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IPR: Meaning and Concept

Concept of Intellectual Property Rights ▶ Watch this part of the lecture (0:00) Intellectual Property Rights (IPR) deal with the "invisible layers" of ownership that exist in everyday objects. An object may feel like one simple thing that its buyer fully owns, but in the eyes of the law it can carr…

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Introduction to Intellectual Property Rights

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Concept of Intellectual Property Rights

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Intellectual Property Rights (IPR) deal with the "invisible layers" of ownership that exist in everyday objects. An object may feel like one simple thing that its buyer fully owns, but in the eyes of the law it can carry several separate layers of ownership, and most of those layers do not belong to the buyer at all.

Layers of ownership in a mobile phone

Example

A mobile phone carries several distinct intellectual property rights at the same time. The buyer owns the device, but the creators of the ideas inside it still hold rights over those creations.

Part of the phoneForm of protection
Technology inside (for example, the way the battery charges or the camera focuses)Patents
Brand name and logo on the backTrademarks
Software that runs the phoneCopyright (under the Copyright Act, literary work includes computer programmes)
Ringtone (a piece of music)Copyright
Special shape of the bodyRegistration as an industrial design
Layout of the tiny chip insideThe layout of the chip can also be protected

Intellectual property is separate from the physical object

Intellectual property is ownership of a creation of the human mind, kept separate from the physical object that carries it.

Example

Prince buys a novel from a bookshop. The paper copy is his: he can read it, lend it, sell it second-hand or even throw it away. But he cannot print five hundred copies and sell them. That right was never sold to him; it stays with the owner of the copyright.

Tangible and intangible property

The novel example shows that two different kinds of property exist in the same thing.

Tangible propertyIntangible property
Property with a physical bodyProperty that has value but no physical form
Example: the book in the buyer's handExample: the literary work inside the book
Owned by the buyer of the copyRemains with the copyright owner

Intellectual property belongs to the intangible family of property.

Working definition of IPR

Key point

Intellectual Property Rights are legal rights granted over creations of the mind, such as inventions, literary and artistic works, designs, and the names and symbols used in trade. They usually give the creator an exclusive right to use and exploit the creation for a limited period.

Four Core Features of IPR

▶ Watch this part of the lecture (2:06)

  1. Negative in nature (a right to exclude)
  2. Limited in time
  3. Territorial
  4. Tradable (can be assigned or licensed)

1. IPRs are mainly negative in nature

A patent does not really give its owner permission to make the product. What it gives is the right to stop others.

Section 48 of the Patents Act, 1970 gives the patentee of a product the exclusive right to prevent third parties, who do not have his consent, from the act of:

  • making,
  • using,
  • offering for sale,
  • selling, or
  • importing for those purposes

that product in India.

Key point

The heart of IPR is the right to exclude. IPRs are negative rights: they allow the owner to prevent others, rather than granting a positive permission to act.

2. IPRs are limited in time

  • Patents – Section 53, Patents Act, 1970: the term of every patent is 20 years from the date of filing of the application for the patent.
  • Copyright – Section 22, Copyright Act, 1957: copyright subsists in any literary, dramatic, musical or artistic work published within the lifetime of the author until 60 years from the beginning of the calendar year next following the year in which the author dies.
  • Trademarks – Section 25, Trade Marks Act, 1999: registration of a trade mark is for a period of 10 years, but may be renewed from time to time.
RightProvisionDuration
PatentSection 53, Patents Act, 197020 years from the date of filing of the application
Copyright (literary, dramatic, musical, artistic work published in the author's lifetime)Section 22, Copyright Act, 1957Until 60 years from the beginning of the calendar year next following the year of the author's death
TrademarkSection 25, Trade Marks Act, 199910 years, renewable from time to time
Key point

Trademarks are an interesting exception to the time limit. Because the 10-year registration may be renewed from time to time, a mark can live as long as its owner keeps renewing it.

3. IPRs are territorial

Section 48 ends with the words "in India". An Indian patent can be enforced only in India. An inventor who wants protection abroad must obtain it separately under the law of each country.

4. IPRs can be traded

AssignmentLicence
The right is fully transferred to another personAnother person is permitted to use the right, usually in return for royalty

Why Does the Law Protect Intellectual Property?

▶ Watch this part of the lecture (3:57)

The unusual nature of knowledge

Physical property (for example, a plot of land)Knowledge (for example, a song or a formula)
Can be used by only one person at a timeCan be used by millions at once without being used up

Once a creation becomes public, copying it is cheap and easy. Without legal protection, a creator would struggle to recover the time and money invested in it. The law therefore deliberately creates exclusive rights.

The patent bargain

The law solves the problem through a bargain:

  1. The inventor must disclose the invention fully in the patent document.
  2. In return, the State grants exclusivity for a limited time.
  3. When that time ends, the invention passes into the public domain, which means anyone may freely use it.

This is why many medicines become much cheaper once their patents expire. Society gets the knowledge, and the creator gets a fair chance to earn from it.

Why trademarks are protected

Trademarks rest on a slightly different reason: they protect buyers as much as businesses.

Example

Zoya is travelling in an unfamiliar town and needs a packet of biscuits. She recognises a familiar mark and picks that packet, trusting a quality she already knows. If anyone could use the same mark, that trust would collapse.

