Intellectual property law
From Advocatespedia, The Law Encyclopedia
In the ancient and the medieval world, there existed laws to protect the physical entities of individuals and this was further concretized in the 17th century by the English philosopher John Locke (1632 – 1704) who wrote in his famous theory,
|Intellectual property law|
“Everyman has a property in his person; this nobody has a right to but himself. The labour of his body and the work of his band, we may say, are properly his.”
The origin and meaning of intellectual property law came about later when the development of the knowledge and its expansion became cherished properties in the Independent America and the newly- developing Europe in the 19th century and became a house-hold name in the then-elite parts of the world in the 20th century. The history of intellectual property has been a competition between two different characterizations of the legitimate ownership of knowledge. On one hand, is the belief that individuals should benefit from their intellectual endeavors, but on the other is an understanding that those endeavors have such extensive public worth that there is a clear social interest in their relatively free dissemination. A lot of countries have often failed to maintain a reasonable balance between both these factors however the initial belief has been growing in stature, especially in the 20th century with the advent of organisations such as the World Intellectual Property Organisation.
In general, intellectual property is essentially a value that is gained or added of precious value by virtue of “a creative process”. Intellectual Property rights protect the interests of innovators and creators by giving them rights over their creations and refers broadly to the creation of the human mind.
According to the Article 27 of the Universal Declaration of Human Rights 1948, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". This along with the Paris Convention and the Berne Convention gave rise to the moral acceptance of the first-world countries to accept the foundation of intellectual property law and find legal definitions for the same.
Broadly explained, Intellectual property (IP) is an intangible creation of the human mind, usually expressed or translated into a tangible form that is assigned certain rights of property.
The World Intellectual Property Organisation defines Intellectual Property as ,
Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.
The parts cited as “literary, artistic and scientific works” are categorized as the copyright division while the areas stated as “performances of performing artists, phonograms and broadcasts” are usually called “related rights,” that is, rights related to copyright. The topics mentioned as inventions, industrial designs, trademarks, service marks and commercial names and designations cover the industrial property branch of intellectual property. It effectively provides the rights to the entities (be it individual or companies) the right over their products and their production for a stipulated period of time according to the law and open it for public utility by making it available to everyone else once the period lapses.
Intellectual Property Law primarily deals with the legal rights and their violations that result from intellectual activity and regulating such rights in equilibrium with existing public policies. The meaning and the extent of intellectual law have diversely affected the definition of intellectual property law and the law itself with the developing countries demanding a narrower ambit for such rights for a long time, especially in the essential commodities.
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The origin and the evolution of the intellectual property law has been an amalgamation of the technological expansion, conflicting political theories and the conundrum of colonialism. While technological expansion and the massive inventions and discoveries leading up to the industrial revolution and during the revolution was the backbone of the concept of intellectual property, it was the advent of capitalism that secured the legitimacy of intellectual property in various parts of the world. The development of knowledge and the entities in the form of property was the primary base. For instance, the origin of intellectual property in medieval Venice can be traced back with the simultaneous rise in the development of technology. The rise of intellectual property the independent America shares a similar story.
The colonial expansions in the name of trade and civilization meant that the concepts weren’t confined to a few parts of the world but went on to become the singular approach to intellectual property. While Thomas Alva Edison was known as the world’s most prolific inventor for a long period of time and a classic epitome of American innovation, Japanese inventor Shunpei Yamazaki grabbed headlines from all round the world when he became the highest patent-holder of the world. The response to the news was also an indicator of the worldwide acceptance of the balance between personal discoveries and public utility.
The theoretical basis of the social contract behind IP law that exists today, where the state or the governmentprovides the discover/inventor/innovator a temporary monopoly or ownership on his innovation in exchange for the public disclosure of the invention in enough detail so that others can reproduce it after the patent expires or the inventor dies. This attempts to provide a reasonable foundation to balance the two opposing forces of physical property and public utility, as emphasized before.There are different types of intellectual property such as patents, trademarks, copyrights and trade secrets with each of them varying in subject matter and the laws that govern them. The detailed explanation of each of these subjects are provided in the subsequent chapters however it suffices to note that the timeframe for which the owner is given monopoly over his creation is different for each of these types and the type of intellectual property a creator owns is also decided on the basis of their definition.
