Innovation is the cornerstone of humanity. Gradually, the world is witnessing a more modern approach to itself. That is of course because of innovation and discovery. The challenge that our society faces is not only the sole task of creativity, but also the protection of this gift which is as delicate as it is noble. Everyday, we see several cases of stolen ideas, counterfeit goods, denial of credit to the best. The world HAS taken up the issue of INTELLECTUAL PROPERTY and its protection at every possible stage and there have been conventions and institutions in place.
DEFINITION
Intellectual property is an intangible asset of a being. It is the result of the creativity of mind. Intellectual Property(IP) includes the rights relating to:-
- Industrial Designs
- Trademarks, commercial Names and Designations, Service Marks
- Scientific Discoveries
- Performances of Phonograms, Broadcasts, Performing Arts
- Inventions in all fields
- Literary ,Artistic and scientific work
- Protection against unfair competition
The protection of intellectual property is essential for the development of the creation by the individual and to protect the asset from fierce market competition.
There has been a huge debate around the trade between nations for intellectual property. There are laws restricting even the translation and reproduction of the creation and payment of a certain amount of remuneration if he or she gives authorization to use the creation.
TYPES OF PROTECTION
There are 4 types of protection of intellectual property, namely:-
- Patents
- Copyrights
- Trademarks
- Geographical Indications
PATENTS
These give intellectual property rights to inventions. They allow the holder to prohibit others form making or selling the invention or using it in any way in exchange for publishing their invention. Patents are of 3 types:-
- Utility
- Design
- Plant
UTILITY PATENTS
These patents are granted on any process or machine, mostly industrial, or composition of matter or any useful improvements. An invention, to obtain a patent, must be novel(new), non-obvious and have some usefulness. A Utility Patent lasts for 20 years. The Utility Patents in India are protected under the Patents Act of 1970 and is administered by the Department of Industrial Policy and Promotion under the Ministry of Commerce and Industry in India.
DESIGN PATENTS
These patents cover any new shape, configuration, surface patterns, ornamental designs in any manufactured good. A Design Patent lasts for 14 years. The Designs Patents are protected by the Designs Act of 2001 and most recently the Designs Rules 2014. The Design Patent, like the Utility Patent is also administered by the Department of Industrial Policy and Promotion under the Ministry of Commerce and Industry in India
PLANT PATENT
Plant Patents are protections granted for nay new variety of asexually produced plants. They encourage farmers and breeders to develop the new varieties of plants. This patent is protected under The Protection of Plant Varieties and Farmers‘ Rights Act 2001. These patents last for a span of 20 years and are administered by the Ministry of Agriculture and Cooperation under the Ministry of Agriculture in India.
COPYRIGHTS
Copyrights address the concerns of any author producing original literary works, music, architectural works, choreography, computer software, etc. A copyright gives the author exclusive rights to perform, create or modify his work. A work gets a copyright from the moment the work is created. Copyrights gives the author the right to reproduce, communicate to public, adapt and translate the work. The copyrights are protected under The Copyright Act of 1957 and are administered by the Ministry of Human Resource and Development’s Copyright Board.
TRADEMARKS
Trademarks are symbols,words,phrases,number drawing, picture,device, emblem,etc. A trademark is capable of distinguishing the creation or idea of one producer from that of another. Thus, a trademark prevents the fraudulent use of symbols, designs , etc. Trademarks are protected under The Trade Marks Act 1999 and is administered by the Department of Industrial Policy and Promotion under the Ministry of Commerce and Industry.Example of such Trademarks is ‘ÇPA ‘ which signifies the Members of Society of Certified Public Accountants, Pepsi, Nike,etc.
GEOGRAPHICAL INDICATIONS
Products that are granted geographical indication owe their reputation and qualities to a certain geographical location. The manufacture or processing of the good take place in that specific geographical location. Examples of such GIs are Darjeeling Tea, Kullu Shawl, Mysore Silk,etc. These rights are protected under The Geographical Indications of Goods Act in 1999.
INTERNATIONAL ORGANISATIONS
There has been ample initiative on the domestic level to curb the infringements of IP rights. The formation of the World Trade Organization gave the countries, collectively, an opportunity to take up this issue at the international level.There are many conventions and institutions with detailed and unambiguous rules and laws that are followed by the contracting nations of the WTO.
WIPO- WORLD INTELLECTUAL PROPERTY ORGANISATION
WIPO is a worldwide organization intellectual property approach, administration, data and collaboration. It is a self-subsidizing organization of the United Nations Organization.
The main goal of WIPO is to make a suitable environment for innovation and creativity across the globe. Most important of all, WIPO provides global services for dispute resolution which is very important and convenient in the changing world.
