Intellectual Property Right
Intellectual Property Right Possible ecological risks and Ethical concern
- 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 are customarily divided into two main areas.
- Copyright and rights related to copyright.
- The rights of authors of literary and artistic works, such as books and other writings, musical compositions, paintings, sculpture, computer programs and films are protected by copyright, for a minimum period of 50 years after the death of the author.
- Another is Industrial property can usefully be divided into two main areas:
- One area can be characterized as the protection of distinctive signs, in particular trademarks which distinguish the goods or services of one undertaking from those of other undertakings and geographical indications which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin.
- The Statute of Anne came into force in 1710.
- Modern usage of the term intellectual property goes back at least as far as 1867 with the founding of the North German Confederation whose constitution granted legislative power over the protection of intellectual property to the confederation.
- When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureau for the Protection of Intellectual Property.
- The organization subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations.
- According to Lemley, it was only at this point that the term really began to be used in the United States and it did not enter popular usage until passage of the Bayh-Dole Act in 1980.
- Moreover, the term intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that “only in this way can we protect intellectual property, the labours of the mind, productions and interests are as much a man’s own…as the wheat he cultivates, or the flocks he rears.”Until recently, the purpose of intellectual property law was to give as little protection possible in order to encourage innovation.
- Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope.
Types of Intellectual Property Right
- Intellectual property rights include patents, copyright, industrial design rights, trademarks, plant variety rights, trade dress, and in some jurisdictions trade secrets.
- There are also more specialized or derived varieties of rights, such as circuit design rights and supplementary for pharmaceutical products and database rights.
- A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention.
- An invention is a solution to a specific technological problem, which may be a product or a process and generally has to fulfill three main requirements: it has to be new, not obvious and there needs to be an industrial applicability.
- Patents protect an invention from being made, sold or used by others for a certain period of time.
- There are three different types of patents.
(i) Utility Patents –
- these patents protect inventions that have a specific function, including things like chemicals, machines, and technology.
(ii) Design Patents –
- these patents protect the unique way a manufactured object appears.
(iii) Plant Patents –
- these patents protect plant varieties that are asexually reproduced, including hybrids.
- A copyright gives the creator of an original work exclusive right to it, usually for a limited time.
- Copyright may apply to a wide range of creative, intellectual, or artistic forms, or “works”. Copyright does not cover ideas and information themselves,
- only the form or manner in which they are expressed.
- Moreover, copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.
- The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
- The copyright protects the form of expression rather than the subject matter of the writing.
- For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine.
- Copyrights are registered by the Copyright Office of the Library of Congress.
(C)Industrial design rights
- An industrial design consists of the creation of a shape, configuration or composition of pattern or colour, or combination of pattern and colour in threedimensional form containing aesthetic value.
- An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft. It can protect the visual design of objects that are not purely utilitarian.
- A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. Moreover, a trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders.
- The terms “trademark” and “mark” are commonly used to refer to both trademarks and service marks.
- Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.
- Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.
- The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled “Basic Facts about Trademarks”.
- Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.
- A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.
(G) Industrial design rights
- An industrial design right or “design right” protects the visual design of objects.
- An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value.
- An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
- Plant breeders’ rights or plant variety rights are the rights to commercially use a new variety of a plant.
- The variety must amongst others be novel and distinct and for registration the evaluation of propagating material of the variety is examined.
Intellectual Property organization
- The objective of most intellectual property law is to “Promote progress.” By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work.
(i) World Intellectual Property Organization (WIPO)
- Every nation has its own intellectual property laws. World Intellectual Property Organization (WIPO) was constituted in 1967 and based in Geneva administer treaties in the field of intellectual property.
- There are 184 members in World Intellectual Property Organization (WIPO) along with India. Some common convention/treaty/protocol is Paris convention for protection of Industry and related to patents, trademarks and designs.
- Another is PCT (Patent cooperation treaty) which facilitates obtaining of patent in several countries.
- Madrid protocol administered by WIPO is a simple, facilitative and cost effective method for registration of International Trademarks. Besides, WTO (World trade organization) contains an agreement on IP called TRIPS (Trade related aspect of Intellectual property. Similarly, there is African (ARIPO), Organization (OAPI) or African Intellectual Property Organization.
(ii)Intellectual Property Organization in India
- India became a member of World Intellectual Property Organization (WIPO) in 1975. India has been a member of the World Trade Organization (WTO) since Pursuant to its obligations under the TRIPs Agreement, the Indian Parliament introduced various amendments in the Indian Patent Act and the corresponding Patent Rules.
- All Indian IP related laws are WIPO and TRIPS compliant and the Government has taken a comprehensive set of initiatives to streamline the intellectual property administration in the country in view of its strategic significance.
- In the Ministry of Commerce and Industry, the office of the ‘Controller General of Patents, Designs and Trade Marks (CGPDTM)’ has been set up under the Department.
- A range of statutory, civil, criminal and administrative laws are in place to support IP rights holders.
- As part of the ‘Make in India’ campaign, there is renewed focus on improving India’s IP regime to best in the world standards by establishing an IP regime which maximizes the incentive for generation and protection of intellectual property for all type of inventors