INTELLECTUAL PROPERTY RIGHTS:- LAWS AND POLICIES IN SAFEGUARDING THE CUSTOMARY KNOWLEDGE

ABSTRACT:-

In the advent of the digital era, IPR laws hold strong grounds as to what implication it had when the traditional was a major holding in the world. Intellectual property rules and policies are being associated with the different innovative ideas and protecting the inventions of the individuals rendered in the globalized world. The customary knowledge that contributes to the building of today’s most laws has also equal advantage or weightage in society. IPR is the collaboration of different laws that have many acts associated with it such as trademarks, copyright acts, patent acts, and other acts being trade secrets. The IPR, if looked upon from the old or traditional point of view, has many customs which hold a safe place in the formation of the laws. The laws are regarded as a contemplation of the resources that are used for the benefit of the world. The laws are created for the betterment of the world but along with that it has an impact and effectiveness in society and so it ultimately makes the individual follow them in the most appropriate way that is possible. IPR are currently the most used law apart from being an old law as copyright law[1] being established a few years after independence which talks about the artistic work of the individual and safeguarding the work from any fraudulent activity. Whereas the trademark act is used to protect the identity of the individuals work is not hampered because of any other person in terms of trading and now the patents are used to protect the inventions of the individuals as they are the first inventors of that innovation.

This research paper tells about the IPR developments that are to be the most important for the current world. The research about IPR laws is a never ending discussion as this tends to demonstrate the people and their own perspective and approach about the laws. This paper also showcases the emergence of different researchers to further study the complications that are caused because of the involvement of the new laws. The ancient methodology of the scholars of taking the customary knowledge and the IPR laws has been focused in this research paper.

 KEYWORDS:-

Intellectual Property Rights, Legal Impact, Copyright Act, Customs, Customary Laws, Traditional Law, Patents Act, Trademark Act, Modern-Day Influence.

INTRODUCTION:-

The origin of IPR laws has its form as the 1st legislation on patents as it was to protect the invention of the individual and to overcome the obstacle of any infringement caused to the inventor of the product. Act VI was one that had its introduction of patent law back in 1856.  Then in 1859, it had its fresh legislation of Act XV. The intellectual laws mainly are of 3 types that are commonly used:

  • THE PATENT LAWS, 1970:

The laws that are made govern the safeguarding of the invention of the individual from any other person copying it. Patent law is granted by the government for a stipulated period. There are many cases where the law holds its applicability in the eyes of the law as section 48 of the patent law gives exclusive rights to the inventor or the patent holder that he can claim his invention own and holds power to sue the other person for any other similarity that invention has.  And section 104-114, tells about the procedure to be followed while filing the case and all the regulations to be followed.

One of the landmark cases which has delivered 2 aspects of intellectual property rights is Bajaj motor limited v. TVS motor limited where the Madras High Court gave its judgment concerning a Doctrine of Equivalents.[2]

  • THE COPYRIGHT ACT, 1957[3]:-

The copyright act is focusing on the dramatic and artistic work of the person where they can protect their work from any kind of infringement. There are many cases where copyright infringement happens. The copyright act has been previously amended 6 times and the latest amendment in 2012. In a case of Shalini Karla & Ors. Vs. Muthoot Finance Limited became a shocker for Indian society and many other individuals.

The copyright act amendment with the effect of rule 55 had many changes by adding few changes in the copyright act, the literary work of the people has many new inventions and this will ultimately have seen many changes over the past few years and with the new advent of the digital era individuals have come up with latest new inventions where they have portrayed their work in the most reluctant ways.

  • THE TRADEMARK ACT, 1999[4]:-

Trademark stands for the individuals or any other industrialists who have indulged in the business of trade i.e. importing and exporting of the goods from one country to another. People use these marks to stand different from the crowd as in to protect their production from being cheated and the goods that are so imported or exported have to go through many rules and regulations to protect their materials. In the case of, Cadbury India Limited v. Neeraj Food, products[5] section 29 of the act was made to question the entire case and the judges made their injunction about the case on the prima facie of the case.