The organization also has the capacity to mediate and initiate bilateral agreements between member states for the betterment of the IP framework.
TRIPS- TRADE RELATED ASPECTS OF INTELECTUAL PROPERTY RIGHTS
In 1994, a round of talks on the General Agreement on Tariffs and Trade was held in Uruguay in which the World Trade Organization was formed and was set to succeed the GATT agreement prevalent since 1948. The WTO was formed so as to initiate and sustain a friendly environment for trade among nations. One such initiative of the WTO was the TRIPS agreement. TRIPS was brought into effect to protect the interests of inventors and innovators not just within their domestic region but worldwide.
TRIPS recognizes intellectual property as private rights. It lays down the minimum protection that each member state of the WTO has to provide their own nationals as well as nationals of other Contracting states(Member of the WTO) with regards to intellectual property.
TRIPS adheres to certain conventions regarding intellectual property. These conventions were established before the enforcement of TRIPS and were the foundation for the protection of intellectual property.
BERNE CONVENTION-1886
Berne Convention for the Protection of Literary and Artistic Works provides for uniform copyright laws across the world. It follows three basic principles which are to be adhered by the WTO members:-
- National Treatment- This principle stops a contacting nation from discriminating between its own nationals and nationals of other contracting states with regards to Intellectual Property Laws.
- Most-Favored-Nation- If a nation grants any kind of immunity, advantage or favor to a national of any one contracting state, the same advantage applies to all the nationals of all the contracting nations residing in the country. The state cannot discriminate between nationals of any two contracting states.
- Principle of Automatic Protection- This principle gives protection to works as soon as they are created no matter their form of expression. This protection is given even when the creator has not registered.
- Principle of Independence of Protection- A member country can set the maximum duration of the protection independent of whether the protection still exists in the country of origin or not.
ROME CONVENTION- 1961
The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations provides protection to basically 3 categories:-
- Performers- All the musicians, painters, dancers, etc, come under the category of performers. The convention stresses on the consent of these performers for any communication, fixation, reproduction or broadcasting of their performance or work to the public.
- Broadcasting Organization- These organizations too have the same rights with regards to the rebroadcasting, fixation, reproduction of their fixation of broadcasting. The Convention guarantees them protection until they themselves authorize such activities with their consent.
- Producers of Phonograms- Phonograms mean an aural fixation of sound. A producer of phonograms has the exclusive right to prohibit or authorize the reproduction of their phonograms. Remuneration has to be paid to the producer if his phonograms are used for any commercial purpose.
IPIC – INTELLECTUAL PROPERTY IN RESPECT OF INTEGRATED CIRCUITS-1989
The IPIC or the Washington Treaty gives protection to the topographies of integrated circuits. Development of these integrated circuits is crucial for the development of smaller digital instruments.
Integrated Circuits(IC) are small semiconducting chips that reduce the size and weight of an electronic device. While the investment for the research and development in the technology is huge, it only takes a fraction of that to copy the technology while still generating large profits.
Thus , the IPIC is meant to protect the creations and encourage investment in this field.
PARIS CONVENTION- 1883
The Paris Convention for the Protection of Industrial Property was one of the first Intellectual Property Treaties. It laid down the foundations for protection through patents, utility models, industrial designs,etc. Utility Models are a smaller version of patents. They are relatively easier to acquire and have a lifespan of about 6-15 years.
The Paris Convention provisions fall under 3 categories:-
- National Treatment
- Priority Rights- These rights allow a claimant to file for a patent in one state on a particular date and claim that date for another patent application which he files in another country subsequently. This means that the claimants first date of application anywhere in the world will be taken as the date for all his subsequent applications and he will be given priority if his initial date is prior to that of others. Thus a claimants first application will give him an advantage anywhere in the world.
- Common Rules- Protection against unfair competition, Indication of source, trade names, industrial designs, marks,etc.
Conclusion
Sufficient Laws and organizations have enforced and protected these rights. Multinational corporations and global entities still manage to find loopholes in these constraints. The fact is that there are still so many areas where IP Laws are still not as effective with respect to the time taken to issue patents or the effectiveness of these patents and copyrights. The Developed Countries are ready to work to resolve this issue as they are continuously pressing for the TRIPS PLUS agreement which will bring in stricter IP Laws for the protection of innovation specially with respect to pharmaceuticals where companies are criticized for giving more importance to profit maximization rather than public welfare. The opposition coming in from the developing countries who will have lesser access to the modern inventions or even their slightest ideas. Thus, here comes the debate of whether promoting innovations is more important or protecting innovations. Both have their pros and cons. The world will have to decide.
