Intellectual Property Rights in India – Law | Types | FAQs

As the term intellectual property relates to the creations of human mind and human intellect, this property is called Intellectual property. Creators can be given the right to prevent others from using their inventions, designs or other creations and to use that right to negotiate payment in return for others using them.

Types of Intellectual Properties

• Copyright and related rights
• Trademarks, Service marks, Certification marks, Collective marks
• Geographical indications
• Industrial designs
• Patents
• Layout-designs (topographies) of integrated circuits
• Undisclosed information, including trade secret

Laws governing intellectual property rights in India:

• Copyright Act, 1957
• Patent Act, 1970
• Trade Marks Act, 1999
• Geographical Indications of Goods (Registration & Protection) Act, 1999
• Design Act, 2000

Legal scholars often make a distinction between intellectual and industrial property. Intellectual property covers copyright and related rights, whereas industrial property means patents, trademarks, trade secrets and so on.

Traditionally this distinction was made because industrial property rights were mostly used by industry, whereas intellectual property right was “only” for artists, writers and other creative people.

Today the distinction between the two has almost disappeared. Most people use “intellectual property” as a catch-all term, including patents and other items that traditionally were considered “industrial property”.

The Paris Convention recognised industrial property to cover patent, trademark, service mark, trade names, utility models, industrial designs, indication of source and appellations of origin and the repression of unfair competition. Hence, intellectual property right is a collective name for rights referring to the commercial or industrial activities of a person. There activities may include the activities of industrial or commercial interests. They may be called inventions, creations, new products, processes of manufacture, new designs or model and a distinctive mark for goods etc.

General Agreement on Trade in Services (GATS) is the first ever set of multilateral, legally enforceable rules covering international trade in services. It was negotiated in the Uruguay Round of World Trade Organisation.

The GATS’ contribution to world services trade rests on two main pillars:

• Ensuring increased transparency and predictability of relevant rules and regulations, and
• Promoting progressive liberalisation through successive rounds of negotiations.

Basic Principles of GATS are as follows:

• All services are covered by GATS.
• Most-favoured-nation treatment applies to all services.
• National treatment applies in the areas where commitments are made.
• Transparency in regulations, inquiry points.
• Regulations have to be objective and reasonable.
• International payments – normally unrestricted.
• Individual countries commitments – negotiated and bound.
• Progressive liberalisation – through further negotiations.

World Intellectual Property Organisation (WIPO) – The United Nations Organisation devoted to using intellectual property as a tool to foster innovation and creativity is known as the World Intellectual Property Organisation.

WIPO was founded in 1970 with a mission from its Member States to advance the protection of intellectual property all over the globe through intergovernmental cooperation and cooperation with other international organisations.

Its goal is to foster innovation and creativity through the creation of a fair and efficient international intellectual property system for the benefit of all nations’ economic, social, and cultural development.

The Organisation was designated as a specialised agency of the UN. The WIPO’s main office is in Geneva. It is committed to creating a fair and open worldwide Intellectual Property (IP) system that encourages innovation, rewards creativity, and advances economic growth while protecting the general welfare.

By signing a cooperative agreement with the World Trade Organisation in 1996, WIPO enlarged its mandate and further illustrated the significance of intellectual property rights in the administration of globalised trade.

In order to establish and unify laws and procedures for the protection of intellectual property rights, WIPO serves as a platform for its Member States. Additionally, WIPO provides global patent filing services as well as global registration services for trademarks, industrial designs, and appellations of origin. Systems for protecting intellectual property have existed in the majority of developed countries for decades. However, many emerging and developing nations are still constructing their legal frameworks and systems for copyright, patents, and trademarks. Through treaty negotiation, registration, enforcement, legal and technical assistance, and training in various forms, WIPO plays a critical role in assisting these new systems in evolving in light of the increasing globalisation of trade and the rapid changes in technological innovation.

The World Intellectual Property Organisation works to advance the growth and application of the global intellectual property system by:

• Services – Run systems which make it easier to obtain protection internationally for patents, trademarks, designs and appellations of origin; and to resolve IP disputes.
• Law – Develop the international legal IP framework in line with society’s evolving needs.
• Infrastructure – Build collaborative networks and technical platforms to share knowledge and simplify IP transactions, including free databases and tools for exchanging information.
• Development – Build capacity in the use of IP to support economic development.

Types of intellectual property covered by the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement are:

1. Patents – Patent is a monopoly grant and it enables the inventor to control the output and within the limits set by demand, the price of the patented products. It acts as a stimulus to investment in the Industrial innovation.
2. Trademark – A Trademark distinguishes the goods or services of one manufacturer or service provider from similar goods or services of others and therefore, it seeks to protect the interest of the consumer as well as the manufacturer or service provider.
3. Copyright and Related Rights – Copyright as the name suggests arose as an exclusive right of the author to copy the literature produced by him and stop others from doing so. Copyright law has extended protection not only to literary, dramatic, musical and artistic works but also sound recordings, films, broadcasts, cable programmes and typographical arrangements of publications. Computer programs have also been brought within the purview of copyright law.
4. Geographical Indications – Geographical Indications of Goods refers to a country or to a place situated therein as being the country or place of origin of that product. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.
5. Industrial Designs – An industrial design is the ornamental or aesthetic aspect of a useful article, which must appeal to the sense of sight and may consist of the shape and/or pattern and/or colour of article. An industrial design to be protectable, must be new and origin.
6. Layout Designs of Integrated Circuits – Layout designs (topographies) of integrated circuits sometimes called topographies of integrated circuits are the three-dimensional placement of some or all of the elements and interconnections that make up an integrated circuit.
7. Trade Secrets – Undisclosed information including trade secrets is confidential business information.