  • CUSTOMARY LAWS:-

The laws that have been in existence from the beginning of civilization and since that time people have been following these laws to the point that now these laws and customs have become the main center of attraction of the formulated laws. The customs are the epitome of the knowledge that has been grounded in society for a long period. The new digital era has ultimately in positive as well as negative ways been a functional place where the laws that have been in the society hold the influence on the current formulation of these amended laws. All the amendments[6] that have ever happened over the age hold a great influence on the laws and the practices from time to time and to ultimately have that implemented has its drawbacks and benefits too. The awareness now people hold in the eyes of the law and their perseverance has been an influential thing over time. The customs have always been the most integral part of the society and they have their following in the most obvious ways possible.

RESEARCH METHODOLOGY:-

This research paper has aimed to view all the aspects of intellectual property rights and the policies that are associated with them in the modern law system. Both the qualitative as well as quantitative approaches have been used here so that the influence of the safeguarding of customary knowledge stands as per the intellectual property rights policies and laws.  The research paper possesses the uniqueness in a way that in the advent of the digital era it has showcased the bond of the traditional knowledge and the customary knowledge in relation to the intellectual property rights. The paper tries to build the bridge by involving all the forms of IPR laws to get the research about the changes that it has led to in the laws with the passage of time.

REVIEW OF LITERATURE:-

Here, the research paper has taken the knowledge from different platforms where there is a need to have relevance. Some of the pages like BAR & BENCH[7] had some articles which were reflecting intellectual property rights as a whole as, DELHI HIGH COURT INVITES COMMENTS FROM BAR ON DRAFT DELHI HIGH COURT INTELLECTUAL PROPERTY RIGHTS DIVISION RULES, 2021 article was published by BAR & BENCH. Then there are many other articles that are also published by these websites. Also, WORLD INTELLECTUAL PROPERTY ORGANIZATION[8] showcases an article from the point of view of intellectual property rights and customary laws as well. The article namely INTELLECTUAL PROPERTY AND SAFEGUARDING OF TRADITIONAL CULTURE, this article has also been trying to demonstrate the legality of the IPR laws and the different approach to save them from the modern approach.  The laws are then being used from the acts of patents, copyrights, and trademarks too. The literature used for the research is to point out the influence of the safeguards of traditionalism of the law and its display. The articles on these websites are acknowledging the righteous nature of intellectual property rights and their effectiveness on traditional or customary laws.

INFLUENTIAL APPROACH OF THE CUSTOMARY LAWS:-

Customs and traditions have a great impact on society. The customs are the practices that are now made laws; the laws which have traditional beliefs aim at the nature of the functioning or even devotion that they are being followed. Back during the colonial times, people used to follow certain practices which due to the passage of time became their belief to follow them religiously.

The people then used to believe that these laws and customs have safeguard themselves and hence the legacy to pass this belief became a law. Now for a custom to be of its type there are certain grounds which has to be followed:

  • Should be held reasonable – the laws that are to be a part of valid customs have to be made with the reason that is valid enough to stand in the society with proper lawful nature. In Produce Brokers Co. vs Olympia Oil and coke co., there are grounds of valid customs as reasonable and legitimateand for example, sensible, genuine and impartial men”.[9]
  • Should behave morality- the morals for a law to be lawful and should be as per the norms of the society so that they do not infringe any such problem.
  • Have to be consistent- consistency lies in the hands of the person who has been following the norms in the most religious way possible. The customs if they are followed with the utmost integrity then they will be able to follow the validity of a custom. Therefore a custom must be followed with consistency and continuity. In Hampton v. Hono, it was ruled that if a custom is not practiced for a significant amount of time, then it would cease to exist as a valid custom.[10]
  • Should not violate any peace in the society- the customs are always made with the motive that they are under the rules and regulations of the society and they should be well maintained by the people following it.
  • Have to be antique- the older the practice is the more validity it holds in the eyes of the law. The customs are the step stones on which the entire law of the country is based. Their antiquity is checked by the court of law and they then only hold relevance in the eyes of the law
  • Should be certain- certainty in customs have to be a prominent thing as they are to function in the legal framework of the society. If a custom has been declared to be ambiguous, vague, and not understandable by the parties then the particular custom will be declared null and void by the court, the same was ruled by Privy Council in Wilson vs. Wilson.[11]
  • Should be practiced by a large number of folks- the validity lies that they should be followed by a good number of people.

