Intellectual Property

Go back to Tutorial

Intellectual property is ownership of property other than real estate or personal property, as these are products of the human mind or spirit. Although the property is similar, the type of goods is different: tangible and intangible assets. Intellectual property rights are the legal rights of intellectual activity in the industrial, scientific, literary and artistic fields result. These rights are limited by time.

The protection of intellectual property rights (IPR) in India until recently was at a very budding stage. Protection after the signing of international conventions and agreements on intellectual property has been gradually expanding. There is now a well-established statutory, administrative and judicial framework for intellectual property to protect, whether they relate to patents, trademarks, copyrights and industrial designs.

Initially, in India trade marks for goods were extended by court decisions to service marks, but now they are legally recognized. Computer databases have a strong protection under the IPR laws in India. The courts are granted under the doctrine of breach of confidentiality, a widespread protection of trade secrets.

The Intellectual Property Rights (IPR) laws in India are divided into five broad categories: trademarks, copyrights, patents, industrial designs and geographical indications.

India provides protection for intellectual property rights in accordance with its obligations under the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement of WTO.

Other than the civil remedies and damages, the police and other authorities are empowered to take action against infringement of intellectual property. The petitions will be filed for violations of intellectual property rights and tried in the courts like other suits. Appeals are filed in the courts against administrative decisions relating to intellectual property rights.

Intellectual Property Law in India broadly covers the following areas

• Patents
• Plant Variety Protection
• Geographic Information
• Traditional Knowledge
• Copyright
• Trade Marks
• Trade Secrets
• Industrial Designs

Intellectual property rights have become the subject of attention and debate largely as a result of India’s entering the WTO and signing, among other agreements, the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). Long before this agreement was signed in 1995, there were several treaties dealing with IPRs, such as copyrights, trademarks, patents and other rights. The most well-known of them are: the Paris Convention for the Protection of Industrial Property of March 20, 1883, Berne Convention for the Protection of Literary and Artistic Works of September 9,1886, International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations Done at Rome on October 26, 1961, Madrid Agreement Concerning the International Registration of Marks of April 14, 1891, etc., which have been periodically revised. But it was found that these treaties did not have an effective enforcement system by which parties to any of these treaties could ensure compliance with the terms of the treaties by other parties. Also the change in the pattern and pace of international trade highlighted the need for greater cohesion in the matter of mutual obligations and more precision in the description of the scope of the rights. TRIPS provided an opportunity to redefine the content and scope of the rights.

The coming into effect of TRIPS required first that the signatories, including India, updated their domestic legislation regarding the protection of those rights to the standards stipulated by TRIPS, which in any case, it should be borne in mind, was the minimum standard of protection. That updating is continuing and while India has brought about several legislative changes into conformity with the provisions of TRIPS, some work still remains to be done.

Proponents of unrestricted file sharing point out how file sharing has given people broader and faster access to media, has increased exposure to new artists, and has reduced the costs of transferring media (including less environmental damage). Supporters of restrictions on file sharing argue that we must protect the income of our artists and other people who work to create our media. This argument is partially answered by pointing to the small proportion of money artists receive from the legitimate sale of media.

We also see a similar debate over intellectual property rights in respect to software ownership. The two opposing views are for closed source software distributed under restrictive licenses or for free and open source software. The argument can be made that restrictions are required because companies would not invest weeks and months in development if there is no incentive for revenue generated from sales and licensing fees. A counter argument to this is that standing on shoulders of giants is far cheaper when the giants don’t hold IP rights. Some proponents for open source believe that all programs should be available to anyone who wants to study them.

One reason for IP laws is to allow IP creators to benefit from their work. If artists create paintings after months of labor, then they deserve credit for painting them and the income from selling or exhibiting them. If a business comes up with an attractive marketing logo, then no other businesses should be allowed to use that logo to promote their own products without permission.

Protecting IP is also seen as a method of promoting creativity. If no one is allowed to copy another person’s work without permission then creativity is encouraged for everybody.

Go back to Tutorial