Intellectual Property Rights are legal rights, which result from intellectual activity in industrial, scientific, literary & artistic fields. These rights Safeguard creators and other producers of intellectual goods & services by granting them certain time-limited rights to control their use. Protected IP rights like other property can be a matter of trade, which can be owned, sold, or bought. These are intangible and non-exhausting consumption.
Intellectual property is a product of human intellect and the rights granted to it allow its owner to benefit from the fruits of this intellectual endeavor by creating a monopoly over it. Such benefit is not always a natural right but requires recognition by a statute.
In India, intellectual property rights recognized under the statute are:
The Patents Act, 1970;
The Trade Marks Act, 1999;
The Copyright Act, 1957;
The Designs Act, 2000;
The Geographical Indications of Goods (Registration & Protection) Act, 1999;
The Semiconductor Integrated Circuits Layout Design Act, 2000;
The Biological Diversity Act, 2002;
The Protection of Plant Varieties and Farmers’ Rights Act, 2001.
Intellectual property rights were essentially recognized and accepted all over the world due to some very important reasons. Some of the reasons for accepting these rights are: –
a. To provide an incentive to the individual for new creations.
b. Providing due recognition to the creators and inventors.
c. Ensuring material reward for intellectual property.
d. Ensuring the availability of the genuine and original product.
Kinds of Intellectual Property Rights
The knowledge of intellectual property rights is a must to a common man. A common man everywhere and every time come across the things created, invented, discovered and produced by some human mind. A design of a house, the material used in a house, its furnishings like a carpet, sofa, fridge, television, telephone, paintings, photographs, wall clock; the articles of daily use like a pen, books, the newspapers, tissue papers, shoes, etc; the things that are worn by him like Jeans, T-shirts, trousers, hats ties, shoes, etc; the items of conveyance like cycles, cars, bikes, etc…The list is endless! Almost all the things that surround a common man are one way or other, intellectual properties of someone. Somebody has spent his time, money, and energy to invent and create them. Therefore, these all-common things are the intellectual property of someone and are protected by law.
These items of intellectual properties can be classified into two main categories: –
a. Industrial Property items
b. Copyright and related rights items.
The industrial properties items include all sorts of inventions, trademarks, industrial designs, and geographic indicators of the source. The copyrights and related rights items include all literary works which range from articles, news-paper items, novels, storybooks, poetry books, etc… The drawings, photographs, paintings, architectural design, music, dance, films, and artistic performances.
The industrial property items are found all around us. All inventions are covered under this category. An invention has been defined as a process or a product that provides a new way of doing something or provides a new solution to a problem. Inventions are protected by the Patents. The owner of inventions can get his invention registered under a Patent. A Patent is granted for 20 years from the date of filing the application or patent. After this period the invention is available to all for commercial exploitation and it becomes public property.
Some of the products we use in daily life are protected by trademark laws. A Trademark can be patented like invention and industrial designs. The trademark can be a combination of words, letters, numbers, drawings, images, symbols, and even sounds. The trademarks not only protect the owner’s rights but also required for a consumer to have confidence in the product purchased by him. The reputation and quality are also associated with trade-marks. The trade-marks are generally registered for seven years but they can be renewed indefinitely by applying again and paying the required fee.
A design is the aesthetic or the ornamental aspect of an article. The design can be two-dimensional like patterns, lines, or colors. They can be three-dimensional like the surface or shape of an article. These designs are made to look at things attractive and beautiful. They also have commercial value. Due to these reasons, industrial design is protected. One has to register this design against limitation and unauthorized copying. The protection is provided for five years and it can be renewed for fifteen years.
Some of the products we use have an association with geographical indicators of the source. The things like Basmati rice of Dehra dun, Champagne of France, Darjeeling tea, etc. are the product which can be protected by laws and international agreements because they are the geographical indicators of the source.
The Copyrights are provided for items like literary, musical, artistic works like songs, musical scores, poetry, paintings, sculpture, films, architecture, maps, technical drawings; computer programs, database, etc are provided to the creators. Copyrights provide the exclusive right to the creator to use or authorize others to use their works. The reproduction in various forms, copying, printing, recording, public performance, or adaptation is prohibited. This right provides the economic right to the creator that is the financial benefit for a lasting period of fifty years after the creator’s death.
A common man comes across literary, artistic, musical works in his daily life. The literary works include novels, short stories, screenplay, nonfiction works, newspapers, history, biography, magazine, articles, encyclopedias; dictionaries, computer programs, databases, and other published works.
The artistic works which are important to a common man include paintings, drawings, lithograph, etching, photographs, sculpture, films, videotapes, videodisk, etc. The musical works include songs, lyrics, recorded on a compact disk, broadcasted on radio, or performed in public are covered 100 years copyrights. Architectural works include designs, drawings, and plans. The furniture is protected under industrial design whereas toys are protected under industrial design and copy frights.
Even the traditional craft items like hand-woven articles like carpets, cotton bed covers can also be registered for protection as an Industrial design. The protection of indigenous and traditional knowledge, folklore, culture, and innovations are some of the latest entries in the field of intellectual properties rights.
The problem faced by startups:
Although the knowledge about IP rights in India is budding, people still need assistance and knowledge to decide properly about the method of protection required for their ideas, in addition to the products which are emerged from those ideas.
