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Intellectual Property Law

Assignment

Topic

IP: Origin, Development and Relevance

SUBMITTED TO: Ms Pallavi Singh

MADE BY- SHIVAM MISHRA


B.A.LL.B (HONS.)
Semester- 9th SECTION -B
Enrollment no.-A8111114090

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Acknowledgement

I, Shivam Mishra like to take the opportunity to express my humble gratitude to Ms


Pallavi Singh ma’am who gave me this project. Her constant guidance and
willingness to share knowledge made me understand this project and its
manifestation in great depths helped me to complete the assigned tasks.

SHIVAM MISHRA

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I. Origin of Intellectual Property Rights

The origin of intellectual property rights can be traced back to the ancient days when
monopolies existed in the Byzantine Empire. Ancient Greece in the 7th century BC granted
monopoly to cooks to exploit new recipes for one year. But a few centuries later, Emperor Zeno
in Rome rejected the concept of monopoly. Through a proclamation in 480 AD, Emperor Zeno
ordered that no one should exercise monopoly upon any garment or fish or any kind of thing.
By 1432, the Senate of Venice enacted a statute providing exclusive privileges to those
inventing any machine or any process to speed up the making of silk. This protection was soon
extended to other devices. Any new idea thus introduced started obtaining protection. The
earliest of the legislations for the protection of intellectual property rights was in the area of
patents. Thus, the origin of the intellectual property rights has a link with European
enlightenment. During that period people began to think that the knowledge came from the
human mind working upon the senses, rather than through divine revelation, assisted by the
study of ancient texts- that it became possible to imagine humans as creators and hence owners
of new ideas rather than as mere transmitters of eternal verities. Besides being distinctively
modern, intellectual property is a dense concept; woven together from at least three complex
strands of jurisprudence – copyright, patent and trademark- each with its own success in pre
modern custom and law, and each with its own trajectory into our own era.

II. Development of Intellectual Property Rights in India

After independence, India has grown up very rapidly in the field of intellectual property
rights. Various new and strong laws are passed and amended time to time to meet the
challenges of fast technology as well as fulfill the conventional obligations. A brief summary
of the development of intellectual property rights after independence of India is being
discussed here:

In year 1957, Indian parliament has passed the Indian Copyright Act, 1957 and thus, repealed

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the copyright Act, 1911. The Act of 1957 still exists with a few amendments. An amendment
Bill is also pending in Parliament in this reference. In reference to trademarks laws, after
independence, the Trademarks and Merchandised Act was enacted by Indian legislature,
which replaced the Trade marks Act 1940. Again the 1958 Act was replaced by the
Trademark Act 1999 due to the implementation of international conventions like TRIPS
agreement and some other developments like colour combination and three-dimensional
trademarks.

Similarly, in reference to patents, in 1948 government appointed the patents enquiry


committee to review the working of patent laws in India. The committee submitted its report
in 1950 and the patent Bill 1953 was introduced in the parliament, but lapsed. Again in 1965
the Patents Bill, based on the recommendations of J. Ayyanger committee’s report,
introduced and it again, lapsed due to the dissolution of Lok Sabha. Finally, in 1970 the
existing Patents Bill was passed. Likewise, the Design Act was passed in year 2000 on the
place of 1911 Design Act.

Through time the laws of various countries started to incorporate protection to intellectual
creativity, though they are independent. There are two factors in lumping intellectual property
rights together. These are:

 Historical Basis- The convention establishing the WIPO was signed in Stockholm
in 1967 and entered into force in 1970. However, the origin of WIPO goes back to
1883the Paris Convention on industrial property and 1886 the Berne Convention on
copyright. Both were placed under the supervision of the Swiss Federal Government.
Initially there were two secretaries (one for industrial property, and other for
copyright). However, in 1893 the two secretaries united. United International
Bureaux for the Protection of IP (BIRPI) became WIPO.

 Conceptual Basis- IP rights objects (enterprises) are inherently inappropriate. They


are intangible by nature. Use by others cannot be denied by using the possession of
a property first created. Once you have written a book and published it then the public
may make use of that property

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The scope of intellectual property rights is very wide. The field encompasses such legal concept
as trademarks, patents, designs as well as copyright. All these legal concepts deal in one way or
the other with the protection of the fruits of man’s creative efforts. The man who thinks up a
distinctive and original name, device or get-up to market his goods in order to make the goods
easily recognizable or even more attractive to the average purchaser, and had over a period of time
procured through the quality of his goods substantial goodwill for the name, device or get up,
deserves some protection for such name, device or getup, and he is indeed protected by the law of
trade marks. The man who spends money, energy, ingenuity and time in conducting research and
inventing a new machine, discover a new device or process is protected by the law of patents. The
man who designs a new shape for a motor car or settee or designs a new pattern for textiles is also
creative. He is protected by the law of designs. The man who writes a new song, or story, or the
architect who designs a unique building are all creative. They on their part are protected by the
law of copyright. Intellectual property rights include copyright, patent, trademark, geographic
indication of origin, industrial design, trade secrets, database protection laws, publicity rights laws,
laws for the protection of plant varieties, laws for the protection of semiconductor chips (which
store information for later retrieval), etc.

