Intellectual property rights in India: IPR are legal rights that exclude third parties for certain duration of time from exploiting the protected subject matter without authorization of the right holder. These rights are territorial in nature, and are applicable within the boundaries of the country granting any such rights under the relevant domestic law in force from time to time.
However, governments are bound by certain Treaties and Conventions to uniformly apply some basic provisions related to protection of IPR in their jurisdictions. During the term of an, intellectual property rights in India no one will be authorized to use the protected material unless he/she gets a license from the right holder. Licenses for commercialization may be given on exclusive or non-exclusive basis.
Unauthorized use of a work or product protected by ‘intellectual property rights‘ in a defined territory constitutes infringement of the right. The IPR laws provide for payment of compensation for damages by the defaulter, and may also provide for liability for penalty and punishment.
Intellectual property rights
We live in an era of increasingly knowledge-based economies where intellectual property rights are an invaluable tool. IPR are legal rights that subsist in tangible creations of the human mind and fulfill certain established criteria. The power of mind to reason and create is intangible as it cannot be touched and measured.
However, a creation from intellectual pursuits may result in a tangible product, which is clear and defmite. Such real product, or process or design, or systematic arrangement of idea may be having either monetary value or moral value or both. In agricultural research and technology development efforts, for example, intellectual investments may be as crucial as genetic or other resources.
One basic assumption in the grant of “intellectual property rights in India” is that the innovator/creator should be encouraged, at least for a limited term, by the grant of exclusive right, for two reasons,
(i) for ensuring appropriate compensation to him/her by way of that right, for his monetary and intellectual investments in a particular invention, and
(ii) for encouraging advancement of R&D pursuits in the area in which the protected IP is subsisting. On the expiry of the term of protection, the protected technology would enter the public domain and may be utilized by all.
This is true in case of patents, copyrights and designs. However, trademarks if maintained can be protected indefinitely.
Intellectual property rights in India relation to agriculture
Like in other fields of technology, research and technology development in agriculture also involves intellectual property. The innovativeness and creativity of researchers result into some new product or process or some improvement in the existing ones.
Such new inventions in agriculture may be publicly available from the beginning thereby benefiting society but not providing any particular monetary reward to the innnovator since anyone can copy and use the invention. Altemately, exclusive rights may be granted in the form of IPR for a limited period.
Such right protected technologies can be commercialized either directly by the owner or by licensing to other(s) for the benefit of the end-users and, at the same time, for economic gains to the owner.
Broadly, intellectual property rights are protected under law in different forms, which can be categorized into industrial property rights, copyrights and others. The industrial property rights include patents, designs and trademarks; the copyright also includes related rights for the presenters, producers and disseminators of the right protected IP; and the other forms of IPR include geographical indications, undisclosed information (trade secrets), topographies of integrated circuits, etc.
Out of all, the forms of intellectual property rights in India most relevant to agriculture are patents, trademarks, geographical indications and the plant variety protection systems. The holistic picture would also include use of copyrights and trade secrets in agriculture whereas designs and topographies of integrated circuits may also be applicable in some appropriate cases.
Types of intellectual property rights
A patent is considered to be the strongest form of IPR protection. It is granted by a state to person, whether natural or legal person, for an invention made by that/ those person(s).
The three essential characteristics of an invention, to qualify for legal protection by grant of patent, are –
(i) the invention as claimed in the patent application should be novel/ new when compared to information already in the public domain,
(ii) non-obviousness or involvement of an inventive step is a requirement that when considered from a perspective of a person who is aware of developments in the field of the invention, the invention should not be obvious (something more than a mere workshop improvement), and
(iii) industrial applicability is a requirement for utility or usefulness in the industry in some form. Thus, the inventions that have no clear use or that produce technology having negative use may not be admitted for grant of patent.
A trademark is a sign or mark or combination of signs or marks that establishes the goods or products or services of one establishment and also distinguishes these goods or products or services from those of the other establishments or competitors.
When such marks are applied to services they are also known as service marks. Any entrepreneur may use a trademark without its formal registration and when it is established in the market on goodwill and sustained use, its owner can enjoy the legal benefits under common law.
For example, such trademark is protected by law against unfair competition. However, a trademark can also be registered under the trademark law. The latter enjoys a stronger form of legal protection. The holder of a registered trademark has the right to use the trademark and exclude others from doing so without authorization and also to sue the infringer for damages and compensation.
The trademark registration may be renewed indefinitely in India after every 10 years. Article 18 of the TRIPS Agreement provides for renewal for registration of trademark at least every 7 years but for an indefinite period.
It is desirable to register the trademark as soon as possible to protect investment in a trademark. However, in cases where a business establishment already has a fairly well known trademark in the market, it should fairly advertise the trademark along with the product(s) for which it is used.
Trademarks are identified by the symbols TM (not yet registered) and ® (registered). It is important to always use these symbols while referring to trademarks. Some examples of famous trade marks are “Wikipedia®”; “Oracle®” and “GODREJ®”.
An industrial design is the ornamental or aesthetic description of an article or object, which may be 2 or 3-dimensional, and which is mainly important for its visual appeal in the market.
