtual product must be


protected to encourage other similar initiatives. With

increasing worldwide access to electronic distribution, the

damage caused by piracy to content producers may

completely destroy the value built in their intellectual

property.

2.13.6 Consumer Benefits

Consumers associate their requirements likings to

particular brands, since the creators of those brands might

have strived to provide and maintain quality to the

products associated with their brands. Such companies

might have earned consumer recognition for their brand

names and trade marks through constant striving and

maintaining excellence. A recognized brand name or trade

mark represents the goodwill that has been built into the

product or service. Therefore, it is necessary for such


companies to create,, protect, manage and safeguard the

investment in the related intellectual property rights. It is

necessary in consumer interest also that the brands and

marks are not misused by others.

2.13.7 Striking balance between IPR and Public Interest

As mentioned earlier, the IPR regime has come to stay in

modern times. The initiative and enterprise of the

individual is paramount in scientific and other

developments of human beings. It is the human tendency

to desire for benefit out his efforts and tireless work in

creating innovations and new ideas. Whatever be the

disadvantages of IPR, it is not possible to wish away the

existence of a strong IPR regime. The need of the hour is

to strike a balance between the rights of inventors57 and

57
Article 7 of TRIPS
creators to protection, and the rights of users of

technology: The Universal Declaration of Human Rights

has a broader definition recognises that :

the right to the protection of the moral and

material interests resulting from any

scientific, literary or artistic production of

which he is the author, balanced by the

right to share in scientific advancement

and its benefits.

The important issue is to reconcile the public interest in benefiting from

new knowledge and the products of new knowledge, with the public

interest in stimulating invention and creation which results in new

knowledge and products on which the progress, both material and

cultural, of human beings depend. IP regime seeks to achieve this


reconciliation by conferring a private right, and private material

benefits. Such private benefit to the creator or inventor is derived at the

cost of the consumer or public at large. When the public is poor, this

may conflict with basic human rights, for example, the right to life. An

IP right is best when it stands the test as one of the means by which

nations and societies can benefit out of such rights to increase and

improve the human economic and social rights. Granting of IP rights

should not create circumstances of subordination of the most

fundamental human rights, to the requirements of IP protection. Hence,

IP rights are granted by states for limited times, at least in the case of

patents and copyrights, whereas human rights are inalienable and

universal. In modern times, IP rights are nowadays generally treated as

economic and commercial rights, since the IPRs are held more often by

corporates rather than individual inventors. IPRs should be instruments

of public policy which confer economic privileges on individuals or

institutions solely for the purposes of contributing to the greater public


good. This privilege is therefore, a means to an end, not an end in itself.

Thus in terms of assessing the value of IP protection, it may be

compared to taxation. It is known fact that rarely anybody says that that

the more taxation there is, the better. However if the more taxation

delivers public services that society values more than the direct and

indirect cost of taxation then, it can be considered as better or even

essential. The taxation is considered to be good if it is optimal.

Similarly is the case with IPR, if it is granted optimally, the result of

such IPR will result in better benefits to the public at large.

2.14 Conclusion

It is essential to give recognition for the rights, where, and when, it is

due. The emergence of knowledge based society demands the issue of

protecting and safeguarding the investment in IP, at the giving or

receiving end, as producers or consumers in the chain, cannot ignore

the intellectual property rights. Thus, protection of IPR has definite


tangible benefits, such as to facilitate of culture of innovations,

recognises the creators and inventors, provides incentive to the

individual for new creations, ensures material reward for intellectual

property, facilitates investment in research, ensures the availability of

the genuine and original products, helps growth of economies,

especially in the era of modern technologies.

The use of intellectual property as a management function has

increased widely during modern times. The impact of globalization and

technological explosion during the 21st century has made IPR an

essential management function in most of the industries. It is

considering these factors; the WIPO, TRIPS agreement and other

international conventions recognized the need for IPR as a management

function.

Chapter III
Components of IPR

3.1 Introduction

The Components of IPR are provided in detail, in Part II of the TRIPS

Agreement, for the application by the signatories to the agreement. The

TRIPS Agreement has been subsequently accepted for the

implementation by WTO, for enforcement by member countries.

Things created, invented, discovered and produced by some human

mind., essentially come across the life of every individual, and every

time, matters such as the design of a house, the different materials and

articles used in construction, the furnishings, sofa, fridge the seating

arrangements, white goods that are being used, television, telephone,

paintings, photographs, wall clock and what not, to name a few. Other

articles of daily use such as pens, books, the newspapers ,tissue papers,

shoes etc ; the things that are worn by him like Jeans T-shirts , trousers,
hats ties , shoes etc ; the items of conveyance like cycles, cars, bikes

etc. There is no end to this list. Almost all the things that are owned

possessed and used by man is the intellectual properties of some one.

Great minds have spent his time, money and energy to invent and

create them. Therefore, these all common things are intellectual

property of someone and necessarily to be protected by law. These

items of intellectual properties can be classified into two main

categories:-

3.2 Industrial Property items

Industrial Property include:

all inventions, trade marks, industrial designs,

and geographic indicators of source. All inventions are

covered under the category of industrial property items.


An invention has been defined as:

a process or a product which provides a new way of

doing some thing or provides a new solution to a

problem.

The protection for inventions are by the component of IPR known as

Patent.

3.2.1 Patent

The provision relating to Patent is contained

in TRIPS Agreement58 and is as follows:

Subject to the provisions of paragraphs 2 and 3,

patents shall be available for any inventions, whether

products or processes, in all fields of technology,


58
Article 27 – TRIPS Agreement
provided that they are new, involve an inventive

step and are capable of industrial application.

Subject to paragraph 4 of Article 65, paragraph 8 of

Article 70 and paragraph 3 of this Article, patents

shall be available and patent rights enjoyable

without discrimination as to the place of invention, the

field of technology and whether products are imported

or locally produced.
A patent is one of those rights which come under

the general heading of intellectual property

relating to inventions - that is, to advances made

in a technical field. A patent for an invention is

granted by the government to the applicant, and

gives him the right for a limited period to stop

others from making, using or selling the invention

without permission The creator of the invention is

entitled to profit from a particular invention or

unique manufacturing process, and must be

registered in each country in which they wish that

invention or process to be protected by law. It is

usual that after registering the patent, a licence is

granted to a third party to exploit the invention

or process in return for the payment of a fee


known as a royalty. The applicant must disclose

how his invention works in sufficient detail. When

a patent is granted, the applicant becomes the

owner of the patent. Like any other form of

property, a patent can be bought, sold, licensed

or mortgaged.

The owner of inventions can get his invention registered as a Patent.

After the patent period the invention is available to all for commercial

exploitation and it becomes a public property.

3.2.2 Trade-mark

The provision re

is as follows:

Any sign or any combination of signs capable of


59
Article 15, TRIPS Agreement
distinguishing the goods or services of one

undertaking from those of other undertakings,

shall be capable of constituting a tidemark.

Such signs. in particular words including personal

names. letters. minerals, figurative elements and

combinations of colours as well as any

combination of such signs. shall be eligible


for registration as trademarks. Where signs are not

inherently capable of distinguishing the

relevant goods or services. Members may make

registrability depend on distinctiveness acquired

through use. Members may require. as a condition

condition of registration, that signs be visually perceptible.


A trade mark can be a letter, number, word,

phrase, sound, smell, shape, logo, picture, aspect

of packaging or any combination of these, which is

used to distinguish goods and services of one

trader from those of another, or is a word, phrase,

slogan, symbol or design which may be used to

identify the source of goods or services. It

provides the holder with the exclusive right to use

the mark for the holder's goods and services and

restricts other persons or businesses from using

the same mark for their own goods and services

as a means of benefiting from the holder's

existing business or goodwill. Trade marks may be

registered under statute or simply exist at

common law
Most of the products we use in daily life are protected by Trade-mark

laws. A Trade- mark can be patented like invention and industrial

designs. The trade mark can be combination of words, letters, numbers,

drawings, images, symbols, and even sounds. The trade marks offer

protection to the owner rights. They also enhance the confidence of the

consumer in the product by subscribing to the quality and genuineness

of the product. Also associated with Trade Marks is the reputation,

quality and also reflect the goodwill of the owner attached to the

particular brand.

3.2.3 Design

The provision relating to Patent is contained in the TRIPS

Agreement60 and is as follows :

Members shall provide for the protection of

60
Article 25 of TRIPS Agreement
independently created industrial designs that are new

or original. Members may provide that designs are

not new or original if they do not significantly differ

from known designs or combinations of known design

features. Members may provide that such protection

shall not extend to designs dictated essentially by

technical or functional considerations


A design is the aesthetic or the ornamental aspect

of an article, like a particular design of an

ornament or a car. A design refers to the

appearance of the whole or a part of a product

resulting from the features of, in particular, the

lines, contours, colours, shape, texture or

materials of the product or its ornamentation

The design can be either two-dimensional like patterns, lines or

colours or they can be three-dimensional, like surface or shape of an

article. The designs bring about an attractiveness and beauty to the

products and have a commercial value. Due to these reasons, design is

protected. One has to register this design against limitation and un-

authorised copying. Architectural works such as designs, drawing and


plans. The furniture is protected under industrial design whereas toys

are protected under industrial design and copy frights.

3.2.4 Geographical indicators of source

The provision relating to Patent is contained in the TRIPS

Agreement61 and is as follows:

Geographical indications are, for the purposes of

this Agreement, indications which identify a good as

originating in the territory of a Member, 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.

61
Article 22 of the TRIPS Agreement
Geographical Indication in relation to goods,

means an indication which identifies such goods

as originating ,or manufactured in the territory of

a country , or a region or locality in that territory,

where a given quality, reputation or other

characteristics of such goods is essentially

attributable to its geographical origin and in case

where such goods are manufactured goods one of

the activities of either the production or of

processing or preparation of the goods concerned

take place in such territory, region or locality, as

the case may be. These may be agricultural

goods, natural goods or manufactured goods.

Some of the products we use have association with geographical

indicators of source include Basmati rice, Whisky of Scotland (Skotch),


Champagne of France and Darjeeling tea. These products which can be

protected by laws and international agreements because they are the

geographical indicators of source.

Traditional craft items like hand- woven articles like carpets, cotton bed

covers can also be registered for protection as an Industrial design. The

protection of indigenous and traditional knowledge, folklore, culture

and innovations62 are the some of the latest entries in the field of

intellectual properties rights.

3.3 Copyright and related rights items.

The second category is Copyrights and related rights items include:

Literary works-such as novels, short stories,

screen play, nonfictions works, news papers, history,

biography, magazine, articles, encyclopaedias;

dictionaries, computer programs, data bases,


62
WIPO – FICCI Seminar on IPR suggestions for protection of traditional arts, New Delhi, 11-13 Nov 2009
and others published works. Artistic works- such as

paintings, drawings, lithograph, etching, photographs,

sculpture, films, videotapes, videodisk etc items,

paintings, architectural design, music, dance, films

and artistic performances novels, story books,

poetry books, drawings, photographs.

Musical works-such as songs, lyrics, recorded on a

compact disk, broadcasted on radio or performed in

public are covered by copy rights.

Copyrights provide exclusive right to the creator to use or authorise

others to use their works. The reproduction in various forms, copying,

printing, recording, public performance or adaptation are prohibited.

This right provides economic right to the creator that is the financial

benefit for a lasting period after the creator's death.


3.3.1 Copyright

The provision relating to Copyright is contained the TRIPS

Agreement63 and is as follows:

(a) Members shall comply with Articles 1 through 21

of the Berne Convention (1971) and the Appendix

thereto. However, Members shall not have rights

or obligations under this Agreement in respect

of the rights conferred under Article 6 is

of that Convention or of the rights derived therefrom.

(b) Copyright protection shall extend to expressions and not

to ideas, procedures, methods of operation or

mathematical concepts as such.

63
Article 9 of the TRIPS Agreement
This is an exclusive legal right granted by a

government to an author, editor, composer,

playwright, publisher, or distributor to publish,

produce, sell, or distribute a literary, musical,

dramatic, or artistic work, within certain

limitations and includes the right to prepare

derivative works, to reproduce a work or portions

of it, and to display or perform a work in public.

This is a collection of rights relating to the

reproduction, distribution, performance and so

forth of original literary, musical, dramatic or

artistic works, films, sound recordings, broadcasts

and other matter. These rights can be transferred

or sold to others. The work is protected in the

specific form in which it was created. It is very


clearly mentioned in Article 9.2, of the TRIPS

Agreement that it is not the idea, theme, or

concept expressed in the work, (which other

writers are free to interpret in a different way) is

protected. A work never copyrighted or no longer

protected by copyright goes into the public

domain and is the right of mankind.