There are different national legislations that regulate the law pertaining to the IP laws and lately, the world has also been shaped by the Global Patents regime led by organisations such as the World Trade Organisation, World Intellectual Property Organisation, etc. Although the national legislations are still the primary source of rules for IP laws, the influence of the international trade and business affairs have increasingly shaped those laws not just in the developed countries but the majority of the developing world as well, especially in a world where the countries proactively take part in signing bilateral and multilateral treaties.The intellectual property system also creates a framework in which developing countries can participate in the economic activities of the developed world.
It has been argued since a long time whether the notions of intellectual property existed before the industrial era and whether it existed beyond the European capitalist world. Anthropologists have attempted to establish if intellectual property or such relevant protections for intangible forms of property subsisted outside of European societies or before capitalism and its sanctification of private property became the global norm. There have been mixed answers but most sources have cited one or the other evidence from different regions and different spheres of life: be it the Romantic literature or the confined production of the Ayurvedic medicines.
In India, the British colonialism was the source of Intellectual Property and more specifically, IP laws to be inculcated in the country. In innumerable ways, it also stopped the ever-expanding knowledge base that was rich in India which was already strangulated by the Mughal rulers, such private ownership laws was the final nail in the coffin.
According to the United Nations World Intellectual Property Organization (WIPO), the need for global IP pacts was first sensed in 1873, when foreign inventors declined to attend a convention in Vienna, “fearing their creations might be misappropriated by inventors who would learn of their inventions at the convention and produce them in other countries”. The Paris Convention of 1883, the first agreement to give international recognition to something that it referred to as “industrial property,” addressed these fears but its regulations were minimal. Soon after, the Berne Convention provided safeguard for artistic and literary works, and in 1893 this settlement was fused with the Paris agreement to form the United International Bureau for the Protection of Intellectual Property (better known by its French acronym, BIRPI).
The Intellectual Property Rights spanned over various fields including industries, literature, entertainment, software and hardware technology, etc. The balance between private ownership and public utility has been the central talking point of the entire story and the several international forums in the last century have ensured that the disparity between the laws in different countries have been coming down.The World Intellectual Property Organization (WIPO) and the World Trade Organisation, the two main international forums where IP rights policy is defined, are continually reconsidering the legal frameworks that can be enacted, primarily with a view to strengthen them in favour of the IP rights holder. At the same time, the developing countries are constantly searching for legislations that can channelize the inventions of the developed countries and make use of it without compromising the trade policies with those countries.
India is a classic case of “searching for balance” in that context. India has been a member of the TRIPS (Trade-Related aspects of Intellectual Property Rights) agreement since a long time, which has been primarily set up to unify the different parts of the IP law under a single structure. The agreement itself came about by the powerful countries sensing the numerical superiority of the developing nations in the United Nations and hence transferred to the economically powerful World Trade Organisation. The agreement resulted in international pressure to amend all the IP related laws in India to bring it in consonance with international law. While India has been the spearhead of the developing countries to confine IP laws, the pharmaceutical and software industry of India boomed by the protections existing then.
While it is often said, “What you don’t know won’t hurt you” but this holds zero significance in the world of business, especially when it concerns the world of intellectual property laws. The knowledge of the laws is not only important to create more money by registering patents, it is also to be understood that unintentional infringement is also infringement nonetheless.
As discussed previously, while the difference between national legislations are lessening over the years, the binding rules related to these are still made by territorial laws. It is a complex topic because a Bollywood movie can be seen worldwide; hence while the production is local the market is worldwide. Or say, a design in New York is imitated in a market of Mumbai, which laws govern such cases? This is precisely the reason why there exist international bodies that pressurize and in many ways, regulate the ways in which national legislatures form rules.It also provides exclusive rights to the owner in terms of ownership and licensing. Since it can be licensed, the right is exclusive as well as assignable. This essentially means that all other citizens/individuals are prohibited from exercising the same rights. The laws are subjected to public policy and vulnerable to the contentious balance between the two competing interests. Since a lot of patents and inventions work within a particular jurisdiction, the right may be fragmented or divided on the basis of territories. For example a person providing a particular patented product selling it in India may not forbid a business house from doing it in say, Pakistan. Hence the right may be divided into several persons or organisations.
