Intellectual Property Rights
There are various intangible assets that result from their creation through the human intellect that can be in forms of literary work, industrial design, an invention, Artistic works, names and symbols used commercially etc. These assets are termed as intellectual property (IP) (WIPO). Once created, intellectual property can be protected under particular regulations of specific countries in various forms of Intellectual Property Rights (IPRS), giving the owner of IPRs exclusive rights to their work that allows them to benefit from their efforts (Mathur, 2014).
Intellectual properties are generally protected by a country’s national laws that concern the practice of unfair competitions between creators. Unfair competition can be defined as the unauthorized use of one’s trade secrets, trademarks or any other creation belonging to someone else, thus misleading the public in the goods being sold or bought, thus ultimately discredits the owner of the work or competitor while creating confusions to the public in the process.
Protection can be given specifically for various range of intellectual properties that may include;
- The protection of new solutions to technological or technical problems from technological or technical innovations. Patents are used as intellectual property rights that protect technological or technical innovations through a government issued document that provides a description of the product or invention and or its process while giving solely rights that allows only the owner of the patent to use it or someone through the permission given by the owner with financial compensations. However, patents have a lifespan in which at the end of it, that specific product, invention or process is made available in the public domain.
- Protecting a new plant variety that is distinct, stable and uniform.
- Individual goods, products or inventions of a specific enterprise or company are individualized by trademarks or servicemarks that distinguish between good, products or inventions of different competing companies by either a brand name, sign, logo or slogan. A company can prevent the unauthorized use of their names by registering trademarks and commercial names without providing any rights that can be exploited, thus making them not to be time limited. These types of intellectual property rights are efficient as they create provisions to manufacturing companies to maintain or improve their product’s quality and distinguishing the products, thus resulting in lower consumer costs and therefore justifying these intellectual property rights. The above stated benefits can be damaged if these trademarks are infringed.
- By protecting through Trade/commercial name which can be defined as a name that differentiated done enterprise from others, irrespective of the products, inventions or services that these enterprises offers..
- By undisclosing technological or commercial information through Trade secrets which generally confer protection by laws against unfair competition that are responsible for governing legal business conduct and consumer protection. No form of registered protection is attainable for trade secrets, which gives the products a generic protection that helps prevents piracy and industrial espionage, however, trade secrets have the same protection benefits as of those of patents but have an infinity life spans as opposed to patents as long as the secret is well maintained.
- Geographical indications or appellation renders protection to products originating from a specific place, thus a specific location due to its geographic environment.
History of IPS
The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations (UN) system of organizations which was initiated in 1967 at Stockholm and enforced in 1970. However, it further dates back to 1893 through the merging of the Paris convention established in 1883 and the Berne convention which was established in 1886. Both of these conventions were monitored by the Swiss Federal Government in Switzerland, resulting in the establishment of the international secretariats (WIPO, 2004). The origin of intellectual property dates back to the middle16th century, when Queen Mary of England had to answer to a challenging question imposed her by England most powerful publishing house at that time. They wanted to benefit from their books and were terrified or threatened by competing publishing houses. They then asked the queen to give them a royal charter that would give them permission to bar and confiscated unauthorized editions derived from their books to which she did grant them an early form of copyright through that (Chaudhari and Baliga, 2015).
TYPES OF IPS
Intellectual property rights can be classified as either Industrial Property rights or Copyright. Industrial property rights are the IP rights that relate with some industrial activities that include:
- Patent
- Trade Secret
- Trade Mark
- Industrial Design
Patent
Patent is an exclusive right granted by the government for an invention. It offers technical solution to a technical problem. Patent is a contract between an applicant/ inventor and the government, wherein the government provides right to protect the invention after full disclosure of the invention by the applicant/ inventor. Thus, patenting provides a strategy for protecting inventions without keeping the invention secret. An invention may be in the form of a product or a process. Patent is granted only to those inventions which satisfies certain conditions known as criteria of patentability viz. newness, inventive step and industrial applicability. Patent is the right to exclude others from unauthorized making, using, offering to sale, selling or importing the invention. Patent is not a right to make, use or sell the invention, but it includes right to license others for the purpose of making, using or selling the patented invention. The right to use or practice the invention is subject to country’s regulatory conditions such as new drug product approval prior to its launch in the market. The right to use the invention is also subject to any prior rights that others may have to the related inventions. For example, if company “A” has a patent on “drug X” and the company “B” has a patent on “extended release formulation of drug X”, then “A” can prevent “B” from using “drug X” in the extended release formulation and “B” can prevent “A” from making “extended formulation” of drug X. In India the governing law for patent protection is the Patents Act, 1970. The term of patent is 20 years from the date of filing the patent application.
