The most remarkable difference between the law of society and the law of jungle can be traced out through analysis of the principle of ‘Rights’.
The Black’s Law Dictionary defines Rights as “Something that is due to a person by just claim, legal guarantee, or moral principle” or “A power, privilege, or immunity secured to a person by law”. So, it means that ‘right’ is what you have by the virtue of being a member of the human society.
In the modern society in addition to different other basic rights like rights to life, liberty, freedom, education, some more rights have started getting recognition. These rights are although not necessary for survival but may be necessary for finding a means of survival. The Intellectual Property Right is one such right.
Let us now delve into the concept of Intellectual Property Rights, commonly known as IPR. To begin with, I would first like to quote the definition of Intellectual Property as given in the Black’s Law Dictionary. It reads as “A commercially valuable product of the human intellect, in a concrete or abstract form, such as a copyrightable work, a protectable trademark, a patentable, Invention, or a trade secret.” In simple words, intellectual property is anything which is the creation of a human mind, either tangible or intangible. E.g. any literary, dramatic, artistic, cinematographic work; a trade secret or a mark used to make one’s product identifiable; or any new invention; design of a particular article, building, dam, bridge etc.
Moving on to the legal aspects of intellectual property, it can be mentioned that in present era the protection of these intellectual property rights have become as important as protection of fundamental rights.
In this article I will limit myself only to the Indian scenario of IPR.
Protection of Intellectual property rights means to ensure that no one else other than the creator can reproduce the creation to which the right pertains, without sanction of the creator. It is as simple as, I have right to restrain any one from staying on my property without my permission, either express or implied.
In India, different statutes deal with protection of different kinds of Intellectual Property Rights.
Let me first categorize the intellectual property rights under 5 major heads, viz..
1. Copyright.
2. Trademarks.
3. Patents.
4. Designs.
5. Other IP Rights.
Copyright:
It is a right in context of works like literature, art, drama, cinema, sound recordings, video footage etc.
The copyright is dealt with by the Copyright Act, 1957.
Most importantly, it first defines the term ‘author’, i.e. the person who holds the copyright.
Under section 2(d), Author means-
1. in relation to a literary or dramatic work, the author of the work;
2. in relation to a musical work, the composer;
3. in relation to an artistic work other than a photograph, the artist;
4. in relation to a photograph, the person taking the photograph;
5. in relation to a cinematograph or sound recording the producer; and
6. in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;
Anyone in the territory of India can apply for getting his or her work registered with the registrar of copyrights and can get copyright on that work.
Copyright also subsists in the works like broadcasts, performances, government works etc.
Chapter 5 of the act deals with terms of copyright in different works. The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, the 60-year period is counted from the date of publication.
The act provides for provisions regarding assignment and licensing of the copyright by agreement.
Trademarks:
Trademark related rights are governed by the Trademarks Act, 1999.
A trademark is a mark used to distinguish one’s goods and services from that of others. Some examples of well known trademarks are SONY, TATA, Reliance, Parle, Bajaj, Mahindra & Mahindra, Rin, Tide, Britannia etc.
Let me now analyze why protection of trademarks is necessary.
Brands and trade names are associated with the quality of product and services offered by them. If we ever think of buying a T.V, best electronic brands like Sony, Samsung, LG etc. come into our minds. So, we choose any one based on the reputation and quality and buy it. Supposing that one Mr.X, from New Delhi sets up a small workshop and starts manufacturing T.V’s using substandard components and affixes a sticker of ‘Sony’ on them before selling them in the market. We as buyers come under the misconception that the T.V we are buying is manufactured by the famous brand Sony and we buy it. After a few days the T.V starts giving trouble, and we start thinking that ‘Sony T.V’ are not good. Wouldn’t it harm the reputation of Sony?
Yes it would. In this case despite of rendering the best quality products to the consumers, Sony would suffer.
This is the very basic reason for protection of Trademarks.
Trademarks can be registered under the Trademarks Act, with the registrar of Trademarks.
Patents:
Patents are granted to the inventors of a thing who prove that their invention is novel, non-obvious, and capable of industrial application. But then, all inventions, even if complying by the above requirements, cannot be patented. Such exceptions include:
1. Invention relating to Atomic Energy.
2. A mere admixture of two known substances.
3. A mathematical formula.
4. A method of playing game.
5. Discovery of any living or non-living substance in nature.
6. A mere arrangement or rearrangement of instruments.
7. A diagnostic, medical, surgical process or a process of physiotherapy.
8. Plants and animals in whole. Etc.
Patent can be obtained from the registrar of patents after going through a long procedure which takes years.
Designs:
Think if someone copies the words another has written in his answer sheet, what will happen?
The answer is simple that he also will get same marks as the one who has originally written it.
The same concept applies here. If I make a design and another person copies it, the value of my design is bound to go down. More over if the copied design is sold at a lower price than the original design, which one is going to get sold first? Again the answer is obvious that the one which is a copy of the original.
Thus designs also need to be protected.
Other Intellectual Property Rights:
Some other such rights are geographical indications, farmers’ rights, integrated circuit layouts etc.
For protecting the rights, the statutes have been enacted, but how do these protect the rights?
These statutes protect the rights in a two-fold way.
a. By registering.
b. By punishing for infringement.
Infringement means- “An act that interferes with one of the exclusive rights of a patent, copyright, or trademark owner”
Thus when any person without the permission of the owner of an IP right, uses, copies, publishes, duplicates, or sales the subject matter of such right, he is held guilty of infringement.
For punishing the infringer and remedy the aggrieved party, there are three modes in general:
1. Civil remedy:- it includes payment of compensation by the infringer to the person whose right has been infringed. The aggrieved party can either ask for the loss or damage he has suffered or for the account of profit the infringer has made.
2. Criminal Remedy:- it includes imprisonment of the infringer. Sometimes the loss due to infringement is irreversible and in such cases, this is the best possible remedy.
3. Administrative Remedy:- it includes seizure of the infringing copies, delivery up of such copies, Anton Piller orders etc.
To conclude, IP rights have become as important as other fundamental rights and protection of these rights must be a great concern for developing countries like India. It was said by Albert Einstein that:
"Imagination is more important than knowledge."
And thus one’s imagination and product of such imagination must be duly respected.
-Krishanu Ray
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