Intellectual Property Law

What are Rights in IPR

Recognised
& Protected
by law

Liberty
Legal To use
To exclude
Entitlement others

Violation:
unlawful
What are Rights in IPR
A legal entitlement which is recognized and can
be protected and the violation of which is
deemed as ‘unlawful’ and leaves the right holder
with a remedy.”
Rights can be used in 2 ways:
• As a liberty (gives the right-holder freedom
to do certain acts)
• As a license (right to do something because
someone has given you the consent)

IPR refers to rights which emanate from IP

which are capable of being protected (Eg:
copyright, patent).
• Violation of IPR refers to ‘infringement’.
 Meaning of Intellectual in
IPR
Intellectual Property is the product of Human Intellect
Creativity.

New Ideas

Existing
Imagination
Concepts

Problem
Inventions
Solving
What is Intellectual in IPR

• Intellect is our ability to think and

understand ideas
• An idea is a product of careful thinking
• Inventions are products of creative
human labour.
• ‘Intellectual Property’ refers to ‘products
that come out of our intellect.
 What is Property in IPR ?

• Property can be of 2 Kinds: Tangible and Intangible

Tangible Property : Real Property (land) has physical
boundaries & can be distinguished from the property of
another
The owner of land & its boundaries can be ascertained
from the property deed
Intangible Property: An intangible asset is a non-physical
asset that a company or person owns.
Example: Patents, software, trademarks and license are
examples of intangible property.
What is Intellectual
Property (IP)
Intellectual Property refers to:
a.Inventions,
b.Innovative designs,
c.Products of human creativity,
d.Identifiers of organizations or their products and services
e.Unique products that have a geographical attribute.
WHAT IS IPR
As per World Trade Organisation (WTO):
Intellectual property rights are the rights given to
persons over the creations of their minds. They
usually give the creator an exclusive right over the
use of his/her creation for a certain period of time.

right to exclude others from right to assign or

license-
using, for commercial uses
selling or reproduce,
producing distribute and sell
the asset
IP Chain Activities
Creation
Innovation
Commercialization
Protection
Enforcement
Need of Protecting IP
• Progress of humanity.
• Protection of IP Rights is an incentive to human
creativity.
• Promotes respect for individual artists & enables them
to earn livelihoods.
• Prevents infringement and free riding.
• Improve the quality of life.
• Economic Development: New creativity helps to create
sustainable & competitive businesses locally and
internationally.
• Research and Development.
Need of Protecting IP
1. Progress of humanity and the moral good benefit of them,
remains in the ability to create and invent new works in the field of
technology and culture.
2. It encourages distribution, publication, and disclosure of
the creation to the public for their benefit, rather than keeping it a
secret and a personal establishment.
3. The promotion and protection of intellectual Property can
promote economic development and it may also, generate new
jobs and industries. It could improve the quality of life, with the
latest new innovations, inventions and creativity.
4. They increase the market value of the creators or innovator’s
business. It generates huge incomes through the licensing, selling
or the commercializing of their products.
5. The creative and intellectual ideas are converted into
profitable assets.
LOCKEAN-Natural Rights
Theory
• Nature as a heritage

• Held in Common

• To be shared equally by all human beings.