The copyright owner has the exclusive right to do,

or allow others to do, the acts set out in the

legislation. There is no protection of Copyright

under the common law.

3.9 Computer Programmes and Compilation of Data

Since the study is focussed on the IPR in relation to the software sector,

an attempt is being made to further elaborate the IPR under this


category. The provision relating to Computer Programmes and

Compilation of Data, is provided in Article 10 of the TRIPS agreement

The development of commercial software is an expensive proposition

so finding ways to fund this is a critical task for society. Both

producers and consumers of software, face the issue how to ensure that

this innovation can be assured. A business model is a must for a

company producing innovative software. Companies need to ensure

that software production can generate sufficient revenues to pay top

quality engineers and to continue funding development and research in

new software. Without the continuous research and development in the

field software becomes junk and obsolete and not catering to the

requirements of the times. An example is the case of MS DOS, the

operating system introduced by Microsoft. Through continuous

development, up gradation and changes brought in Windows in

different versions have made the DOS-OS almost extinct. This leads us
to think about the enormous costs incurred by Microsoft in bringing

this newest OS and to continue to upgrade each version into a more

advanced version, so that the features are more and more user-friendly

and according to the requirements of the times.

Contrasting with this argument is the approach of open source

software. The model of cooperative volunteer work can and has

provided useful software, using an open source development model.

But in practice, most software is produced in commercial environments

by engineers who expect to make their living from their work. Even in

the case of well known large scale open source projects, such as the

Linux, Eclipse, and the GNU project, most major work is done by

companies, such as IBM, Red Hat, and AdaCore, that pay people to

work on these projects.

3.4 Difference between software and other patents


It is necessary to analyse the difference between the copyright

protection enjoyed by the software programmes and other products in

as much as it affects the consumer.

If a consumer buys a shoe, from a reputed manufacturer, say Bata,

after purchase, the consumer is free to fully enjoy them without any

restrictions. He can use the shoe as he likes, an lend the same, sell

them, and modify its shape, and can create a new design out of it. In

short you are free to do anything with that once you have purchased the

same. Here the shoe manufacturer is only protected against and is

entitled to prevent unauthorized copying by other manufacturers, This

does not in any way restrict the right of consumers. By doing so the

consumer may sometimes loses the guarantee but definitely he doesn’t

have to face any legal action on account of his meddling with the

product as such. The consumer can even resell the modified equipment;

an example of this is that many distributors of DVD players, who buy


standard DVD players, and modify them to region and resell them. The

company, from which the person purchased the product protects his

patent, but does not affect the rights of a consumer not directly affect

you as a consumer.

The situation is totally entirely different in the matter of software. . The

consumer, who buys software, will have to agree to a license whose

whole purpose is to restrict his rights as a consumer to make full use of

the software. Usually, license of the software restricts the use of the

same in a single machine or to the number of machines for which it is

licensed. The restrictions are such as to use it to a single machine,

preventing to transfer it to another person, preventing the buyer from

modifying or altering it to his or other persons specific use, or by the

use of license keys or similar devices, and in the worst case when

protection technologies fail, preventing you from using the software


entirely. These kinds of restrictions are specific to the software

industry and not seen in other products or devices.

Here we have to make one more distinction. The product makers are

concerned with only one aspect, ie to provide the consumer with the

best product and to derive benefits for his effort in innovating and

designing. Unlike this, in the case of the software, the manufacturer is

more concerned with the use of the software by the consumer, because

of the nature of the product. A software if left for unrestricted use, is

easy to copy and be used by several persons in several places, or in

other words, a shoe cannot be replicated and made without incurring

further cost, so a consumer will not be in a position to do so, since to

derive commercial benefit, he will have to make huge investments in

machinery.
Unlike this, the software manufacturer has two important matters to

consider.

1. To provide the consumer with the best product, enabling him to

enjoy that to the maximum,

2. The manufacturer of proprietary software is also concerned about


restricting the consumer form mass copying and using in
different places.

If the right is not restricted, then the software maker is finished,

because the product can be easily copied and used by other consumers

free of cost or at negligible cost and the manufacturer will be at great

losses then. They are concerned with protecting their investment, which

is very high for the development of a single software. This leads them

to introduce highly restrictive licenses. As a general rule, they offer to

the consumer what they want, and attach to the software, licenses that

are inconvenient and highly restrictive. This restrictive licensing has


forced people to think of alternative systems called open source

software, which is expected to be totally free and with the source code

being available freely, new developers can improvise upon the product

and make them available free further. The question is whether this is

good for software industry as such or is detrimental to the higher scale

development? While considering the setting up of a management

function for IPR in the software industry, it is very vital to consider all

the above factors and the corporate philosophy in IPR protection should

be a balance between the two.

3.5 Computer Programs and Compilations of Data: 64

Computer programs are subjected to Copyright, under the Act and

following are some of the relevant provisions:-

1. Computer programs, whether in source or object code, shall be

Protected as literary works under the Berne Convention (1971).

64
Article 10 of TRIPS Agreement
2. Compilations of data or other material, whether in machine

readable or other form, which by reason of the selection or

arrangement of their contents constitutes intellectual creations,

shall be protected as such. Such protection, which shall not

extend to the data or material itself, shall be without prejudice to

any copyright subsisting in the data or material itself.

3.6 Rental Rights65

In respect of at least computer programs and cinematographic works, a

Member shall provide authors and their successors in title the right to

authorize or to prohibit the commercial rental to the public of originals

or copies of their copyright works.

65
Article 11 of TRIPS Agreement
TRIPS is the first international Treaty to explicitly include computer

programs within the illustrative list of copyrighted works. Three

different forms of protection for software: copyright, patent and trade

secret regime. A specific provision in Article 10 requires member states

to protect software, whether in source or object code, as literary works

under the Berne Convention. However, the member countries have a

right to provide more extensive protection of intellectual property

rights within their national legal systems.

3.7 Undisclosed Information66

1. In the course of ensuring effective protection against unfair

competition as provided in Article 10 of the Paris Convention

(1967):

Members shall protect undisclosed information

in accordance with paragraph 2 of the Agreement

66
Article 39 of TRIPS Agreement
and data submitted to governments or

governmental agencies in accordance with paragraph 3.

Article 39 of TRIPS provides for an alternative to copyright protection.

It protects undisclosed information and offers a trade secret regime for

software protection. Trade secret regime is applicable which may

include software. A particular software may contain lot of valuable and

confidential information about a company which forms its trade secret.

Civil and criminal actions are provided for in many legislation against

the unauthorized disclosure or use of confidential information. In this

case, there is no exclusive right, but an indirect type of protection based

on a factual characteristic of the information (its secret nature) and its

business value. Unlike patents, trade secrets are protected as long as the

information is kept secret.

There is no negative covenant in TRIPS, to preclude additional forms


of protection for computer programs and a member can offer patent,

copyright and trade secret protection for computer programs. The

software developer is free to choose any form of protection which is

most desirable to him. Usually, software companies, protect the source

code is protected under the trade secret regime and the object code is

protected as a copyright.

Wholesale copying of computer programs is prohibited under TRIPS.

Copying with modifications here and there is permitted and copying

amounting to fair use is also permitted under the copyright laws of

many countries. Reverse engineering is one practice which is very

common in software field. There has been a debate as to whether

reverse engineering amounts to infringement. TRIPS allow reverse

engineering of computer programs by honest avenues. Consequently,

the practice of re-implementing functional components of a protected

program in clones is not prohibited. It is pertinent to mention here that

programs that are independently coded and deliver the same functional
performance or behaviour as the originator’s own software are not said

to infringe the latter’s rights in his software as this will amount to fair

use. This encourages competition and innovation by firms in all

countries.

3.8 Indian Scenario

The protection of intellectual property was of little interest to Indian

software companies in the past. Partly, this lack of interest is explained

by lack of new knowledge content of Indian software services – there

was not much intellectual property to protect. Indian companies did not

own the customized intellectual property they might have created since

their work product fell under work for hire standards or ownership was

explicitly transferred to the hiring company. But even if Indian


companies created software services that had added knowledge value.

But they did not seriously take steps to protect it.

3.9 Changing Indian Software Company Strategies

As some of the bases for competitive advantage in Indian software,

such as lower cost, higher skills, speedier execution, knowledge of

English language and government support for industry other countries

such as Philippines, Israel, Ireland, Russia, and China are becoming

stronger threats for Indian software. Among this, China is considered to

be the most effective competitor. Indian software companies need to

change their business strategies to retain export competitiveness. It is

necessary for the software companies to move up in the value chain and

start creating higher-end software. And many such companies are

changing their business strategies by changing their business segments.

Following are some of such strategies:-


a) They are trying to move away from lower end

programming onsite.

b) They are trying to move towards higher value-added

and more

sophisticated and complex offshore software

services such as systems

integration and consulting.

c) They are also trying to develop packaged software

products.

All these strategic changes require new and different capabilities

compared to lower-end software services. Programming and general

management skills of coordination and control, as well as technical

skills, greater financial investments, for bringing out packaged products

investment in superior technology, which requires advanced R&D,


building of brands are some of the changes that are required to be

implemented in Indian software organisation.

This change in the situation will force eth Indian software companies to

have

relook at their IPR strategies.

The intended shift by Indian software companies toward higher-level

software services and packaged software products, requires the

following :-

a. to create new intellectual property of higher value than pre-

existing software services or products.

b. To increase the innovativeness and the number of times that

components of it can be re-used for the same or different

customers.
More innovative software are likely to be more attractive to the

customers. This will reduce costs of existing activities and enable new

activities to be undertaken, and accordingly to command a higher price,

leading to higher prices and margins for the Indian software. There will

be lesser competitors as the innovativeness increases. Once developed,

it can have more re-uses and is likely to be more valuable to the

software supplier because of economies of scope – initial development

costs need not be incurred again for additional customers.

While moving towards this new business strategy, one important

question that arises with respect to IPR is what will be the value of the

software to vendor? How much investment in R&D by the software

vendor will be required to equip the potentially re-usable tools for other

applications? Accordingly, what will be the price for transfer of


intellectual property from the customized software client to the

software services supplier?

3.10 Indian Legislation for software and IPR

We have in India, one of the most modern copyright protection laws in the
world. During 1999 an amendment was made to the Copyright Act of 1957,
which was a major development in the area of copyright. By this amendment,
the Indian Copyright law has been made fully compatible with the provisions
of the TRIPS. For the first time in India, the Copyright Law clearly explained:

The rights of a copyright holder

Position on rentals of software

The rights of the user to make backup copies

And most importantly the amendments imposed heavy punishment and fines
for infringement of copyright of software.
3.11 Salient Features of Copyright Act relating to Computer program

The Act defines computer67 and computer programs68

Computer includes any electronic or similar device having information


processing capabilities;

Computer programs means a set of instructions expressed in words, codes,


schemes or in any other form, including a machine readable medium, capable
of causing a computer to perform a particular task or achieve a particular
result;

Literary work69 is defined as that which includes computer programs, tables


and compilations including computer databases.

These additions in the Act have widened the scope of protection under the
Copyright Act, 1957. Copyright, in relation to a computer program means the
exclusive right to do or authorize to do any of the following acts:-

(1) To reproduce the work in any material form including the storing

of it in any medium by electronic means;

(2) To issue copies of the work to the public not being copies

67
Section 2(ffb) of The Copyright Act, 1957
68
Section 2(ffc) of The Copyright Act, 1957
69
Section 2(O) of The Copyright Act, 1957
already in circulation;

(3) To perform the work in public, or communicate it to the public;

(4) To make any cinematographic film or sound recording in respect

of the work

(5) To make any translation of the work;

(6) To make any adaptation of the work;

(7) To do, in relation to a translation or an adaptation of the work

any of the acts specified in relation to the work in the above;

(8) To sell or give on commercial rental or offer for sale or for

commercial rental any copy of the computer program. However, commercial


renting does not apply to computer programs where the program itself is not
the essential object of the rental.

The provisions contained in the WCT are well reflected here, though India is
not a signatory to the WCT.
3.12 Requirements for Protection

Following are the requirements for the protection of the softwares

under Copyright Act:-

3.12.1Criteria of Originality

The fundamental protection of literary work in India is that the work must not
be copied from another work, but must originate from the author. Author, in
relation to literary work which is computer generated, is the person who
causes the work to be created. Copyright will subsist in a computer program,
if sufficient effort or skill has been expended to give it a new and original
character. However, a computer program, which does no more than produce
the multiplication tables, or the alphabet, cannot lay claim to copyright
protection. That is because the amount of skill or effort entailed in such an
exercise is too trivial to render the resultant work somtheing which is new and
of original character.