TRADITIONAL KNOWLEDGE AND THE IMPACT OF CUSTOMARY LAWS:-

The customary laws are to be believed to be the age-old practices and they are to be redeveloped and maintained by the people in the eyes of law. The people in the old times had the knowledge that they had indulged in the survival of their species for some time. The laws that are now being regulated in the eyes of the law are all old traditional knowledge that is being used by the people now. The traditional knowledge that is used in the formation of the laws and the manuscripts was developed by the people in the eyes of law so that they can be saved from the misrepresentation and misappropriation of law. And this can be prevented by safeguarding the customary laws.

The intellectual property laws are the well-equipped laws that are used to diminish injustice in the country and the customary laws are also safeguarded by the same. Since we know that intellectual property laws have also been misused many times in the eyes of people and they should be protected from any kind of harm as they are the most important laws of the country. Certainly, in the case of Tekla Corporation v. Survo Ghosh, the issues of intellectual property laws were being misused and this was decided by the High Court of Delhi about the legitimate use of the copyright law on 16th May 2014.[12]

PROBLEMS CAUSED IN THE RELATIONSHIP BETWEEN CUSTOMARY LAWS AND INTELLECTUAL PROPERTY RIGHTS AND POLICIES:-

Intellectual property rights are the laws that are being regulated in the knowledge of traditions and culture where the customs are the reflection of age-old practices. The relation between customary laws and intellectual property laws holds a close relation where the laws are made with keeping in mind the logistic approach to the formation of laws. The laws are made to bring the most of the customs and the possibility of the laws. One of the most famous cases that are related to the traditional knowledge of the laws is the BASMATI CASE where the re-examination for the basmati rice patent had its involvement.[13] The main issue or the problem that these laws face is the validity as the scenario of the traditions are now being changed as per the current norms and standards, the laws today are being reformed as per the current digital era and these are the most relevant cases.

THE EMERGENCE OF CUSTOMARY LAWS AND TRADITIONAL LAWS TO BE REFORMED AS PER THE CURRENT LEGISLATION:-

The impact that the customs hold on the traditions has been a variant in the history of intellectual property right and the modern-day functioning of that law as well. The laws that are in the contingency of the traditional are the functionaries of the tradition. The importance of these traditional laws and customs has to be the main important as if we look at the case of rulings relevant to yoga where the court granted the summary judgment for the Evolation, stating that the matter of law a sequence of the yoga asanas cannot be copyrighted, and if this is being looked in the comparison of the modern way then this is the most irreverent ways as the yoga asanas have been age-old postures and gestures and they cannot be claimed that they belong to some person as they hold another level of importance in the society.[14]

SUGGESTIONS:-

This research paper has talked about all the scenarios and all the upcoming challenges that have affected society. The traditional approach and the customary laws hold the roots in Indian society and such roots have been tampered by different perspectives of the people and of the association who has been trying to bring the traditional knowledge and the laws together. The laws which are the reflection of the society formation and functioning of how the society should work and to maintain the decorum of the country, but when the researches of the scholars have been implemented this has affected the laws in both the positive as well as negative ways, my suggestion about this research is that the IPR laws is a vast area where different different laws can be made and the previous ones can be amended but these laws should not hamper the ancient applicability of the laws. The IPR laws are one of the most developing laws in the country and these laws are to be observed and read properly and then only further amendment and research should be made. The researchers should try not to infringe the old customary laws in getting the new shape of the IPR laws.