This includes pattern or lines, or colour or any combination of these. Any description of function or utility attached to an industrial design will disqualify it for protection under the law. The creator of the design has a legal right to seek the design protection so that it can be distinguished in the market and also its unauthorized use or imitation can be discouraged.
The holder of a registered industrial design can make exclusive use of that design and also desist others from using that design. No one can give that or substantially the same design to its goods without reaching an agreement with the owner of the design and the infringers can be sued.
Protection of an industrial design can also be done under copyright law as work of art, which entitles the owner with the reproduction rights; and, under some circumstances, a design may also be protectable under the law of unfair competition.
Copyright and related rights
The oldest international convention concerning copyright is the Berne Convention, 1886. The creators of literary and artistic works, including scientific books, other compositions, computer databases of text, audio, Video or multimedia sets, sequences, dramatic and musical works, etc. may seek lawful protection of their creations.
The copyright may be implied from the date of creation without registration, or it may be registered under the “intellectual property rights” law. With the advancement of science and technology, copyright law has been extended to cover creations in various forms of worldwide communication, including the internet and cyberspace. As mentioned earlier, novel and aesthetic designs can also be protected by copyright although there is a separate provision to register them under the protection of industrial designs law.
Copyrights can also be available on the arrangement of gene sequences. The term of protection for copyright extends beyond the date of expiry of the original creator and it varies from country to country. This term is usually 70 years from the death of an author or from publication for the USA and European countries, and 60 years for India.
A holder of copyright may enjoy three types of legal rights, namely,
(i) the reproduction right or the right to authorize or prohibit others to copy or reproduce the copyrighted creation. This reproduction right is applicable for the various forms such as publication or sound recording or visual/audio-visual recording; and, it is also applicable for public performances, broadcasting, translation or adaptation;
(ii) the economic right to sell or license the right conferred by the copyright (The copyright holder may agree to enter into a licence contract, on an exclusive or a non-exclusive basis); and
(iii) the moral right, which allows the holder to claim authorship, or to oppose changes to the original creation on the grounds of distortion of the original idea or a harm to the creator’s reputation.
A Geographical Indication (Gl) is a sign or mark, which is attributed to a good of any category, say agricultural good, manufactured/industrial good, etc. Origin of a Gl is not attributed to a business house, rather it is attributed to a particular geographical region, territory or locality in that territory, where it has its production, economic and cultural relation/origin attributed to people of that geographical region, territory or the locality in that territory.
Another term, appellation of origin, is also used to describe a good as having originated from a particular geographical region. All appellations of origin can be registered as GI’s but the difference is that all registered GI’s may not be the appellations of origin for the respective goods.
A Geographical indications, when attributed to a good, describes that good as having originated (manufactured) from a particular geographical region, territory or locality in that territory; and its origin is also attributed to the particular conditions, climatic or geographical or the social involvement, of that geographical region, territory of locality in that territory.
The protection of trade secrets has historically been covered by the law relating to unfair competition. However, the Paris Convention, and now the TRIPS, has brought it in the realm of intellectual property rights Law. Trade secrets are generally considered to be information recognized to be valuable to competitors, not generally known in the trade, acquired at some expense or effort by its owner, who makes reasonable efforts to keep it secret.
WTO member countries fulfil the TRIPS obligation according to the kind of legal system that they have in place. While civil law countries like Germany and Japan have statutory protection for trade secrets, in common law jurisdictions like UK and India, trade secrets are protected by tort, Breach of Confidence or Contract intellectual property rights law.
There have been debates that trade secrets may be one of the means through which traditional knowledge can be protected. However, separate negotiations are going on at the WIPO platform to determine multilateral agreement in respect of genetic resources, traditional knowledge and folklore.
Certain acts or practices that are not considered honest practices for carrying out business or trade lead to unfair competition in the market. Although unfair competition is not directly a form of intellectual property in India but it hinders smooth application of exclusive rights granted under most forms of intellectual property rights.
Legal action against unfair competition is provided under the Paris Convention and the TRIPS Agreement. Different categories of unfair competition may be considered as follows:
(i) making or causing confusion as to the products or services or the production or commercialization activities of a company or a business house; for example a product X in the market has a label made like an international reputed house,
(ii) misleading the public by making certain allegations or at least indications as regards the method of manufacturing of a product, its quality or quantity or any other factor; misleading for services is similarly considered unfair competition.
(iii) making discrediting false allegations for the products or services or industrial or commercial activities of an enterprise, e.g., giving an advertisement that Our sweets are made of full-cream milk unlike the product of X company which is of toned milk, without substantiation or proof;
(iv) disclosing and unfair use of other’s trade secrets, unlawful acquisition and use of trade secrets by companies or unlawful disclosure of trade secrets by employees or others;
(v) taking advantage of other’s achievements, such as unfair use of someone’s well established trademark; causing confusion With other’s trademark to take business advantage or acts causing dilution or damage to other’s trademark, also, free riding such as unfair reproduction of copyrighted materials or pirated audio and video cassettes and CDs;
(vi) comparative advertisement, such as in general a spate of international advertisements and counter advertisements by business giants, indicating other’s product without mentioning it.