While these are the common features across the various types of Intellectual Property, there are various differences for the time period of protection and similar such differences exist in the intricacies of protection provided for each product. As stated earlier, the detailed knowledge of each law is important for business.
The different branches of Intellectual Property include patents, trademarks, industrial designs, geographical indications, copyrights and related rights, geographical indications, trade secrets, sui generis claims among many other evolving rights. Allied rights license IP to be treated as private asset that can be bought, sold, licensed, or even given away at no cost. The Intellectual Property laws allow proprietors, inventors and/or creators to protect their property from unauthorized uses.
As defined by various scholars, a patent conveys to its owner the right to prevent others from making, using, selling offering for sale, or importing the patented invention. Patents are national in nature, having effect only within the territory of the issuing country. To be patentable, an invention must be novel, non obvious and useful.
Copyright is a legal term describing the economic rights given to creators of artistic works, literary, including the right to reproduce the work, to make copies, and to perform or display the work publicly. Copyrights offer essentially the only protection for music, films, novels, poems, architecture, and other works of cultural value.  It can also include the various computer programmes including application software and sports games as well the sound recordings and audio files of unique source.
A trademark is a word, symbol, or combination thereof that is used to identify the source, albeit a possibly anonymous source, of goods. Examples of trademarks include Sony, Toshiba, Nike, Rolls Royce. A trademark or service mark has a potentially perpetual life – metaphorically called as the lifetime membership for a product. Trademarks have existed for almost as long as commerce itself. Once civilization progressed to a situation in which a salesman specialized in making goods for others, they made and sold those items and started to "mark" their goods with a wood or symbol to identify the maker or the seller.
The sui generis claims involve plant variety, industrial designs, geographical indications, etc.Geographical indications are distinctive signs identifying products of several undertaking is located in a specified geographical area. Unlike most other intellectual property rights, no one enterprise or even group of enterprises owns this distinctive sign and therefore, unlike trademarks, there is no right conferred on any entity to grant or refuse authorization on use. Instead, all undertakings located in the specified geographical area are allowed to use the geographical indication The famous battle for the Rasagolla between the two east Indian states of Odisha and West Bengal stands as a testament to the cultural and sentimental significance of a few GI tags and hence goes on to show the wide importance encompassing the economic needs.
In the ancient and medieval history of intellectual property, there have been no legal provisions for intellectual property, although there are recorded attempts to control valuable knowledge. On the contrary, the Indian civilization was known as a land of rich knowledge and various travellers came to India to learn spirituality whose historical counts are a source of the Indian heritage that existed then. As mentioned earlier, the primary rise in the intellectual property rise coincided with the technological advance.While the ideas of intellectual property dates back to ancient Greece and India, it couldn’t be successfully converted into binding regulations. According to some accounts, it is believed that the concept originated in the Italian cities during the Italian renaissance in the 15th century. It is said that the rich textile in the Italian industries and its shipping material to various seashores necessitated the need to inscribe intellectual property into the Venetian laws. The statute read.
WE HAVE among us men of great genius, apt to invent and discover ingenious devices; and in view of the grandeur and virtue of our city, more such men come to us every day from diverse parts. Now, if provision were made for the works and devices discovered by such persons, so that others who may see them could not build them and take the inventor’s honor away, more men would then apply their genius, would discover, and would build devices of great utility and benefit to our commonwealth. Therefore: Be it enacted that, by the authority of this Council, every person who shall build any new and ingenious device in this City, not previously made in our Commonwealth, shall give notice of it to the office of our General Welfare Board when it has been reduced to perfection so that it can be used and operated. It being forbidden to every other person in any of our territories and towns to make any further device conforming with and similar to said one, without the consent and license of the author, for the term of 10 years. And if anybody builds it in violation hereof, the aforesaid author and inventor shall be entitled to have him summoned before any magistrate of this City, by which magistrate the said infringer shall be constrained to pay him hundred ducats; and the device shall be destroyed at once. It being, however, within the power and discretion of the Government, in its activities, to take and use any such device and instrument, with this condition however that no one but the author shall operate it.