3.12.2First Publication

A computer program also has to conform to the requirement of first


publication as stipulated in the Act. The work must be first published in India
and if it is published outside India, then the author should be a citizen of India
at the time of publication. As regards unpublished work, the author should be
a citizen of India or domiciled in India at the date of making of the work.
However, the government of India passed the International Copyright Order,
1958 whereby any work first published in any country which is a member of
the Berne Convention or the UCC will be accorded the same treatment as if it
was first published in India. It is pertinent to mention here that registration of
copyright is not compulsory in India.

3.12.3 Acts not Amounting to Infringement

In compliance with the provisions of the TRIPS, the Act has clarified that the
following acts do not constitute infringement of copyright in software:

(a) Making copies or adaptation of a computer program by a lawful


possessor of a copy of such computer program from such copy in order
to utilize the program for the purpose for which it was supplied or to
make back-up copies purely as a temporary protection against loss,
destruction or damage in order only to utilize the computer program
for the purpose for which it was supplied.
(b) Doing any act necessary to obtain information essential for
operating inter-operability of an independently created
computer program with other programs by a lawful possessor of
a computer program provided that such information is not
otherwise readily available.

(c) Observation, study or test of functioning of the computer


program in order to determine the ideas and principles which
underline any elements of the program while performing such acts
necessary for which the computer program was supplied.

(d) Making copies or adaptation of the computer program from a


personally legally obtained copy for non-commercial and personal use.
Since most Softwares are easy to duplicate and the copy is usually as good as
original, the provisions of the Copyright Act is highly useful for software
industries. According to this Act, the infringer can be tried under both civil
and criminal law. India is considered to be a country where there is maximum
piracy of software, since the concept of paying for services is not very
much accepted by the people.

According to Section 1670 :

it is illegal to make or distribute copies of copyrighted

software without proper or specific authorisation.

The only exception is provided by section 52 of the Act71, which allows a


backup copy purely as a temporary protection against loss, distribution or
damage to the original copy. The 1994 amendment to the Copyright Act also
prohibits the sale or hiring, or any offer for sale or hire of any copy of the
computer program without specific authorisation of the Copyright holder.

A civil and criminal action may be instituted for injunction, actual damages
(including infringer's profits) or statutory damages per infringement etc. With
these amendments, even the criminal penalties have substantially increased.
Section 63 B, stipulates a minimum imprisonment of 7 days which can be
extended up to 3 years and a fine ranging from Rs. 50,000 to 2,00,000.

The executive authorities have been very actively participating in protecting


of the rights of the copyright holder. Today, NASSCOM officers and

70
Section 16 of Copyright Act 1957:- No Copyright except as provided in this Act.
71
Section 52 of Copyright Act, 1957:- Certain Acts not to be infringement of Copyright
government agencies are committed to enforce copyright laws and to
eradicate the menace of software piracy.

The Anti-Piracy raids facilitated by NASSCOM and Business Software


Alliance (BSA) over the last few years in metros as well as smaller cities have
already had salutary effect. The law enforcing authorities too supported these
raids actively.

The term of copyright in published literary work published within the lifetime
of the author is 60 years from the beginning of the calendar year following the
year in which the author dies. In case of anonymous or pseudonymous works,
the duration is 60 years from the calendar year following the year in which
the work is first published. Thus, the minimum term of 25 years stipulated in
the Berne Convention is not applicable in India.

3.13 Patents Protection for Softwares


The Patents Act, 1970 states that a computer program per se other than its
technical application to industry or a combination with hardware is not
patentable Thus, software can be registered as a patent only if it is in
combination with hardware and not otherwise.

3.14 Information Technology Act and IT Sector

The Information Technology Act provides the legal framework for


transactions carried out in electronic medium, for e-Governance and for
computer related offences. One important and relevant feature of the IT Act is
that it is the first Act that defines Computer data base and has provisions
relating to data protection. The Act is very wide and covers instances of
cracking the computer codes, computer, digital copying, data theft and extent
of Internet Service provider’s liability in case of copyright infringement.

Conclusion

The entire gamut of persons such as software developers, retail store

owners and software users are affected by pirated software. This calls for its
stronger legal protection. The primary protection of software in India is found
in the Copyrights Act, 1957. There are very few cases pertaining to protection
of software in India, most of them with Microsoft Corporation as the
aggrieved party. In Microsoft Corporation vs. Ms. K. Mayuri and Ors72, the
wrongdoer who were involved in piracy activities by hard-disk loading, were
awarded punitive and exemplary damages by the court. With the growing
concept of software technology parks and the importance of software in day
to day business activities, more and more companies need protection under
the legal regime to obviate software piracy.

The availability of injunctive relief and criminal remedies are particularly


vital to the software industry. Software developers often rely on civil ex parte
injunctive procedures to identify infringers. Civil procedures in India is time-
consuming, expensive, and is not effective Hence, software developers can
indulge in criminal prosecutions, to curtail the piracy of their products.
72
35 PTC(2007) Delhi 415
CHAPTER – IV

Some Judicial Decisions on IPR

JUDICIAL DECISIONS

4.1 Introduction:

This chapter attempts to analyse the judicial view of the courts regarding the
intellectual property rights. Since the focus of the study is on the IPR in
software industries, efforts are made to analyse the land mark decisions of
various courts relating to copyright law. The important observation of the
courtS gives the trend of the judicial approach in dealing with IPR matters.
The importance of IPR has grown considerably during modern times due to
globalization and opening of the economy. Much of the cases relating to this
is pending before the Apex court in India. However, an attempt is made in
this chapter to analyse to a reasonable extent of judicial view relating to copy
right laws in India.

4.2 Judicial analysis

Most of the cases relating to copyright are connected with violation of


copyright law. The concept whtheer a special leave petition regarding
copyright matters, relating to section 5173 of the copyright Act, 1957 is
analysed in a leading decision of R.G.Anand Vs. M/S.Delux Films and others.
74
The significant ratio brought out by the supreme court, in this case include
the following :

There can be no copy right in an idea, subject-matter, themes, plots or


historical or legendary facts and violation of the copyright in such cases is
confined to the form, manner and arrangement and expression of the idea by
the author of the copyrighted work.

Where the same idea is being developed in a different manner, it is manifest


that the source being common, similarities are bound to occur. In such a case
73
Sec.51 - When copyright infringed
74
AIR (1978) SC 1613
the Courts should determine whtheer or not the similarities are on
fundamental or substantial aspects of the mode of expression adopted in the
copyrighted work. If the defendant’s work is nothing but a literal limitation of
the copyrighted work with some variations here and there it would amount to
violation of the copyright. In other words, in order to be actionable the copy
must be a substantial and material one which at once leads to the conclusion
that the defendant is guilty of an act of piracy.

One of the surest and the safest test to determine whtheer or not there has
been a violation of copyright is to see if the reader, spectator or the viewer
after having read or seen both the works is clearly of the opinion and gets an
unmistakable impression that the subsequent work appears to be a copy of the
original.

Where the theme is the same but is presented and treated differently so that
the subsequent work becomes a completely new work, no question of
violation of copyright arises.

Where however apart from the similarities appearing in the two works there
are also material and broad dissimilarities which negative the intention to
copy the original and the coincidences appearing in the two works are clearly
incidental no infringement of the copyright comes into existence.

As a violation of copyright amounts to an act of piracy it must be proved by


clear and cogent evidence.
Where, however, the question is of the violation of the copyright of stage play
by a film producer or a Director the task of the plaintiff becomes more
difficult to prove piracy. It is a manifest that unlike a stage play a film has a
much broader perspective, wider field and a bigger background where the
defendants can by introducing a variety of incidents give a colour and
complexion different from the manner in which the copyrighted work has
expressed the idea. Even so, if the viewer after seeing the film gets a totality
of impression that the film is by and large a copy of the original play,
violation of the copyright may be said to be proved.

The above case was decided by S.Murtaza Fazal Ali, Jaswant

Singh & R.S.Pathak, JJ.

The above case related to a case filed by Author of the play Hum Hindustani,
who described the story to a film producer, who used the story in his film.
The question whtheer it amounted to a violation of copyright, was considered
by the court, and hence the above observations.

The court considered and relied on the observations of British Copyright


Act.75

Copyright means the sole right to produce or reproduce work or substantial


part there of in any material form whatsoever, to perform, or in the case of
lecture to deliver, the work or any substantial part thereof in public, if the
75
Sec. 1(2)(d) provides for definition of Copyright.
work is unpublished, to publish the work or any substantial part thereof, and
shall include the sole rights.

The above section protects only original works.76 It provides as follows...

It is not requisite that the work should be the expression of the original or
inventive thought for copyright and are not concerned with the originality of
ideas, but expressions of thought, and in the case of a literary work, with a
expression of thought in print or writing.

In the case State of Andhra Pradesh Vs. Nagoti Venkataramana 77,


K.Ramasamy & G.B.Pattanaik, JJ., who decided the case, Judges observed
that :

It is true that there is no specific charge under section 52-A. The charge was
under section 51 read with section 63 of the Act. In view of the above finding
and in view of the findings of the courts below that the respondent was
exhibiting the cinematograph films in his Video City for hire or for sale of the
cassettes to the public which do not contain the particulars envisaged under
section 52-A of the Act, the infringement falls under section 51(b)(ii) or
section 52-A of the Act. The former is punishable under section 63 and the
latter is punishable under section 68-A of the Act. In view of the above
76
Halsbury’s Laws of England by Lord Hailsham, Foruth Edition
77
SCC (1996)(8) 282
finding s of the courts below the offences under which the case falls. It would,
therefore, be unnecessary for the prosecution to track on the trace out the
owner of the copyright to come and adduce evidence of infringement of
copyright. The absence thereof does not constitute lac of essential element of
infringement of copyright. If the particulars on video films etc. as mandated
under section 52-A do not find place it would be infringement of copyright. In
our view, on the facts in this case, the offence would fall under section 68-A
of the Act. Accordingly, the conviction of the respondent is altered to one
under section 68-A. There would be no prejudice to the respondent. In view
of the facts and circumstances, we are of the opinion tat instead of imposing a
sentence of imprisonment, sentence of fine of a sum of Rs.10,000 would meet
the ends of justice.

Thus, in the above case the decision was that in the absence of

particulars required under Section: 52-A to be mentioned in the

Video cassettes / films, it would be considered as a case of

infringement and would constitutes an offence for which

prosecution will lie.

In Power Control Appliance and others Vs. Sumeet Machines Pvt. Ltd. With
Sumeet Research and Holdings Vs. Sumeet Machines & others78,
M.N.Venkatachaliah C.J and S. Mohan JJ, held that….

78
SCC (1994) (2) 448
The plea of quasi-partnership was never urged in the pleading. As regards
copyright there is no pleas of assignment. The High Court had failed to note
the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act
for securing the concurrent registration is not a valid defence for the
infringement of copyright. For all these reasons we are unable to support the
judgements of the High Court under appeal. We reiterate that on the material
on record as is available at present the denial of injunction, once the
infringement of trade mark, copyright and design is established, cannot be
supported. Pending suit, there will be an injunction in favour of the appellants
(the plaintiffs). All the civil appeals will stand allowed. No cost.

In the land mark decision of Indian Performing Right Society Ltd. Vs. Eastern
India Motion Picture Association and others 79, the concept of performers
right was recognized by the Judiciary for the first time. The learned Justice
V.R.Krishna Iyer, while deciding the above case held that:

That an existing and future right of music composer and lyricist in their
respective ‘works’ as defined in the Act is capable of assignment subject to
the conditions mentioned in Section 18 of the Act, as also in Section 19 of the
Act which requires an assignment to be in writing, signed by the assignor or
by his duly authorized agent.

In Gramaphone Co. of India Ltd, Vs. Birendra Bahadur Pande and

79
AIR (1977) SC 1443
others 80, Justices O.Chinnappa Reddy, E.S. Venkataramiah &

R.B.Misra. held that :

Agreement with the performing artists to whom royalties

are paid in respect of consignment of prerecorded

cassettes, which are printed works are considered as

import Under Article 136 of the Constitution of India. 81

In a similar case82, Lord Denning observed that:

It is quite true that whatever has received the common consent of civilized
nations must have received the consent of our country and that to which we
have consented along with other nations in general may properly be called
international law, and as such will be acknowledged and applied by municipal
tribunals when legitimate occasion arises for those tribunals to decide
questions to which doctrines of internationals law may be relevant.

