In recent years, India has witnessed a remarkable transformation in its approach to IPR, moving from a predominantly agrarian economy to one that places a strong emphasis on innovation and creativity. This paper delves into the evolving landscape of IPR in India, discussing the key factors contributing to its growing importance, including legal reforms, economic implications, and the role of IPR in driving innovation across diverse sectors such as technology, pharmaceuticals, and the creative industries.
Also, highlights the challenges and controversies surrounding IPR, including issues related to patent laws, copyright infringement, and the nation’s commitment to international trade agreements. Additionally, it offers insights into the opportunities IPR presents for businesses and individuals to protect their intellectual assets and harness their economic potential. The abstract concludes by hinting at the potential future developments and prospects in India’s IPR landscape, considering ongoing technological advancements, policy changes, and global dynamics.
This paper aims to provide a comprehensive understanding of the increasing significance of IPR in India, shedding light on both the opportunities it offers and the challenges that need to be addressed to harness its full potential in driving innovation and economic growth.
KEYWORD’s
Intellectual Property Rights, Copyright, Trademark, Geographic Indication, Global Dynamics, Biotechnology, Pharmaceuticals, Innovation
RESEARCH METHODOLOGY
In the world of ample number of sources for a simple topic too it is very difficult to limit oneself to a single mode of the sources but online sources are the one which are limitless and can be accessed from anywhere and we can also quote the sources at aby instance. So, after being confused in the river of various sources I have limited myself to online websites and sources, also the online sources are much updated and we can find the latest comparison of the topic with many perspectives. Mostly I have used the sources which are genuine and we can get best and reliable information. Here, I have used I-PLEADER, INTELLECTUAL PROPERTY INDIA, INDIA CODE, WIPO WEBSITE, IPR FOUNDATION AND PIB. Many other sources have been referred but it is not possible to note and mention every one of them but this article is the mixture of all the cumulative information’s I had and read throughout my life.
BRIEF HISTORY OF IPR IN INDIA
The increasing significance of Intellectual Property Rights (IPR) in India is emblematic of the nation’s dynamic and transformative journey in the 21st century. Once predominantly recognized as an agrarian economy, India has swiftly emerged as a global economic powerhouse driven by innovation, technology, and creative industries. A pivotal component of this transformation has been the growing recognition of the value of IPR, which has become a cornerstone for fostering innovation, protecting intellectual assets, and enhancing economic development.
Intellectual Property Rights encompass a range of legal rights designed to safeguard the creations of the human intellect, such as patents, copyrights, trademarks, and trade secrets. In the Indian context, these rights have gained increasing significance for several compelling reasons. First and foremost, they serve as powerful incentives for innovators, artists, and businesses, encouraging them to invest time, resources, and expertise in developing new ideas and creations. In doing so, IPR promotes a culture of innovation, driving India’s transition into a knowledge-based economy.
This transition is particularly evident in sectors such as technology, pharmaceuticals, biotechnology, entertainment, and fashion, where India has made substantial strides in innovation and creativity. Additionally, the nation’s commitment to IPR aligns with its aspirations to become a global manufacturing hub and attract foreign direct investment. By offering robust IPR protection, India fosters an environment conducive to entrepreneurship and business growth, ultimately fueling economic development and job creation.
Nevertheless, as IPR gains prominence, it is not without its share of challenges and controversies. The intricacies of patent laws, the balance between protection and public interest, issues of copyright infringement, and the intricacies of international trade agreements have become areas of intense scrutiny and debate.
In this exploration of the significance of IPR in India, we will navigate the evolving landscape of IPR in the country, analyzing the key drivers behind its growing importance, the challenges it presents, and the economic implications it holds. We will also discuss the legal framework for IPR protection in India and explore the opportunities that it offers for individuals and businesses to protect their intellectual assets.