Coming back to the 21st century, the intellectual property regime has received its most protective support from the American leadership and its industries that has carried with it the European industries. The global patent regime has been largely shaped by the policies and the influence o the United States leadership.The TRIPS era is primarily a product of the influence of the Western countries headed by the United States to bring in the economic superiority to dictate terms over the numerically superior developing countries. The upper hand in trade enjoyed by these countries has helped them influence and expand their business in other developing countries using the World Trade Organisation and other such monetary bodies. The Indian experience with Intellectual Property law started with the insertion of colonial laws in India. It started with the advent of patent law in the year 1856 when the first statute was passed which granted certain exclusive privileges to the inventors of new inventions for a period of 14 years. The East India Company also incorporated the English Copyright Act 1872 to India. The first Indian legislation on designs was passed in 1872, the Patents and Designs Protection Act, 1872. The Indian Patents and Designs Act, 1911 was passed based on the British Patents and Designs Act, 1907. After independence, a committee was set up to revise the Intellectual Property laws so as to make it beneficial to the new nation and it was set up especially in order to lower the price of pharmaceuticals (which was considered India’s strength) and to end India’s dependence on imported medicines, the committee suggested that product patents not be permitted for medicines or food on the grounds that such patent rights would interfere with citizens’ right to life, which is guaranteed by the Indian Constitution.However, the TRIPS era regulations have resulted in a drift in the present scenario, most significantly by the amendments brought forth in 2012. The Copyright (Amendments) Act 2012 introduced amendments to sync the Copyright Act 1957 with WCT and WPPT.
India has been a signatory of the TRIPS agreement that was enforced on 1.1.1965. The TRIPs agreement binds India to adhere to its content and enforce the same in the national legislation. The changes in the agreement whose terms are dictated by the World Trade Organisation have had huge impacts in the Indian law since it has been implemented. The regulations have time and again threatened several Indian industries but despite such regulations, the Indian pharmaceutical sector has thus grown from a fledgling industry in the early twentieth century to a proliferation of companies that have mastered the ability to create copies of medications and deliver their products at a low price. Cipla has been a market leader not just in India, but all over the world in this field. It is a bright example of the new-age India that has the ability to compete at the global level and a shining instance of preparedness of the 21st century India that it no longer requires the protection of the government. However, there can be other reasons attributed to the growth of India’s innovation in the IP sector as well. Companies like Ranbaxy, Vijayaraghavan and Raghuvanshi, argue that this law accomplished the Ayyangar Committee’s goals when they observe, “it is generally said, with justification, that the Patent Act of 1970 was the single most important factor that laid the foundation for the robust and thriving generic pharmaceutical industry that India has today”.
IN DIFFERENT COUNTRIES
The three important international events related to the Intellectual Property regime has been the Berne Convention, the TRIPS agreement and the formation of the World Intellectual Property Organisation.While the Berne Convention had greatly simplified the copyright protection laws throughout the world, the onus still lied on the national legislatures to stipulate the length of protection and another relevant criteria individually.Hence, it is especially important to note that there is no such concept or binding regulation such as “international law” to regulate the affairs of intellectual property across borders. The other important international agreements include the Universal Copyright Convention, the World Intellectual Property Organization (WIPO) Copyright Treaty, the WIPO Performances and Phonograms Treaty and the Agreement on Trade-Related Aspects of Intellectual Property Rights.
