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Evolution of IPR as a branch of law

What is Intellectual Property?

 At first glance, IPR seems to paint a vivid picture as an intricate branch of

law. But you will be surprised to know, as you shall read the module, that

how closely you have come across the superficial element of the subject in

daily course of life. We are well aware of the fact that song writers, music

composers and an author of books own their work.

 What does this ownership signify? The ownership implies that the person

responsible for his work has absolute right over it. No one can make use of

the work, unless due consideration of his work is granted. In layman terms,

if you are willing to make use of their work, you ought to render your

consideration in return.

 Let’s take an example; when you buy a soft drink owned by Coca-Cola, a

part of our payment goes back to Coca-Cola as a reimbursement for the

time and resources that they have invested in research and development for

creation of the product.

 This has led to the development of industries such as the music industry

thriving worldwide and encouraging new faces to generate more and more

creative ideas.

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 In order to understand the true nature of intellectual property, it is

imperative that we start with a formal definition. Intellectual property

refers to the legal rights that result from intellectual activity in the

industrial, scientific, literary and artistic fields.

 In common parlance, the term ‘property’ carries the same meaning as is

understood en masse. The significant feature that most types of property

have in common is that the person having the ownership of a property is

free to use his/her property as they deem fit, provided that use is in

consonance with the law of the land.

 Now that we have understood the general connotation of property, let’s roll

back to the significance of property in IPR. The term property in IPR is

reserved for types of property that ensue from creations of the human

intellect including creativity concepts, inventions, industrial models,

trademarks, songs, literature, symbols, names, brands et cetera.

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 IPR can be categorized under following heads:

1. Literary, artistic and scientific works.

2. Performances and broadcasts.

3. Inventions (in any field).

4. Industrial designs.

5. Trademarks, company names and logos.

6. Unfair competition practices.

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Significance of IPR

 Let’s take an example; ‘A’ has invented a device that is of great

significance in the Automobile industry. Now if the car manufacturers are

willing to make use of his device in-order to maximize the efficacy of their

product, they must contact ‘A’.

 The willingness of the car companies to make use of A’s device must be

backed with some consideration. Intellectual Property Rights ensures that

A’s product is not used by the car company without honouring his right.

 From the above-mentioned example, inference can be drawn that rendering

protection to intellectual property encourages industries whose work is

based on intellectual creation. IPR ensures financial returns to the people

who put consistent effort in creation such work.

 For instance, Medical Electronics Industry allocates a major chunk of its

profit to research and development. The investment made in developing a

medical device runs into millions of dollars. This lends credence to the fact

that protection of IP rights is imperative for smooth functioning of such

industries.

 Henceforth, conclusion can be drawn that protection of IP laws is

beneficial for companies in industries like medical electronics and

automobile, inter alia.

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Origin of IPR Jurisprudence

 Since time immemorial, the need to preserve the rights of owners of

property was felt. Many times, laws were made by the king to protect them.

But this property was mostly tangible property. It was only around 500

BCE that we observe efforts being made by the sovereign to protect

intellectual property rights as well.

 The first documented evidence about the formal protection of intellectual

property rights comes from Sybaris; a Greek state established in 720 BC in

the Gulf of Taranto in Southern Italy. There, around 500 BC, any “new

refinement in luxury” was recognized as an intellectual property of the

creator. This right was in the nature of a patent.

 Over centuries after that, the details about intellectual property rights have

changed. They have become much more specific when it comes to

technicalities. However, the basic intent has remained constant throughout

the history of jurisprudence. And that intent is to preserve the brain-child

of a person as his property for exclusive use. Thus, allowing creators to

reap the benefits of their creativity.

 After 500 BC, documented evidence about protection of intellectual

property rights are few and far apart throughout history. The next notable

instance is that of ‘Statute of Monopolies’ passed in 1623 in Britain. This

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famous legislation was a big leap forward when it comes to formal

protection of intellectual property rights.

 In Britain, prior to 1623, all industries followed the guild-system. A guild

is a formal alliance of merchants who practice trade or business in a

particular region. These guilds had monopoly in their respective fields. All

new innovations in goods and services were brought about through these

guilds only. Individual ownership of new ideas was out of the question.

 However, the ‘Statute of Monopolies’ dramatically altered this viewpoint.

Earlier, the guilds exercised ownership and production rights over a new

invention, even if they played no role in its creation. The statute extended

such ownership rights to the creators now. Government-sanctioned guilds

no longer exercised monopoly in that regard.

