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
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 phone | Form of protection |
|---|---|
| Technology inside (for example, the way the battery charges or the camera focuses) | Patents |
| Brand name and logo on the back | Trademarks |
| Software that runs the phone | Copyright (under the Copyright Act, literary work includes computer programmes) |
| Ringtone (a piece of music) | Copyright |
| Special shape of the body | Registration as an industrial design |
| Layout of the tiny chip inside | The 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.
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 property | Intangible property |
|---|---|
| Property with a physical body | Property that has value but no physical form |
| Example: the book in the buyer's hand | Example: the literary work inside the book |
| Owned by the buyer of the copy | Remains with the copyright owner |
Intellectual property belongs to the intangible family of property.
Working definition of IPR
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
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- Negative in nature (a right to exclude)
- Limited in time
- Territorial
- 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.
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.
| Right | Provision | Duration |
|---|---|---|
| Patent | Section 53, Patents Act, 1970 | 20 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, 1957 | Until 60 years from the beginning of the calendar year next following the year of the author's death |
| Trademark | Section 25, Trade Marks Act, 1999 | 10 years, renewable from time to time |
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
| Assignment | Licence |
|---|---|
| The right is fully transferred to another person | Another person is permitted to use the right, usually in return for royalty |
Why Does the Law Protect Intellectual Property?
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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 time | Can 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:
- The inventor must disclose the invention fully in the patent document.
- In return, the State grants exclusivity for a limited time.
- 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.
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 expression, not the idea
Copyright protects the form in which an idea is expressed, not the idea itself.
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.
| Right | Reason for protection |
|---|---|
| Patent | A bargain: full disclosure of the invention in exchange for limited-time exclusivity, after which the invention enters the public domain |
| Trademark | Protects buyers as much as businesses, by preserving trust in a known mark and quality |
| Copyright | Protects 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.
| Convention | Year | Subject matter |
|---|---|---|
| Paris Convention | 1883 | Industrial property, such as patents, trademarks and industrial designs |
| Berne Convention | 1886 | Literary and artistic works |
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
| Zone | What it covers |
|---|---|
| First zone – creative works | Creative works and the ways they are performed and recorded |
| Second zone – technical and scientific creations | Inventions, discoveries and designs |
| Third zone – commercial identity and fair trading | Marks, 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.
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
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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.
| WIPO | TRIPS |
|---|---|
| Worked mainly through cooperation | Tied intellectual property to international trade |
| Administers IP treaties | Part of the WTO package; binds every WTO member |
Seven categories covered by TRIPS
- Copyright and related rights
- Trademarks
- Geographical indications
- Industrial designs
- Patents
- Layout designs of integrated circuits
- Undisclosed information
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:
| Right | International / TRIPS minimum | India gives |
|---|---|---|
| Trademark registration | A term of no less than 7 years | 10 years |
| Copyright (most works) | Author's life plus 50 years | Author'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
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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
| Statute | Year |
|---|---|
| Trade Marks Act | 1999 |
| Geographical Indications of Goods (Registration and Protection) Act | 1999 |
| Designs Act | 2000 |
| Semiconductor Integrated Circuits Layout-Design Act | 2000 |
| Protection of Plant Varieties and Farmers' Rights Act | 2001 |
Test Yourself
- 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.
- Can India give stronger protection than TRIPS requires? Answer: Yes, because TRIPS only fixes the minimum (Article 1).
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.