The Berne Convention for the Protection of Literary and Artistic Works (1886) dealt with the minimum protection to be granted to the copyright owners and the special provisions available to the developing countries that wish to make use of the intellectual knowledge confined. It has seen several revisions and amendments after being passed in Berne in 1886: revised in Paris in 1896, at Berlin in 1908, revised again in 1928 at Rome with several others following with the latest amendment in 1979. While it was primarily confined to the copyright work related to works of literature and art, it had successfully laid down the foundation stones of the concept of intellectual property.
The next in line is the establishment of the World Intellectual Property Organisation in 1967 that presently has an astonishing 191 member states that has attempted to bring all the different branches of intellectual property under one umbrella. Its mission is “to lead the development of a balanced and effective international intellectual property (IP) system that enables innovation and creativity for the benefit of all.”
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was negotiated at the end of GATT in 1990 that has been a controversial dealing that has concerned developing countries leading up to different meetings, most notably the Doha Declaration that had to specifically carry out the entitlement of developing countries to compromise intellectual property rights in the cases dealing with public health.
In United States
In the United States, the copyrights for an author’s book is given for seventy years after the death of the author (works published since 1978 or unpublished work) and under copyright law, the term period given is either 95 years of publication or 120 years from creation whichever is shorter. Funnily, it is said that a lot of United States rules have revolved around Mickey Mouse and the Disney industry. The regular amendments to the several acts in place and the coincidence of the copyright deadlines for Mickey Mouse with those of the amendments to the existing acts and the incoming of new acts have had uncanny similarities. There have been Mickey Mouse graphs trending during certain periods to show the same and presently, the mouse has copyrights till 2023. From 1790 to 2023, the study of copyright history becomes easier when taken up with the world of Disney.
In United Kingdom
The United Kingdom has primarily adhered to the standards set up under the European Union given under the next heading and has set the limit of 70 years for the protection granted to most of the works. There are additional provisions in the United Kingdom provided by the legislations. For example in the cases of broadcasting, the limit is 50 years instead of the conventional 70 years and in the movies or books having more than one producer or author respectively, the life of the last surviving entity is taken into account. The Copyrights, Designs and Patents Act 1988 and as amended by the Duration of Copyright and Rights in Performance Regulation Act 1995 are the primary sources for rules and regulations concerning Intellectual Property law in United Kingdom.
In European Union
The European Union members in adherence to the Copyright Law directives circulated to all the member states and the rules and conventions laid down in the Berne Convention, they provide protection for author’s work for 70 years after the death of the writer. Moreover, in the cases of copyright, the right is given for 70 years from publication or creation (in cases where they are not published). This is based on the principle (laid down in the same Berne Convention) that the copyright protection is granted without it being asked to be specifically registered upon the creation of the work itself. The European Union Intellectual Property Organisation is responsible for the trademarks, community principles and the designs agreed upon by the member states.
The term “Intellectual Property” itself has also come under scrutiny from various corners of the developed world basing on the fact that it is vague, ambiguous and tries to paint different laws with different origins and purpose with the same brush. The critics also argue that when the resource isn’t scarce, whether it qualifies as a property anymore. Many eminent individuals have also contended that it is a misleading term that shrewdly shapes public opinion and it should be rather called “intellectual monopoly”.
It has also been argued that private property rights in human rights treaties and similar national legislations like US Bill of Rights and the Fundamental Rights provided in the Indian constitution has seen a zigzag history in India. This argument is more relevant in the case of India. While Right to Property was once considered a Fundamental right for a long time in our independent history, it longer retains the same status in India. This is also based on the natural argument that where human rights are seen as rights that are inherent to human beings by virtue of their humanity, it is not possible to include the right to property as a human right.
In such circumstances, the questioning of India’s adherence to the present WTO regulations and the trade policies in consonance with the developed countries is largely pertinent. The developing countries fight for public health and developing the basic economy of the poor is largely compromised by the external pressure to be a part of such IP property treaties.
