IPR introduction

Intellectual property rights

1 introduction
The subject of intellectual property (IP) has assumed international importance especially in respect of the implications and impact of patent laws on science and technology. The advances and through organized research and development (R&D) leading to invention, innovations, and new knowledge are major instruments of human survival and progress. In present day competitive environment, facilitation of quick sharing and commercialization of new knowledge requires protection of such knowledge through appropriate IP laws so as to prevent illegal use or copying.

IP represents the fruit of some individual’s intellectual creativity. The right to IP would encourage the creativity in man thereby contribute to the development of society culturally and technologically. It is also logical that the creative person should enjoy the economic or other benefits of his labors. The counter argument is that monopolies are unfair and it may distort trade and progress may not be possible unless one knows everything that has been done before. There is also little evidence to show that the absence of IPRs damages creativity or an industry. Nonetheless, it is widely accepted that individuals and organizations deserve their IP be protected and rewarded.

2 definitions and explanations

2.1 Intellectual Property

Intellectual property comprises all entities arising from human intellect activity – ideas, intentions, words (fact and fiction), music, theatre or art. It includes documents of all kinds, archives, databases (whether online, CD-ROM, or delivered by other mechanisms), material on the Internet, individual items in a databse, computer software, and inventive pieces of hardware that are subject to patent coverage.

Historically, patents for inventions, designs for industrial designs and trade marks for marketing a product were collectively known as industrial property. These, together with copyright of literary work, form intellectual Property. However, IP now includes all property third parties from using it without permission.

2.1.1 intellectual Property Right (IPR)
IPR connects the rights to literary, artistic and scientific work; performances of performing artists; phonograms and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks; service marks and commercial names and designations; and all other products resulting from intellectual activity in the industrial, scientific, literary and artistic fields. It is a generic term covering patent, registered design, trade mark, and copyright, layout of integrated circuits, trade secrets, geographical indicators and anticompetitive practices in contractual licenses.

Just as the ownership of and transactions in other forms of property is governed by law, so is the case with IP as well. The IP is, thus, protected and governed by appropriate legislation.

2.2 patent

A patent is a legal monopoly grated for a limited period to the owner of an invention. Patent rights are grated by the State. Merely to have a patent does not give the owner the right to use or exploit a patented invention; that right may still be affected by other laws such as health and safety regulation, or the food and drugs regulation or by other patents. The patent law is property right and it can be given away, inherited, sold, licensed and even abandoned. As it is conferred by the State, it can be revoked by the State even after grant, whether or not it has, in the meantime, been sold or licensed. There is no such thing as world patent.

2.3 Copyright

Copyright, an important type of IP, protects the labour, skill and judgement of someone-author, artist or some other creator-expends in the creation of an original piece of work. Different countries apply different tests in order for copyright to be enjoyed. In a majority of the countries, copyright is an automatic right. One need not even register with any authority. More than one individual can enjoy the copyright on the same item if they independently created the same item without prior knowledge of each other’s efforts. In some countries the owner can only be an individual, but in most it can be an individual or an organization. An employee of an organization who creates something in the course of his normal duties passes ownership of the copyright to the employer.
The owner of copyright has the right to prevent others from copying, selling, hiring out, performing, broadcasting or amending the work. The skill, labour and judgement of the author are protected irrespective of the form in which the product appears.
The definition of “published” applicable to print media is modified to cover present day electronic media.
Fair Dealing of Fair Use, permits copying for certain specific purposes and under certain condition. It is intended as a defense against an infringement action, and relies on the argument that the individual made the copy (or under certain circumstances, even multiple copies) of not too substantial a part of the literary work and the copying would not damage the legitimate interests of the copyright owner. What is Fair Dealing is expected to be specified in the local legislation. Typically, national legislations will permit Fair Dealing/Use for study, purposes as private research, commercial research, private study, criticism and book reviewing, reporting current events, and educational purposes.
A person wanting a copy should make the copy himself or herself, or someone else may be authorized to make the copy, in many countries, librarians and information officers are also entitled to make copies on behalf of a patron. Fair dealing applies to books, journal articles, and databases.
In many countries, Reproduction Rights Organizations (RROs) are a well- established part of the copyright sene. RROs are typically owned wholly or in part by publishers’ representatives, and have authority to issue jblanket licenses to organizations so that they may photocopy copyright materials beyond the legally permitted limits- for a fee.
The different types of work covered under copyright are:
1. Original literary, dramatic, musical and artistic works; computer programmes/software.
2. Cinematographic film.
3. sound recording.
4. The rights of a copyright holder are:
5. (A) In the case of literary, dramatic or musical work, not being a computer programme/ software:
a) to reproduce the work in any material form including the storing of it in any medium by electronic means;
b) to issue copies of the work to the public not being copies already in circulation;
c) to perform the work in public or communicate it to the public;
d) to make any translation of the work;
e) to make any adaptation of the work; and
f) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses a) to e).
B) In the case of computer programme/ software:
a) to do any acts specified in (A); and
b) to sell or give on hire, or offer for sale or hire any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions;
C)In the case of an artistic work:
a) to reproduce the work in a material form includingt depiction in three dimensional work or in two dimensions of a three dimensional.
b) to communicate the work to the public not being copies already in circulation;
c) to issue copies of the work to the public not being copies already in circulation;
d) to include the work in any cinematograph film;
e) to make any adaptation of the work; and
f) to do in relation to an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (a)to (e).