There is a conventional mode of classification of intellectual property as industrial property and


copyrights. Industrial properties include inventions (patent), property interest on minor invention
(Utility model certificate) and commercial interests (Trade Marks, trade names, geographical
indications, and industrial design), plant breeder rights, biodiversity, etc.

Thus Intellectual Property is Knowledge, creative ideas, or expressions of human mind that have
commercial value and are protectable under copyright, patent, service mark, trademark, or trade
secret laws from imitation, infringement, and dilution. Intellectual property includes brand
names, discoveries, formulas, inventions, knowledge, registered designs, software registered
designs, software, and works of artistic, literary, or musical nature. It is one of the most readily
tradable properties in the digital marketplace.

(i) Patents

A patent is a type of intellectual property right which allows the holder of the right to

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exclusively make use of and sale an invention when one develops an invention. Invention is
a new process, machine, manufacture, composition of matter. It is not an obvious derivation
of the prior art (It should involve an inventive step). A person who has got a patent right has
an exclusive right. The exclusive right is a true monopoly but its grant involves an
administrative process.

(ii) Copyright

It is an intellectual property which does not essentially grant an exclusive right over an idea
but the expressions of ideas which makes if different from patent law. Patent is related with
invention technical solution to technical problems. Copyright is a field which has gone with
artistic, literary creativity, creativity in scientific works, audiovisual works, musical works,
software and others. There are neighboring rights. These are different from copyright but
related with it – performers in a theatre, dancers, actors, broadcasters, producers of sound
recorders, etc. It protects not ideas but expressions of ideas as opposed to patent. Copyright
protects original expression of ideas, the ways the works are done; the language used, etc. It
applies for all copyrightable works. Copyright lasts for a longer period of time. The practice
is life of author plus 50 years after his/her life. Administrative procedures are not required,
unlike patent laws, in most laws but in America depositing the work was necessary and was
certified thereon but now it is abolished.

(iii) Industrial Design Law

Some call this design right (European) and some call it patentable design, industrial design
(WIPO and other international organization). A design is a kind of intellectual property which
gives an exclusive right to a person who has created a novel appearance of a product. It deals
with appearance: how they look like. Appearance is important because consumers are interested
in the outer appearance of a product. It is exclusively concerned with appearance, not quality.

The principles which have been utilized in developing industrial design law are from experiences
of patent and copyright laws. It shares copyright laws because the design is artistic. It shares patent
law because there are scientific considerations. Design law subsists in a work upon registration

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and communication. It makes them close to patent law since they are also founded in patent law.
Duration is most of the time 20 years like the patent law trademark Rights law.

(iv) Trademarks Right Law


It is a regime of the law giving protection to graphic representation to words or logos or
depending on the jurisdiction question such as sound or smells which are distinctive in
nature and serve as source identification. There is also a recent phenomenon which is
representing goods in their smell and sound. It is to be found on the goods associated with
them. It enables the customer to identify the goods from others. They serve as a source
identifier. Trademarks perform communication function. Once there is a valid
representation, it gives the mark owner an exclusive right. It begins with registration and
publication of the mark. But there are exceptions which serve what trademarks registered
serve which are not registered. It means they deserve protection even though they are not
registered. They exist forever so long as the good with which they are associated continue
to be sold. But they require renewal. Right of Publicity It protects the right to use one’s
own name or likeness for commercial purposes.

(v) Geographic Indication


It is indications on products of the geographic origin of the goods. It indicates the general
source. The indication relates to the quality or reputation or other characteristics of the
good. For example, “made in Ethiopia” is not influenced by the geographical Indication.
Geographical indications are sometimes called appellations of origin. For example,
“Sheno lega”, “Shampagne” (name of a region in France) are geographical indications.