In Chhidda Singh Vs. Deputy Director of Consolidation and others 83, Justices
Dr.A.S.Anand and K.Venkataswami, reviewed the petition and held that:
80
AIR (1984) SC 667
81
A special Leave to appeal by the Supreme Court.
82
West Rand Central Gold Mining Co. Vs. The King (1905) (2) KB 391
83
Arb. LR 1 (1998) 532
We view this with concern and deprecate the casual and irresponsible manner
of filing such review petitions which unnecessarily waste the time of the
Court. No existence of an error, much less error apparent on the face of the
order, while dismissing the S.L.P. has even been alleged, let alone
demonstrated in the review petition. The filing of the review petition is an
abuse of the process of this Court. The review petition is, therefore, dismissed
with Rs.5000 as costs, which amount shall be recovered under the Rules.

In State of Tamilnadu Vs. Thiru Murugan Brothers84, Ranganath Misra &


G.L.Oza, JJ observed that:

Another aspect which though not raised cannot be overlooked. Since a


revision lay to the High Court against the Tribunal’s decision and all legal
questions were tenable, we are prepared to entertain the argument in this
appeal before us raising the other question on the facts found. The respondent
was a dealer in publicity material, the original order of assessment clearly
shows that. In the revised order, the Assessing Officer has described the
respondent’s business to be film production, obviously to suit his finding that
he had during the year sold an incomplete film to an outsider. The record
clearly shows that this was the single transaction of the type. The assessee’s
business does not appear to be film production. Atleast that is not the business
for which he has been registered as dealer. The definition of “business”
during the year of assessment was not of the extended type. There is no
finding that the sale was in course of business with profit motive. On the other

84
AIR (1988) SC 336
hand, the agreement of sale which is on record shows the adverse
circumstances in which respondent was obliged to part with the incomplete
film. In such circumstances, it is difficult to hold that the sale of the film was
a part of the business of the respondent and the sale in respect of this solitary
transaction would be eligible to tax.

In a similar case85, the Madras High Court to view, which is similar to the
decision in Thirumurugan’s case.

In Pizza Hut INC. Vs. Pizza Hut (India) Pvt. Ltd86, Justices

S.C. Agrawal & G.T. Nanavati held that:

Transfer petition in respect of case filed in M.P.High Court

was allowed as per the merits of the case.

In Grama phone Co. of India Ltd. Vs.Mars Recording Pvt. Ltd & Another87,
S. Rajendra Babu & Shivaraj V. Patil JJ. Observed :

85
Meiyappen Vs. Deputy Commr. (1967) 20 STC 115
86
SCC (2) (1997) 2
87
KLT (1998) SC, 282
To attract the provisions of Section 52(1)(j) of the Act or to fall outside the
scope of Section 2(m) of the Act it is necessary to plead and establish these
aspects of the case as contended for respondent No.1. Before we examine the
tenability of the contentions raised, we think it necessary that the parties shall
lay factual foundation in the pleadings. If , as contended for respondent No.1,
these aspects bring out the true controversy between the parties and there are
no pleadings to that effect in either form or content, to proceed to grant any
temporary injunction or to decide the matter will be hazardous. Therefore, we
set aside the order made by the High Court affirming the order of the trial
Court granting temporary injunction. It is open to the parties to raise
appropriate pleadings by amendments or otherwise. We also make it clear that
it is open to the parties to seek appropriate interim orders after amendment of
pleadings.

In Vicco Laboratories and Another Vs. Art Commercial Advertising Pvt. Ltd
and others88, S.Rajendra Babu & Y.K. Sabharwal JJ. held that:

So far as the contentions raised on the basis of Section 17 of the Copyright


Act are concerned, it is clear that the petitioners were not able to establish that
the respondent Nos. 1 to 4 produced the said serial

(1) as the agents of the petitioners;

(2) in the course of their employment with the

petitioners :

(3) for valuable consideration paid by the petitioners to


88
SCC (2001)2, 180
them; and

(4) at the instance of the petitioners. When these factors

had not been established and the suit is itself not dependent on the
interpretation of Section 17 of the Copyright Act, pleadings and issues raised
do not attract the same. On appreciation of evidence, the Courts below have
come to the conclusion that the respondents did not make the said serial for
valuable consideration at the instance of the petitioners and in view of the
findings of fact, the claim of copyright or ownership in respect of the serial
under section 17(b) and (c) would not arise at all.

In South Indian Film Chamber of Commerce, Madras and others Vs.


Entertaining Enterprises, Madras and others89, Justices N. Venkatachala &
K.S. Paripoornan held that:

The High Court in taking into consideration the cognizable nature of the
offence and a severe penalty imposable for the offence of not keeping a letter
of consent obtained from the first owner to the copyright of the film or
assignee thereof, for reaching the conclusion that the State Legislature has no
legislative competence to legislate on the subject of ‘cinema’ has taken into
consideration matters which were not germane to the consideration of the
question of legislative competence of a Legislature on a subject. It is,
however, difficult to think that when a regulatory legislative measure is
enacted by a Legislature on a subject within its competence requiring a person
to obtain a licence for doing certain business concerned with the subject, and

89
SCC, 2 (1995), 462
imposes certain restrictions upon such person to make him conduct the
business concerned for which he is granted the licence, lawfully, it could be
regarded as a legislative provision which is not ancillary to the main subject
of the regulation, when once the subject of regulation is found within the pith
and substance of the concerned Legislature’s competence.

4.3 Judicial Analysis of Software Licensing & Data Protection

The use of Information Technology has grown an incredible rate. In this space
of a few years, the computers has changed from being somtheing of rarity to a
common office equipment in Softwares and other Industries. The Growth of
Computer Hardware has stimulated and equally impressive developments in
the variety and sophistication of Computer Softwares including Computer
Programs, Files and Data bases.

An Important Practical area of Applications relating to Software is Software


Licensing. This is done by Software Licencing Agreements executed by the
Companies with their clients. It is essential that the Licence Agreements
provides for a proper balance between protecting the owners rights and giving
the client Software that performs well with adequate recourse. It must be
noted that these Licensing agreements has critical role in Software Industries.
In St.Albans City & District Council Vs. International Computers Ltd 90, it
was seen that a simple mistake in Poll Tax Softwares resulted in local
authority receiving 1.3 million pounds, less than it should have done in one
year.

In Salvage Association Vs. CAP Financial Services Ltd91, it was seen that
Software that has been specially written for a client after feasibility study
proved to be unusable leading to an award of £ 663,000 in damages.

In G.A. Cramp & Sons Ltd Vs. Frank Smythson Ltd 92, provided for a case in
which copyright is denied since there is no skill, effort or Judgement on the
part of the Software Developer.

In Exxon Corp Vs. Exxon Insurance Consultants International Ltd93, it was


provided that beauty is social necessity and not a luxury and hence there is a
de minimis threshold to be attained in a Software Programme.

90
FSR (1997) 251
91
FSR (1995) 654
92
AC (1944) 329
93
ALL ER (1981) (3), 241
In R Vs. Gold 94, it was held that some permanent form of storage can have
copy right irrespective of a fact whtheer they apply password used to gain
access to computer or not. It should be noted that a transient copy of a work
may be an infringing copy notwithstanding its temporary nature.

In Ibcos Computer Ltd Vs. Barclays Mercantile Highland Finance Ltd 95


provided that Copyright can subsists in a compilation as a form of literary
work. This fact is very important as it is increasingly rare for a software
applications to contain just one single program. Several programs, Data Files
and Databases will be linked togtheer and as such there can be an additional
copyright for the compilation of the programs. In this case Justice Jacaob J.
held that:

Copying was a question of a fact and could be proved by showing that


somtheing trivial or unimportant had been copied. There were a number of
spelling mistakes common to both the plaintiff’s and defendant’s programs
and, in the absence of a plausible explanation, this was sufficient to prove
disk to disk copying. Both sets of programs also contained the same
redundant code. He decided that 28 out of 55 of the defendant’s programs
infringed the plaintiff’s copyrights. He also found that a later version of the
defendant’s programs infringed the plaintiff’s copyrights. It was also held that
the defendant was guilty of a breach of confidence.

94
2 WLR (1988) 984
95
FSR (1994) 275
In Noah Vs. Shuba 96, it is provided that for the protection of software identity
of the author of the work is significant. It is the life of the author upon which
copyright is determined.

In Saphena Computing Vs. Allied Collection Agencies97, it is provided that


even an employee who creates a software program is entitled for copyright
protection. In such cases, copyright will be approved based on the efforts put
in by the author of the software.

In Ladbroke (Football) Ltd. Vs. William Hill (Football) Ltd98, Lord Pearce
provided that:

For computer programs, the most important acts are those of copying and
making an adaptation and these will be dealt with comprehensively below.
Issuing copies to the public and rental may also be relevant. However, the
right to issue copies to the public only relates to the first issue of the relevant
copy and will not apply if the copy has already been issued by the copyright
owner or with his consent. For example, a person who buys a copy a sound
recording may resell that copy. The copyright owner’s rights are said to be
exhausted by the first sale. The same will apply to a computer program
providing the licence agreement does not prohibit the assignment of the
licence and transfer of the copy of the program and other items supplied.

96
FSR (1991) 14
97
FSR (1995) 616
98
1 All ER (1964) 465
However, a person acquiring a copy of a program, sound recording or film
may not rent it or lend it without the copyright owner’s permission.

In Bookmakers Afternoon Greyhound Services Ltd. Vs. Wilf Gilbert


(Staffordshire) Ltd99, it was held that:

Displaying a work on a display monitor was a reproduction in a material form


for the purposes of the Copyright Act, 1956. The 1988 Act should not be any
difference in this respect and, in any case, under the 1988 Act, loading a
program into a computer would be making a transient copy which itself
infringes.

In Amp Inc Vs. Utilux Pvt. Ltd 100, it was held that :

Recompilation as an exception to infringement, cannot be taken away by any


terms or conditions in an agreement and any such term, in so far as it purports
to prohibit or restrict the exercise of this act, is void and unenforceable
provided that the agreement was made on or after 01 January 1993. There
may be some question about what is meant by “necessary”.

99
FSR (1994) 723
100
RPC (1972) 103
In Saphena Computing Ltd Vs. Allied Collection Agencies Ltd101, the Court
of Appeal had an opportunity to consider the position in common law with
respect to modification and error correction of licensed computer programs.
In that case, the licensee had been given a copy of the source code by the
licensor and there was consequently and implied undertaking that the licensee
could use it for error correction. He cannot use such source code for any other
purpose or modification or improvements of the program.

In British Leyland Motor Corp Ltd. Vs. Armstron Patents Co. Ltd102, the
House of Lords applied the principle of services non-derogation principles.
The principles of non-derogation could be applicable in such a manner that
the client can maintain the program himself and corrupt errors. For other
services, this source code should not be used.

In Canon Kabushiki Kaisha Vs. Green Cartridge Co (Hongkong) Ltd 103, the
Judicial Committee of the Privy Council, took a view that the tone of
cartridges and photo copying machines and Laser Printers cannot be replaced
without appropriate IPR authority. It said unlike in the case with replacement
of exhaust pipes, for motor cars, persons, buying photocopies and laser
printers would take into account the cost of replacement of cartridges over the
life of machines. Hence the committee decided that such replacement violated
the IPR laws.

101
FSR (1995) 616
102
2WLR (1986) 400
103
FSR (1997) 817
In RTE & ITP Vs. Commission104, the European Court of Justice held that
Failure to License Advance information relating to Forthcoming Television
Programmes to publishers of magazines containing information and Time
Tables of Programmes is an abuse under copyright Act.

In Hanfstaengl Vs. Empire Palace105, a German citizen sued for an alleged


infringement of his Artistic Copyright. It was held by the Court of Appeal that
there is no infringement of Copyright, since the Copyright Law was not
inexistence and no international conventions also supported the violations of
Copyright. Therefore, to constitute infringement there should be either a law
or some Convention relating to the above matter.

In Express Newspaper Inc. Vs. Liverpool Daily Post & Echo Plc106, the
defendant claimed that letters produced by a programmed computer for a
newspaper competition could not be protected by Copyrights because the
grids have no human character.

In Macmillan & Co. Ltd Vs. K&J Cooper107, it was held that Compilations of
non original matter may be protected by Copyright provided that some effort

104
FSR (1995) 530
105
FSR (1894) 540
106
1WLR (1985) 1089
107
40 TLR (1923) 186
and labour have been put to the same. Otherwise, the same shall not be
subjected to Copyright Protection.

