Intellectual property rights and plagiarism

Abstract

In today's knowledge driven economy, information generation and R&D have assumed key importance in determining the public perception. Consequently, the understanding of the knowledge based assets such as, innovations, ideas and designs and their management has undergone a change; in which ownership has become a critical issue. 

Intellectual Property defined in terms of unused original and creative ideas or works protected by patent, copyright, trademarks and trade secret laws, further classified into patents for inventions, copyrights for literary works, trademarks, and trade secrets in the globalising world characterised by multilateral trade, increasing transparency etc have become more vulnerable to infringements. Thus, the central thinking behind the IPR is that the author must get his due, which will further encourage him to keep up the R&D. IP rights deserve protection all over the world including India particularly the science and technology, software and business method, which are rapidly changing. The world has moved far ahead from 1967, when the World Intellectual Property Organization (WIPO) discussed all issues related to IPs. However, all these issues have to be reviewed afresh with globalization, information and communication technologies and knowledge factors playing a leading role in world affairs.

While critically revieing all issues related to IPR including trademarks, copyright, plagiarism, by taking into account some case studies from India, and place them in international perspective to draw broad future guidelines,the paper concludes.........

I CONTEXT

In the twenty-first century,it is saying that nations capable of translating knowledge into social goods and wealth through creative ideas, research and development and innovations will lead the world. Innovation, R&D and time for adopting new knowledge have taken over cost to become important determinants of the market value of a product or service. With the knowledge economy advancing, the existing development approaches and management cultures,  have to undergo a change. Particularly in understanding and managing the knowledge based assets, such as innovations, ideas and designs.

A human facilitating the socio-economic and cultural development  of the society requires encouragment, and the creator or the innovator must  be rewarded by suitable legal protection for his intellectual creation.

Intellectual Property[IP] may refering to what the human mind creates as unused, original and creative ideas, works or expression, including technology, design or literal work deserve to be protecting that can be protected Thus issues related to generation, evaluation, protection and exploitation of intellectual property would become critically important all over the world

Patents for innovation, copyright for literary works, trademarks and trade secret laws.

IPRs legally protect the rights of the author or creator (innovator), who have transformed his ideas into property others particularly pirates, imitators are barred from taking undue credit of the original creator.

Intellectual property rights (IPR) has assumed significance in today's rapidly changing world dominated by forces of liberalisation, privatisation and globalisation allowing free flow of goods and services, capital and human resources; advances in information and communication technologies and enhances scope of international governance maximising of profits requires lowering of the overhead and other costs in addition of a constant adoption of technology, innovations through in research and development (R&D) and upgraded human resources. The system of multilateral trade and emerging economic order has led to new uncertainties in the market. The uncertainty get compounded with equally important changes taking places in the socio-economic and political order of the society with increased freedom of expression, voting rights to youth, the rampant corruption through the close nexus between politics, bureaucracy and criminals the world has changed. A number of newly independent developing nations has also brought a change in the outlook of the nations state.

With ever increasing internationalisation of the nation states and enhanced trade in goods and services, and the accompanying changes taking place in all spheres of the society, intellectual property rights (IPR) have become more vulnerable to infringements. The central theme behind the IPRs is that the author should get his due to keep up with the technological development and to maintain the R&D costs. In an era of high rate of growth and development of the economy (7-8 percent per annum) one expects a wide range of IPs coming up, which require protection areas of software, management, designs, science and technology, market and business models etc. The ips of new ideas, meant to improve the quality of the life, has been a part of the human civilization but lacked formal protection in earlier times. But in recent years the subject of IPs has grown in different directions. Its increasing economic importance particularly in industry developed countries is making it both more complex and international (Cornish and LLendelyyn 2008) protected through IPRs.

In this backdrop, the present paper highlights and reviews some case studies from India, and discusses issues in the international perspective.

Understanding IPR, in Contemporary Perspective

There are three types of Intellectual Property Rights- patents for invention. Copyright, for literary and artistic works and trademarks and names for the goodwill attached to marketing symbols. (Cornish and LLendelyyn 2008)

All these protects through legal rights the application of idea and information which have some commercial value. In that sense, they are essentially negative as they are meant to stop others doing certain things created by right owners.

