Ipr_group 6

Intellectual Property Rights Presented by: Group 6

Intellectual Property 

Property: Natural object becomes a resource when it satisfies a human want

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A resource possessed and owned becomes a property

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A bundle of legal rights linked to ownership and possession of an item

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Movable and Immovable Property

Intellectual Property: It is the Property created by application of human mind: 

Intangible (non-physical) in nature- derives value from ideas,

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There is no uniform definition of IP,

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In knowledge age, IP is a key to techno-economic growth.

Rationale Behind IP •

The creative activity culminating in IP is necessary for socioeconomic progress,

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Material incentives and rewards encourage greater creative activity,

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IP rights grant monopoly to ensure rewards,

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The interests of owner and society are balanced by limiting periods of monopoly with obligation to disclose and remedies against abuse of rights,

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Disclosure brings knowledge in public domain.

7 Main IP Instruments 1. Trade Marks / Brands (Trade Marks Act, 1999) Property Marks 2. Copyright (Copyright Act, 1957) Artistic Work Literary Work Audio, Video and Records Software 3. Industrial Designs (Designs Act, 2000) 4. Patents (The Patent Act, 1970) 5. Geographical Indications The geographical Indications of Goods ( Registration and Protection )Act, 1999 6. Laws relating to Internet, Web and Information Technology (Information Technology Act, 2000) 7. Domain Names

Patents

Patent and Invention 

Patent, under the Act, is a grant from the Government to the inventor for a limited period of time, the exclusive right to make use, exercise and vend his invention. After the expiry of the duration of patent, anybody can make use of the invention.

Invention means any new and useful a) art, process, method or manner of manufacture b) machine, apparatus or other article c) substance produced by manufacture and includes any new and useful improvement of any of them, and alleged invention Therefore an invention is the creation of intellect applied to capital and labour, to produce something new and useful. Such creation becomes the exclusive property of the inventor on grant of patent

Rules and regulations 

Patent Act 1970 : Office of the Controller of Patents

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RIGHTS OF A PATENTEE : The owner of the "Patent", i.e. patentee is entitled to deal with such property in the same manner as owner of any other moveable property.

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The patentee can sell the whole or part of this property (Patent). He can also grant license to other(s) to use the patented property. He can also assign such property to any other(s).

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Such sale, license or assignment of such patented property naturally has to be for valuable consideration, acceptable mutually

What can be Patented 

Inventions in all fields of technology, whether products or processes, if they meet the criteria of

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Being patentable subject matter Novelty: Invention not known to public prior to claim by inventor

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Inventive Step: Invention would not be obvious to a person with ordinary skill in the art

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Industrial Application: Invention can be made or used in any useful, practical activity as distinct from purely intellectual or aesthetic one

SOME EXCLUSIONS FROM PATENTABILITY 

Naturally occurring substances/elements;

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Diagnostic, therapeutic and surgical methods of treatment of humans or animals;

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Plants and animals other than μ-organisms;

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Essentially biological processes for production of plants or animals;

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Inventions whose use is contrary to public order or morality.

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Ideas, methods for business, playing games, performing mental acts.

Compulsory Licensing 

In a compulsory license, a government forces the holder of a patent, copyright, or other exclusive right to grant use to the state or others. Usually, the holder does receive some royalties, either set by law or determined through some form of arbitration.

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Indian Patent Act allows any interested person after expiry of 3 years from grant of patent even though if he is a license under the patent, may make an application to the Controller for grant of compulsory license

Copyright

Copyright Protection 

Copyright is a form of intellectual property which gives the creator of an original work exclusive rights for a certain time period in relation to that work, including its publication, distribution and adaptation; after which time the work is said to enter the public domain.

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e.g. Books, lectures, dramatic and musical works, choreography, cinematography, drawings, paintings, architecture, sculpture, photographs, illustrations, maps, plans sketches etc.