 After that, another landmark legislation in the field of intellectual property

came about in 1710 in Britain. It was the ‘Statute of Anne’. This stature is

also referred to as the ‘Copyright Act, 1710’. It is still regarded as the first

legal document providing for government protection of copyrights through

executive and judicial system.

 The said statute was primarily focused on literary work. The law provided

the authors intellectual property right over their original content in the form

of copyright. Copyright means an exclusive legal right for the commercial

use of a piece of intellectual work. The statute granted copyright for 14

years, which could be renewed for another such term.

Nature, scope and purpose of IPR

 Intellectual property has its own distinctive features. These unusual

features help us to distinguish IP rights from other kinds of properties.

These features can be listed as follows:

1) Exclusive right of owner: Owner has an exclusive right over her

creation. The owner has an inherent right as far as the work of the

owner is concerned. The inherent right of ownership is a symbolic

representation of the fact that the person is not stripped off his right

to make use of his work without honouring (consideration) the

efforts put in by her.

2) Allocation of Rights: IP rights can be allocated by way of license.

That is, intellectual property rights can be bought, sold, or licensed.

3) Divisible (Fragmentation): The quintessence of intellectual

property lies in its territorial nature, that is, intellectual property is

an inexhaustible resource. Let’s take an example, an inventor who

has registered a patent in India, can make use of his invention in

India, license it in United States of America and assign it in Sweden.

In layman terms, people around the globe can have legally protected

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interest generated from the intellectual creation of the originator

without affecting his interest.

4) International conformity on IPR: As far as IPR is concerned, there

is no conformity among the nations. The intellectual creation of a

person has to be secured under respective jurisdictions as per the

respective municipal laws of the nations. In the same manner the due

process of registration and enforcement are regulated by the national

laws of the country.

5) International instrument on IP rights: Paris Convention, Berne

Convention and TRIPS lay down the regulations to ensure that

creators and inventors are provided with protection in foreign land.

6) Principle of Exhaustion: This doctrine was laid down in the case

of Consten & Grunding v. Commission (1966). Exhaustion principle

enunciates that after the first sale by the right holder, his/her rights

cease to exist. Henceforth, once an IPR holder sells his product, he

can no longer thwart the subsequent resale of the product.

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Scope of Intellectual Property Rights

The scope of IPR is very wide. However, for all practical purposes, these are

generally understood to be under the following heads:

 Patents: If a person invents a thing, he has the right to use it either for

personal purposes or to use in the market for profit. He can also sell this

right to someone else for a consideration. This right is in the nature of a

patent, which establishes a monopoly for a fixed period of time.

 Copyright: Any original piece of work or a new point of view over an

existing work is protected by copyright. It includes within its ambit the

works of the likes of authors, historians, scientists and dancers. Copyright

has gained great importance in the internet era.

 Trademark: When a business sells a good or service using a particular

pictorial representation, font, etc; it becomes a part of its identity, i.e., it

becomes a trademark and is protected by IPR. For example, people

recognize Coca-Cola drink by just looking at the font, so ‘Coca-Cola’

written in that font is a trademark.

 Trade secrets: Business-persons might want to keep certain information

secret. For example, a chef may want to keep his recipe secret, or a

homeopathic medicine company may want to keep its formula secret. Such

secrets are protected by IPR to some extent.

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Purpose of IPR

 Every legislation is designed to serve a particular function in society. The

need for it is felt in long before it is formally enacted. Hence, every concept

of law has a purpose. Following this suit, let us now examine the purposes

served by IPR jurisprudence in society.

 First of all, let us consider a society which does not protect intellectual

property rights. A business owner creates a new product with his own

research and development team. The product is being sold in the market.

Without IPR, his product can be easily copied by his competitors and sold

in the market. This would deprive the person of the fruits of his labour.

 Therefore, intellectual property rights are instrumental to the economic

progress of a society. It gives legitimacy to the ownership rights of an

inventor or creator of a new product. In a free market, such legitimacy is

essential to instil a sense of security.

 Intellectual property rights encourage the outreach of innovation in society

as they ensure that the creator receives due credit for her work. If such

protection is not there, innovators will be hesitant to go public with their

work, hence depriving the innovation of reaching its maximum utility.

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 IPR puts in place a formal mechanism for distribution of an innovation in

a free market while awarding due credit to the innovator. For instance, ‘A’

designs a new kind of battery which makes a phone last longer. Now, he

can patent the product and a mobile phone company can pay him to use the

battery design.