Patents

A patent in general is a document issued by government describing an invention and thereby creating a legal situation, so that the patented invention can be exploited (manufactured, used, sold, imported) with the authorization of the owner of the patent. “Invention” means a technological improvement over what is existing. It is a kind of solution to a specific problem in the field of technology related to a process or a product. The protection conferred by the patent is limited in time (generally 20 years).

In 1995, two Non-Resident Indians were granted a patent on “use of turmeric in wound healing” in the U.S. The Indian Council of Scientific and Industrial Research while quoting from Vedic and Sanskrit texts argued that in India, turmeric has been used for centuries and its healing properties are well known. The patent was retracted. Thus, there emerged an important question related to any knowledge passed on from generation to generation and reflects a cultural identity for a community and if there is any need for its protection. [http://www.mightylaws.in/361/i-knew-that-already]

Before we further elaborate “traditional knowledge” and its Indian context that it is not patentable, patentability has to be defined.

Patent means a patent for any invention granted under the Patents Act, 1970. [Section 2(1)(m) of The Patents Act, 1970]. Thus, only an “invention” involving an invention step is patentable.  . An inventive step makes the invention novel and non-obviousI to a ‘person skilled in the art' [Sec 2(1)(ja)].This implies if an  invention is obvious to a person whose mind has been tutored and  have a knowledge of all the relevant material with regard to that art then such an art is not patentable.So since

Traditional knowledge is that is already known.

and represents an aggregation or duplication of traditionally known properties of traditionally known  components , and it does not add anything new and non-obvious to something that has been already known.  Hence traditional knowledce cannot be patented for reason of

novelty and non-obviousness. However any invention that isbasedon such traditional knowledge is  patentable.  In the case ofBadische Anillin & Soda Fabrik vs Cochrane et al,a patent was granted for the process of making Anthracene.It is a product made from coal tar which in effect has similar properties, uses and chemical composition as Alizarine Alizarineis a natural dye known for a long time in the art of colouring ,found in the roots of the Madder plant and the substance and its properties had been known for a long time in the art of colouring. The US Supreme Court observed  that a product based on traditional knowledge may  if, is patentableit meets the requirements of novelty, non-obviousness and utility.

Trademarks: Generally speaking, a trademark refers to any visible sign ( a design or a slogan) which helps in identifying or individualizing goods of a given enterprise; and further distinguishes them from those of others; and thus, it solely indicate its source of the product. (http://www.uspto.gov/main/glossary/index.html#TM) but the consumer can trust in a given enterprise, not necessarily known to him by some trademarks under which the product is sold Thus, the distinguishing function of the trademark and its function of indicating the source are interdependent and cannot really be separated. Therefore, the trademark, can be defined as “any visible sign capable of distinguishing the goods or services of an enterprise from those of other enterprises.” [Section 22(1) of WIPO's Draft Industrial Property Act ,the Draft Law [http://www.indianipblog.in/2011/04/apex-court-remands-philips-case-back-to.html ]]

In a recent development, the Supreme Court a bench comprising Justice Markandey Katju and Gyan Sudha Mishra asked the Delhi High Court to decide afresh on the trademark dispute over 'Philips' between the Dutch electronics firm Koninklijke Philips Electronics NV and Kunj Aluminium Pvt Ltd, saying that it passed orders without giving any proposed reasons.

Trademark related aspects of  good will also  include  trademarks rights and trades secret . Trademark rights  are names, slogans and designs are given for 10 years and renewable with evidence of use in commerce (k2).

Trade Secrets include any information related to the formula, pattern or device considered essential for possessing an advantage over one's competitors, which the owner decides to keep confidential for business reasons.(k3).Such ownership rights can conceivably last forever if the information is kept confidential. However,there can be two or more independent owners of the information, if the information by another party with an independent discovery is kept confidential.(k4)

Copyright

Copyright law a branch of IPR deals with the rights of intellectual author (creators), various forms of creativity in print form and other ways in which mind can perceive and imagination can afloat to work on. Literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings are important components.