If the modern-day approach of the laws is being stated then the laws have the most precious hold in history. This can be explained by looking at the view that the laws are being formed then in terms of the Hindu Undivided Families where the Karta is the only head and that person has to rule the entire family as the family and as a business too then the norms of the customs in that law to have also changed with time as previously the laws only include the male members of the family but now looking in mind the scenarios and the changing people thinking now females have also become a part of the family and the females have also held a share in the property of the Karta.This has happened only because the customs were becoming a threat to the Indian society and these laws had to be made as per the present guidelines too.[15]

CONCLUSION:-

INTELLECTUAL PROPERTY LAWS are the most vast and hold maximum scope in the field of law. The laws that are including all the artistic work and all the innovations of the artists and the inventors of the work. The people with diverse knowledge and with high intellectuals are creating new items which will somehow make the country more advanced and these are to be protected by the laws of the country namely IPR laws.

Law has been a very dynamic source in the eyes of law and these laws have to be amended with time and with less confusion. Now looking into the digital era where the dynamics of the laws are changing drastically, there has been a case where the government of India had a turning point as the case was of TRADITIONAL KNOWLEDGE DIGITAL LIBRARY[16] where the govt. of India’s ultimate thought of creating a Digital Library to include all the customs and traditions of the law. The initiative was to felicitate the public with the proper arrangement of the documents as the manuscripts.

The proper documentation of the knowledge and the laws that were part of the age-old law body has to be preserved most efficiently as in to protect the heritage of the country. The people in the current day scenario are unaware of the difficulties these people used to face while creating the laws for the general public. Therefore, the intellectual property law regime has seen a drastic change in the laws. The more the awareness the more the people can get in link with the traditions and the laws.

Intellectual property has been able to transform the forthcoming generations of people with the advent of digitizations’. The most prominent case where the intellectual property rights law was at test was the case of SAMEER VADEKAR & ANR. V. NETFLIX ENTERTAINMENT SERVICE PVT LIMITED & ORS.,[17]where there was a suit regarding the release of the series and the Bombay High Court then removed the injunctions as per the facts of the case.

                                                   NAME – LAKSHIKA TOMER

COLLEGE – CHANDERPRABHU JAIN COLLEGE OF HIGHER STUDIES, GGSIPU


[1] Copyright Law, no 13, act of parliament 1957 (India)

[2] Bajaj Auto Ltd vs Tvs Motor Company Ltd on 4 October, 2010

[3] Muthoot Finance Limited vs Shalini Kalra & Ors on 13 September, 2021

[4] Cadbury India Limited And Ors. vs Neeraj Food Products on 25 May, 2007 Equivalent citations: 142 (2007) DLT 724, MIPR 2007 (2) 269, 2007 (35) PTC 95 Del

[5].https://www.wipo.int/tk/en/indigenous/customary_law/index.html#:~:text=Customary%20law%20is%20the%20set,of%20conduct%20by%20a%20community

[6].https://www.legalserviceindia.com/legal/article-10138-customary-laws-and-its-constitutional-validity.html#:~:text=Article%2013%20of%20the%20Indian%20Constitution%20treats%20customary%20law%20alongside,Indian%20Evidence%20Act%20of%201872

[7] https://www.barandbench.com/columns/codification-of-customary-laws-need-of-the-hour

[8] https://ipindia.gov.in/

[9] Produce Brokers Co Ltd v Olympia Oil and Cake Co Ltd: HL 15 Nov 1915

[10] Hampton v. United States, 425 U.S. 484 (1976)

[11] Wilson v Wilson [1969] 1 WLR 1470 ChD

[12] Tekla Corporation & Anr vs Survo Ghosh & Anr on 16 May, 2014

[13] A Study of the Basmati Case (India-US Basmati Rice Dispute): The Geographical Indication Perspective

[14] Yoga and copyright, June 2017 By Benjamin Beck and Konstantin von Werder, Mayer Brown, Frankfurt am Main, Germany. Can a sequence of movements such as yoga poses or dance steps be copyrighted?

[15] Mrs. Sujata Sharma vs Shri Manu Gupta & Ors among others. indian kanoon

[16] About the Traditional Knowledge Digital Library (Information courtesy of the Council of Scientific and Industrial Research)

[17] SAMEER WADEKAR AND ANOTHER V. NETFLIX ENTERTAINMENT SERVICES PVT. LTD CITATION: 2020 SCC Online Bom 659, JUDGE: K.R. Shriram J.