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Introduction to IPR

Intellectual property is the creative work of the human intellect. A right to intellectual property is an invisible/intangible right to a product of a man’s brain such as a new invented product i.e. property of the mind as against a right for material things/tangibles i.e. goods such as a right to the invented goods. Intellectual property rights (IPR) can be defined as the rights given to people over the creation of their minds. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time.

Although many of the legal principles governing IP and IPR have evolved over centuries, it was not until the 8th century that the term intellectual property began to be used and not until the late 9th century that it became commonplace in the majority of the world.

An intellectual property is at times described as ‘knowledge goods’. The main motivation for its protection is to promote the progress of science and technology, arts, literature and other creative works and to encourage and reward creativity. Nations give statutory expression to the economic rights of creators in their creations and to the rights of the public in accessing those creations. This is instrumental in promoting creativity and dissemination and application of its results. The economic and technological development of a nation will come to a halt if no protection is given to intellectual property rights. Therefore, the contribution of intellectual property is sine qua non for the industrial and economic development of a nation. The prosperity achieved by developed nations is, to a large extent, the result of exploitation of their intellectual property.

Intellectual property relates to pieces of information which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information reflected in those copies. According to Article 2(viii) of the Convention Establishing the World Intellectual Property Organisation (WIPO) 1967, intellectual property includes right relating to

  • (i) literary, artistic and scientific works;
  • (ii) performance of performing artists, phonograms and broadcasts;
  • (iii) inventions in all fields of human endeavour;
  • (iv) scientific discoveries;
  • (v) industrial designs;
  • (vi) trademarks, service marks and commercial names and designations;
  • (vii) protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

The intellectual property thus, includes copyright, trade marks, service marks, geographical indications, patents, utility models, plant varieties, industrial designs, trade secret, layout design of integrated circuits, etc.

Intellectual property is usually divided into two branches :

  1. copyright and
  2. industrial property.

Intellectual property has assumed central importance throughout the world in the recent past. The intellectual property, which was mainly the subject matter of the World Intellectual Property Organization (WIPO) has also become a part of the World Trade Organization (WTO) regime in 1995. The Agreement on Trade-related Aspects of Intellectual Property Rights including Trade in Counterfeit Goods (TRIPs Agreement) of the WTO Treaty evolved minimum standards for the protection of intellectual property for the member states to incorporate in their municipal laws.

These rights may be enforced by a court via a lawsuit. The reasoning for intellectual property is to encourage innovation without the fear that a competitor will steal the idea and / or take the credit for it.

The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is “indivisible” ; an unlimited number of people can “consume” an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation ; a landowner can surround their land with a robust fence and hire armed guards to protect it, but a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.

What are intellectual property rights?

Intellectual property (IP) is a term referring to a brand, invention, design or other kind of creation, which a person or business has legal rights over.

Almost all businesses own some form of IP, which could be a business asset. Common types of IP include

  • Copyright – this protects written or published works such as books, songs, films, web content and artistic works;
  • Patents – this protects commercial inventions, for example, a new business product or process; y Designs – this protects designs, such as drawings or computer models;
  • Trade marks – this protects signs, symbols, logos, words or sounds that distinguish your products and services from those of your competitors.

IP can be either registered or unregistered. With unregistered IP, you automatically have legal rights over your creation. Unregistered forms of IP include copyright, unregistered design rights, common law trade marks and database rights, confidential information and trade secrets. With registered IP, you will have to apply to an authority, such as the Intellectual Property Office in the UK, to have your rights recognised. If you do not do this, others are free to exploit your creations. Registered forms of IP include patents, registered trade marks and registered design rights. Copyright is also registerable.

International considerations

India has been a World Trade Organisation (WTO) member since 1995. WTO member nations must include some IP protection in their national laws. This means that if you are doing business with India, you will find some similarity between local IP law and enforcement procedures, and those in force in the UK.

Treaties and reciprocal agreements

India is also a signatory to the following international IP agreements:

  • the Paris Convention – under this, any person from a signatory state can apply for a patent or trade mark in any other signatory state, and will be given the same enforcement rights and status as a national of that country would be;
  • the Berne Convention – under this, each member state recognises the copyright of authors from other member states in the same way as the copyright of its own nationals;
  • the Madrid Protocol – under this, a person can file a single trade mark application at their national office that will provide protection in multiple countries;
  • the Patent Cooperation Treaty – this is a central system for obtaining a ‘bundle’ of national patent applications in different jurisdictions through a single application.

India is not a signatory to the Hague Agreement, which allows the protection of designs in multiple countries through a single filing.