In India, we find many laws related to many topics and recently we have been witnessing a new policy related to IPR. We all wonder what is IPR and why it is required to be protected by legislation. IPR stands for Intellectual Property Rights, rights concerning Intellectual Property.
Let us first understand what an Intellectual Property is. Intellectual Property means an invention, idea, design, etc. that somebody has created and that the law prevents other people from copying. According to TRIPS, “Intellectual Property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.”
Intellectual Property rights can be divided into 2 main areas – Copyrights and Industrial Properties.
Industrial Property can be further divided into 5 main areas – Trademarks, Designs, Patents, Geographical Indications, and Trade Secrets.
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation, and translation of the work. There could be slight variations in the composition of the rights depending on the work.
The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.
Although copyright protects the work but with subject to certain conditions, a fair deal for research, study, criticism, review and news reporting, as well as the use of works in library and schools and in the legislatures, is permitted without specific permission of the copyright owners. In order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works enjoying copyright. Some of the exemptions are the uses of the work
- For the purpose of research or private study,
- For criticism or review,
- For reporting current events,
- In connection with a judicial proceeding,
- Performance by an amateur club or society if the performance is given to a non-paying audience, and;
- The making of sound recordings of literary, dramatic or musical works under certain conditions.
The notion of ownership of creation or innovation and its protection is not new to mankind. In ancient time the marks were used to identify ownership and to deter would-be thieves. Also in this way, people tried to control low-quality goods, and as the maker of the product was identified automatically the infringers were punished. In the Middle Ages two basic kinds of marks were used:-
- Merchants Mark – the merchant’s mark indicated ownership.
- Production Mark – the production mark indicated the origin.
We can understand that the use of a trademark is not new for mankind and in Middle Ages it was used to prevent the low-quality products or counterfeited products by using unique marks and it was helpful to make the producer liable for the quality of the goods that were being produced and helped them to retain their customers.
No specific law was made to protect the trademarks and common law principles of equity and passing off were followed for the protection of trademarks until 1940. The first act specifically for trademarks can be spotted as The Indian Trademark Act, 1940.
There are various other laws which came into force after The Indian Trademark Act, 1940. Some of them are as given below:-
- The Trademark and Merchandise Act, 1958.
- Trademark Act, 1999.
- Trademark (Amendment) Act, 2010
- Trademarks and Transborder reputation means that if one person has not registered any trademark in that country still that person can oppose the registration of his symbol etc.
Protection of Domain names is given under Trademark Law itself.
The relief for Trademark Infringement is given under the Trademark Act and Passing off is a common law tort, which can be used to enforce unregistered trademark rights. The law of passing off prevents one person from misrepresenting his goods or services as that of another.
On 8th February 2007, the Union Cabinet ratified India’s accession to the Madrid Protocol. The Trade Marks (Amendment) Act, 2010 was passed on 21st September 2010 to bring into force the Madrid Protocol in India.
Digitization of trademark registry has brought a significant change to the use of the trademark.
Government has taken initiatives towards IP awareness and protection.
The scenario changed after the Trademark Act, 1999 which brought about the Fundamental changed in the law governing the filing and prosecution of trademark law in India.
- Confirmed with the obligations under the TRIPS (Trademark Related Aspects of Intellectual Property Rights)
- Provides for registration of service marks
- Enables filing of a multi-class trademark application
- The increasing term for renewal of trademark from 7 years to 10 years
- Provision of enhanced punishments in case of false trademarks
- Provision for registration of collective marks i.e. marks owned by associations
- Constitution of IPAB (Intellectual Property Appellate Board)
- Expansion of the term “mark” under section 2 to include shape, packaging, a combination of colors and any combination thereof.
The industrial design recognizes the creation new and original features of new shape, configuration, surface pattern, ornamentations and composition of lines or colors applied to articles which in the finished state appeal to and is judged solely by the eye.
The registration and protection of industrial designs in India are administered by the Designs Act, 2000 and corresponding Designs Rules, 2001 which came into force on 11th May 2001 repealing the earlier Act of 1911. The Design Rules, 2001 was further amended by Designs (Amendment) Rules 2008 and Designs (Amendment) Rules 2014. The last amendment in Designs Rules came in to force from 30th December 2014, which incorporates a new category of an applicant as a small entity in addition to a natural person and other than the small entity.
Patents refer to enforceable exclusive rights granted to the inventor in exchange for his/her making their invention public. An invention relating to a product or a process that is new, involving an inventive step and capable of industrial application can be patented in India. However, it must not fall into the category of inventions that are non-patentable as provided under Section 3 and 4 of the (Indian) Patents Act, 1970. In India, a patent application can be filed, either alone or jointly, by the true and first inventor or his assignee. Patents in India, once registered, are valid for 20 years from the date of registration. Under the (Indian) Patents Act, 1970 only a civil action can be initiated in a Court of Law.