s we delve deeper into this topic, we will shed light on India’s prospects in the realm of IPR, considering ongoing technological advancements, shifts in policy, and evolving global dynamics. This discussion aims to provide a comprehensive understanding of the complex and multifaceted role IPR plays in India’s contemporary development, offering valuable insights into the nation’s aspirations and challenges as it strives to harness the full potential of intellectual property in driving innovation and economic growth. [i]
DEVELOPMENTS OVER PAST FEW YEARS
India announced its first National IPR policy in 2016. Today, the portfolios of Patents, Designs, Trademark, Copyrights, Geographical, Indication, and Semiconductor Integrated Circuits Layout Design all fall under the Department for promotion of Industry and Internal Trade (DPIIT). Under DPIIT, the cell for IPR Promotion and management is tasked with implementing India’s National IPR policy. It India announced its first National IPR policy in 2016. Today, the portfolios of Patents, Designs, Trademarks, Copyright, Geographical Indications, and Semiconductor Integrated Circuits Layout Design all fall under the Department for Promotion of Industry and Internal Trade (DPIIT). Under DPIIT, the Cell for IPR Promotion and Management is tasked with implementing India’s National IPR Policy. It spearheads the Indian government’s efforts to streamline IP processes, increase IP awareness, promote commercialization, and enhance enforcement.
Over the past five years, the Indian government has taken positive steps to strengthen its IPR regime, such as efforts to modernize its IP offices; increase manpower; use IT and technology in e-filing of applications; deliver certificates of grant and registration of patents and trademarks in a digital format; reduce the number of trademarks forms; use video conferencing for hearing of IP applications; create expedited examination procedures; and spread awareness on IP issues.
DPIIT, in association with the Federation of Indian Chambers of Commerce and Industry, launched an IPR enforcement toolkit to aid police with handling IP crimes, in particular counterfeiting and piracy. The Maharashtra Cyber Digital Crime Unit was established in August 2017 as a public-private partnership to enable industry to work directly with state police to combat digital piracy. The Unit serves as a potential model for digital enforcement that other Indian states can emulate and replicate.
The Ministry of Education’s Innovation Cell has also taken steps to foster innovation and promote IP literacy and awareness in classrooms across the country.
IPR RELATIONS WITH OTHER NATIONS
India has done a tremendous work in field of the IPR in the recent time and India has grown its strategic ties in relation to the IPR with its allies. Countries like Germany, France, USA, Israel. India’s Engagement with India on IPR continues, primarily through the U.S.-India Trade Policy Forum’s Working Group on Intellectual Property, which restarted in June 2021 after a gap of nearly three years. Under the Forum, working-level engagements between the United States and India have also been positive and focus on helping India develop a more transparent, predictable, and reliable enforcement environment. Further, the United States and India continue to actively engage across various platforms, such as the U.S.-India IP Dialogue, and routinely through bilateral interactions on specific IP issues. In addition, the United States maintains positive working relationships with Indian customs, police and judiciary officials, as well as with industry representatives to discuss ways to strengthen India’s important enforcement ecosystem.[ii]
To further bilateral engagement on intellectual property matters, in December 2020, the United States Patent and Trademark Office and DPIIT signed a Memorandum of Understanding relating to IPR technical cooperation mechanisms and the promotion of IP, which is guided by a biennial work plan. In terms of the Indian EU partnership in the field of the IPR, first India-EU IPR dialogue held to strengthen relation and facilitate enhanced cooperation in the field of Intellectual Property Rights[iii]
WHAT ARE THE DIFFERENT TYPES OF INTELLECTUAL PROPERTY RIGHTS IN INDIA
1. The Copyrights Act, 1957
Copyright protects the expression of an idea rather than the idea itself. Under section 13 of the Copyright Act, a protection under copyright can be obtained for ‘original literary, dramatic, musical and artistic works; cinematograph films; and sound recording’. Interestingly, a copyright protection can also be obtained for computer programmes. A copyright is an ‘exclusive right’ that is granted to a person to do or authorize to carry out certain activities with regards the copyrighted work. For example: in case of a literary, dramatic, or musical work, the owner (or any person authorized by the owner) is permitted to perform the work; make translation(s) of such work; make adaptations of the work, etc.
The Copyright Act, under section 17, clearly states that the author of the original work (for which protection under copyright has been obtained) shall be the first owner of the work. Further, the owner has the right to license the copyright of their work to third-parties through a written agreement.
In case of published literary works, dramatical works and artistic works, copyright protection shall be provided to such works for a term of 60 (sixty) years in addition to the life of the author.
