INTRODUCTION TO INTELLECTUAL

PROPERTY RIGHTS

❑ According to Salmond ‘Rights’ means

“ An interest recognized and protected by a rule or justice.
Interest respect for which is a duty and disregard is a
wrong.”

❑ Interests: Things which are to man’s advantage, e.g.:

interest in freedom or reputation or property.
❑ Property covers the proprietary rights.
❑ Property Corporeal
Incorporeal
RC COOPER VS. UOI 1980 SC 564
Property means the highest right a man can have
to anything, being that right which one has to
land or tenements, goods or chattels which
does not depend on another’s courtesy.
it includes ownership, estates and interests in
corporeal things, and also rights such as
trade-marks, copyrights, patents and even
rights in personam capable of transfer or
transmission, such as debts; and signifies a
beneficial right to or a thing considered as
having a money value, I especially with
reference to transfer or succession, and to their
capacity of being injured
CONCEPT OF INTELLECTUAL PROPERTY
❑ Intellectual Property Right is sine qua non of every society.
❑ Intellectual property intellectual work which is produced
by the intellect of a person.

❑ Effective Intellectual Property System

Very basis of the foundation of a country
Dynamic tool for wealth creation

❑ Country to succeed not just land, labour and capital

but creativity and innovation.
Intangible rights protecting the products of human
intelligence and creation
 Emergence of IPR

Creativity

Envisioning & insights

❑ Two different words
‘Intellect’ Latin word ‘Intellectus’ meaning
perception (perception or faculty of knowing and
reasoning)
Property material object belonging to a
particular person

☓
❑ Property created by the intellect of a person is called as

‘Intellectual Property’

❑ Rights incurring from the intellectual property are called ‘

Intellectual Property Rights’

❑ Law which protects these Intellectual property is called ‘

Intellectual Property Rights Law’.

WHY PROTECTION
❑ Intellectual property exclusive rights to their
creators acts as an incentive to the creator to
develop his intellectual property
and share the intellectual property
rather than keeping it a secret

❑ Main motivation of protection

to encourage the creator
reward his creativity
❑ The contribution of intellectual property to industrial
and economic development of a country is
substantial. The prosperity achieved by nation is the
result of exploitation of their intellectual property.
 GENESIS
❑ By grant- initiator of ideas incorporated in the products is
remunerated and the system of grant assures value to the investment
made in the entities.
❑ New or original imagination or ideas- product- exclusive domain of
the initiator.
❑ Exclusion of others from using without permission- recognition to the
rights of the holder.
❑ IP regime necessary to create order in the society- chaos.
❑ IPR necessary tool to protect commercial venture and recognizing
human effort and capital investment.
❑ Contract between creator and sovereign state
⮚ Protection for revelation
❑ Balance between rights of creator and public
interest
⮚ Rights and limitations and exceptions
 ORGANIZATION STRUCTURE – IP
OFFICES

Ministry of Industry &

Commerce

Office of the Controller

General of Patents,
Designs
And Trademarks

Trade Marks Registry Geographical Patent

Patent office
Designs wing ( Kolkatta, Delhi, Indications Information
( Kolkatta, Delhi,
(Kolkatta) Mumbai, Ahmedabad Registry Service
Mumbai, Chennai)
Chennai) ( Chennai) ( Nagpur)
 JUSTIFICATION TO ‘WHY SHOULD WE
GRANT PROTECTION TO INTELLECTUAL
PROPERTY’
❑ Ethical or moral arguments: it is justified
because law recognizes an author’s natural or
human rights over the products of their labour.

❑ Instrument justification: intellectual property

induces or encourages desirable activities.

❑ The owner has exclusive right over his intellectual

property and no one can used his property without
his consent. However the owner can assign his
intellectual property or interest in his property to
someone else.
NATURAL RIGHT THEORY: LABOUR
THEORY (LOCKE’S THEORY)

☓ Property right is a natural right. A person has a

right to own the creation of his mind in the
same manner he owns creation of his labour.
☓ Nothing can be called with greater prosperity
man’s property than the fruits of his labour.
PERSONALITY THEORY
☓ Intellectual property laws are to be there to protect the
author’s or the inventor’s manifestation of his
personality.
☓ This is also backed by the need for the safeguarding of
the individual’s freedom of expression.
☓ As propounded by Hegel, a person would be more self
assertive when she/he owns property. He will feel more
equal (equality).
UTILITARIAN THEORY
☓ Utilitarian is institution socially beneficial. It
states that we have intellectual property
systems because it has the effect on the
betterment /economic/ of the society.
☓ Its correctness is to be assessed in the
economic success of the countries.
❑ So this protection to the intellectual property is
given by the Intellectual Property Rights Law
❑ Intellectual Property Rights Law
area of law
concerned with legal rights
Associated with creative effort
Commercial reputation
Goodwill
❑ Law deters others from copying or taking unfair
advantage of the work of other person without his
consent .
 HUMAN RIGHTS AND IPRS
❑ IP laws responsible for converting remunerative
opportunities into protectable rights.
❑ Article 17 UDHR (1948) recognizes the right to
own property alone as well as in association with
others.
❑ Article 27 recognizes the right to participate in the
cultural life of community, to enjoy arts and to
share in the scientific advancement.
❑ Article 27(2) protects the right of authors to moral
and material interests resulting from scientific,
literary or artistic production.
RELATABLE RIGHTS ARE:

Article 15 of International Covenant

on Economic, Social and
Cultural Rights, 1966

Article 19 of International Covenant

on Civil and Political Rights,
1966

Vienna declaration and Programme of

Action, 1993.
❑ Article 25 of UDHR “Everyone has the right to a standard of
living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care and
necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.”
❑ Drugs, medicines and therapeutic diagnosis and sophisticated
apparatus for diagnosis.
 RIGHTS FLOWING FROM INTELLECTUAL
PROPERTY
❑ Personal or positive or private right

❑ Intangible Property- creation of mind

❑ Negative right

❑ Time bound right

❑ Right of assignment or right to license

 NEED FOR INTELLECTUAL PROPERTY

❑ Incentive to the individual for new creations

❑ Due recognition to creators and inventors

❑ Ensuring availability of genuine and original

products

❑ Economic development
TYPES OF INTELLECTUAL PROPERTY

❑ Copyright
❑ Patent
❑ Trademarks
❑ Geographical indications
❑ Design
❑ Trade secrets
❑ Integrated circuits
❑ Traditional knowledge
ACTS
❑ the Copyright Act, 1957
❑ The Trademarks Act, 1999
❑ The Geographical indications of Goods (
Registration and Protection) Act,1999
❑ The Designs Act, 2000
❑ The Patents Act, 1970
❑ The Protection of Plant Verities and Farmers' Right
Act, 2001
❑ The Biological Diversity Act, 2002
❑ The Semiconductor Integrated Circuits Layout
Design Act, 2000
 WORLD INTELLECTUAL PROPERTY
ORGANIZATION (WIPO)
❑ Created by the Convention Establishing World
Intellectual Property Organization (WIPO)
❑ Convention signed in Stockholm in 1967 and
came into force in 1970
❑ Got the status of specialized agency of United
Nations in 1974.
❑ Mission of WIPO
“ To promote the protection of intellectual
property rights world wide and extend the benefits
of international intellectual property system to all.”
❑ WIPO is the global forum for intellectual
property services, policy, information and
cooperation. It is a self-funding agency of
the United Nations, with 189 member states.
❑ Director General: Francis Gurry
❑ India is a member of WIPO and joined it in
1975
❑ List of events :

1873: International exhibition of inventions in Vienna

1883: birth of Paris Convention for the protection of
Industrial Property
1886: adoption of Berne Convention for the
protection of literary and artistic works

The Paris and Berne Convention set up International

Bureau
1893: the two bureaus united to form an
international orgainzation called Bureau
Interationalaux Reunis Pour la Protection de la
Propriete intellectuelle (BIRPI) based in Berne,
Switzerland

1960: BIRPI moved to Geneva

1970: WIPO established

1974: WIPO became a UN specialized agency

FUNCTIONS OF WIPO

1. To promote the development of measures

designed to facilitate efficient protection of
intellectual property rights through out the world.