Copyright protection has become the most important subject matter. Its basis lies in its personal character. It confers the exclusive legalrights, on authors (creator)to maintain their own terms and conditions for letting out their intellectual property. The first copyright law, was enacted in the U.K. in 1709 and it is commonly known as the ‘Queen Anne's Statute'. As per standard terms, no copyrighted work can be reproduced, translated, adapted, exhibited or performed in public, distributed, broadcast or communicated to the public without the permission of its author. 

The material becomes copyrighted once it is published anywhere in a member country of the Berne Convention. No separate registration is required. Copyright protection is automatic and lasts throughout the author's lifetime plus 50 years after the author's death. However in the USA and in European Union countries, copyright protection usually lasts during the life of the author plus 70 years after the author's death.

Internet information as it is available in public domain is also a subject matter of copyright. Information transmitted and transferred on internet may already be a copyrighted. But the situation becomes much more complicated when persons dealing with the transaction of information, the internet service provider, the content provider, the user person (downloading the information) and the bulletin board service provider are not identified. A collection of copyrighted works is transacted. Multimedia represents an amalgamation of computer programme, text, audio-visual work, databases and sound recording. These components may be separately protected through copyrights or some other regime. A deeper analysis would show that it is difficult to determine the actual author/owner of multimedia, and what should be protected even if it is important to protect such a work per se. However, scholars have also observed that a multimedia work is neither a literary, dramatic work, musical nor it is a database or a computer programme. However, the multimedia works have immense potential, digital revolution is benefitting the society and is turning out to to be a large revenue generator for different stakeholders. But the unauthorized use of such copyrighted information is to be brought into the legal purviewto ensure that internet does not encourage unlawful use of any copyrighted material.

INDIAN COPYRIGHT ACT, 1957 inheriting British Copyright Act 1911 came into effect from January 1958. Since then it has been amended five times (1983, 1984, 1992, 1994 and 1999). Its Section 13 highlights about the works in which copyright subsists; and Section 14 gives the meaning of copyright. (http://copyright.gov.in/  and INDIAN COPYRIGHT ACT, 1957)

It gives a right against copying of defined types of cultural, entertainment and informational production.

Unlike patents, copyright protects the expressions and its form and not the ideas. There is no copyright in an idea. But issues related to copyright offer a contradictory situation in developing countries, like India. Authors and intellectual creators do not have very comfortable economic positions and need incentives and subsidies in the creation, production and management of literature including books or other educational material or library system and so on. But on the other hand, society at large should be encouraged by making available the stocked intellectual properties to encourage R&D, creative idea, designs to root out socio-economic problems related to poverty, unemployment, and man illiteracy and give benefits of science. [WIPO Intellectual Property Handbook: Policy, Law and Use Pg 42

Over the period, the emphasis on ownership has shifted from publisher to the author; but stakes and responsibility of the publishers with the advent of digital technologies especially internet sources and purposes of the publishers has also become serious. Publisher's lobby is asking for Data Protection Treaty, for protecting their investments. The distinction between an idea and expression is also not very clear and become acute when copyright is extended to utilitarian subject matter. (Cornish and LLewlyn 2007)

Thus, the challenge today in a developing economy like India is to maintain a balance between necessary incentive required for the author (creators) of works and incentives so provided are in harmony with the social and public interests and the needs of modern society and people at alrge.  Chapter 11 of the Act deals with infringement of copyright. Section 51 of the Act details when copyright is infringed. It defines infringement exhaustively, both direct and indirect. Direct infringement is when a person without a valid license or in  violation of the terms of the license does anything, to do which is the exclusive right  of the owner of copyright (section 51(a)(i). Indirect infringement is when any person permits his place to be used for communication of a work, which if communicated, would constitute an infringement of copyright (Section 51(a)(ii). Thus the owner of a hall or an auditorium would be deemed to be doing an infringing act if he lets out the place for any act which constitutes an infringement.

