A brief about Intellectual Property in India

Origin of Intellectual Property

With the advancement of time and developments in science and culture a new kind of intangible property has emerged. These properties are known as Copyrights, Patents,Trademarks, Designs and Geographical indications and are known as intellectual property rights.

Development of Intellectual Property

A need was felt to protect these Intellectual Properties which resulted in various treaties being entered into and member nations passed their own legislations in their own country as well. Notable among these is the Paris Convention for protection of industrial property. Under this convention there are several agreements such as :

  1. The Madrid Agreement (Trademarks)
  2. The Patent Co-operation Treaty (Patents)
  3. The Hague Agreement ( Industrial designs)

Countries have also brought about considerable changes in their international relationship of intellectual property and now there is participation at the inter country level. Such methods have been successful and resulted in the successful completion of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) under which the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)was formulated. TRIPS ensured that IPR protection is provided in member countries.

Concept of Intellectual Property

Intellectual property is in the form of intangible and incorporeal property and is the product of human intelligence such as music, books, art and inventions. Rights in such properties are known as Intellectual Property Rights. The proprietor or the owner may exclusively use his property and prevent others from using the same. The idea behind granting rights of owners, authors, inventors etc are to ensure that they disclose their products, arts and inventions without fear of duplication.

Key forms of Intellectual property

Patents
Patents are granted for inventions if the invention is compatible to the following tests:

The invention must be new
There must be an inventive step
The invention must be capable of industrial application.

A comprehensive review of the Patents Act, 1970 was also made and a bill to amend the Patents Act, 1970 was introduced in Parliament on 20 December, 1999 and notified on 25-6-2002 to make the patent law TRIPS compatible.

Trade Marks
Trademarks are any sign, or any combination of signs capable of distinguishing the goods or services of one from those of another.
A review of the Trade and Merchandise Marks Act, 1958 was made and a Bill to repeal and replace the 1958 Act has since been passed by Parliament and notified in the Gazette on 30.12.1999. This Act not only makes Trade Marks Law, TRIPS compatibility but also harmonizes it with international systems and practice

Service Marks
Service marks can now be registered and will be statutorily protected under the new Trade Marks Act, 1999 which has come into force from the September 15, 2003. Previously, according to Trade & Merchandise Marks Act, 1958, there was no provision for registering Service Mark in India.

Designs
Industrial designs are granted for works which are novel and original. A design may be refused registration if it primarily consists of functional considerations as against aesthetic considerations , which is the basis of protection.

A new designs law repealing and replacing the Designs Act, 1911 has been passed by Parliament in the Budget Session, 2000. This Act has been brought into force from 11.5.2001.

Copyrights
The following come under the purview of copyright protection:

Original literary, dramatic, musical and artistic works
Cinematograph films
Sound recordings
Computer programmers

Economic Rights – Right of reproduction, public performance, adaptation, broadcasting, translation etc.
Moral Rights – Right of author against any alteration in his work that might be injurious to his reputation.

The term of Copyright in India is 60 years.

India’s copyright law, as laid down in the Indian Copyright Act, 1957 later amended by Copyright (Amendment) Act, 1999, is compatible to the Berne Convention on Copyrights, to which India is a party