Trade Mark
Like how a name identifies an individual the trade mark provides the identity and origin of a product. A trade mark is a mark capable of being represented graphically. The main function of a trade mark is to enable customers to identify a product of a particular company so as to distinguish it from other identical or similar products provided by competitors. As per the Trade Marks Act, 1999 a mark is a device, brand, heading, label, ticket, name, signature, words, letter, numerals, shape of goods, packaging or combination of colors or any combination thereof. The initial term of the trade mark is 10 years that can be extended every 10 years thereafter for an indefinite period by paying the prescribed fee8 Customers who are satisfied with a particular product or service are likely to buy or use it again in the future. Thus, if properly advertised, trade mark becomes an effective instrument to attract and acquire goodwill of the customers. Estimates of the value of some of the world’s most famous trademarks such as Coca-Cola or IBM exceed 50 billion dollars each. There are two primary types of marks that can be registered viz. trade marks and service marks. Trade marks are used by their owners to identify goods, whereas service marks are used by their owners to identify services. Becosules, Combiflam, Coca Cola, Sony, Bajaj, Samsung etc. are examples of trade marks, whereas ICICI, LIC, BSNL etc. are some examples of service marks. Rights related to trademark are equitable rights, mean these rights come into existence as soon as the mark is used in commerce for the first time. After registration the rights becomes statutory rights. Benefit of registering a trademark is that a statutory right is a prima facie evidence of ownership of the right. A mark should be original and distinctive to get registered. The registration of a trade mark gives the proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark.
Trade Secret
A trade secret can be defined as any information that encompasses commercial value and requires one to make it a responsibility to maintain that secret
that one takes reasonable efforts to keep secret. This information may be in the form of a formula, practice, technique, process, design, instrument, pattern, program device, method or compilation of information. Customer lists, business information, employee details, financial records, data compilations, business plans and strategies, designs, drawings, algorithms etc. all amount to trade secrets. Trade secret is the only intellectual property right where ideas can be protected and the owner can hold the right for an indefinite term. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) lays down the following general standards which are referred to in Art. 39 for trade secrets:
- i) The information must be secret (i.e. it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question).
- ii) It must have commercial value because it is a secret.
iii) It must have been subject to reasonable steps by the rightful holder of the information to keep it secret (e.g., through confidentiality or non disclosure agreements).
It is important to note that a trade secret need not be something that is novel nor should it have any real or intrinsic value to be protected. The only important requirement is that it must be a secret. There is no specific law in India that protects trade secrets and confidential information. Nevertheless, in India it is possible to contractually bind a person not to disclose any information that is revealed to him/her in confidence. The remedies available to the owner of trade secrets would be to obtain an injunction preventing a third party from disclosing the trade secrets, return of all confidential and proprietary information, and compensation for any losses suffered due to disclosure of trade secrets One of the most famous examples of a trade secret is the formula for Coca-Cola. The formula, also referred to by the code name “Merchandise 7X,” is known to only a few people and kept in the vault of a bank in America. 2.1.3 Trade Mark: Like how a name identifies an individual the trade mark provides the identity and origin of a product. A trade mark is a mark capable of being represented graphically. The main function of a trade mark is to enable customers to identify a product of a particular company so as to distinguish it from other identical or similar products provided by competitors. As per the Trade Marks Act, 1999 a mark is a device, brand, heading, label, ticket, name, signature, words, letter, numerals, shape of goods, packaging or combination of colors or any combination thereof. The initial term of the trade mark is 10 years that can be extended every 10 years thereafter for an indefinite period by paying the prescribed fee. Customers who are satisfied with a particular product or service are likely to buy or use it again in the future. Thus, if properly advertised, trade mark becomes an effective instrument to attract and acquire goodwill of the customers. Estimates of the value of some of the world’s most famous trademarks such as Coca-Cola or IBM exceed 50 billion dollars each. There are two primary types of marks that can be registered viz. trade marks and service marks. Trade marks are used by their owners to identify goods, whereas service marks are used by their owners to identify services. Becosules, Combiflam, Coca Cola, Sony, Bajaj, Samsung etc. are examples of trade marks, whereas ICICI, LIC, BSNL etc. are some examples of service marks. Rights related to trademark are equitable rights, mean these rights come into existence as soon as the mark is used in commerce for the first time. After registration the rights becomes statutory rights. Benefit of registering a trademark is that a statutory right is a prima facie evidence of ownership of the right. A mark should be original and distinctive to get registered. The registration of a trade mark gives the proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark.