(k7) In R.G Anand v Delux Films (AIR 1978 SC 1613) The hon'ble Supreme Court  of India has laid down the following general propositions regarding infringement of a work:-

  1. Copyright is not applicable in support matter an idea, subject matter, themes, legendary or historical facts. However, the manner, form, and expression of the idea of the copyrighted work fall in the domain of violation.
  2. In case the same idea is developed in a different manner, manifesting may be using source the Courts will identify if the similarities are on substantial or fundamental points of the mode of expression adopted in the copyrighted work. The imitation with marginal variations here and there is a violation of copyright.
  3. The third person, i.e. the reader, the viewer or the spectator after having read or seen both the works comes out with the opinion based on reasonable proof that the subsequent work appears to be a copy of the original.
  4. There is no violation if the same theme is presented and treated differently and the final output turns out to be completely new work.
  5. In case, there are similarities but dissimilarity in the contained material do not indicate intention to copy, and intention to copy the the coincidences are clearly incidental.
  6. The copyright violation must be proved by clear and cogent evidence.

Other important copyright related decisions are:

Baker v Selden

The decision denied copyright protection to an accounting form on the ground that functional methods and systems are not proper subject matter of copyright and could only be protected by a patent. [http://www.copyrighthistory.org/]

The court also observed if a work could be expressed in no other way, so that there is a convergence between its content and its expression, it may not be protected by copyright. This is sometimes called the ‘merger principle'.

[Baker v Selden, Hollinrake v Truswell]

Fortune Films International v. Dev Anand, AIR 1979 Bom 17

In this case, the plaintiff was taken as the cine artist for the motion picture ‘Darling' of which the appellants were the producers. A written agreement was signed between the producers and the cine artist which provided that for the services of the cine

artiste to the producers, for the picture, his remuneration would be Rs. 700, 000/- and that the copyright in the work would vest with the cine artiste, until full payment of the consideration, whereon, the copyright would stand transferred to the producers.

The issue was whether the copyright of the cine artiste under the agreement was in his work in the film on the film as a whole? 

High Court held that it referred to work of the cine artiste in the film and not the film as a whole.

[http://www.cscsarchive.org:8081/MediaArchive/medialaw.nsf/(docid) /E390C1B72E0CB6DEE5256AC70025E703]

Music industry:

In the case of musical work, composer is the author under the Act and he alone has the copyright in a musical work. In a song, the words written as well as its music have copyright. Accordingly authors of these works are the lyricist and the composer respectively. The singer who sang the song has no copyright. There is no copyright subsists with the writer of the lyrics or the composer of the music unless there is a contract stipulating otherwise when the music is included in the film.

However, when a cinematograph producer commissions a music composer or a lyricist to compose music or write lyrics for the purpose of making a cinematograph film and, in return, pays them for their work, he or she (and not the composer or lyricist) becomes the owner of all the copyright in the work that is produced. [Indian Performing Right Society v. Eastern India Motion Picture Assn, AIR 1977 SC 1443]

The right to record a sound track of a film including the songs, if any, belongs to the owner of the copyright in the cinematograph in the film i.e. producer.

Drama:

The copyright in a drama by an author written for a society, in the absence of a clear agreement to the contrary, vests with the author. [Lama Prasad v. Nabahash, AIR 1967 Ass 70]

Idea:

However, it is to be noted here that there subsists no copyright in case of mere ‘idea'. [Donoghue v. Allied Newspaper Ltd., (1937)3 ChD 503]. This fact was further established in a recent case in Bradford v. Sahara TV where the defendant, Sahara TV was accused of making a television series based on the idea expressed in one of best selling books by the plaintiff, Barbara Taylor.

Aasia Industrial Technologies Ltd. v. Ambience Space Sellers Ltd., (1998) 18 PTC 316 (Bom)

[http://www.iitrade.biz/cms/IntellectualPropertyDemo/Copyright/Articles/doc/The %20Indian%20Film%20Industry.doc]

Similarly, issues related to Industrial Designs and Integrated Circuits; Geographical Indications as pointed out by .... Are very important but require a thorough examination from legal perspective in international perspective but all such issues must have a development face also for the benefit of lays society of developing countries. Moore so there can be counter arguments. For instance, if following

Moral Desert Theory,one argues that, “every man has a property in his own person”,i.e. the fruits of a man's labour belongs to him, but one cannot be sure the very same idea did not at the same moment enter some other mind. Thus these rights can only be justified if they are implemented in such a way that rights of an individual are protected without infringing on another.