 Another important purpose of IPR is the protection of artistic values in

society. Any piece of art, like music composition, painting, motion picture,

is protected by IPR. This protection is vital for growth in artistic fields.

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IPR under Public International Law

 Intellectual property rights are territorial in nature. This means that the IPR

laws of one country do not apply to any other country per se. This creates

a problematic situation as in the current era of globalization,trips a creator’s

IPR needs to be protected in other countries as well.

 Multinational companies (MNCs) are gaining prominence all over the

world. MNCs create employment for crores of people globally. They need

IPR protection beyond the boundary of the country of their origin in order

to perform economic functions in a safe environment.

 For this reason, intellectual property rights are gradually becoming more

and more important in Public International Law (PIL). Two major

conventions form the substantive part of IPR in PIL. These are the Paris

Convention of 1883 and the Berne Convention of 1886.

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Paris Convention (1883)

 Paris Convention for the Protection of Industrial Property was a trailblazer

in the field of international protection of IPR. It was signed in Paris, France

on 20th March, 1883. It has 177 parties to it. This convention has the

following four salient features.

1. Doctrine of national treatment: Every country which is a party to this

convention will have to protect the intellectual property rights of

citizens of other countries in the same manner as it protects that of its

own citizens (articles 2 and 3).

2. Union priority right: If a person files an IPR application in a country

after filing it in some other country, the effective date of filing it will be

the date of application in first country; for both countries. Provided that

the gap should be within 1 year for utility models and within 6 months

for trademarks and industrial designs (article 4).

3. Temporary protection: Items (eligible for IPR protection) displayed

at recognized international exhibitions should be granted temporary

IPR protection in respective territories (article 11).

4. Mutual independence: Countries that are party to the convention are

mutually independent when it comes to IPR registration in their

respective jurisdictions. Countries need not follow IP laws of any other

country while processing requests of foreign origin (articles 4 & 6).

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Berne Convention (1886)

 Berne Convention for the Protection of Literary and Artistic Works was a

landmark international convention on IPR. Its primary focus is copyright

protection. It was signed on 9th September, 1886 in Berne, Switzerland.

This convention also has 177 parties to it.

 Berne convention brought about a change in the way a copyright is

recognized. It established that a copyright is in place as soon as a creator

finishes her work. It effectively means that a copyright is recognized even

before it is formally registered.

 This convention also established that a country should recognize the

copyright of creators belonging to other countries which are a party to this

convention as well. This provision has made protection of copyright an

international right rather than merely territorial.

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Critical analysis

 If we take a closer look at both the conventions (Paris and Berne), we shall

come to terms with the bone of contention that has been articulated in these

conventions. The central theme in these conventions is the cardinal

principle of ‘national treatment’.

 As mentioned above, ‘national treatment’ implies that a country shall

provide to the citizens of other country the same protection as they provide

to their own citizens.

 Be that as it may, the doctrine of national treatment has its fair share of

discrepancies. The solutions enunciated by the conventions fail to address

the very essence of the issue.

 Let’s take an example, country ‘X’ regulates its IP laws in a way that makes

registration of patent mandatory in order to reap the benefits out of his/her

product. Due to such regulations, ‘A’, a citizen of country ‘Y’, whose

product has a market in country ‘X’ shall be compelled to endure the cost

of registration to protect his right in country ‘X’, even though country ‘Y’

has no such regulations for patent registration.

 After going through the example, we can draw inference to the fact that the

conventions fail to create homogeneity among the countries, making it

mandatory to regularize the IP laws in such a manner so that every country

is on equal footing as far as IP laws are concerned.

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TRIPS (1995)

 Trade Related Aspects of Intellectual Property Rights (TRIPS) which came

into existence on 1st January, 1995 addresses the discrepancies faced by the

Paris and Berne Conventions. TRIPS agreement necessitates members of

World Trade Organisations (WTO) to give cognizance to the established

standard of protection provided by Paris and Berne Conventions.

 World Intellectual Property Organisation (WIPO), in its bid to regularize

Intellectual Property Rights throughout the globe has formulated two new

treaties, viz., WIPO Copyright Treaty 1996 and WIPO Performances

and Phonograms Treaty 1996. Both the treaties have played their role in

developing and propagating new intellectual property rights in the

international arena.