Copyright protects the form in which an idea is expressed, not the idea itself.

Example

Neha and Farhan both write a love story set in a hill station. Neither can stop the other from using that theme. What each one owns is the particular words, characters and arrangement they created.

RightReason for protection
PatentA bargain: full disclosure of the invention in exchange for limited-time exclusivity, after which the invention enters the public domain
TrademarkProtects buyers as much as businesses, by preserving trust in a known mark and quality
CopyrightProtects the particular expression (words, characters, arrangement), not the underlying idea or theme

International Recognition: Paris, Berne and WIPO

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Paris Convention and Berne Convention

International recognition of intellectual property begins in the nineteenth century with two conventions.

ConventionYearSubject matter
Paris Convention1883Industrial property, such as patents, trademarks and industrial designs
Berne Convention1886Literary and artistic works
Key point

These two conventions created the two great families of the subject: industrial property (Paris) on one side and copyright (Berne) on the other.

World Intellectual Property Organization (WIPO)

A modern international organisation was later created to administer such treaties.

  • Name: WIPO, the World Intellectual Property Organization.
  • Headquarters: Geneva, Switzerland.
  • Established by: a convention signed at Stockholm on 14 July 1967.
  • Entry into force: 26 April 1970. That is why 26 April is observed as World Intellectual Property Day.
  • UN status: became a specialised agency of the United Nations in 1974.
  • India: became a member in 1975.

WIPO definition of intellectual property – Article 2(viii)

The WIPO Convention gives the widest definition of intellectual property. Under Article 2(viii), intellectual property shall include the rights relating to:

  • 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.

Three zones to remember the list

ZoneWhat it covers
First zone – creative worksCreative works and the ways they are performed and recorded
Second zone – technical and scientific creationsInventions, discoveries and designs
Third zone – commercial identity and fair tradingMarks, names and protection against unfair competition
Residuary clause"All other rights resulting from intellectual activity" keeps the definition open for new forms of creativity

WIPO definition and national law

Scientific discoveries appear in the WIPO list, even though Section 3(c) of the Indian Patents Act declares that the mere discovery of a scientific principle is not an invention.

Key point

The WIPO definition describes the broad field of intellectual property, while each national law decides what exactly is protected. For example, scientific discoveries are within the WIPO definition, but under Section 3(c) of the Patents Act the mere discovery of a scientific principle is not an invention.

TRIPS Agreement and WTO Standards

▶ Watch this part of the lecture (8:11)

WIPO worked mainly through cooperation. The real turning point came when intellectual property was tied to international trade through the TRIPS Agreement.

Background of TRIPS

  • Full name: Agreement on Trade Related Aspects of Intellectual Property Rights.
  • Negotiated in: the Uruguay Round of trade talks under GATT, the General Agreement on Tariffs and Trade.
  • Came into force: 1 January 1995, together with the World Trade Organisation (WTO).
  • Binding nature: because TRIPS is part of the WTO package, every WTO member is bound by it.
WIPOTRIPS
Worked mainly through cooperationTied intellectual property to international trade
Administers IP treatiesPart of the WTO package; binds every WTO member

Seven categories covered by TRIPS

  1. Copyright and related rights
  2. Trademarks
  3. Geographical indications
  4. Industrial designs
  5. Patents
  6. Layout designs of integrated circuits
  7. Undisclosed information
Key point

A geographical indication identifies goods whose quality or reputation comes from a particular place, such as Darjeeling tea.

TRIPS is a minimum standards agreement

TRIPS fixes a floor below which no member may go. Article 1 adds that:

  • Members may, but shall not be obliged to, implement in their law more extensive protection than is required by the Agreement; and
  • Members shall be free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.

Indian law shows this clearly:

RightInternational / TRIPS minimumIndia gives
Trademark registrationA term of no less than 7 years10 years
Copyright (most works)Author's life plus 50 yearsAuthor's life plus 60 years

National treatment – Article 3

Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property.

Enforcement and transition periods

What made TRIPS truly powerful is enforcement: a member that fails to comply can be challenged through the WTO dispute settlement system.

Developing countries received transition periods. India used its extended period until 2005 before allowing product patents for medicines, food and chemicals.

Indian Statutory Framework of IPR

▶ Watch this part of the lecture (10:22)

India's own IP framework was reshaped to meet TRIPS.

Existing statutes amended

  • Patents Act, 1970 – amended in 1999, 2002 and 2005.
  • Copyright Act, 1957 – amended in 1999.

New statutes enacted

StatuteYear
Trade Marks Act1999
Geographical Indications of Goods (Registration and Protection) Act1999
Designs Act2000
Semiconductor Integrated Circuits Layout-Design Act2000
Protection of Plant Varieties and Farmers' Rights Act2001

Test Yourself

  1. If Hansa buys a music album, does she get the right to make and sell copies of it? Answer: No. She owns only her copy, not the copyright.
  2. Can India give stronger protection than TRIPS requires? Answer: Yes, because TRIPS only fixes the minimum (Article 1).
Key point

Being able to answer these two questions with reasons shows an understanding of the foundation of the subject: ownership of a copy is different from ownership of the intellectual property in it, and TRIPS sets only a floor of protection.

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