(D) In the case of cinematograph film:
a) to make a copy of the film including a photograph of any image forming part thereof;
b) to sell or give on hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; and
c) to communicate the film to the public.

(E) In the case of sound recording:

a) to make any other sound recoding embodying it.
b) To sell or give on hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions; and
c) To communicate the sound recording to the public.

(F) The term of a Copyright is:
a) if published during the life time of the author of a literary work, the term is for the life time of the author plus 60 years;
b) for cinematographic films, records, photographs, posthumous publications, anonymous publications, works of government and international agencies the term is 60 years from the beginning of the calendar year following the year in which the work was published; and
c) for broadcasting the term is 25 years from the beginning of the calendar year following the year in which the broadcast was made.

2.4 Computer Programmes

A computer programme means a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.

2.5 Images

Images are not covered by “Literary Works”, but instead are known as “Artistic Works”. The term includes photographs, microfilms, paintings and drawings, models of buildings, sculptures, diagrams, maps, slides, including OGP transparencies, engravings, etchings; the design part of any trademark or trade name; product labels; people’s signatures; charts, engineering drawings, and plans.
Generally, the person who created the work owns the copyright. If a work, such as a photograph, is commissioned, the copyright is still in the hands of the person who made the work unless there is a contract making it clear that copyright is assigned to the commissioning person. Copyright in artistic works typically lasts 50 to 70 years post mortem.

3 history: general
Copying is an age old practice and was included in Saint Benedict’s Rule as a virtuous activity. Guttenberg’s invention of printing from moveable metallic types was regarded primarily “as an advance in the art of copying … and was duly opposed by the scribes…”. Nevertheless, printing continued to develop and to spread all over the world.
By the mid-16th century, the leading printers in London formed the Stationer’s Company. In 1556, a Royal decree promulgated by the Catholic Queen Mary secured monopoly to the Stationer’s Company overall printing as a means of controlling the spread of Protestantism and Reformation.
The statutory copyright, therefore, was a product of censorship and trade regulation and not a product of common law, as a the court did not see it as a concept to deal with complex issues. It was intended, in essence, to control the press and not to protect the rights of the authors. The first law to recognize the author’s right was the Statute of Anne, enacted in 1710. it was an “Act for the Encouragement of Learning by Vesting the Copies of Printed books in the Authors or Purchasers of such Copies During the Times therein Mentioned”. The Stature of Anne was, and still is, the prototype of all subsequent copyright legislation in almost every nation, including the United States.

In the US Constitution, the Congress was given the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. The first US Copyright Act was passed on 13 May 1790 modeled after the Statute of Anne. The period of protection was 14 years plus and additional renewal term of 14 years. In 1821, the Copyright Law was revised to include the right to musical compositions and to extend the duration of copyright to 28 years, renewable for an additional 14 years. The law passed through several amendments. In 1947 the Copyright Act of 1909 was amended and became law as Title 17 of the U.S. Code. The thrust of the 1909 Copyright law, however, was greatly affected by dramatic technological developments. New inventions, techniques, and methods of communication, storing, reproducing, and disseminating various types of works that are the subject matter of copyright emerged, and it became obvious that the Copyright Law, as it stands, is unable to accommodate the extraordinary technological, industrial and commercial changes that have taken place since 1909 and will certainly continue to develop in the future.