2. To perform administrative tasks

3. To encourage the conclusion of international

agreements designed to promote the protection of
intellectual property
4. To offer cooperation to the states requesting
legal and technical assistance in the field of
intellectual property
5. To assemble and disseminate information
concerning the protection of intellectual property
and carry out and promote studies in this field
6. To maintain services facilitating the
international protection of intellectual property
SERVICES PROVIDED BY WIPO
❑ Services provided to the governments,
businesses and society realize the benefits of IP
are:
1. a policy forum to shape balanced international
IP rules for a changing world;
2. global services to protect IP across borders
and to resolve disputes;
3. technical infrastructure to connect IP systems
and share knowledge;
4. cooperation and capacity-building programs
to enable all countries to use IP for economic,
social and cultural development;
5. a world reference source for IP information
ACTIVITIES BY WIPO
❑ WIPO’s organizational structure is based on
seven Sectors, each headed by a Deputy
Director General (DDG) or Assistant
Director General (ADG), under the overall
leadership of the Director General. The
sectors are namely:
ALTERNATIVE DISPUTE RESOLUTION
❑ The WIPO Arbitration and Mediation Center (
September 1993) is a neutral, international
and non-profit dispute resolution provider
that offers time- and cost-efficient alternative
dispute resolution (ADR) options.
❑ WIPO mediation, arbitration, expedited
arbitration, and expert determination enable
private parties to efficiently settle their
domestic or cross-border IP and technology
disputes out of court.
❑ The WIPO Center is also the global leader in
the provision of domain name dispute
resolution services under the WIPO-designed
UDRP.
WIPO INTERNET DOMAIN NAME DISPUTE
RESOLUTION
❑ December 1999- first provider of dispute
resolution services under the Uniform
Domain Name Dispute Resolution Policy (
UDRP) adopted by Internet Corporation for
Assigned Names and Numbers(ICANN).
❑ UDRP provides holders of trademark rights
with an administrative mechanism for the
efficient resolution of disputes arising out
of registration and by use by third parties
in bad faith of domain names.
 ECONOMIC DEVELOPMENT
PROGRAMME
❑ WIPO’s Cooperation for Development
Programme (now called Economic
development Programme) is closely
interwoven with governmental and
intergovernmental cooperation, including
WIPO’s agreement with the WTO whereby
WIPO assists developing countries in the
implementation of WTO’s agreements.
 CONCLUSION
❑ WIPO’s mission is to promote, through
international cooperation, the creation,
dissemination, use and protection of works of
the human mind for economic, cultural and
social progress of mankind.
❑ WIPO presently administers 26 treaties.
❑ WIPO is active in dispute resolution through
WIPO Arbitration and Mediation Centre.
❑ WIPO launched WIPONET in 1999, a worldwide
global intellectual property information network.
❑ Four organs: General Assembly, Conference,
Coordination Committee and International
Bureau.
 WORLD TRADE ORGANIZATION
❑ 15 December 1993- final text of Uruguay round
accepted.
❑ WTO, with India being founder member, came
into effect on 1 January, 1995.
❑ Predecessor of WTO was GATT (General
Agreement on Trade and Tariffs)- multilateral
agreement regulating international trade.
❑ Preamble of GATT ‘ reduction of tariffs and
other trade barriers and elimination of
preferences on reciprocal and mutually
advantageous basis.
❑ Signed in 1947 lasted till 1994 replaced by
WTO.
❑ Youngest international organization
designed to supervise and liberalize
international trade.
❑ WTO deals with the following:
1. Administering WTO trade agreements (
Implementation, Administration and
Operation of trade policies)
2. Trade negotiations
3. Committees, bodies and Council
4. Building trade capacity (increasing of
trade capacities and implement technical
standards- developing counties.)
❑ The WTO’s predecessor, the general
agreement on tariffs and trade(GATT),was
establish after World War II in the wake of
other multilateral institutions dedicated to
International economic corporation.
❑ GATT was the only multilateral instrument
governing international trade from 1948 until
the WTO was established on January 1,1995
.
 OBJECTIVES OF WTO
❑ WTO reiterates the objectives of GATT,
some of them are as follows:-
❑ Promote trade flows by encouraging
nations to adopt nondiscriminatory and
predictable trade policies.
❑ Raising standard of living and income.
❑ Introduce sustainable development.
 FUNCTIONS OF WTO
❑ Acting as a forum for multilateral trade
negotiations.
❑ Seeking to resolve trade disputes.
❑ Acting as a watchdog of international
trade.
❑ Maintaining trade related database.
AGREEMENTS
 TRADE RELATED ASPECT OF
❑ INTELLECTUAL
International PROPERTY
agreement RIGHTS
administered by WTO
protection of intellectual property
enforcement of intellectual
property
❑ TRIPs 7 parts
73 articles
❑ Preamble ‘reduce distortions and
impediments to international trade and taking
into account the need to provide effective and
adequate protection of intellectual property and
ensure measures and procedures to enforce
intellectual property rights do no themselves
become barrier to legitimate trade.’
 ARTICLE 7 OBJECTIVES
The protection and enforcement of intellectual
property rights should contribute to the
promotion of technological innovation
and to the transfer and dissemination of
technology, to the mutual advantage of
producers and users of technological
knowledge and in a manner conducive to
social and economic welfare, and to a
balance of rights and obligations.
ENFORCEMENT OF TRIPS
❑ Article 3 National treatment: treatment no
less favorable that it accords to its own
nationals with respect to IP.
❑ Article 4 Most favored nation: any advantage
, favour, privilege or immunity granted to
any member/ non- member – accorded
unconditionally to the nationals of all
members.
❑ Article 70 protection of existing subject
matter: date of application of agreement-
protection to IP. No protection if falls into
public domain.
 ARTICLE 8 PRINCIPLES
❑ Members to adopt measures for following
purposes provided that such measures which
are in consistent with TRIPs:
1. Protection of public heath and nutrition
2. Promotion of public interest in sectors of vital
importance to their socio- economic and
technological development.
3. Prevention of abuse of IPRs by the right
holders.
4. To prohibit the resort to practices which
unreasonably restrain trade or adversely
affect the international transfer of
technology.
 TRANSITIONAL ARRANGEMENTS
❑ Came into force on 1 January 1995
❑ Developed Countries on 1 January 1996
❑ Developing Countries on 1 January 2000 (5
years)
❑ Least Developing Counties 10 years (Article 66)
❑ Article 66.2 developed counties to provide
incentives to enterprises to encourage
technology transfer to LDCs.