In Electronic Technics (Anglia) Ltd. Vs. Critchley Components Ltd108 the


matter relating to Protection of Databases was considered by the Court. The
Databases involving Substantial investment without necessarily possessing
new text for originality, does not qualify for Copyright Protection. Therefore,
the essential factor in such a cases are the amount of originality and labour
put in to the work.

In Total Information Processing Systems Ltd Vs. Daman Ltd 109, it was held
that the Field and record specifications as expressed in the data division of a
COBOL program were not protected because, in this form, the information
did not form a substantial part of the computer program as a whole. It is
submitted that this approach is wrong and that it would be better to consider
the database structure as a form of expression in its own right and not as part
of the computer program. Jacob J expressly disapproved of this aspect of the
above case in the Ibcos case decided earlier. His view is much to be preferred.

4.4 Case Study

This is a report provided by the Company Adacore relating to their


Experiences relating to avoiding of Stringent IPR Licensing for Software, in
their Language.110
108
FSR (1997) 401
109
FSR (1992) 171
110
Dr. Robert B.K. Dewar, Co-founder, President and CEO of Adacore in their report in
www.softwaretechnew.com Dated 05 Dec 2009
Adacore Study:

The following are the extracts of arguments given by Adacore, (a company


developing software) for a balance between the strictest licensing conditions,
as applied by companies like Microsoft Inc. and the use of software without
licensing as championed by the proponents of open source or free software:

At AdaCore, we produce advanced development tools and environments


centered around the Ada language that are used by major companies such as
Boeing, Lockheed, and Airbus to build the next generation of civilian and
military aircraft, critical space systems, air traffic control systems, and other
large scale applications requiring absolute reliability. Developing such
systems is a complex task, and we have spent somewhere between fifty and a
hundred million dollars so far building this technology. Most likely if we had
outside investors, they would be very concerned about protection of our
intellectual property rights in our systems, and expect us to use restrictive
licenses to vigorously protect these “rights”.

In fact we distribute all our software using open source/ free software licenses
that are the polar opposite from being restrictive. Are we crazy? Or perhaps
ideological zealots intent on undermining the basis of commercial software?
Not at all! We are running a business, where, like anyone else running a
business, we are concerned with maximizing revenue so that we can continue
to develop and innovate (not to mention paying ourselves good salaries to
support our families.) So how can we afford to give our technology away?
That’s the question that is often asked, but it is quite off target and confused.
We don’t give our technology away; we sell it at competitive prices in a
market where many of our competitors do use restrictive licenses. But we
believe in giving the customer what they want and need. Restrictive licenses
are a big pain in the neck. For us it is a significant competitive advantage that
our software avoids these licenses, and many of our customers regard this as a
big plus when it comes to deciding what technology to choose in a highly
competitive market.

Despite this, people are still puzzled by our approach. We use the GPL license
for our main tools, and a modified version of the GPL for run-time libraries
and other components that our customers must be able to redistribute without
restrictions. Our customers are certainly not operating in the open source
environment. Many of them are developing highly proprietary systems, and in
some cases highly classified systems. We suspect that some of them would in
fact benefit from the use of more liberal licenses, but it is not our job to tell
customers what to do—it is our job to give customers what they want! So, if
we are using licenses like this, people wonder, how can we possibly make
money? The answer is simple, and it’s the same answer any software
company would give in describing their key to success—we provide well-
tested quality software, with excellent support and upgrades, along with clear
licenses that make the legal situation apparent. It is true that versions of our
software can be obtained cheaply or free (nearly every version of distributed
GNU/Linux comes with some version of our technology), but our customers
are willing to pay for the service we can offer. In particular, the support
services we provide are of key importance. If you have a large team working
on a critical project that gets held up because of some misunderstanding of the
technology they are using, the cost just in lost productivity can be huge, never
mind the costs of late delivery. In addition, it is very important for large
companies to have a very clear legal idea of the licensing of the software they
use, and a company to stand behind the license. Downloading miscellaneous
software from the Internet can be risky to your legal well-being!

It’s worth saying a bit more about support. Why do we provide excellent
support? Well part of the answer is that we are committed to our technology
and proud of our achievements, and want to make sure that people who use it
are successful. But more importantly, and much more convincingly from our
customer point of view, is that we charge for our software on an annual
subscription basis. We make money if people renew their support contracts.
They don’t have to—they could continue to use the technology without
support. So we have a strong incentive to provide good support so that our
customers will indeed renew their contracts. It’s always good when the
financial interests of a company are aligned with customer needs in this way.
But, you say, if you know about the GPL, what’s to stop people from freely
redistributing your technology, as permitted by the license? Yes, this is
theoretically possible, but no one can provide the support we do, and our
customers benefit from our high pace of continued innovation. Furthermore,
our customers are simply not in the business of redistributing our tools.
Interestingly, there is nothing to stop another company competing directly
with us to provide support and improvements. This hasn’t happened so far,
but the possibility is always there. Our business model has a certain “innovate
or die” aspect, which keeps us hard at work, and most certainly benefits our
customers.

What about users of our software? Due partly to deliberate spreading of


misinformation by companies committed to a highly proprietary model, there
are still those who mistrust commercially distributed Free Software. They
worry about “losing their IPR’s”, or being forced to distribute sources of their
proprietary applications. These concerns are misplaced. Of course it is
important to carefully read license agreements and make sure you adhere to
them. Our licenses allow you to do anything you could do with a Microsoft
End User License Agreement (EULA), and a lot more as well, but they don’t
allow arbitrary use. If you copy a chunk of our compiler technology into your
proprietary code, that’s a copyright violation, just as it would be if you
similarly copied Microsoft code. Both situations should be avoided! What
about the “requirement” in the GPL that in this situation you are forced to
distribute your own sources? There is no such requirement in the GPL. In the
situation where you have illicitly copied GPL’ed code in violation of the
copyright, the GPL does permit but not require you to cure the copyright
violation by publishing the source code, but you are not going to take this
option if you have proprietary code you don’t want to disclose. Instead you
will adopt other strategies for cure, such as getting a different license for the
offending code or removing it.

It’s never a bad thing to have more freedom in what you can do with the
software you buy, but education is needed. If you have programmers who
simply assume they can do absolutely anything they like with open
source/free software, you need to disabuse them of this confusion, or you
could run into trouble. Remember also that just because you have the right to
do somtheing it is not necessarily a good idea to exercise that right. In a
recent conversation with U.S. Navy officials in charge of establishing navy
policy on open source usage, one of them said to me “Our lawyers are
warning us that we may acquire some undesirable legal liabilities if we
redistribute GPL’ed software.” My reply was that their lawyers were quite
right and that they should probably issue a policy forbidding this. After all, I
told them, the U.S. Navy s not in the business of redistributing software tools,
why should they change this policy? Still there is confusion. In one case a
large company insisted that we write them a special more restrictive license,
since their lawyers were suspicious of the very free licenses we provided.
However, as time goes by, more and more large companies depend on
widespread use of open source tools, and their lawyers get more comfortable
with the idea of copyright being applied to protect user rights and not simply
those of the vendor.

In conclusion, the notions of free/open source software licenses, and


commercial for-profit software manufacture are not necessarily in conflict.
Our technology at AdaCore is not always the least expensive, but in the view
of our growing family of Ada customers, it is the best, and they are willing to
write us the checks that have allowed us to build and maintain a growing
business for fourteen years that now employs over fifty full time people
world-wide.

4.5 Conclusion

Thus, an analysis of the Legal Decision related to Copyright Law in general


and software and IP Laws in Specific, provides that this branch of study is in
an evolving stage. Many matters are pending with the Supreme Court of
India. Cases related to Software in U.K & U.S.A are also considered in this
study. This provides a picture of the Judicial View that Copyright Law and
IPR regime is getting increased recognition in the modern Industrial and
Software Sector. India being a Strong Player of Software Trade and
Professionals, the study of Legal Decisions relating to Software is Significant.
The case study cited above gives a practical situation whereby the company
faced strict licensing requirements and the ability to balance between strict
licensing as advocated by Companies like Microsoft Inc, U.S.A and the Open
Source Software Advocates.
Chapter V

Management of IPR in IT Sector in India

Introduction

This chapter analyses the importance of IPR as a prominent corporate asset,


especially in view of the globalisation and the tremendous amount of
technological advancement that have taken place in the business scenario and
the need for the management of IPR uin organisations and the plans for
setting up of the same in organisations.. The fact that IPR is a prominent
corporate asset, is more so with respect to the IT sector, where the value
created is in terms of technological innovations, and in the form of the
intangible IP asset. The investment in research and development, the creation
of new products and services, managing and protecting these IP assets have
become a very important function in the modern era. The traditional concept
is to analyse management function as one, which involves, the process of
planning, organising, staffing, motivation and control. The functional ares are
alos divided as Planning, Procurement, Production, Human Resources,
Finance, and Marketing. It is attempted to project The management of IPR as
a prominent function and this has to be recognised as a most important and
unavoidable function in the new globalised and highly competitive and
technologically explosive era.. Certainly a new approach has to be evolved to
study this function, with a view to practically implementing this function in
corporates. Without this new approach to management, the very existence of
corporates will be in danger. Attempt has been made to analyse the concept of
the management of IP with specific reference to IT sector in India. Particular
emphasis ahs been given to the software sector of IT sector since this forms
the main chunk of the IT based activities and really faces the threat of
infringement and needs an efficient management of the IP rights. Even though
other sectors in IT such as hardware, also are vulnerable to infringement,
more particular emphasis is placed on software, because India has become the
centre of the world as far as software development and export and the units
engaged in software development need to give emphasis on IP management.

Research indicates that the Indian IT Industry, given its emphasis on export
led growth and global competitiveness, is ready to proactively seize the
opportunities that creation of intellectual property affords. The Indian IT
Industry seems poised to break the ceiling, yet again, as it moves up the value
chain, generating and creating value – tangible and intangible.

A true and sustainable increase in national economic, social and cultural well-
being

requires a synthesis of various policies geared to increasing each country’s


national

capacity, enhancing its knowledge resources and helping it to use intellectual

property as a tool to enable these resources to be transformed into value.


Today it can be affirmatively stated that IPR plays a great role in furthering
the

growth of IT industry and thereby increasing investment that will further


benefit

the nation at large.

Hence this focus on management of IP in the software sector.

In our own post-independent history, our pioneer IPM strategist was none
other than the engineer-scientist late Homi Bhabha. In mid-1940s itself,
Enrico Fermi had patented the nuclear reactor. This was followed by many
others in nuclear materials, processes and systems. The only possible way for
self-reliance in nuclear technology was through his celebrated ‘Growing
Science Model’ eminently supported through the Atomic Energy Act, 1962
and the relevant IPR clauses therein.

Piracy in IT sector- Computer Software

In India, the IT sector consists mainly of development of computer software


programmes, database management, other ITES businesses such as Business
Process Outsourcing, Knowledge Process outsourcing, and similar
outsourcing activities. The developed world is looking to India, as a provider
of their software requirements on account of cost and efficiency
considerations. Even though susceptible to ups and downs of business cycles,
still this sector is the major earner of foreign exchange and employment
provider to millions. In fact the software industry is capable of taking the
income levels of people to exponential levels and the GDP and percapita
income to exponential levels.

In the IT sector, software industry, the main activity consists of creation and
distribution of computer programmes. Software programming is like writing
a novel or other literary works and it requires intellectual skill and training.
Even though software is written by individual programmers, most of the
major software’s are the result of group efforts, where medium to large sized
teams spend months or even years to write a complete programme. Also in
the IT sector there are several companies, managing and maintaining
databases for clients in India and abroad. Other fields such as medical
transcription, back office maintenance are outsourcing activities under the IT
enable services.

In India, we organisations in the IT sector are facing the major threat of piracy
or unauthorised copying of the software. This means, copying and distribution
of computer programmes without the permission and is an unauthorised use.
Usually, computer programmes are prepared and distributed through
wholesalers and retailers. The dealers market and provide the software
products directly to end-users of computers. The end users can be individuals,
commercial enterprises, educational institutions and government
establishments. Sometimes, software publishers also deal directly with
software developing companies. Licensing is a common practice in software
industries. The publisher of software generally authorises its end users
through the mechanism of the shrink-wrap license contained in the package.
Software industry also faces several forms of piracy. In fact, piracy in
software is more than in others because it is relatively easy to copy software
in computers especially in PCs and for all practical purposes the pirated
version looks and performs in an identical manner as the original. The five
principal types of software piracy involve

(1) Counterfeiters

Counterfeiters are relatively new phenomenon in the software industry and


most flagrant software counterfeiters produce disks, documentation and
packaging that look very similar to those of the software publisher

(2) resellers :

Reseller piracy occurs in the software distribution channel, when distributors


or dealers either make copies of software onto floppy disks, or the internal
storage device or the "hard disk" of computers that they are selling, without
authorisation from the software publisher.