(vi) Trade Secrets


It gives the owner of commercial information that provides a competitive edge the right
to keep others from using such information if the information was improperly disclosed
to or acquired by a competitor and the owner of the information took reasonable
precautions to keep it secret. It protects confidential secrets of some commercial value.
The holder of the secret wants this information to be protected; Some protect the holder
from an unauthorized disclosure of the information. A tort law, unfair competition or

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contract law can protect such information which is secret /confidential information. The
holder (owner) has to do his/her best to keep the information secret. Trade secrets exist
without registration as it is to make the information public, for example, the formula of
Coca Cola. Information that are protected in trade secrets can be patentable if they are
novel and non-obvious. But it is, most of the time, not to make the secret public. However,
their full-fledged IP rights are contestable.

III. IPR Scenario: From Indian Perspective

Initially when IPR was in its preliminary stage, lot of barriers arose relating to its policies
implementation, Rules/Acts, financial and governmental support etc. In the beginning due
to lack of unawareness of IPR amongst companies and inventors the risk of infringement
grew at an alarming level without a full proof system, the Research & Development process
in India was also not fully developed to meet the demand of the then prevailing situation.
This created a hindrance in the growth of the IP industry leading to decline of an intellectual
era in the country.
After considering all the above problems, India took strong steps in strengthening IP Policies
in the country. For instance, the first Indian Patent Law came in 1856, which was regularly
amended from time to time to meet the need of the fast changing trade environment. The
country’s very own Patent Law was formulated after Independence in the form of the “Indian
Patent Act 1970” which was later modified to comply with the TRIPS provision.
In order to be avail global recognition, protection and benefits India signed various treaties
to become a member of the Paris Convention, Patent Cooperation Treaty, Budapest Treaty
and finally signed the TRIPS agreement to comply with the International and Indian
standards. Recently, India signed the “Madrid Protocol” which further strengthens the
applicability of Trademarks in 89 countries. These steps taken by the Government has
boosted the IP industry in the country by more number of foreign companies establishing
their in-house R&D centres in the country.
Apart, from this, a milestone was achieved when a landmark decision was given by the
Supreme Court in the country’s first case of Compulsory Licensing (CL) i.e. Bayer vs Natco.
This case brought the Indian IPR regime on the global window. The verdict of this case gave

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a ray of hope to Indian Pharmaceutical sector who were incapable of manufactSuring
lifesaving drugs and are now able to produce such drugs at a very low cost, which can be
made available to the patients at a very considerable rate.

Conclusion

Intellectual property (IP) pertains to any original creation of the human intellect such as artistic,
literary, technical, or scientific creation. Intellectual property rights (IPR) refers to the legal rights
given to the inventor or creator to protect his invention or creation for a certain period of time.[1]
These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize
his invention/creation for a given period of time. It is very well settled that IP play a vital role in
the modern economy. It has also been conclusively established that the intellectual labor associated
with the innovation should be given due importance so that public good emanates from it. There
has been a quantum jump in research and development (R&D) costs with an associated jump in
investments required for putting a new technology in the market place.

The stakes of the developers of technology have become very high, and hence, the need to protect
the knowledge from unlawful use has become expedient, at least for a period, that would ensure
recovery of the R&D and other associated costs and adequate profits for continuous investments
in R&D. IPR is a strong tool, to protect investments, time, money, effort invested by the
inventor/creator of an IP, since it grants the inventor/creator an exclusive right for a certain period
of time for use of his invention/creation. Thus IPR, in this way aids the economic development of
a country by promoting healthy competition and encouraging industrial development and
economic growth.

It is obvious that management of IP and IPR is a multidimensional task and calls for many different
actions and strategies which need to be aligned with national laws and international treaties and
practices. It is no longer driven purely by a national perspective. IP and its associated rights are
seriously influenced by the market needs, market response, cost involved in translating IP into

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commercial venture and so on. In other words, trade and commerce considerations are important
in the management of IPR. Different forms of IPR demand different treatment, handling, planning,
and strategies and engagement of persons with different domain knowledge such as science,
engineering, medicines, law, finance, marketing, and economics. Each industry should evolve its
own IP policies, management style, strategies, etc. depending on its area of specialty.
Pharmaceutical industry currently has an evolving IP strategy. Since there exists the increased
possibility that some IPR are invalid, antitrust law, therefore, needs to step in to ensure that invalid
rights are not being unlawfully asserted to establish and maintain illegitimate, albeit limited,
monopolies within the pharmaceutical industry. Still many things remain to be resolved in this
context.

Bibliography

 Law Relating to Intellectual Property Rights by V. K. Ahuja


 Dr. M.K. Bhandari, Law relating to Intellectual Property Rights, Central Law Publications
 http://www.legalserviceindia.com/legal/explore.html
 http://www.iprsonline.org/ictsd/docs/resources Health Article Lalitha.doc.
 http://www.shareyouressays.com

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