Protections after the launch of the product/idea: It is not a good idea to plan for the protection of IP rights after all the planning is done w.r.t the business. Proper planning should be executed from day one when the idea has been seeded in the brain because delay in such initiation causes a huge loss to the IP.
To give an example publication of an invention before the filing can harness the protection rights as it will not be considered as a novel by the registering authority. Similarly, in the case of the trademark the same is required to be promoted from day one i.e., even if the production and distribution of a product is not started to make it distinctive, however, promoting without getting IP protection can create infringement;
Confusion regarding the choice of proper protection for the idea/product: The choice of IP protection can sometimes be a difficult problem for a novice;
For example, a product can have various shapes and the same can be protected under different IP protections provided in India. A design or a shape of a product can be a subject matter of Trademark, Copyright well Design. To safeguard the right related to a distinctive shape it is of utmost importance that the proper mode of protection should be chosen to get maximum out of the intellect put in the creation of the shape. The guidance of an expert in this regard can be taken;
Lack of research before the launch of idea/products: IP rights are individual-based rights and provide monopolistic rights in nature hence a lack of research before establishing a business can prove to be detrimental. For example, a prior art search in case of a patent for a product or a database search in case of a trademark should be done before the investment is made otherwise time and money spent on an idea that is already developed would be of no use;
Lack of secrecy before the launch: Most of the IP rights are based upon priority and once the same is lost, it doesn’t lead to anything. In the present age of social media, it is of utmost importance that secrecy should be maintained during the development of an idea/product.
Steps were taken and IP reforms initiated by the Government: The scheme of Startups Intellectual Property Protection (SIPP) aims to promote awareness and adoption of intellectual property rights among startups. The scheme is inclined to nurture and mentor innovative and emerging technologies among startups and assist them in protecting and commercialize them by providing them access to high-quality IP services and resources.
The government has impaneled several facilitators, who are required to provide IPR-related services to startups without charging anything from them. All the charges shall be bear by the government to encourage young entrepreneurs and innovation;
Fast-tracking of patent/trademark applications;
50% rebate on the filing of applications.
At times it has been noticed that startups shrink their budget when it comes to IP protection or might get so much engrossed in the development of the product that the thought about protection of IP rights at the initial stages of development are not there in their mind. However, the need of the hour is that they utilize the facility been given by the Government of India concerning IP Protection as negligence of IP protection may be detrimental to the growth of their business in future
Challenges in IPR: From Indian Perspective
Today, IPR plays an important role in every sector and has become an important aspect of research for Pharma and research-oriented industries. The continuous efforts of the government in policy establishment, IT protection, infrastructure, IPR search portals, and manpower made this Industry a step ahead. In consideration of all the achievements, our industry is still facing troublesome challenges not only at the domestic level but also at the international level. Firstly, in India IPR lacks its roots in remote areas, such areas are considered to be the hotbed of inventions. Many people are still unaware of IPR and its advantages in taking rights for their intellectual property. In such cases, the government should promote the awareness of IPR in such remote areas. A large number of awareness camps and educational hubs have to be organized for the skilled impart of knowledge among the inventors. Secondly, a legal issue plays an important role in the IPR situation in the country. Today various trademark and patent infringement matters are gaining significance in the legal story of the country. In such an increase of IPR matter, a skilled team of law persons (Judges, advocates) and IPR professionals are required. Apart from the above issues, TRIPS flexibility is yet another object to be discussed here.
Earlier, when the Indian Patent system was not in compliance with TRIPS, there was a risk of a healthy Patent protection provision in India. But today the condition has changed. India is now a member of the TRIPS agreement and our patent system is fully compliant with the TRIPS. Even though the Indian Patent Act contains all the TRIPS flexibilities, the relevant provisions require fine-tuning, especially those related to patent protection, compulsory license, and government use.
The past decade attempts to conclude crucial amendments to the Patent Act of 1970 and has built up a firm base for a fully functional patent system. IPR influence in the current regime is much affected by its awareness and intellect nature. In the current scenario, various important steps have been taken in reaching IPR to a new height and compliance with USPTO, EPO, and other countries’ IPR regime, and it was believed that more steps have to be taken. Further, people are still unaware of IPR and its advantages in taking rights for their intellectual property. In such cases, the government should promote awareness of IPR in remote areas.
A common man comes across intellectual properties from dawn to dusk. The goods having a very wide spectrum and are associated with food, shelter, and clothes; the things of necessity, comfort, and luxury. From waking up from a Gautier bed, using a comfortable Sleepwell mattress and pillows, having a cup of Taj Mahal Tea, then wearing a Nike tracksuit and shoes for a morning walk, he deals with these properties. A Modern Bread or Mother Dairy Milk or a cup of Nescafe at the breakfast, going in a Zen car to the office, using a Compaq computer, and coming back in a car. In the evening, watching Sony Television and fixing alarm in his/ her Swatch watch to wake-up in the morning, he uses the products which are intellectual properties of someone.
These properties have been covered under a patent or a copyright or a trademark. Since a common man’s life is very closely linked with articles and products which are protected by law under intellectual rights. The copying, imitation, adaptation, and unauthorized reproduction of these things, without the permission of the owner, may amount to a serious offense. Therefore, knowledge about intellectual property rights is a must for a common man.
Sanjay.G (BMS College of Law)