Copyright
Copyright is a type of right that is given by a specific law to person or persons who create musical, dramatic, artistic works, literary and those that produced films and sound recordings. Examples of such works may include newspaper articles, songs, musical scores, photographs, paintings, images, soundtracks, voice recorded history tapes and lectures, videos, emails and arrangement of websites (Korn, 2005).
To obtain copyrights is generally easy and through the civil rights suits, they can be enforced and therefore appear as of secondary policy significance. There are various copyright dependent sectors and there are various complications that are faced by the intellectual properties because their intellectual properties can sometimes be categorized as either copyright or patents as they can be treated different with respect to different countries. The copyright’s main objective is to give protection to the person who the copyrights belong to from dishonest producers or manufacturers that intend on confusing the public, steering them away from the owner’s authentic product to those infringement products. Furthermore it also aims on discrediting and discouraging the dishonest producers or manufacturers from damaging the image and the goodwill of the copyright’s owner who has invested efforts in establishing that intellectual property into the market, thus ultimately protecting the integrity of the copy right owner.
Copyrighted materials can be used without consent of the owner of the copyright can exclusively be allowed for intentions of private studies or researches, for reviews and criticism, for amateur performances in societies or clubs given that the performances are not done for or with the intention of financial benefits or compensations, for reports on current events. However, copyrights don’t persist forever, they can only last up to a maximum of sixty years after the passing or death of the owner of the copyright. The moment an individual or a group creates or publishes their work, copyright becomes effective in order to protect the abilities and the efforts implemented by an individual or a group for the creation of their work. Thus Copyright can be further defined as rights to do or authorize the doing or reproduction of one’s work by allowing the second party to do so with examples given in the following cases:
In the case of literary, dramatic or musical work (except computer programmes):
(i) reproducing the work in any material form which includes storing of it in any medium by electronic means;
(ii) issuing copies of the work to the public which are not already in circulation
(iii) performing the work in public or communicating it to the public;
(iv) making any cinematograph film or sound recording in respect of the work; making any translation or adaptation of the work. Further any of the above mentioned acts in relation to work can be done in the case of translation or adaptation of the work.
In the case of a computer programme:
(i) to do any of the acts specified in respect of a literary, dramatic or musical work; and
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme.
However, such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.
In the case of an artistic work:
(i) reproducing the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
(ii) communicating the work to the public;
(iii) issuing copies of work to the public which are not already in existence;
(iv) including work in any cinematograph film; making adaptation of the work, and to do any of the above acts in relation to an adaptation of the work.
In the case of cinematograph film and sound recording:
(i) making a copy of the film including a photograph of any image or making any other sound recording embodying it; 150 PP-IPRL&P
(ii) selling or giving on hire or offer for sale or hire any copy of the film/sound recording even if such copy has been sold or given on hire on earlier occasions; and
(iii) communicating the film/sound recording to the public.
In the case of a sound recording:
- To make any other sound recording embodying it
- To sell or give on hire, or offer for sale or hire, any copy of the sound recording
- To communicate the sound recording to the public.