(3) mail order houses

Mail-order piracy consists of the unauthorised copying of software onto


diskettes, CDs, or other media and distribution of such software by post..

(4) bulletin boards

Bulletin board pirates engage in unauthorised reproduction and distribution of


software via telecommunication and
(5) end-user piracy.

This is the most prevalent form of unauthorised use of computer programmes.


This involves an individual computer user who has installed a number of
software programmes on his computer, and who allows other users to connect
to his computer through the telephone line via modem and copy the
programmes onto discs. Generally, pirates copy the programme onto their
computer without authorisation of the copyright holder's consent. This is also
a copyright violation. End-user piracy takes place when a user copying
software onto hard disks of more computers than the number authorised by
the publisher. This form of piracy perhaps takes place on a wider scale than
other forms because end-users often make substantial copies of the soft wares
possessed by them and then distribute or exchange the same. Though this
harms the interests of right holders, end-users definitely gain out of it because
this leads to obvious economic advantages for them.

Similarly data base management is also an upcoming area of IT sector in


India, as part of IT enabled services. Several countries such as USA,
European countries, Australia are keen in entrusting Indian software
organisations with management and administration of their data bases.
However they expect from Indian organisations, utmost secrecy and
confidentiality for their databases. To ensure this also the Indian organisations
will have to strengthen their IP management function.

Controlling of unauthorised use

Software companies supply soft wares in packaged form which contain


software on diskettes with printed labels giving manufacturer's name, full
product name, version number, trade mark and copyright notices. Besides
these, the packages also typically, contain professionally printed
documentation, a keyboard template, end-user license and registration cards
and other printed materials pursuant to a standard bill of materials that would
apply to all packages of that particular product. Identifying pirated software is
not an easy task. This is primarily for two reasons. First, as mentioned earlier
there is hardly any difference between an original software and a pirated
software, once it is copied onto a hardware. Second, detection of piracy
requires access to software or hardware or both, which may not be feasible in
many cases. There are some ways through which an unauthorised copy of
software can be identified. In such cases, the simplest pirated copies may be
spotted easily on "black-disks", which do not contain manufacture's label but
rather type written, hand-written or crudely printed labels indicating the
programmes contained on the diskettes. In case of installed software it is more
difficult to identify a pirated copy. Once a computer is searched, the
programmes copied onto it can be found and identified. Then users can be
asked to produce the proof of original possession (e.g. original packages,
documentation, purchase record, license cards etc.) of such programmes. If
users fail to do so, there is a prima facie case of infringement. In some cases
even test purchases can be made to secure evidence of piracy.

Case Studies Related to Indian IPR Protection 111

Bangalore Aug10, 2003

Banashankari police arrested three software engineers for illegally copying


software from a company they were working for. The accused enginners, who
111
Source: www.softwareceo.com/files/white_papers/IP_Research.pdf
were working with the Ishoni Networks India Private Limited, had started a
new company called Ample Wave Communication Network in Koramangala.
They had illegally copied code of the company’s software and were using at
their company, police said. Ishoni Director Antonio Mario Alvares had
lodged the complaint with Banashankari police. Police have seized four
computers, four CPUs, four keyboards, one server and one laptop from the
accused. (Source: DH News Service, Bangalore)
New Delhi Aug28, 2002.

Central Bureau of Investigation officials in New Delhi nabbed Shekhar


Verma, a former employee of Mumbai-based Geometric Software Solutions
Company and a computer engineer from the Indian Institute of Technology,
Kharagpur. It turned out that Verma was accused of stealing $60 million
worth of source code of a software product of Geometric Software's US-
based client, SolidWorks, and trying to sell them to other companies for a
fortune. The American firm has the exclusive rights over the software.
(Source Rediff.com)

Results of Nasscom Initiatives

Calcutta, 7 April 2000:

The Enforcement Branch, Calcutta police with the assistance from Nasscom
and BSA, seized pirated software worth of Rs. 2.61 crore (US$ 6,08,000)
from companies while conducting raids in the city. 4 persons, including
owners, partners and senior level employees of the companies, were arrested
for this offence. The police recovered around 636 CDs, and 2 computers
loaded with pirated software.

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Hyderabad, March 2000:

Hyderabad Police, with assistance from Nasscom and BSA, seized pirated
software worth of Rs. 75,16,400 (US$ 174,800) from 7 companies at a
conducted raid. 13 people, including senior level employees of the
companies, were arrested in this regard. The Police recovered around 293
CDs, 5 hard disks and 7 computers loaded with pirated software. The
estimated value of the pirated software was worth Rs.77 lakh.

Chennai, February 2000:

Pirated software worth Rs.1.11 crore (US$ 253,200) was seized by the
Chennai police at a raid conducted at the premises of four outlets. A total of 6
employees were arrested which included the Managing Director of one outlet
and proprietors of each of the outlets.

New Delhi, 1st December 2000:

Nasscom and BSA launched a new anti-piracy initiative

The Reward Programme to make India's business community take note of the
dangers of software piracy. The reward offered, an amount up to Rs. 50,000
is for information leading to successful legal action against companies using
unlicensed software. The reward program was aimed to encourage people to
support the fight against piracy and to report software piracy to the

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NASSCOM-BSA Anti-Piracy Software Hotline on 1600 334455 to help
Nasscom and the BSA remedy the illegal activity.

Commercialization Of Intellectual Property:

In modern times, IP is the most valuable asset. This is especially so for the
technology driven IT sector, where the very essence of their existence is the
IP rights. The efficient management and protection of IP can give a
tremendous start and boost for any corporate. Also an efficient IP Regime
can attract investments both domestic and foreign. Intellectual Property is the
most powerful commercial asset that the business possess. An IP asset can be
created even from non core activity. The classic example for this is that of
McDonald’s. They developed their own software for cash register and
order-tracking and other systems. In 2001 the company launched e-mac
digital to sell software and services to the global restaurant industry.

Usually opposite is the case. The commercialization of Intellectual Property


is often treated as a non-core activity and is not given the due amount of
priority. Without commercialization intellectual property is a wasted
corporate asset, which otherwise could serve as spark plug to give robust
start and boost the value of other tangible assets. It is noteworthy that large
companies possess enough intellectual property and if they can bring some of
it to market, the same could generate large operating incomes from Licensing
and franchising. This requires a re look a t the way they manage their
intellectual property. It will be in the best interests of the company if they
recognise this fact and organise the management of IPR as a separate
function. In the initial stage it will be sufficient if the job is outsource to
outside to find the experts who can identify market application for
Intellectual assets and convert these ideas into revenue.

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Commercialisation of IP has the following aspects to it:

a) To understand the IP created by the corporate

b) To correctly arrange for registrations and licences

c) To recover the correct damages in case of infringement and dilution


litigation.

d) to ensure that the corporate is not infringing the IP rights of others.

The development and commercialization of Intellectual Property is yet to


take shape in India in a major way. The Corporate sector should wake up and
bring about better management and promotion of their Intellectual Capital.
Like the real property the IP can also be leased, transferred, acquired,
mortgaged for limited period or on permanent basis. Our mindset needs to be
changed and the Indian corporates, have to look at Intellectual Property as
source of revenue. It is also pertinent to note that Financial Institutions and
Banks also will have to look at and accept IP as a security. HERE
MENTION ABOUT ESCREW ACCOUNT MONY Once this happens, the
Indian corporates will also change their approach to their attitude towards,
intellectual property.

When managed well, intellectual property puts enterprises in a position to


lock in advantages and command premiums. Instead of competing on price,
they will be able to identify, protect and exploit their unique features and
distinctive capabilities. But in the IT sector in India, lot remains to be done
for commercialising of IP.

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Corporate assets:

In the old generation business, assets meant real assets, such as land,
building, plant and machinery and other tangible items. They used to have all
these and took great pains to create, mange and protect the same. However in
the new generation business organisations, which are technology driven, it is
likely to have lesser investment in fixed capital. New generation business is
less dominated by fixed assets and more influenced by Intellectual Capital. In
the case of software industry, the intellectual capital is the very basis of their
existence and as such cannot ignore its management. This also emphasises
the need for organsing Management of IPR in software industries as a
separate management function, just like the other functional areas of
management.

Valuation of IPR- a component of IPR management function

Intellectual Property and Intangible Assets continue to drive the world


business and their importance in time to come is going to exponentially
grow. Several new generation corporations have invested billions not in
physical assets but in intellectual capital. Creation of value and its growth is
the ultimate goal of a management team. Since corporates have invested
billions in development and maintenance of IP is extremely to important at
regular intervals to value the IP at regular intervals. Without knowing the
value of the IP, it is not possible to commercialize it fully. Valuation of
individual intangible assets is a recent concept in India, even though the idea
of valuation of goodwill is not altogtheer new. Goodwill has been valued for
a very long time. This usually acquires significance when a business as a
whole is being sold or at the time of changes among partners. Unlike
goodwill, IP is capable of individual identification and can be sold

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separately. IP is just like a diamond, without the knowledge of its real value,
it may just be treated an ordinary stone.

IPR Audit: A tool for assessing IPR Management Function

How is the IP managed by the organization for creating value for the
company? Considering the value and power of intellectual property, too
much is at stake to ignore the protection and infringement of such valuable
property. Infringement lawsuits are very much on the increase. It is a must
for any organization to protect and safe guard its intellectual capital. For this
purpose, the following steps are essential.

understand what rights the organization owns,

whtheer the organization is protecting its right properly,

is the mode of protection adequate,

Whtheer it has proper procedure to determine what rights it should be


registering,

Whtheer it has a system to minimize the risk of infringing third party rights,

evaluation of contractual term for the right assigned or used under license,

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how trade secrets are protected from employees,

should the organization develop back up 'mark', how big should be the
inventory of IP.

Importance of DUE- DILIGENCE in IPR Management Function

Due diligence with respect to IP is the process of ascertaining the ownership,


right to use, and right to stop others from using the IP rights involved.
Special focus in due-diligence should reveal the following:

Who owns the rights?


Are the rights valid and transferable and enforceable?
Are there any agreement or restriction that prevent the party for granting
rights to other?
Is the property registered in the proper office?
Any shortcoming or default on payment?
Any past or potential litigation?
Has the property being misused in the past rendering right unenforceable

Even though due diligence is usually used as a tool when there is a transfer of
the undertaking, there is a graet need on the part of the IP owner to have
thorough understanding of the assessment and the valuation of these assets,
and their role in commercial transaction. IP due –diligence can also facilitate
a company‘s thorough internal assessment of its own assets, self-audit can
help and enhance Intellectual Property planning and management.

Organsing IPR as a management function

Having thus recognised, emphasised and acknowledged the need to develop


management of IPR as a separate business function, by organisations in the
IT sector in India, we can now focus on the various aspects and intricacies of

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IPR management and how to go about organising the function. Ideally, the
IPR Management function must integrate IP strategically with all areas of
corporate activities - from business plan to product on the market. For
example, using a strategic patent and trademark portfolio structures,
managing IP in negotiations for licenses, agreements and contracts, and in
due diligence analyses

The IPR Management function should also help to study and strengthen the
future value of the organizations IP. What will the position of organization be
5 years, 10 years from now? vis a vis the IP Rights, how are new ideas and
inventions managed and documented at the organisation? How to protect new
inventions, designs and trademarks in an efficient way?

Basic Components Of Intellectual Property Management

Traditionally IP management usually consisted of a two step process. A first


private practice handled applications and registrations for patents,
trademarks, and designs to secure initial rights. A second private practice
handled legal issues relating to agreements and disputes. In course of time
these have undergone drastic changes. Thus, the question is: What benefits
do you have from your intellectual property and how do you avoid costly
disputes and litigations?

The scope of IPM will be decided by ‘corporate objective’ of the specific


organisation. There are mainly three categories of organisations, namely
technology leaders, technology followers, and R & D organisations

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Technology leaders,

The following are the essential components of IPR management for


organisations which are technology leaders

1. Use of IP data bases for critical self-evaluation of technology


status and assessment of the ‘business potential’ of the specific
area of IT development. This should cover both technical and
commercial aspects.