4 IPR in india

4.1 Patents
The Intellectual Property System in India can be traced back to 1856. The first legislation on the subject was brought into force in the form of an Act on protection of inventions based on the British Patent Law of 1852. This Act granted certain privileges to an inventor on a new manufacture for a period of 14 years. It was re-enacted with some modifications as Act XV of 1859 in which Patent Monopolies were called Exclusive Privileges. According to this legislation, as inventor of a new manufacture, by filing a specification disclosing the invention, could obtain the exclusive privilege of making, selling and sung an invention in India and authoriseing others to do so for the term of 14 years from the date of filing of the specification. In 1872 the Patents and Designs Protection Act was passed which was followed by the Protection of Inventions Act of 1883. These Acts were consolidated as Inventions and Design Act, 1888. the Act of 1888 was replaced by the Indian Patents and Design Act, 1911, which established for the first time in India a system of Patent and Design protection under the management of a Controller of Patents and Designs. This Act was in force when India became independent on 15 August 1947.
Even though India was on the threshold of major industrial development, the patents Act of 1911 has not stimulated and encouraged innovation or commercial utilization of the patented inventions to boost industrial development unlike in other industrialized countries.
Based on the recommendations of Justice Rajagopala Ayyangar and taking into consideration the changes proposed by the Government of India, a revised comprehensive Patent Bill was introduced in the Parliament in 1967, and the Patents Act 1970, came into effect from 20 April 1972.

4.2 Designs
The law for the protection of designs was developed for the protection of designs and patterns for textiles. Over a period of time, this concept was extended to patterns and prints made by modeling, casting or embossment of an impression or ornament on any article of manufacture. Prior publication or use of designs before registration was not allowed and the concept of novelty was introduced as distinct from that of copyright in literary work and a separate law for copyright for industrial designs came to be established. The Patent and Designs Act was passed in 1872, consolidated in 1888, and later replaced by the Indian Patent and Designs Act, 1970. Modifications were incorporated to restrict the Act of 1911 to designs. The Designs Act of 1911 came to be known as the Designs Act, 1911 from 20 April 1972.

4.3 Copyright

The development of Copyright law in India was closely aligned to the British Copyright Law. The British Act of 1911 codified and consolidated the earlier Acts on different works. It also abolished the common law Copyright and introduced a term of life of the author plus fifty years. Further, it abolished the need for registration of Copyright as a prerequisite for claiming right or enforcement of Copyright.
In India, the first Copyright Act was passed in 1914, which was a copy of the British Copyright Act of 1911, with suitable modifications to make it applicable to British India. The Copyright Act, 1957 which is currently in force, replaced the Act of 1911. It adopted many principles and provisions of the British Copyright Act of 1956. The Copyright Act of 1957 was passed on 4 June 1957 and came into force on 21 January 1958, with the intention to cope with the new problems in the law of copyright created by advances in communication, broadcasting, microfilming, photolithography, cinema, etc.
A number of amendments to this Act were effected in 1983 mainly to avail of the benefits arising from the revision of the Berne Convention and the Universal Copyright Convention, to which India is an adherent. Further, amendments were also made in 1984 with the view to discouraging and preventing the widespread piracy prevailing in video film and records. Recent amendments of 1992 extend the term of copyright protection from the lifetime of the author plus 50 years to the lifetime of the author plus 60 years.

5 internet and copyright

5.1 Internet and IPR
In time, some solutions to the apparently intractable Internet problems are likely to emerge. Trademark law is of little help when Internet domain crosses both industrial and national boundaries. The Internet may worry governments by making it easier to copy copyrighted material, it compensates by letting copyright holders find and police instances of abuse better than they could otherwise. Ultimately the Internet could breed a new approach to regulation. Markets have an incentive to regulate themselves, competing to offer consumer protection from unpleasant experiences.
5.2 Internet and Copyright
E-mail messages, material loaded onto FTP sites or WWW servers, and anything else put on the Internet is copyright. Just because it is widely available free of charge does not change the situation. Most authors of such materials are probably only too happy for thier4 material to be reproduced and disseminated; nonetheless, the material is still copyright and should be respected as such. Therefore one should be careful about copying such material, for example forwarding it to someone else. Such copying is only a problem if the person who owns the copyright loses income as a result of the infringement. Internet URLs, e-mail addresses and so on are facts, and can be copied. Compilations of URLs or e-mail addresses are protected by copyright, just as are Internet indexes such as those created by Yahoo, FAQs (Frequently Asked Questions) collections on Usenet newsgroups are copyright.
A World Wide Web Home Page is copyright, and to copy it to use as the basis of another Home Page is clearly copyright infringement, and may involve infringement of Trade Mark Rights (another form of Intellectual property) if the WWW page included some device or logo that is a Registered Trade Mark.
There are many things that countries might reasonably want to regulate on the Internet. These include not just the unpleasant soft pornography and incitement of racial hatred, but consumer protection, the defense of IPRs and taxation. The problem is not, whether the Internet should be regulated, but how. It has certain intrinsic problems. It has the ability to leap borders. A click of the mouse will take one from the material on Australia to that of Finland. Australian may have different rules of decency or probity from those of Finland.
Moral Rights embodied in the laws of many countries, include the right to be identified as the author, the right to object to one’s name being associated with someone else’s work, and the right to object to, and sue for damages, if someone subjects a copyright work to derogatory treatment. This is particularly relevant in the networked environment. Use of any third party material, even if it is not copyright infringement, may will infringe Moral Rights unless it is used in its entirety and unless the original author’s name remains attached to it.