A geographical indication (GI) is an indication, whether in the form of a name or sign, used on goods that have a specific geographical origin and possesses qualities or a reputation that are due to the place of origin. Geographical indications are valuable rights, which if not adequately protected, can be misused by dishonest commercial operators to the detriment of both the consumers and the legitimate users. Articles 22 to 24 of Part II Section III of the TRIPS prescribe minimum standards of protection to the geographical indications that WTO members must provide. India, in compliance with its obligation under TRIPS, has taken legislative measures by enacting the Geographical Indications of Goods (Registration and Protection) Act, 1999, which came into effect on 15th September 2003 and the Geographical Indications of Goods (Registration and Protection) Rules, 2002. GIs ones registered are valid for the next 10 years and during that time no unauthorized person can misuse the product marked as a GI.
Trade secrets, just as other intellectual property rights, can be extremely valuable to a company’s growth and sometimes even critical for its survival. Businesses must ensure that they adequately protect their business processes, technical know-how and confidential information from competitors. A trade secret may refer to a practice, process, design, instrument or a compilation of data or information relating to the business which is not generally known to the public and which the owner reasonably attempts to keep secret and confidential. Such data or information may also involve an economic interest of the owner in obtaining an economic advantage over competitors. The precise language by which a trade secret is defined may differ, however, there are three factors, which can be said to be common to all such definitions. They are –
- It must not be generally known or readily accessible by people who normally deal with such type of information.
- It must have commercial value as a secret.
- The lawful owner must take reasonable efforts to maintain its secrecy.
There is no specific legislation in India to protect trade secrets and confidential information. Nevertheless, Indian courts have upheld trade secret protection on basis of principles of equity, and at times, upon a common law action of breach of confidence, which in effect amounts a breach of contractual obligation. The remedies available to the owner of trade secrets is to obtain an injunction preventing the licensee from disclosing the trade secret, the return of all confidential and proprietary information and compensation for any losses suffered due to the disclosure of trade secrets.
National Intellectual Property Rights Policy 2016
The National IPR policy 2016 was made in order to promote Intellectual property, spread awareness about the usage of the Intellectual Property rights in order to recognize the abundance of creative and Innovative energies that flow in India, and the need to tap into and channelize these energies towards a better and brighter future for all.
Why do we need a new Policy?
The new Intellectual Property Rights Policy, 2016 is a vision document which brings all IPRs on a single platform. A holistic approach towards the IPRs also considering all inter-linkages and thus aims to create and exploit synergies between all forms of Intellectual Property concerned statutes and agencies.
An institutional mechanism for implementation, monitoring and reviews is also settled in by this document. National Intellectual Property Rights Policy, 2016 further aims to incorporate and adopt global best practices in the Indian scenario.
The recognition that India has a well-established TRIPS compliant legislative, administrative and judicial framework to safeguard Intellectual Property Rights, which meets its international regime to address its developmental concerns, is also done by this policy itself. This document also reiterates India’s commitment towards Doha Development Agenda and TRIPS agreement.
The Vision Statement of the National Intellectual Property Rights Policy 2016
National Intellectual Property Rights Policy, 2016 sets a vision as an India where creativity and innovation are stimulated by Intellectual Property for the benefit of all; an India where Intellectual Property promotes advancement in science and technology, and biodiversity resources; an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.
The Mission Statement of the National Intellectual Property Rights Policy 2016 –
The Intellectual Property Rights Policy 2016 has settled a few steps of mission in order to reach its indented vision. The mission statement is broker into two parts:-
- To foster creativity and innovation and thereby, promote entrepreneurship and enhance socio-economic and cultural development;
- To focus on enhancing access to healthcare, food security, and environmental protection, among other sectors of vital social, economic and technological Importance.
The Objective of the National Intellectual Property Rights Policy, 2016
- Intellectual Property Rights Awareness: outreach and promotion – National Intellectual Property Rights Policy aim to spread awareness about the IPR and make it available for people to use them as well.
- Generation of Intellectual Property Rights: There is a need to tap the knowledge resource and stimulate the creation of IP assets. A comprehensive baseline survey or IP audit across sectors will enable assessment and evaluation of the potential in specific sectors, and thus formulate and implement targeted programs. The focus will be placed on facilitating researchers and innovators regarding areas of national priority. The corporate sector also needs to be encouraged to generate and utilize IPRs.
- Legal and Legislative Framework: The existing IP laws in India were either enacted or revised afar the TRIPS Agreement and are fully compliant with it. These laws along with various judicial decisions provide a stable and effective legal framework for protection and promotion of IPRs.
- Administration and Management: The Offices that administer the different Intellectual Property Rights (IPOs) are the cornerstone of an efficient and balanced IPR system.
- Commercialization of Intellectual Property Rights: The value and economic reward for the owners of Intellectual Property rights come only from their commercialization. Entrepreneurship should be encouraged so that the financial value of IPRs is captured.
- Enforcement and Adjudication: There is a need to build respect for IPR among the general public and to sensitize the inventors and creators of IP on measures for protection and enforcement of their rights. At the same time, there is also a need to build the capacity of the enforcement agencies at various levels, including the strengthening of IPR cells in State police forces. Measures to check counterfeiting and piracy also need to be identified and undertaken. Property promotes advancement in science and technology, and biodiversity resources; an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.