The main justification behind this theory is that-

Everyone has right to consider his/her ideas as natural
property right by the reason that the creation originates from
the effort, originality, and inventiveness of the creator.
Labour Theory
• Based on John Locke’s theory of property
• An owner possesses a right over the things that he
produces with the help of his own labor and efforts, either
physical or intellectual.
• This theory does not make any difference between IP and
the traditional tangible property, including the right to use,
exclude others from use and right to transfer.
• This theory is rooted in laws of nature that Locke identifies,
which permit individuals to appropriate, and exercise
control or rights over things in the world, like land and other
material resources.
• The Indian copyright law provides copyright protection for
the expression of the ideas and not the ideas perse.
Criticism
This theory does not deal with the temporal limitation of
IPR. The usage of IPR is time bound.
It restrains an innovator from owning an abstract idea
which can affect subsequent innovators.
UTILITARAIN THEORY
• Utilitarianism is “greatest good for the greatest
number” which basically implies happiness of the
maximum number of people.
• Propounded by Jeremy Bentham And John S. Mill,
the concept of utilitarianism helps in socio-cultural
and economical progress.
• Based on the fact that the industrial progress and
cultural goods have a beneficial effect on the society.
• As and when a person creates a product or there is
technological innovation within a community, the
society benefits from the advancement and
progress.
INCENTIVE – To DISCLOSE
THEORY
• To promote the inventions and creations.
• The outcome will be superior to the costs of his work.
• IPR represent an artificial encouragement from the state for the production.
• The incentive theory justifies the intellectual rights because of the profit they bring
for the whole society.
• This theory validates society to respect innovators and their right to ownership
brings profit for the whole society.
• This theory justifies the grant of patent rights based on the social benefit of having
the information to enter into public domain.
• (Exception: Nuclear Reactive- kept as secret)
ETHIC AND REWARD
THEORY
• Justifies the exclusive rights of IP with some moral and
ethical aspect.
• An expression of gratitude to an author for doing more
than society expects or feels that they are obliged to do.
• And the inventor can benefit himself for the exclusive
period of time.
• These exclusive rights include the right to enjoy the
property, exclude others from enjoying it and to dispose
the property in any manner he likes.
• The creator is rewarded for contributing to the welfare of
the society by producing his work.
• The concept of ethic requires an equitable and proportional
contribution from the side of creator or innovator who has
invented something for the social utility.
PERSONHOOD THEORY
This jurisprudential theory was propounded by famous thinkers like
Immanuel Kant and Georg Hegel.
Personhood theory of intellectual property rights states that while
applying labor to produce some work, a person also incorporates
some part of his personality in the creation.
An “individual’s personality growth is inherent” and thereby,
constitutes an integral part of the creative works.
Since exclusive property rights are granted over the creative works
and original productions, the creator also gains rights over the
personality that is developed during the process.
This right to “protect the development of personality extends to
material things” as well.
This theory states that when a person works on anything, he
expresses his personality on that subject. So, as humans, in
themselves are in possession of their person, so, by extension,
they should also be the owners of subjects or objects they have
worked on, as they become extension of their personality.
CRITICISM
When the creation is done, the work is independent from its
creator but dependent on the public domain. As a matter of
fact, the creation or work gathers the importance because
others adheres importance to it
 EVOLUTION OF IP RIGHTS

PARIS BERNE MADRID

WIPO WIPO JOINS
CONVENTION CONVENTION AGREEMENT
1967 UN 1974
1883 1886 1891

INTERNATIONAL BUREAU 1893

Paris Convention
Adopted on : March 20, 1883, at Paris and
Enforced on : July 7, 1884.
India signed on : September 7, 1998,
It applies to industrial property in the widest sense,
including patents, trademarks, industrial designs, utility
models, service marks, trade names, geographical
indications and the repression of unfair competition.

The substantive provisions of the Convention fall into

three main categories: national treatment, right of
priority, common rules.
National treatment
According to Articles 2 and 3 of this treaty,
National treatment is a concept of international law that
declares if a state provides certain rights and privileges to its
own citizens, it also should provide equivalent rights and
privileges to foreigners who are currently in the country.
National treatment is the principle of giving others the same
treatment as one’s own nationals.
In other words, when an applicant files an application for a
patent or a trademark in a foreign country member of the
Union, the application receives the same treatment as if it came
from a national of this foreign country. Furthermore, if the
intellectual property right is granted (e.g. if the applicant
becomes owners of a patent or of a registered trademark), the
owner benefits from the same protections and the same legal
remedy against any infringement as if the owner was a national
owner of this right.
Priority right
It is established by Article 4 of the Paris Convention, and is
regarded as one of the cornerstones of the Paris Convention.

It provides that an applicant from one contracting State shall be

able to use its first filing date (in one of the contracting States) as
the effective filing date in another contracting State, provided
that the applicant, or his successor in title, files a subsequent
application within 6 months (for industrial designs and
trademarks) or 12 months (for patents and utility models) from
the first filing.