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India’s context :Copyright Act ,1997 Copyright arises the moment a person creates a work Copying or reproduction of copyrighted material is prohibited Copyright holder can prosecute a person making unauthorized use

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What can be copyrighted 1)

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Literary Work : books, newspapers magazines, journals, computer programs, tables, compilations(1995) Dramatic Work : recitation, arrangement of scenes, choreographic works, dumb shows Musical Work : original music work Artistic Work : painting , sculpture, photograph, drawing, chart, map Film : motion picture, television shows, television recording Record : any recording of sound Requirements – Work must be original Copyright is applicable over the material form of expression and not over idea

Owner of Copyright 

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Author : Writer/writers of the book , Painter , Music composer , Translator , Cinematographer , Photographer ,etc Employer :Person who has paid for the commissioned work Under section 17, author is the owner of the work Employer can have ownership under the ‘contract of service or apprenticeship’ Amendment :Ownership of a computer related work is the one who pays for it An author may create a work at the instance of another person , for a valuable consideration In such cases ,unless specified otherwise ,the person commissioning the work becomes owner

Limitations  • • •

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In India , copyright is applicable – Work published in India Author is citizen of India In case of unpublished work, the author at the time of making is a resident of India In case of architectural work ,it is located in India Following activities are not allowed for a copyrighted work 1) Reproduction or storage in electronic form 2) publishing the work 3) performing the work in public 4)Making a cinematographic film or record w.r.t. the copyrighted work 5) Translation or adaptation of the work

Duration and Broadcast Reproduction Rights 

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In case of literary , dramatic , musical , artistic work , published during the lifetime of author, the work is under copyright during the lifetime and 60 years after the death of the author In case of anonymous work , copyright is for 60 years from the date of publication In case of photograph or films , copyright is 60 years from the year of its publication Broadcast Reproduction Rights: No person can rebroadcast a broadcast No person can make a recording of a broadcast other than for private use No person can sell or hire a broadcast without a license from the owner Exception : use of excerpts for current events, teaching , research

Registration and Infringement of Copyright 

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Registration is not compulsory, however it is useful in case of disputes in relation to infringement The Office of the Registrar of Copyrights maintains a register for the following parts – Literary Works, Musical Works, Artistic Works, Cinematograph films, sound recordings, Computer Programmes Copyright Infringement – Along with the person violating a copyright , any other person allowing the use of his place for the communication of the copyrighted material is liable for prosecution The Ac t provides for Criminal as well as civil liability Criminal Prosecution: Imprisonment for 6 months to 3 years and a Fine of 50 thousand to 2 lakh rupees Civil Suit :Stopping of infringement, payment of profits as well as damages to owner, transfer of material to the copyright holder

TRADEMARKS

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TRADEMARK, SERVICE MARK, and TRADE NAME Distinctive symbols, signs, logos that help consumer to distinguish

between competing goods or services A trade name is the name of an enterprise which individualizes the enterprise in consumer’s mind Legally not linked to quality. In fact, linked in consumer’s mind to quality expectation Trade mark has a life of 7 years but can be renewed indefinitely. Geographical Indications : It identifies a good as originating in the territory of a member, where a given quality , reputation or other characteristics of the good is essentially attributable to its geographical origin Industrial design : Industrial design are ornamental features of a product such as shapes, design, lines, motifs or colours. The duration of protection is to be not less than 10 years.

The Trade and Merchandise Marks Act, 1958  

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Creation of a Trade Mark Registrar It aimed at reducing the presence of foreign trade marks and guarding the marks of domestic firms. Class of Goods : While making an Application, the person has to specify the goods in relation to which trade mark was being used and the class to which the good belonged Registration of a Foreign Mark : Surnames could be registered only if they had become distinctive Marks which were on Register could be removed on the grounds of non – user

Requirements for Registration of a Mark 

A trade mark could not be registered in the following situations: 1) Use contrary to Law : National Emblems, ISI Mark 2) Descriptive or Laudatory Works : Trade marks designating the kind, quality, quantity, intended purpose, values, geographical origins, time of production 3) Confusion and Deception : Distinctiveness

Trade Marks Act , 1999 

Inclusion of Service Mark: Inclusion of 7 services like banking, communication, education, Finance, etc

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Procedure and Duration of Registration :Duration increased from 7 years to 10 years

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Expanded Definition of Trade Mark : Shape of Goods, Combination of Colors, Packaging has been included

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Collective Mark : An association can get a mark distinguishing the goods and services of its members , registered as a Collective Mark

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Certification Mark :Meant for a person who is competent to certify goods or services for their origin ,material, mode of publication ,quality ,accuracy ,etc

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