1. Alexander I Poltorak, Paul J Lerner, Essentials of Intellectual Property - Chapter 1(John Wiley & Sons, 2002) 2.
2. Christopher May and Susan K. Sell, Intellectual Property Rights: A Critical History, (New Delhi, 2008).
3. Craig Allen, The Law of Patents (Apsen Publishers, 2008) 6.
4. Locke, John (1632-1704) The Second Treatise of Civil Government and A Letter Concerning Toleration, Oxford: B. Blackwell, 1948.
5. Michele Boldrin and Davin K. Levine, Against intellectual monopoly, Cambridge University Press, 2008, 11 November 2005.
6. Paul Goldstein, Anthony R Reese, Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property (6th ed., 2008, New York: Foundation Press).
7. World Intellectual Property Organisation, “WIPO Intellectual Property Handbook: Policy, Law and Use Chapter 1:Introduction” 3.
8. World Intellectual Property Organisation, Understanding Industrial Property (edition 2016).
1. Donald G McNeil Jr. India alters law on drug patents, New Yorker (24 March 2005).
2. Is my Copyright good in other countries, Stopfakes.gov.
3. Mike Masnick, “If Intellectual Property is Neither Intellectual Nor Property What is It? Techdirt.com (13 August 2014).
4. Murphy Halliburton, “Pharmaceuticals in the New Intellectual Property Regime” India and the Patent Wars (Cornell University Press, ILR Press, 2017) 25.5. Nathan Associates Inc. & TCB Project, “Intellectual Property and Developing Countries: An Overview” Submitted to USAID/Washington (December 2003).
- Locke, John (1632-1704) The Second Treatise of Civil Government and A Letter Concerning Toleration, Oxford: B. Blackwell, 1948.
- Paul Goldstein, Anthony R Reese, Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property (6th ed., 2008, New York: Foundation Press).
- Christopher May and Susan K. Sell, Intellectual Property Rights: A Critical History, (New Delhi, 2008).
- World Intellectual Property Organisation, Understanding Industrial Property (edition 2016).
- United Nations Organisation, Universal Declaration of Human Rights (passed on 10 December 1948) Article 27.
- Inc.com, Intellectual law <https://www.inc.com/encyclopedia/intellectual-property.html> accessed on 16 January 2019
- World Intellectual Property Organisation, What is Intellectual Property <https://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf> (accessed on 16 January 2019).
- World Intellectual Property Organisation, “WIPO Intellectual Property Handbook: Policy, Law and Use Chapter 1:Introduction” 3
- Rebeccah Gan, “Intellectual Property Law: Einstein’s Rights of Publicity” GPSolo, Vol. 31, No. 1, Opening a Law Office (Jan-Feb 2014) 70-71.
- Guinness World Records, Most Patent credited as inventor, <http://www.guinnessworldrecords.com/world-records/most-patents-held-by-a-person> accessed on 18 January 2019.
- Murphy Halliburton, “Pharmaceuticals in the New Intellectual Property Regime” India and the Patent Wars (Cornell University Press, ILR Press, 2017) 25
- Nathan Associates Inc. & TCB Project, “Intellectual Property and Developing Countries: An Overview” Submitted to USAID/Washington (December 2003).
- Murphy Halliburton, “Pharmaceuticals in the New Intellectual Property Regime” India and the Patent Wars (Cornell University Press, ILR Press, 2017) 23.
- World Intellectual Property Organisation, What is Intellectual Property <https://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf> (accessed on 16 January 2019).
- Murphy Halliburton, “Pharmaceuticals in the New Intellectual Property Regime” India and the Patent Wars (Cornell University Press, ILR Press, 2017) 27.
- Ibid 29.
- Concept, Scope and Nature of Intellectual Property Rights, Abyssinia Law <https://www.abyssinialaw.com/study-on-line/item/467-concept-scope-and-nature-of-intellectual-property-rights> accessed on 23 January 2019.
- Alexander I Poltorak, Paul J Lerner, Essentials of Intellectual Property - Chapter 1(John Wiley & Sons, 2002) 2.
- Ibid 31.
- What is Geographical Indication? World Intellectual Property Organisation <https://www.wipo.int/geo_indications/en/>accessed on 23 January 2019.