The TRIPS Agreement plays a critical role in facilitating trade in knowledge and creativity, in resolving trade disputes over intellectual property, and in assuring WTO members the latitude to achieve their domestic objectives.

Ideas and knowledge are an increasingly important part of trade. Creators can be given the right to prevent others from using their inventions, designs or other creations and to use that right to negotiate payment in return for others using them. These are “intellectual property rights”. They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brand names and product logos can be registered as trademarks; and so on.

Governments and Parliaments have given creators these rights as incentive to produce ideas that will benefit society as a whole.

The extent of protection and enforcement of these rights varied widely around the world and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. New internationally agreed trade rules for intellectual property rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically.

The World Trade Organisation’s TRIPS Agreement is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members.

Trade Secret – A trade secret is a method, practice, procedure, design, instrument, pattern, or collection of information that is not widely known or easily discoverable and through which a company might gain a competitive edge over rivals or clients. An enterprise may gain a competitive edge from secret business information.

Examples of Trade Secret – Sales techniques, distribution strategies, consumer profiles, marketing plans, client and supplier lists, production procedures, and advertising strategies are all examples of trade secrets.

Duration and Condition for Preservation of Trade Secrets – A trade secret can be preserved indefinitely, but there must be a significant amount of secrecy, making it difficult to obtain the information unless inappropriate means are used.

TRIPS agreement addresses five main topics:

1. How general rules and fundamental ideas of the global trading system apply to international intellectual property?
2. What are the minimum protection criteria for intellectual property rights that members should offer?
3. What mechanisms should members offer to defend those rights in their home countries?
4. Specific interim framework for resolving intellectual property disputes between WTO members in order to implement TRIPS requirements.
5. Special transitional arrangements for the implementation of TRIPS provisions.

The National Intellectual Property Policy outlines seven goals that are further defined with actions that must be taken by the designated nodal Ministry or Department. The goals are briefly discussed below:

1. IPR Awareness – Outreach and Promotion – To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
2. Generation of IPRs – To stimulate the generation of IPR.
3. Legal and Legislative Framework – To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
4. Administration and Management – To modernise and strengthen service oriented IPR administration.
5. Commercialisation of IPR –  Get value for IPRs through commercialisation.
6. Enforcement and Adjudication – To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
7. Human Capital Development – To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.

The National Intellectual Property Rights Policy was put into place to encourage innovation, enhance the business climate, and make it easier to commercially utilise intellectual property. The Policy is in accordance with India’s proclamation that this decade is the “Decade of Innovation”.

On 12th May, 2016, the Union Cabinet approved the IPR Policy. It acknowledges India’s well-established, TRIPS compliant legal structure to protect IPRs and strives to balance her development objectives by making use of the flexibilities offered by the global regime. The Policy places a special emphasis on spreading knowledge about IPRs and emphasising their value as a marketable financial asset and a tool for the economy.

IPR Policy focuses on:

• Improving access to healthcare, food security, and environmental protection, among other areas of critical social, economic, and technological importance.
• Fostering creativity and innovation and thereby promote entrepreneurship and enhance socio-economic and cultural development.

The Policy outlines seven goals that are further defined with actions that must be taken by the designated nodal Ministry or Department. The goals are briefly discussed below:

1. IPR Awareness – Outreach and Promotion – To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
2. Generation of IPRs – To stimulate the generation of IPR.
3. Legal and Legislative Framework – To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
4. Administration and Management – To modernise and strengthen service oriented IPR administration.
5. Commercialisation of IPR – Get value for IPRs through commercialisation.
6. Enforcement and Adjudication – To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
7. Human Capital Development – To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.

Scope of Intellectual Property – The range of IP rights is wide, and there are two methods for classifying IP as either copyright or industrial property. Patents or inventions, trademarks, trade names, biodiversity, plant breeding rights, and other commercial interests are all examples of industrial properties. In order to profit from the invention, a patent gives its holder the sole right to exploit the Intellectual Property.

A novel creation, procedure, tool, or product is considered to be an invention. Copyright protects the expression of ideas that are distinct from patents but does not grant you the sole right to an idea. In addition to technological and scientific works, copyright also applies to the arts and literature. Copyright rules apply to everything, including music and audiovisual works. 60 years after the creator’s passing, copyright protection continues to be in effect. In other words, a writer’s book has copyright protection both during his lifetime and for 60 years following his passing. In contrast to patent laws, copyright laws do not mandate an administrative procedure.