- Human Capital Development In order to harness the full potential of IPRs for economic growth, it is essential to develop an increasing pool of IPR professionals and experts in spheres such as policy and law, strategy development, administration, and enforcement.
These seven objectives are sought to be achieved and the steps to achieve these objectives are being taken by various ministries and departments which is being monitored by Department of Industrial Policy and Promotion which is the nodal department to coordinate, guide, and oversee the implementation and future development of Intellectual Property Rights in India.
Salient Features of National Intellectual Property Rights Policy in India
- CIPAM – Cell for IPR Promotion & Management (CIPAM) is a professional body under the aegis of Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce and Industry, Government of India. CIPAM is working towards ensuring focused action on issues related to IPRs and addresses the 7 objectives of the National IPR Policy adopted by the Indian Cabinet in May 2016. CIPAM assists in simplifying and streamlining of IP processes, apart from undertaking further steps for furthering IPR awareness, commercialization and enforcement. The team comprises of talented, energetic hand-picked consultants, lawyers, marketers and industry experts that have joined hands in the nation’s interest to further the cause of innovation in India.
- Awareness Program / Campaign – Many IP holders are unaware of the benefits of IP rights or of their own capabilities to create IP assets or the value of their ideas. They are often discouraged by the complexities of the process of creating defendable IP rights. Conversely, they may be unaware of the value of others’ IP rights and the need to respect the same. The policy proposes to tackle both perspectives through outreach and promotion programs.
- Intellectual Property Cells – IP cells were established in order to prevent infringement of IPR and to minimize the offenses relating to Intellectual Property.
- Generation, registration, and Commercialization – The National IPR Policy not only focuses on the generation and commercialization as given in objective 2 & 5, but it aims to generate, register and commercialize so that the entrepreneurs get benefit out of their Intellectual Property.
- Traditional knowledge digital library – Traditional Knowledge Digital Library (TKDL) is a pioneering initiative of India to prevent misappropriation of country’s traditional medicinal knowledge at International Patent Offices on which healthcare needs of more than 70% population and livelihood of millions of people in India is dependent. Its genesis dates back to the Indian effort on the revocation of the patent on wound healing properties of turmeric at the USPTO. Besides, in 2005, the TKDL expert group estimated that about 2000 wrong patents concerning Indian systems of medicine were being granted every year at international level, mainly due to the fact that India’s traditional medicinal knowledge which exists in local languages such as Sanskrit, Hindi, Arabic, Urdu, Tamil, etc. is neither accessible nor comprehensible for patent examiners at the international patent offices.
- Speedy disposal of patent applications – the Policy recognizes the importance of effective coordination between Patent office and National Biodiversity Authority for speeding up the disposal of patent applications using biological resources and associated TK.
- Cadre management in Intellectual property offices – The Policy recognizes the crucial role of a motivated workforce in productivity enhancements. The organizational and cadre structure of the Indian IP Offices shall be studied and reviewed with a view to enhancing efficiency and productivity.
- Access to medicines – Access to affordable medicines and other healthcare solutions is becoming a challenge for all countries. India too faces a growing challenge on this count. The Policy recognizes this and aims to enhance this by (a) encouraging cross-sector partnerships between the public sector, private sector, universities, and NGOs; (b) promoting novel licensing models, and (c) developing novel technology platforms.
- Piracy / Counterfeiting – Offline and online piracy is a serious concern and needs to be combated through public awareness as also legal and enforcement mechanisms. Piracy is considered to be an infringement of Copyright of any person who has created the content whereas counterfeiting means any Intellectual Property
- Assistance to smaller firms – Smaller firms need assistance for the protection of their IP Rights internationally. Schemes such as Deity’s Support for International Patent Protection in Electronics and IT (SIP-EIT) are to be enhanced.
- Judicial awareness & resolution of Intellectual Property disputes – Since IPRs are a specialized discipline, awareness amongst the judiciary is crucial since judicial precedents set the tone of the country’s IP regime. For this, it is important that IP modules for judges be formulated, including regular IP workshops/colloquia at the judicial academies. Commercial Courts set up at appropriate levels will be responsible for adjudicating IP disputes. Resolution of IP cases through Alternate Dispute Resolution methods shall reduce the burden on judiciary and provide speed and inexpensive resolution of disputes. Mediation and conciliation center need strengthening, and ADR capabilities and skills in the field of IP developed.
- Review to be done in every five years after implementing the policy – A detailed review of IPR Policy shall be undertaken every five years. Continuous and regular Review will be done by a Committee to be constituted for this purpose under the Secretary, DIPP.
Intellectual property is a very important part of the economy and every person must know about the IPR laws as the creativity is not limited to a few people only and anyone can innovate any now technology or art or any other form of Intellectual Property and in order to preserve it, they can use IPR laws. After the National Intellectual property Rights Policy 2016 being implemented the awareness programs in Schools, Colleges and Industry has been initiated. Not only this but a special cell has been created for the management and promotion of Intellectual property rights known as Cell for Intellectual Property Promotion and Management (CIPAM).