2. Evaluating directions of the changes in comparative technology in the


field. Comparative Technology Evaluation means effective assessment of
comparative technologies and the potential value they hold for their
respective companies, region and industry. Comparative technology
evaluation is a powerful way to examine new ideas, identify potential
changes and develop possible solutions before implementing the proposed
technology.

3. Identification of major competitors in the field. This is an on-going


activity that has to run along with the business. Competitor
Tracking/Profiling services help companies identify the performance and
marketing strategy of competitive brands or products in the marketplace. In
order to plan an effective IPR management strategy, it is necessary to have an
understanding about competitive environment and obtain all possible
information about competitors' products, and their IPR so as to determine
areas of competitive advantage and disadvantage.

4. Identifying possibilities of ‘inventions of possible industrial use’ after


exhaustive IPR audit either by oneself or jointly with another partner,

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working out joint technology/ commercialisation, filing patents essentially to
establish and to maintain technological leadership and protect its
technological interests, to have a ’protective wall’ around its current and
future programmes.

5. Being fully aware of the patent laws in different countries, to equip


oneself to handle issues of possible IP protection/violation in all
activities including technology import/ export, in essence to maintain and
continuously upgrade state-of-art IPR literacy and legal prowess as
applicable to the corporate objectives.

6. Possibility of generating extra income from the IPR transferred to


diverse users,

7. Recommending and lobbying for legislation of protectable IPR

8. Taking steps for evaluation of IPR, to determine the real value of a


company by taking into account the IPR cost.

9. To increase the efficiency of marketing solutions based on IPR.

10. SWOT (Strengths, Weaknesses, Opportunities and Threats) analysis is


the first stage planning process that helps companies focus on key areas and
stay inline with their objectives identify the key internal and external factors
that are important to achieve the objective. SWOT/PEST analysis provides
strengths and weaknesses internal to the organization and external
factors like opportunities and threats.

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11. To look at and suggest new areas of IP creation, to increase the
efficiency of projects and R&D investments, to develop an aggressive
technological policy and so on.

Intellectual Property Management (IPM) will become the enabler to the


management to work out its corporate R&D and commercialisation plans
with IPR compliance. The above IPR management scheme applies generally
to all commercially oriented establishments, emphasis on other specific areas
may be considered depending on specific activities..

Technology followers

In the Other organisations which choose to be an technology followers and


whose R&D activities are primarily to effect minor improvements only on
active or just expiring patents, IPM may primarily concentrate on patent
fighting expertise and entering the market at the earliest.

R & D Laboratories

There can be a third category of organisation consisting mainly of R&D


laboratories who only generate ’intellectual wealth’ through their IP portfolio
and which are sold /licensed to others to earn revenue.

Organising of IPR Management Division

Corporates planning to develop IPR as a Management function should


prepare and train a team of professionals. These professional should have:

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a) in depth understanding of the IPR issues

b) the with right insight

c) ability to provide simple solutions to decision making

through structured risk analysis.

IPR Management function is to be handled through an IPR management


division within the office of the chief executive officer of the unit. The
activities of the IPR Management Division will consist of mainly consist of
three elements namely (a) educational, (b) functional and (c) policy. The
division helps to make the staff fully IP literate, take adequate IP protection
measures by recourse to appropriate legal provisions of relevant IP laws and
help the management to function effectively as pressure groups/advisors to
the government to see that the industrial-commercial interests of the
unit/nation are not jeopardised. The IPR management divison should ideally
consist of amnagerisl persosn form technical, commercial, finance and legal
disciplines, so that a multi disciplinary management function can be created.
More over this also benefits the organisation, since the skills of all these
disciplines are put to use in management of IP Rights, with the Chief
Executive Officer acting as the co coordinator, and head.

To conclude, with the onset of the new IPR Regime technology-driven


industries will have to prepare themselves adequately to handle intellectual
property management programmes at the state-of-the-art level, without which
their activities would face serious impediments arising from unanticipated IP
violation charges. This new multidisciplinary unit, consisting of scientists,
engineers, patent attorneys and IT/management experts, needs to be
consciously planned and experts inducted in large numbers to meet the needs

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of the user units. This is a formidable task and the earlier the institutions
wake up, the better.

Problems in setting up IPR Management as Function

Because of lack of high-end technology assistance, and sophisticated


infrastructure, it is obvious that advanced research in India is lagging behind
compared to the global scenario. Due to this reason, our country is
increasingly going in for collaborative research with advanced countries. As
such the importance of management of IPR as a function is yet to receive
proper impetus in Indian scenario, especially in the IT sector.

An organisation setting up an IPR management function should also


approach the subject in the following line:

MANAGE

IPM should manage IPRs

In this context the following evaluation is necessary.

Is there a manual of inventory of the organisation’s worldwide IPRs How


does the organisation integrate a new IPR acquisition into your portfolio?

Can the organisation map IP by lines of business or patents to products?

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When to renew and when to remove IPS from your IPR portfolio?

Is the IPR management function manual or automated?

What are the steps being taken to uncover the additional data on IPR that has
been missed? In short the checks and balances of the system.

How to decide whether renewing an IPR or makes sense?

PROTECT

Assert and defend your intellectual property

µIP litigation§ is a significant threat to any organisations as lawsuits continue


to increase and protection is a major aim of IPM, and it should look at eth
following aspects.

Is the organisation aware as to who is potentially infringing IPRs.

If the organisation is being litigated against, do you know which of IPRs


could be used for a counter suit?

Whether the organisation spends a lot of time trying to invalidate IPRs ?

What is the organisation’s risk exposure by line of business?

IPR management function should correlate IP litigation data with Rights to


get a complete view of trends and threats and the correlation should include
statistics by organisation and industry for win/loss records, trial lengths,
penalties and other patent litigation information. The management function
should provide a complete view of IPRs for litigation purposes - both

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offensive and defensive - in order to support key decisions and substantially
reduce associated costs.

Identify potential infringers of a single IPRs or an entire portfolio

Find corporate IPRs related to a lawsuit to use in filing counter claims

Identify potential invalidating IPRs that pre-date a plaintiff’s IPR

Identify potential hot spots for IP litigation

EXPLOIT

Exploitation of IPRs to derive maximum revenue

IPM should

find emerging, and potentially hidden, opportunities.

easily identify, monitor and assess competitor IP activity.

evaluate and identify merger and acquisition candidates based on IPRs.

Correlate IPRs with corporate financial records and key industry data.

should have the ability to view patents by industry codes, by using additional
data sources, filter by revenues and quickly narrow results using other
metrics.

graphically depict meaningful financial, competitive, licensing and other


business landscapes.

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Conclusion

Managing intellectual property assets of a company is a value-creating


activity. Used in the correct way it creates revenue for the company, adds
value to a product on the market, and increases global market share or market
exclusivity. Effective management can also lead to a strengthened position
vis-a-vis competitors and give a superior position in license
negotiations. Failing to manage IP only adds additional expense, which can
be extensive.

CHAPTER – VI

CONCLUSION AND SUGGESTIONS

6.1 Introduction:

Conclusion of any discussion, analysis or thesis has to be made with brevity


and certainty. This Chapter attempts to give in nutshell the views regarding
Management of IPR with Special Reference to IT sector in India. Although at
the end of each chapter, conclusion and summary are provided, it is
necessary to provide an overall summary of the entire thesis, and this chapter
gives a comprehensive view of the entire study.

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With the advent of the new knowledge economy, management approaches
would have to change. The knowledge economy places a tag of urgency on
understanding and managing knowledge based assets such as innovations and
know-how. Intellectual Property Rights (IPR) have become important in the
face of changing trade environment which is characterized by the significant
features of global competition, high innovation risks, short product cycle,
need for rapid changes in technology, high investments in research and
development (R&D),.A large number of IP rights would be generated and
protected all over the world including India in all areas of science and
technology, software and business mtheods. Creating, obtaining, protecting
and managing intellectual property must become a corporate activity. The
knowledge revolution will demand a special pedestal for intellectual property
and its treatment in the overall decision- making process. Therefore business
entities have to come to terms with the new ground realities and take positive
steps to direct research suitably to generate more intellectual property rights,
protect and manage them efficiently.

Considering the importance of managing IPRs, a study has been made on


management of IPR, in business, with reference to IT sector in India.

Intellectual property rights includes the following independent rights such as


patents, trademarks, design, , protection of IC layout design, geographical
indications, copyrights, protection of undisclosed information, computer
programmes and compilation of data. Protection of such rights are significant
in all industries especially in regard to the IT sector in India, which has been
booming for the last several years and which is providing employment to
illions in the country.

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IPRs are knowledge based assets developed by human ingenuity and skill.
Such properties have become the subject matter of protection in the new IPR
regime, consequent to the era of globalization. Such properties can be
acquired, assigned, transferred or disposed off as any other physical assets.

With the onset of the new IPR Regime, R&D centres and technology-driven
industries will have to prepare themselves adequately to handle intellectual
property management programmes at the state-of-the-art level, without which
their activities would face serious impediments on account of infringement
by other competitors or arising out of unanticipated IP violation charges.
This new multidisciplinary unit, consisting of scientists, engineers, patent
attorneys and IT/Management experts, needs to be consciously planned and
experts inducted in large numbers to meet the needs of the user units. This is
a formidable task and the earlier the institutions wake up, the better.

The Study has covered the following aspects of the IPR:

The history, concept, components and practice of IPR, laws and policies.

Case studies and judicial decisions, the impact of IPR in the IT sector in
India.

The management of IPR in the corporate sector.

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This study provides suggestions on establishing IPR Management as a
function, in the IT sector in India.

Business scenario has changed drastically in the post localisation era due to
the explosive growth in technology, changing as if on a daily basis and
evolution of new laws and regulations and has to has to shift its attention to
such evolutionary policies to make effective contribution to the
organizational management.

In the First Chapter of this study, detailed chapterisation of the Thesis, with
the hypothesis, scope and analyses of chapters are being done with a view to
make an analyses of the present context of IPR as a Management function.

In the Second Chapter of this study, an analysis was made about the history
and importance of IPR. The emergence of knowledge based society demands
the issue of protecting and safeguarding the investments in IP, in the era of
modern technologies.

The use of intellectual property as a management function has increased


widely during modern times. The impact of globalization and technological
explosion during the 21st century has made IPR an essential management
function in most of the industries. It is considering these factors, the WIPO
29, TRIPS agreement and other International Conventions recognized the
need for IPR as a management function.

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The concept of IP got recognition in post globalisation era. Even though IPR
was existing in different forms, in earlier periods, it was the establishment of
the WTO, which gave recognition to IPR regime in the international
scenario. The WTO provided for the implementation of TRIPS agreement in
letter and spirit, as an international commitment, among the member
countries. TRIPS agreement is the basis of modern IPR regime. The
technological evolution, globalisation and internationalisation gave an
impetus for IPR regime. The modern industry cannot function without proper
IPR protections, since they are exposed to international competitions and
markets. The protection of brands, technology, databases, literary work,
software, networking, and similar activities have made IPR an essential
management function in the present day context. In these circumstances, the
role of WIPO, in coordinating the activities of member countries of WTO in
enforcing IP rights is laudable. The WIPO provides for guidelines, regarding
IP creation, IP management, IP valuation and IP dispute resolution. The
WIPO has provided detailed guidelines for alternative dispute resolution and
conciliation regarding IPR matters. In the present day context, IPR is an
engine for economic protection of industrial activities and rendering of
services. The recent conference of WIPO conducted with FICCI and Govt. of
India (Department of Industrial promotion) at New Delhi on Nov.11 to 13,
stressed the aspects of making IPR , a tool for economic development in the
coming decades.

In Chapter-III of this study is an attempt has been made to analyse the


components of IP with a thrust on trh protection of computer software. The
entire gamut of persons such as software developers, retail store owners and
software users are affected by pirated software. This calls for its stronger
legal protection. The primary protection of software in India is found in the
Copyrights Act, 1957. There are very few cases pertaining to protection of

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software in India, most of them with Microsoft Corporation as the aggrieved
party. In Microsoft Corporation vs. Ms. K. Mayuri and Others.112 awarded
punitive and exemplary damages against the wrongdoer who were involved
in piracy activities by hard-disk loading. With the growing concept of
software technology parks and the importance of software in every business,
more and more companies want protection under the legal regime to obviate
software piracy.

The availability of injunctive relief and criminal remedies are particularly


vital to the software industry. Software developers often rely on civil ex parte
injunctive procedures to identify infringers. Civil procedures in India is time-
consuming, expensive, and is not effective against professional criminals.
Hence software developers can indulge in criminal prosecutions, to curtail
the piracy of their products.