This is profitable for an inventor , as it allows the inventor to

prevent detrimental effects of public disclosure of his invention
that occurred after the earliest application and before filing in
foreign countries.
Berne Convention
Copyright protection on the international level took its first
step in the middle of the nineteenth century on the basis of
bilateral treaties.
Originally signed in 1886 at Berne, Switzerland, it was revised
in 1914, 1928, 1948, 1967, 1971, and 1979.
India has been the Member of Berne Convention
since 28th April, 1928

The Universal Copyright Convention (UCC), was first created in

1952 in Geneva, as an alternative to the Berne Convention.
The UCC international protection was available to authors
even in countries that would not become parties to the Berne
Convention.
Berne Convention
This Convention is based on three fundamental principles:

National Treatment

Automatic
Protection

Independence of
protection.
This Convention is based on three fundamental principles:
National treatment:

Automatic protection: Protection should not be

conditional upon compliance with any formalities .
Independence of protection: Protection must be
independent of the existence of protection in the origin
country of the work (principle of “independence” of
protection).
Protection granted to a work in one country is independent of
the protection granted in its country of origin or any other
country. This principle allows for potentially stronger
protection in certain countries compared to the country of
origin, depending on the specific copyright laws.
WIPO
Adopted on: July 14, 1967, at Stockholm and
Enforced on April 26, 1970
India became an official member of WIPO on May 1, 1975
In 1974, WIPO became a specialized agency of the United
Nations and in 1996, WIPO expanded its role into globalized
trade by entering into a cooperation agreement with the
World Trade Organization.
WIPO
WIPO came into establishment under this Convention with
two main objectives:

For the promotion of the

protection of intellectual To Safeguard Administrative
property worldwide and; Cooperation Among The
Intellectual Property Unions
Established By The Treaties Which
Are Under WIPO Administration.
Trade-Related Aspects of
Intellectual Property Rights
(TRIPS)
TRIPS came into force in 1995, as part of the agreement that
established the World Trade Organisation (WTO).

The three main issues governed by the agreement are:

Standards
Enforcement
Dispute Resolution
Standards: The agreement expresses minimum standards of
protection
(I) The subject matter to be protected
(II) The rights to be conferred and permissible exceptions
(III) The minimum period of protection
Enforcement
(I) Provisions for domestic procedure and remedies for the
enforcement of the IPRs
(II) Includes general principle applicable to IPR enforcement
procedure apart from administrative, civil and criminal procedure
available for enforcement of rights of the right holder
Dispute settlement: The agreement further provides for the
settlement of disputes over IPR among the member states within the
parameters of dispute settlement procedure
TRIPS establishes minimum standards for the availability, scope, and
use of seven forms of intellectual property trademarks,
copyrights,
geographical indications,
patents,
industrial designs,
layout designs for integrated circuits, and
undisclosed information or trade secrets.

TRIPS Agreement lays down the permissible exceptions and limitations

for balancing the interests of intellectual property with the interests of
public health and economic development

The TRIPS Agreement is also described as a “Berne and Paris-plus”

Agreement.
 Transitional agreements
DEVELOPED COUNTRIES
•one-year transition period following the
WTO Agreement’s entry into force, i.e.
until January 1, 1996.
DEVELOPING COUNTRIES
•four years (until January 1, 2000) to
implement the agreement’s provisions,
with the exception of Articles 3, 4, and 5,
which deal with broad principles like
non-discrimination.
LEAST DEVELOPED COUNTRIES
•an additional eleven-year transition time
(until January 1, 2006), with the option of
an extension. The transition period has
been prolonged three times, and now
continues until July 1, 2034, or until a
member no longer qualifies as a Least
Developed Country (LDC), whichever
comes first
How much IP is there In
your Burger?
TradeMarks
A Trademark can exist in a number of forms and is
something that helps promote a specific business.
Copyright
Pamphlets, Menu Cards, Adverts, Videos, ans other Literary
Works are eligible to be protected under Copyright.
Patents
Patents in a burger relate to its:-
• Methods of preparing/cooking
• Equipment used for cooking food
• Technology used
Food Processes can include:
Heating process in a particular temperature
Frying, Baking etc
Mixing, chilling, melting etc.,
INDUSTRIAL DESIGN
An industrial design constitutes the ornamental aspect of an
article. An industrial design may consist of three dimensional
features, such as the shape of an article, or two dimensional
features, such as patterns, lines or color.
Geographical Indication
(GI) is a sign used on products-
• specific geographical origin and
• possess qualities or a reputation
• that are due to that origin.
Type of Products:
• agricultural products,
• foodstuffs,
• wine and spirit drinks,
• handicrafts and industrial products.
 Trade- Secret
A trade secret can exist in a number of forms and
is something that is not disclosed publicly.

The trade secret protection can last indefinitely as

long as the information remains secret.

In a burger the trade-secret can be the recipe for

• Sauce
• Tikki
• Bread
Questions & answers
Invite questions from the audience