Incidental to the protection awarded under a copyright, the Copyright Act, also confers certain special rights on the author, under section 57. An author/ owner of the copyright work, even after assigning the work to another person (wholly or partially), has the right to ‘claim authorship of the work’ and the right to ‘claim damages’ with respect to any ‘distortion, mutilation or modification’ of the author’s original work, in the event such distortion or any other act is damaging to the author’s reputation.[iv]
2. The Trade Marks Act, 1999
The Trade Marks Act, under section 2(b) defines a ‘trade mark’ as ‘a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours…’. In simpler words, a trademark provides protection for symbols, colours, shapes, words, etc. representing and relating to a good or a service.
Interestingly, a trademark application need not be filed in respect of marks which are in use (but can also be filed in respect of marks which are intended to be used in the future). The primary requirements for registration of a trademark includes that it should consist of a mark capable of distinguishing the goods/services from those of others and that it is capable of graphical representation. The Trade Marks Act provides for absolute grounds of refusal of registration such as – (a) the mark not having a distinctive character; (b) a mark being deceptive and confusing to the public; (c) if a mark is hurtful to religious sentiments; (d) the mark is offensive, scandalous, or obscure, etc. In addition to the absolute grounds of refusal, the statute also provides for relative grounds of refusal of registration (viz. similarity with pre-existing marks).
Further, India is a signatory to the Madrid Protocol under which a trademark can be applied for and registered internationally. However, the prerequisite for filing and registering an international application (under the Madrid Protocol) in a foreign jurisdiction is that the mark needs to be first filed in India.
A protection afforded from a trademark registration is imperative as it protects the brand name, logo, sound, shape, etc., and distinctively identifies the goods/services to the brand bringing uniqueness to the mark. Also, the validity of a trademark registration is for an initial period of 10 (ten) years which can renewed perpetually for successive period of 10 years (subject to timely filing of renewal applications).[v]
3. The Patents Act, 1970
A ‘Patent’ is an intellectual property right which protects any invention. It is an exclusive right that protects the rights of the inventor and prevents other people to unauthorizedly use and misappropriate the registered patent.
A patent is granted for a term of 20 (twenty) years from the date of filling of the application. It is important to note that patent for a new invention is registered only if the invention is ‘novel’ and ‘original’ i.e. it has not been introduced in the public domain in India or anywhere in the world; is ‘capable of industrial application’ which refers to the ability of the invention to be used in an industry; and is an invention that requires to employ a process of ‘inventive steps’, which is defined as ‘a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art’, under the Patents Act.
The Patents Act bestows each inventor, whose patent has been registered, with certain rights, namely:
- with respect to a patent for a product, the right to prevent third parties form using, selling, making, importing, etc. the product without prior consent; and
- with respect to a process for which a patent is obtained, the right to prevent third parties from using, selling, offering, etc. a product obtained from that process, without the prior consent of the original inventor.
Further, India is a signatory to the Patent Cooperation Treaty (PCT) which permits an applicant to file an application for registration of an international patent. Upon filing such application, an inventor can obtain patent protection in multiple countries (members of PCT), simultaneously.[vi]
4. The Design Act, 2000
A ‘design’ under the Designs Act [section 2(d)] means and includes ‘only the features of shape, configuration, pattern, ornaments or composition of lines or colours, applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to an are judged solely by the eye’.
An application for registration of an industrial design is to be made to the Controller- General of Patents, Designs and Trade Marks. However, a design shall only be considered for registration if – (a) it is novel and an original innovation i.e., it has not been produced before or reproduced by anyone; (b) it has not been disclosed to the public anywhere in India or outside the jurisdiction of India; and (c) it can be easily distinguished from other known designs.
Furthermore, once a design is registered, the registered proprietor is afforded protection for an initial period of 10 (ten) years, which is extendable (upon filing an application for extension) for a further period of 5 (five) years.[vii]
5. The Geographical Indications of Goods (Registration and Protection) Act, 1999
Many goods in India are widely popular owing to their place of origin. For instance, ‘Darjeeling tea’ is unique and popular owing to many factors including but not limited to its origin, the skill set of the tea farmers of Darjeeling and the weather prevailing in that area. Other such examples of products which have a bearing of the place of origin (or factors specific to the place of origin includes Banarasi Saree; Basmati Rice, etc).
A ‘Geographical Indication’ is defined as ‘an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality as the case may be’. The GI Act covers only goods such as agricultural goods, food stuff, handicraft goods, manufactured goods, and natural goods.