In Chapter-IV of the thesis, an analysis of the Legal Decisions related to


Copyright Law in general and software and IP Laws in Specific, provides
that this branch of study is in an evolving stage. Many matters are pending
with the Supreme Court of India. Cases related to Software in U.K & U.S.A
are also considered in this study. This provides a picture of the Judicial View
that Copyright Law and IPR regime is getting increased recognition in the
modern Industrial and Software Sector. India being a Strong Player of
Software Trade and Professionals, the study of Legal Decisions relating to
Software is Significant.

112
35 PTC (2007) DEL , 415

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In Chapter-V of the thesis, matters relating to the Protection and
commercialization of Intellectual Property has been studied as a core
corporate area for sustenance and growth.

In order to maintain a continuous stream of new ideas and experimentations,


public private partnership in R&D would need to be nurtured to arrive at a
win-win situation. Therefore, all publicly funded institutions and agencies
will have to come to terms with the new ground realities and take positive
steps to direct research suitably to generate more intellectual property rights,
protect and manage them efficiently.

Suggestions for the Management of the portfolio of IPR

The following are some of the Important Suggestions derived from the study
is a recommendation to set up the IPR Managements as a separate function
in organisations, and the function should maximise income and wealth by
concentrating on the following aspects. This is more relevant in the context
of Indian IT sector since the exposure of Indian IT industry is very high as
the sector earns billions of dollars in revenue and provides employment o
millions of people.

1. Use of IP data bases for critical self-evaluation of technology status


and assessessment of the ‘business potential’ of the specific area of IT
development. This should cover both technical and commercial aspects.

2. Evaluating directions of the changes in technology in the field

3. Identification of major competitors in the field,

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4. Identifying possibilities of ‘inventions of possible industrial use’ after
exhaustive IPR audit either by oneself or jointly with another partner,
working out joint technology/ commercialisation, filing patents essentially
to establish and to maintain technological leadership and protect its
technological interests, to have a ’protective wall’ around its current and
future programmes.

5. Being fully aware of the patent laws in different countries to equip


oneself to handle issues of possible IP protection/violation in all activities
including technology import/ export, in essence to maintain and continuously
upgrade state-of-art IPR literacy and legal prowess as applicable to the
corporate objectives.

6. Possibility of generating extra income from the IPR transferred to


diverse users,

7. Recommending and lobbying for legislation of protectable IPR

8. Taking steps for evaluation of IPR, to determine the real value of a


company by taking into account the IPR cost.

9. To increase the efficiency of marketing solutions based on IPR

10. To look at and suggest new areas of IP creation, to increase the


efficiency of projects and R&D investments, to develop an
aggressive technological policy and so on.

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The above tasks should be managed through an IPR management division
within the office of the chief executive officer of the unit.

The trajectory of innovation is unpredictable and every business is exposed


to this risk. Not only the generation of intellectual property but also its
adequate protection. evaluation and exploitation assumes a crucial
importance in the present day environment of high competition.

The software industry in India has come of ages, and is mainly dependent on
the IP assets it creates.

As explained above, Intellectual Property is just one part of the successful


marketing equation, and its true importance varies greatly according to each
specific invention or idea. No one can predict certainly whtheer the cost of
securing intellectual property protection is justified in a particular case,
Protecting an invention or idea is often a difficult exercise. Some ideas and
invention simply cannot be protected while others can be protected. The new
inventions / work have uncertain commercial value and the IPR system
provides a degree of protection from competition for a limited period, thus
encouraging investment in new technology. Additionally, the IP system
assists in bringing new knowledge into the public domain rather than keeping
the knowledge in a state of secrecy.

The dissemination of the new knowledge facilitates kindling new ideas by


facilitating creativity. The scientific and technical information contained in
the patent documents are being increasingly used by researchers, professors

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and industries to retrieve information there from which has helped in
disseminating knowledge and consequently stimulating higher degrees of
motivations.

The importance given to the portfolio of IPR in the modem era requires
efficient management of this portfolio so as to derive maximum benefits
from it. For such a management it is required planning. Conception of the
invention of the idea, identification of the IP created, appropriate protection
of the IP created and dissemination of the information contained in the IP
generated in a user-friendly manner including manufacture of the new
products (IP) / commercialization of the products (IP) are significant for an
analysis of IPR management concepts.

For the coordination of the above, in a competitive world, a separate Division


/ Unit, has to be established with appropriate knowledgeable of IP
professionals. In short, the subject of IPR should not be taken as an isolated
subject.

The Government of India has emphasized the importance of IPR by


incorporating a para in the Science and Technology Policy113 announced very
recently. In order to achieve the vision emphasized in the said Policy relating
to IPR. it may be necessary to frame an appropriate national IPR policy.

113
Science and Technology Policy of Govt. of India (2009)

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The Copyright Act in India basically addresses the matters related to Literary
works. The Protection for performers rights and software has been introduced
by appropriate amendments in the Copyright Act, from time to time.

The Development of New Technology like Internet, Email, Data Protection


and E-Commerce have made the subject of Copyright, complex. The modern
technologies, which can copy any work in the same quality and performance,
provided a great challenge for the Copyright Law which has not been
addressed by the present law, and poses great threat to the organizations in
the IT sector in India, especially the software sector.

It is suggested that proper amendments for protection of Data bases and New
Technology Protection has to be enacted by the Legislature to protect the
interests of Copyright Holders. The Draft Bill for Copyright Amendments114
in respect of the said amendments is in the final stage and is expected to be
enacted during 2010.

The Steps for implementation of WIPO Policies and Practices, in IP


Management, and Litigation, should be implemented as far as possible,
while enacting new legislations in this matter. Negotiations on unification of
Copyright Laws in tune with International Developments is in progress. The
Policy initiatives of Govt. of India, in ensuring Internationalization of IPR is
highly relevant in this context. It is known that such steps are being in
WIPO – FICCI & Dept. of Industrial Promotion Seminar on Protection of IPR at New Delhi on Nov
114

11-13, 2009. Sri. P.H. Kurien, Controller of Trade Marks, Patents and Copyright has mentioned that the new
Copyright Law is in the final stage and will be enacted during 2010.

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progress, due to international commitments in WTO, and implementation of
TRIPS agreement.

Conclusion

The Indian software industry in the last decade has undergone tremendous
growth, and, with the shift in the strategy of the software industry towards,
moving up the value chain, and the strategies that Indian software companies
are undertaking to be competitive in the future, give thrust to the new and
different role for intellectual property and its protection in the Indian
software industry in the future.

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Intellectual Property and the laws regulating it have undergone sweeping
change in the last few years. Considering the value and power of intellectual
property, too much is at stake to ignore the protection and infringement of
such valuable property. It is not surprising that infringement lawsuits are
proliferating. It thus becomes mandatory for any organization to protect and
safe guard its intellectual capital. In order to do so it is imperative for the
companies to understand as to what rights the organization owns, whtheer the
organization is protecting its right properly, is the mode of protection
adequate, whether it has proper procedure to determine what rights it should
be registering, whether it has a system to minimize the risk of infringing third
party rights, evaluation of contractual term for the right assigned or used
under license, how trade secrets are protected from employees, should the
organization develop back up 'mark', how big should be the inventory of
trademark and such other important issues. This thesis therefore, has made an
earnest effort to study and make suggestions for the organisations, especially
with specific reference to Software sector in India to set up IPR as a
Management function for the protection of their IPRs.

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BIBLIOGRAPHY

A. BOOKS

1Athenaeus in “Deipnosophistae”, book XII

2Charles Burton Gulick's translation, Vol. I-VII, London/New York 1927-41,


in Vol. V, p. 349).

3David Bainbridge, Data Protection Law, Second Edition, Universal


Publishing Co. 2007

4David Bainbridge, Software Licensing, Second Edition, Universal


Publishing Co. 2007

5Dr.J.K. Das, Intellectual Property Rights, First Edition, Kamala Law


House, 2008

6Dr.R.G.Chaturvedi and Sanjay Upadhyay, T.R.Srinivasa Iyengar’s The


Copyright Act, 1957, Fifth Edition, Butterworths, 1987

7John Locke, Natural Rights Theory.

8K.C. Kailasam & Ramu Vedaraman, Law of Trade Marks & Geographical
Indications – Law. Practice & Procedure, Second Edition, Wadhwa, 2005

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9P. Narayanan, Law of Copyright and Industrial Designs, Fourth Edition,
Eastern Law House, 2007

10P. Narayanan, Law of Trade Marks and Passing off, Sixth Edition,
Easteren Law House, 2004

11P. Narayanan, Patent Law, Fourth Edition, Eastern Law House, 2006

12P.K. Mittal & O.P. Chadha, Supreme Court on Trade Marks, Copyrights,
Patents & Designs (1950 to 2005), Updated Edition, Om Law Book House
2006

13Paul Brennan, Law for IT Profesionals, First Edition, Universl Publishing


Co. 2007

14Richard Morgan and Kit Burden, Legal Protection of Software: A


Handbook, First Edition, Universal Publishing Co. 2007

15Salil K.Roy Chowdhury & H.K. Saharay, Law of Trade Mark, Copyright,
Patents and Designs, First Edition, Kamal Law House 1996

16Stephen Mason, Networks Communications, A Concise Guide to


Compliance with the Law, First Edition, Universal Publishing Co. 2007

17Textbook on Roman Law,Andrew Borkowski LLB, Blackstone Press Ltd,


1994.

18Tim Kevan and Paul McGrath, E-mail, the Internet and the Law, Essential
Knowledge for Safer Surfing First Edition, Universl Publishing Co. 2007

B. ARTICLES

Sheet 229 of ²43


1.Mark Helprin, Op-ed: µA Great Idea Lives Forever. Shouldn’t Its
Copyright?§ The New York Times, May 20, 2007.

2.On µpatents§ - Daniel B. Ravicher (August 6, 2008). "µProtecting Freedom


In The Patent System: The Public Patent Foundation's Missi...§

3.Richard M. Stallman. "µDid You Say “Intellectual Property”? It's a


Seductive Mirage§". Free Software Foundation, Inc.

C. REPORTS

1.Dr. Robert B.K. Dewar, Co-founder, President and CEO of Adacore in


their report in µwww.softwaretechnew.com§ Dated 05 Dec 2009

2.Reports of Patent, Design and Trade Mark Cases (RPC) and in Fleet Street
Reports (FSR).

3.Science and Technology Policy of Govt. of India (2009) announced very


recently

Sheet 230 of ²43


D. CONVENTIONS

1.µBrussels Convention§

2.Copyright Theft, John Gurnsey, Aldershot 1995.

3.DRUID Summer Conference on The Role of Geography, Institutions and


Organizations, Copenhagen 2003

4.µGeneva Convention§

5.Paris Convention for the Protection of Industrial Property in µ1883§

6.µRome Convention§

7.Stockholm Convention in 1967.

8.The Berne Convention for the Protection of Literary and Artistic Works,
(Berne Convention), Switcherland in 1886

9.The Convention Establishing the World Intellectual Property

Organization (1967)

10.U.S.µBerne Convention Implementation Act of 1988§

11.µUniversal Copyright Convention§ in 195212.µWIPO Copyright Treaty§


(WCT)

13.µWIPO Performances and Phonograms Treaty§ (WPPT)

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14.WIPO – FICCI & Dept. of Industrial Promotion Seminar on

Protection of IPR at New Delhi E. Statutes

1.Atomic Energy Act, 1962

2.Designing and Printing of Linen Act' (1787)

3.Information Technology Act, 2000

4.Patents Act, 1970

5.Roman property law, Roman Empire (Kaufer, 1989, p.1)

6.The Copy Right Act, 1957

7.The Semiconductor Integrated Circuits Layout-Design Act, 2000

8.The Trade Marks Act, 1999

9.The U.S. µCopyright Term Extension Act§

10.U.S. Trade Act

11.U.S.Constitution

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F. WEBSITES

1.µhttp://www.iiprp.com§ Dated 05/10/2009

2.µhttp://www.indianindustry.com§ Dated 01/09/2008

3.µhttp://www.lexorbis.com§ Dated 28-03-2008

4.µhttp://www.manishmb.com§ Dated 28/08/2009

5.µhttp://www.nolo.com§ Dated 28/08/2008

6.µhttp://www.rediff.com§ Dated 09-05-2008

7.http://µwww.softwareceo.com§ Dated 18-06-2008

8.http://µwww.softwaretechnew.com§ Dated 21-11-2008

9.µhttp://www.wipo.in§ Dated 05/10/2009

10.µhttp://www.youtube.com§ Dated 15-04-2008

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