 Recent advancements lend credence to the ever-changing world of

Intellectual Property Law. The paradigm shift in the IP rights has led to the

standardization and universality around the globe.

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Development of IPR in India

Prior to independence

 The development of intellectual property laws in India started way back in

the colonial era itself. Therefore, just like most of the other substantive

laws in India, intellectual property laws are also greatly influenced by

English jurisprudence.

 British parliament enacted a charter (a formally recognized document that

provides the authority to do something) in 1833. This charter provided for

the formation of a Law Commission. Its stated purpose was the

harmonisation of Indian laws into a unified system.

 Lord Macaulay presided over the first such Law Commission as chairman

which was formed in 1835. Inter alia, he made a recommendation to East

India company to incorporate intellectual property laws in India.

Therefore, the Patents Act was introduced in 1856.

 After that, many important laws regarding intellectual property rights were

passed. The list included Indian Trade and Merchandise Marks Act of

1884, Indian Patents and Designs Act of 1911 and Indian Copyright Act of

1914. This trend continued after Independence.

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TRIPS compliance

 Trade Related Aspects of International Law Agreement (TRIPS) came into

existence on 1st January, 1995. It addresses the discrepancies faced by the

Paris and Berne Conventions. TRIPS agreement necessitates members of

World Trade Organisation (WTO) to give cognizance to the established

standard of protection provided by Paris and Berne Conventions.

 Since 1995, intellectual property laws have been modified from time to

time to some extent in order to bring the regime in compliance with TRIPS.

This is because under TRIPS, a 10-year ‘transition period’ was granted to

India for this task. That period ended in 2005.

 Some examples of the changes introduced are: Patent Amendment Act,

2005; the Design Act, 2000; Trademarks Act 1999, The Geographical

Indication of Goods (Registration and Protection) Act, 1999.

 All these changes were major steps taken by Indian government to bring

India in compliance with provisions of TRIPS agreement. However, it is a

widely recognized fact that India is still in the ‘transition phase’ and has

not brought its IPR regime in total compliance with TRIPS yet.

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Tek Chand Committee

 Intellectual Property Rights in India has under gone numerous changes

since its inception in 1856—Patent Act of 1856. Be that as it may,

implementation of recommendation made by Tek Chand Committee is

considered to have revolutionized the IP rights in India by shaping the law

in accordance with the domestic needs of India.

 The Tek Chand Committee was established in the year 1948 by a resolution

of the Government of India dated 1st of October, 1949. The committee was

appointed to review the IP laws hitherto.

 The Committee was presided over by Dr. Bakshi Tek Chand, a retired

Judge of the High Court of Lahore, and consisted of six others. It included

Shri Rama Pai, former Controller of Patents as a Member-Secretary.

 Tek Chand Committee submitted its report in August, 1949, proposing

amendment of the Patents and Design Act, 1911 with immediate effect.

Committee was of the view that provisions making licensing mandatory

has led to abuse of patent monopolies in India.

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 The recommendation made by the committee was accepted by the

Government which ensued in the amendment of sections 22, 23 and 23A

to 23G of the Indian Patents and Designs Act, 1911.

 Based on the Committee’s report, Patent Bill, 1953 was introduced,

nevertheless, the Bill lapsed in 1957.

 Ayyangar Committee was formed in the year 1957 under the chairmanship

of Rajagopala Ayyangar. It submitted a report in the year 1959. The

Government of India took cognizance of the recommendations made by

the Committee and introduced the Patent Bill of 1965.

 The Patent Bill of 1965 was further amended in 1967, which was
subsequently enacted as the Patent Bill of 1970. Hence, the report greatly

contributed to the advancement of Intellectual Property Rights in India.

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Development post TRIPS

 IP law in India marked a significant phase after India’s inclusion in World

Trade Organization (WTO) in 1995. After the paradigm shift in India’s

Intellectual Property law, a series of amendment acts were passed to ensure

that the municipal laws of India remain in consonance with TRIPS.

 1999: First amendment with respect to TRIPS was made with retrospective

effect. The objective of this amendment was to provide interim protection

to inventions relating to pharmaceutical products. Amendment also renders

an exclusive right for such products.

 2002 amendment: Incorporation of second set of TRIPS obligations took

place. That is, extension of term of patents to 20 years and reversal of

burden of proof, inter alia.

 2005 amendment: It was a major step towards TRIPS compliance. Patents

in all fields of technology including chemical, food, drugs etc were granted.

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