UNIT 1 INTRODUCTION TO INTELLECTUAL

PROPERTY RIGHTS

Chapter Contents

 Meaning, Nature, Classification and protection of Intellectual Property

 The main forms of Intellectual Property
 Copyright, Trademarks, Patents, Designs , etc.
 International instruments concerning Intellectual Property Rights
 The World Intellectual Property Organization (WIPO) and the UNEESCO,
 International Trade Agreements concerning IPR
 WTO
 TRIPS

Reading Material:

Berne Convention:
https://www.wipo.int/treaties/en/ip/berne/summary_berne.html

Paris Convention: https://www.wipo.int/treaties/en/ip/paris/summary_paris.html

TRIPS (Attached with the email)

What do we mean by “ Intellectual Property”?

Intellectual property (IP) is a term referring to creation of the intellect is assigned
to designated owners by law. In simple terms, anything and everything that you
create through your knowledge, skill and intellect. For example: A poet writes a
poetry. The poetry is his intellectual property. Some common types of intellectual
property rights (IPR) copyright, patent and trademarks, trade secrets all these
cover music, literature and other artistic works, discoveries and inventions and
words, phrases, symbols and designs.
Intellectual Property rights provide protection for creations and inventions, to
enable creators and inventors to earn recognition and financial benefit from their
work.
Explanation Tip: Refer the above poetry example: in the above case poetry is
the intellectual Property, poet is the writer/owner of that created intellectual
property and he has the right called copyright (which is type of Intellectual
property right) to protect his work from being stolen by other writers/poets. He
can sue others for stealing his content of poetry because it is his own original
creative work.

How does the average person benefit?

Intellectual property rights reward creativity and human endeavour, which fuel
the progress of humankind.
Some examples:
a) The multibillion dollar film, recording, publishing and software industries
– which bring pleasure to millions of people worldwide – would not exist
without copyright protection.
b) Without the rewards provided by the patent system, researchers and
inventors would have little incentive to continue producing better and more
efficient products for consumers.
c) Consumers would have no means to confidently buy products or services
without reliable, international trademark protection and enforcement
mechanisms to discourage counterfeiting and piracy.

Nature of Intellectual Property

One important characteristics of intellectual property is that it is intangible. The
word “ intangible” means something that you cannot touch because it has no
physical appearance. Properties are of two types - tangible property and
intangible property i.e. one that is physically present and the other which is not
in any physical form. Building, land, house, cash, jewellery are few examples of
tangible properties which can be seen and felt physically.
On the other hand there is a kind of valuable property that cannot be felt
physically as it does not have a physical form. Intellectual property is one of the
forms of intangible property which commands a material value which can also be
higher than the value of a tangible asset or property

Classification of Intellectual Property

Although many of the legal principles governing IP and IPR have evolved over
centuries, it was not until the 19 th century that the term intellectual property
began to be used and not until the late 20 th century that it became commonplace
in the majority of the world.

BROAD CLASSIFICATION
IP is divided into two categories for ease of understanding:
I. Industrial Property : which includes inventions (patents), trademarks, industrial
designs, and geographic indications of source;
II. Copyright : which includes literary and artistic works such as novels, poems
and plays, films, musical works, artistic works such as drawings, paintings,
photographs and sculptures, and architectural designs. Rights related to copyright
include those of performing artists in their performances, producers of
phonograms in their recordings, and those of broadcasters in their radio and
television programs.

TIP: One easy method to remember between the two types of IPR is to understand
the basic structure of both types. Industrial property as the name suggests is
related to business or manufacturing units. Copyright on the other hands deals
with creative works of literary, music etc.

I. Types of Industrial property

Patents:

A patent is an exclusive right granted for an invention – a product or

process that provides a new way of doing something, or that offers a
new technical solution to a problem. A patent protection provides patent
owners with protection for their inventions. Protection is granted for a
limited period, generally 20 years. Patent protection means an invention
cannot be commercially made, used, distributed or sold without the
patent owner’s consent.
 Patent rights are usually enforced in courts that, in most systems, hold
the authority to stop patent infringement. Conversely, a court can also
declare a patent invalid upon a successful challenge by a third party. A
patent owner has the right to decide who may – or may not – use the
patented invention for the period during which it is protected. Patent
owners may give 5 permission to, or license, other parties to use their
inventions on mutually agreed terms.