Similarly, following Kant and Hegel, if one's artistic expressions are synonymous with one's personality and deserve protection. Palmer counters by arguing that if work of art were a part of an individual's personality, then it would cease to exist after the person died.

Some economists such as Bentham and Mill argue in terms of policy which helps in attaining the greatest good for the greatest number. Thus, the problem arises as the benefits gained cannot be measured against the losses suffered.

IPRs, thus, subject to certain conditions the use, for the purpose of reporting, an evenet in a broad context for critical review, quotes, research or bonafide private study for criticism in connection with judicial proceeding, under certain conditions be allowed. The most recent and common case is of plagiarism. It was not realy tangible in ancient and medieval works.

Plagiarism:

is “the act of stealing another person's intellectual property (IP) which includes ideas, inventions, original works of authorship, words, slogans, designs, proprietary information, etc. and using them as your own without proper acknowledgment and/or permission of the original author or inventor.”3 or in simple words it is the act of copying a work, wholly or partially, and then pretending to be its original author.

Plagiarism is not necessarily equivalent to copyright infringement. The latter occurs when there is a violation copyright law. Opinions are divided over the credit to must be given to the orgianl source. Generally speaking, reference to the originalsourcematerial must be made as much as possible, and writers should nowhere give an impression of others' work to be his/her own. Plagiarism

The use of mere facts irrespective of whether the facts come from public domainorcopyrightedworks. They should not be treated as plagiarism when two or more persons come up independently with the same idea or analysis. There can be accidental plagiarism with somebody when they come out with child hood stories in creative works for his school/college assignment thought he had no recollection of her other repeatedly reading for him, the same. But what is important is that original sources used in a work must be quoted clearly so as to give due credit to the original source. Student must observe academic codes of ethics to avoid all forms of plagiarism. The most rampant practise is web sites offering articles, essays, monographs and papers for sale to public and students, of course there is a database of sources which helps in identifying if there is any plagiarism though comparison.

IPR embedded in Indian Constitution9

IV checks n balances

[http://www.mightylaws.in/517/role-played-judiciary-intellectual-property-laws

India is committed to the system of multilateral trading being promoted under the aegis of WTO in which the scope of international law is giving to be enlarge. So the scope of IPR is also likely to increase substantially. The judiciary has a distinct role to play in relation to IPRs as India has introduced many IP legislations in line with the international laws. Some of these laws require modification of the existing provisions and introduction of new provisions, but their long-term implications have yet to be examined with other. The Courts in India thus, has to proceed while reviewing the international laws so that the established rules of International law are not violated. Even the Parliament has to move cautiously so that there is no breach of International law and treaty obligations (Article 51 of Constitution of India).

The major responsibility of the judiciary is too to adjudicate IP matters right from its genesis to the life cycle to end-result. All issues related to the creation, protection, utilization and enforcement of the intellectual property, on the one hand and the emerging IPR outcomes and implications for the society on the other fail in the domain of the Courts in India.

The created IP has to be protected for which different Statutes like the Indian Patents Act, the Indian Trade & Merchandise Act etc. exist. Under them, here exist a number of Quasi-Judicial Authorities such as Controller of Patents & Designs, Registrar of Trademarks & the Trademarks Appellate Board Registrar of Copyrights & the Copyright Board. The utilization of IP involves some arrangements related to licensing, assignments, transfer, which require the guidelines as enshrined in the statutes like the Indian Contracts Act, Indian Stamp Act, and Transfer of Property Act etc.

Enforcing the intellectual property right is another important aspect, which is required for preventing others from unauthorized exploitation of protected intellectual properties Infringement/misappropriation of Intellectual Property as laid down in law of India is a crime and the Statutes are their to esure enforcement infringements.