6 electrocopying, electronic copyright, multimedia, networking

Electrocopying means the conversion of printed materials into machine readable form using document images processing and OCR technology. It is violation of copyright to convert without prior permission items owned by third parties into machine readable form and to store them on a database. Scanning of material in preparation for sending it down a network without permission is “adaption” of the work, and is therefore infringement. Sending material via a telecom network, although virtually instantaneous, is infringement. Similarly, printing out copies at a remote terminal without permission is again infringement.

7 ipr and international conventions
IPR laws operate territorially; normally provide protection only for a country’s nationals. Generally, treaties, bilateral agreements provide protection for foreign authors/inventors under reciprocity conditions. Some of the international conventions applicable across national boundaries are mentioned below.
7.1 Berne Convention
The Berne Convention was established in 1886 relating to Copyright Protection. Since then five revisions have taken place in 1908, 1928, 1948, 1967 and 1971. it is administered by WIPO. This Convention is based on national treatment and imposes minimum norms of copyright protection. Copyright protection is automatic throughout all member countries without the need to comply with any formalities. It also deals with definitions, literary and artistic work, scope of rights and protection, term of copyright and freedom of Member States.
7.2 Patent Cooperation Treaty
The Patent Cooperation Treaty (PCT) became effective in 1978. As on January 1996, it has been ratified by 83 countries which include many developing countries. India is not yet a member of PCT. A patent application filed under the PCT is usually termed an international application. However, this application can lead to grant of patents in 83 member countries only. It does not create a world patent.
7.3 Paris Convention
The Paris Convention applies to industrial property which includes inventions (patents) marks, industrial design, utility models (a kind of small patent provided by the laws of some countries), trade names geographical indicators and the repression of unfair competition. Industrial property applies to industry and commerce, agricultural and extractive industries and all manufactured and natural products like wine, grain, tobacco, leaf, fruit, cattle, minerals, mineral water, beer, flowers and flour. It may be noted that industrial property is different from intellectual property as defined in the TRIPS Agreement. Intellectual property includes patents, copyright, trademarks, protection of lay-out design of integrated circuits, industrial design, geographical indicators, unfair competition and protection of undisclosed information. Clearly, the utility models are not included. The member countries of the TRIPS Agreement are required to comply with Articles 1 to 12 and Article 19 of the Paris Convention.
The first system for protection of IP came in the form of the Venetial Ordinance in 1485. This was followed by the Stature of Monopolies in England in 1623 which extended patent rights for technological inventions. In the USA patent laws were introduced in 1760. Most European Countries developed their patent laws between 1880 and 1889.
In order to help patenting in those countries which had developed their own patent laws and system, an international convention known as the Paris Convention was signed by most of the above countries in 1883. The convention has been revised from time to time, the first in 1900 and the latest in 1975. By December 1995, 136 States had ratified the Convention and including many developing countries. India is not a member of the Paris convention. The countries ratifying the Convention form a Union for the protection of industrial property. The substantive provisions of the Convention fall into three main categories: national treatment, right of priority and common rules. The Convention does not lay down anything relating to the term of various types of freedom given to each country but has left it to each country to formulate its own patent laws.
7.4 Madrid Agreement on International Registration of Marks
The Madrid Agreement was adopted on 14 April 1891 to facilitate obtaining the protection of a trade mark of service mark in several countries through a single international registration. At present, 46 countries are party to this Agreement. India is not a signatory to this agreement. This agreement covers both trademarks and service marks. The protocol relating to the Madrid Agreement was adopted on 27 June 1989 and came into force on 1 December 1995. It retains the basic features of the Madrid Agreement.