Explanation: Patent grants exclusive right to the owner/inventor to

use/sell etc his invention. For example: A person invented a new
process to make cancer medicine. He can apply for patent. If he gets
patent over that process, only he will be able to use that process to make
the cancer medicine; no other market players can use the technology for
20 years.

 Please note that to get patent, there are certain criteria which needs to
fulfilled that will be discussed in detail in the chapter exclusively dedicated
to Patent.

Trade Marks

A trademark is a distinctive sign that identifies certain goods or services

produced or provided by an individual or a company. Its origin dates
back to ancient times when craftsmen reproduced their signatures, or
“marks”, on their artistic works or products of a functional or practical
nature

Over the years, these marks have evolved into today’s system of
trademark registration and protection. The system helps consumers to
identify and purchase a product or service based on whether its specific
characteristics and quality – as indicated by its unique trademark – meet
their needs.
 Above are examples of trade marks, Nike swoosh is a trade mark of the
company. The moment a customer enters the shop the trade mark will
help him to distinguish between the Nike products with other similar
products. The trade mark stands for quality and assurance of a particular
trader. These trademarks are granted protection from infringement. For
example: Nike swoosh logo cannot be used by other traders; if any
trader will use the logo for their own products then Nike company can
seek civil remedy i.e. can file case against that trader for trade mark
infringement.

COPYRIGHT

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.

What is an industrial design?

In everyday language, an industrial design generally refers to a product’s overall

form and function. An armchair is said to have a “good industrial design” when
it is comfortable to sit in and we like the way it looks. For businesses, designing
a product generally implies developing the product’s functional and aesthetic
features taking into consideration issues such as the product’s marketability, the
costs of manufacturing or the ease of transport, storage, repair and disposal. From
an intellectual property law perspective, however, an industrial design refers only
to the ornamental or aesthetic aspects of a product. In other words, it refers only
to the appearance of an armchair. Although the design of a product may have
technical or functional features, industrial design, as a category of intellectual
property law, refers only to the aesthetic nature of a finished product, and is
distinct from any technical or functional aspects

INTERNATIONAL ORGANIZATIONS, AGENCIES AND TREATIES

There are a number of International organizations and agencies that promote the
use and protection of intellectual property.

 World Intellectual Property Organization (WIPO) was founded in 1883

and is specialized agency of the United Nations whose purposes are to
promote intellectual property throughout the world and (Present 26 treaties)
dealing with intellectual property. WIPO is one of the 17 specialized
agencies of the United Nations. It was created in 1967, to encourage creative
activity, to promote the protection of Intellectual Property throughout the
world. More than 175 (Present 188) nations are members of WIPO. Its
headquarters in Geneva, Switzerland. WIPO was formally created by the
convention (meeting) establishing the world intellectual Property
organization which entered into force on April261970.
 UNESCO : Copyright protection, as an important means for encouraging
creativity and innovation and for development of culture, has been included
in UNESCO’s. In 1952, the Universal Copyright Convention (UCC) was
adopted, which is administered by UNESCO. Within this context, in 1967,
the World Intellectual Property Organization (WIPO) was created, as a
specialized agency of the UN system. Both organizations, WIPO and
UNESCO collaborate and contribute to the advancement of copyright
protection, co-administering a number of copyright related conventions.
However, a repartition of their tasks has been established: WIPO has been
basically dealing with normative action; while UNESCO has mainly focused
on copyright teaching, awareness-raising, copyright enforcement and piracy
eradication.
 １. Information and Awareness-building
2. Training and Teaching In the field of training and teaching.
UNESCO has put emphasis on (i) the creation of copyright
Chairs; and (ii) the development of study programmes and
teaching materials.
Studies and Research Within the context of study and research,
UNESCO provides for the Secretariat of the Intergovernmental
Committee of the Universal Copyright Convention and prepares
studies on various issues such as digital environment, piracy etc
for various sessions of the Committee. Enforcement and
Management of Rights UNESCO provides legal and technical
assistance concerning the elaboration or application of national
laws on copyright and neighbouring rights, when requested by
the respective Member States. UNESCO aims to contribute to the
prevention and fight against piracy through training of copyright
enforcement officials, as a training-for-trainers to obtain
multiplying effect
 International Trademark Association (INTA) is a not-for-profit
international association composed chiefly of trademark owners and
practitioners. It is a global association. Trademark owners and professionals
dedicated in supporting trademarks and related IP in order to protect
consumers and to promote fair and effective commerce