An application for registering a good under the GI Act requires a statement explaining how the geographical indication affects to the origin of the good in terms of the quality, characteristics, and reputation of the good; the class of goods; particulars with regards the appearance of the geographical indication and the map of the territory/area/country where the good has originated.
A registered geographical indication is awarded protection for a term of ten (10) years with the option of renewing and extending such protection for further tenures of ten (10) years from the date of expiration of the original registration.[viii]
6. The Protection of Plant Varieties and Farmer’s Rights Act, 2001
The objective of the Protection of Plant Varieties and Farmer’s Right Act, 2007, is to recognize rights of Indian farmers and to provide protection of plant varieties to encourage the growth and development of more plant varieties.
In 1994, India became a member to the Trade Related Aspect of Intellectual Property Rights Agreement (TRIPS) under which all members are required to accommodate and provide for the protection of plant varieties [Article 27(3)(b) of TRIPS]. All plant varieties that have been registered and awarded protection are entered and recorded into the National Register of Plant Varieties.
The Plant Varieties Act permits any breeder, farmer and any person as authorized, to apply for registration of a new plant variety. A new plant variety is registrable if it satisfies the conditions of ‘novelty, distinctiveness, uniformity and stability’. To elaborate, the condition of novelty requires that at the date of filing the application (for protection), the plant variety must not be sold. Further, distinctiveness encompasses the requirement of having at least one distinguishing factor from all other existing and protected plant varieties. The requirement of uniformity means that all essential characteristics of the plant variety must be uniform. Lastly, the plant variety being registered for is required to be ‘stable’, meaning that the essential characteristics of the plant variety must remain unchanged after repeated propagation of such plant variety.
The validity of registration for the protection of a plant variety is for a period of nine (9) years in the case of trees and vines, and for a period of six (6) years in the case of crops, with the option of renewal of such registrations.[ix]
7. The Semiconductor Integrated Circuits Layout- Design Act, 2000
A ‘semiconductor integrated circuit’ is defined as ‘a product having transistors and other circuitry elements which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function.
Under the SICLD Act, all layout-designs capable of being registered are required to be original; commercially unexploited anywhere in India and in any convention countries; inherently distinctive and inherently distinguishable from other registered layout- designs. An application for registration of design layouts must be in writing and is required to be filed before the Registrar in the Semiconductor Integrated Circuits Layout-Design Registry present in the territorial limits of the principal place of business of the applicant.[x]
Further, the protection afforded to registered layout-designs is for a period of 10 (ten) years. In India, there are different forms of intellectual property rights, allowing a person to obtain protection for their assets. India has actively become party to many conventions and treaties afford international recognition and protection for intellectual property rights recognized in India. Some conventions have led India to introduce new enactments such as the Plant Variety Act, to award protection to goods that represent the heritage, agricultural background, and fauna of India.
CONCLUSION
In conclusion, the significance of Intellectual Property Rights (IPR) in India cannot be overstated. IPR plays a crucial role in fostering innovation, protecting creativity, and driving economic growth in the country. It serves as a foundation for nurturing talent, promoting research and development, and incentivizing inventors, artists, and entrepreneurs to bring their ideas to fruition. With the global economy becoming increasingly knowledge-driven, India’s commitment to IPR has become a pivotal factor in its competitiveness on the world stage.
However, challenges such as piracy, counterfeiting, and the need for efficient enforcement mechanisms persist. To further enhance the significance of IPR in India, the following suggestions can be considered:
1. Strengthen IPR education and awareness: Promoting knowledge about IPR among businesses, creators, and the public can help in fostering a culture of respect for intellectual property rights.
2. Simplify and expedite the IPR registration process: Streamlining the procedures for patent, trademark, and copyright registration can encourage more innovators to protect their intellectual assets.
3. Improve enforcement: Bolstering the enforcement of IPR laws to deter infringements and counterfeiting is crucial for safeguarding the interests of creators and inventors.
4. Foster collaboration: Encouraging collaboration between the government, industry, and academia can lead to a more robust ecosystem for research and development, thereby strengthening IPR’s significance.
In conclusion, IPR is undeniably significant for India’s continued growth and innovation. By addressing these suggestions, India can further harness the potential of intellectual property rights to drive economic prosperity and technological advancement.
–Author DEEPAK KUMAR is a Penultimate Year Law Student at Campus Law Centre, Faculty of Law, Delhi University.
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