Indian case

[Intellectual Property rights protection in India: An analysis, @Zinnov LLC

In BangaloreBanashankari police arrested three software engineers for illegally copying software from a company, Ishoni Networks India Private Limited, they were working for. The accused enginners, who were working with the company. They had illegally copied code of the company's software and were using at their company, police said. Ishoni Director Antonio Mario Alvares had lodged the complaint with Banashankari police. Police have seized four computers, four CPUs, four keyboards, one server and one laptop from the accused. (DH News Service, Bangalore, 2003)

New Delhi Aug28, 2002. Central Bureau of Investigation officials in New Delhi nabbed Shekhar Verma, a former employee of Mumbai-based Geometric Software Solutions Company for stealing $60 million worth of source code of a software product of Geometric Software's US-based client, SolidWorks. (Rediff.com)

The Enforcement Branch of police of different major cities such as Calcutta, Hyderabad, Chennai, and delhi with the assistance from Nasscom seized pirated software in 2000.

In Najma Heptulla v. Orient Longman Ltd., AIR 191989 Del 63, the Hon'ble Court upheld the validity of the agreement. Between the plaintiff and the publisher even after the said term was over.

In Ratna Sagar (P) Ltd. v. Trisea Publications & Ors., 1996 PTC (16) 597, Hon'ble Court observed that the claimant's suffered copyright infringement and granted permanent injunction.Similarly, copyright laws in India lay down that any adaptation of a literary work becomes a transformation of that work into a different form. It could be drama, which is performed before the public or a version of that work in which the story or essence of the work is conveyed completely. The transformation can also be through a book, newspaper or magazine. This is true for famous books, such as Shakespeare'sRomeo and Juliet adapted into plays, ballets and other artistic forms across the world, the story ofShakuntalaandDushyant, in India interpreted and depicted through different regional adaptations in various forms (Ramayanaand theMahabharatha).

In the famous  case of 3 Idiots following the Section 2(a) (v) of the Copyright (Amendment) Act, 1999, the adaptation through rearrangement or alteration authorized to another person was not found infringed..

Translation without Consent Amounts to Copyright Infringement the publication of a translation of an original copyrighted work without the consent of the copyright owner will amount to copyright infringement.

There are many cases where the courts have found accomplished person guilty of violations related to copyrighted work. A well known professor was found to have fabricated research on fossil findings, and another professor from Sri Venkateswara University was found to have cited instruments in his reports which were not even at his disposal.

It is a important to be noted that India being member of both Berne and Universal Conventions extends protection without undergoing any formalities to all copyrighted works originating from any of the countries. However, the assumption is that the home country reciprocality for Indian works.

Thus the Indian law is very clear on the issue of infringement. Besides civil remedies there exist criminal and administrative measures also Civil Remedies (Sections 54-62) include injunction, delivery of infringing copies, damages for conversion.

Conclusion/Outlook

With rising globalisation trends accompanied by advances in ICT the challenges for IP management has become daunting with more and more countries joining the multilateral trade internal compliance has also become important in international relations. The promotion of free and fair competition has also leading to an environment of due honour to the author. However a fair balance is required between ensuring that whatever is due to the owner must be given and promotion o social development of the people by freely making available to the society members particularly to be used for non-commercial goals and meets social objects.

Footnotes

The Convention Establishing the World Intellectual Property Organization (WIPO), on July 14, 1967 (Article 2(viii)), in Stockholm:

- literary, artistic and scientific works,

- performances of performing artists, phonograms and broadcasts,

- inventions in all fields of human endeavor,

- scientific discoveries,

- industrial designs,

- trademarks, service marks and commercial names and designations,

- protection against unfair competition,and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.” ; The areas mentioned as literary, artistic and scientific works belong to the copyright branch of intellectual property. The areas mentioned as performances of performing artists, phonograms and broadcasts are usually called “related rights,” that is, rights related to copyright. The areas mentioned as inventions, industrial designs, trademarks, service marks and commercial names and designations constitute the industrial property branch of intellectual property. The area mentioned as protection against unfair competition may also be considered as belonging to that branch, the more so as Article 1(2) of the Paris Convention for the Protection of Industrial Property (Stockholm Act of 1967) (the “Paris Convention”) includes “the repression of unfair competition” among the areas of “the protection of industrial property”; the said Convention states that “any act of competition contrary to honest practices in industrial and commercial matters constitutes an act of unfair competition” (Article 10bis(2)).1



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