IMPORTANT TREATIES

Berne Convention for the Protection of Literary and Artistic Works (the Berne
Convention) An International copyright treaty called the convention for the
protection of Literary and Artistic works signed at Berne, Switzerland in 1886
under the leadership of Victor Hugo to protect literary and artistic works. It has
more than 145 member nations. It is administered by WIPO. The Berne
Convention deals with the protection of works and the rights of their authors.

It is based on three basic principles and contains a series of provisions

determining the minimum protection to be granted, as well as special provisions
available to developing countries that want to make use of them.
(1) The three basic principles are the following:
(a) Works originating in one of the Contracting States (that is, works the author
of which is a national of such a State or works first published in such a State)
must be given the same protection in each of the other Contracting States as the
latter grants to the works of its own nationals (principle of "national
treatment") [1].

(b) Protection must not be conditional upon compliance with any formality
(principle of "automatic" protection) [2].

(c) Protection is independent of the existence of protection in the country of origin

of the work (principle of "independence" of protection). If, however, a
Contracting State provides for a longer term of protection than the minimum
prescribed by the Convention and the work ceases to be protected in the country
of origin, protection may be denied once protection in the country of origin
ceases [3].

Paris Convention: The Paris Convention applies to industrial property in the

widest sense, including patents, trademarks, industrial designs, utility models (a
kind of "small-scale patent" provided for by the laws of some countries), service
marks, trade names (designations under which an industrial or commercial
activity is carried out), geographical indications (indications of source and
appellations of origin) and the repression of unfair competition.
Madrid Protocol : It is a legal basis is the multilateral treaties Madrid (it is a city
situated in Spain) Agreement concerning the International Registration of Marks
of 1891, as well as the protocol relating to the Madrid Agreement 1989. The
Madrid system provides a centrally administered system of obtaining a bundle of
trademark registration in separate jurisdiction. The protocol is a filing treaties and
not substantive harmonization treaty. It provides a cost-effective and efficient
way for trademark holder. It came into existence in 1996. It allows trademark
protection for more than sixty countries, including all 25 countries of the
European Union.

Trade Related Aspects Of Intellectual Property (Widely known as TRIPS)

(VERY IMPORTANT TREATY)

TRIPs is considered as a major achievement of the Uruguay Round as an

international trade agreement. At the trade negotiations, the developed countries
were succeeded in linking intellectual property rights with trade. Until then, the
World Intellectual Property Organisation (WIPO) was the exclusive international
institution dealing with intellectual property.
With TRIPs, the WTO also emerged as the institution for the protection and
promotion of intellectual property globally.
The TRIPS Agreement is Annex 1C of the WTO Agreement, which entered into
force on 1 January 1995. The TRIPS Agreement is binding on
each Member of the WTO from the date the WTO Agreement becomes effective
for it. However, the TRIPS Agreement gave original Members
transitional periods, which depend on the level of their development, to bring
themselves into compliance with its rules1.
The Council for TRIPS administers the TRIPS Agreement and is open to all WTO
Members. The Council reports to the WTO General Council provide minimum
standards in the form of common set of rules for the protection of intellectual
property globally under WTO system. The TRIPs agreement gives set of
provisions deals with domestic procedures and remedies for the enforcement of
intellectual property rights.

Member countries have to prepare necessary national laws to implement the

TRIPs provisions. TRIPs cover eight areas for IPRs legislation including patent,
copyright and geographical indications. As per the TRIPs provisions, the member
countries are required to prepare the necessary legal framework spelling out the
scope and standards of protection for rights in regard to intellectual property. Or
in other words, the member countries have to adopt TRIPs provisions in their
domestic intellectual property legislations like Patent Act, Copyright Act etc.