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.
The purpose of this paper is to critically review all issues related to IPR includeieng trademarks, copyright, plagiarism, by taking into account some case studies from India, and plae them in international perspective to draw broad future guidelines.
In the twenty-first century, nations who can translate knowledge into social goods and wealth through creative ideas research and development and innovations will lead the world. Innovation, R&D and time for grasping new knowledge has taken over cost to become important determinants of the public perception of the market value of a product or service. With the knowledge economy advancing, the the existing management cultures, and approaches has to undergo a change. Particularly in understanding and managing the knowledge based assets, such as innovations, ideas and designs.
This paper is divided in two sections; firstly, intellectual property rights (IPRs) and Plagiarism rights and the rationale behind them, and; secondly, study on the particular concern over Indian context.
Thus a human facilitating overall development of socio-economic and cultural aspects of the society must be encouraged, and the creator or the innovator must be rewarded by suitable legal protection for his intellectual creation. Thus issues related to generation, evaluation, protection and exploitation of intellectual property would become critically important all over the world.
Intellectual Property may refeer to what the human mind creates as unused, original and creative ideas or works or expression, including technology, design or literal work that can be protected (worked on) by 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. In other words, legal rights are provided to stop others particularly pirates, imitators from taking credit of the original creator.
Intellectual property rights (IPR) has assumed significance that in today’s rapidly changing world dominated by force of liberalisation and privatisation ad globalisation, and advances in information and technologies. Maximising of profits requires lowering the overhead and other costs in addition of a continue adoption of technology, innovations in research and development (R&D) and upgradation of human resources. As a result, output has become capital intensive. The new system of multilateral trade and emerging economic order has led to new uncertainties in the market with a negative impact. The problem of uncertainty get compounded wit equally important changes taking places in the socio-economic and political order of the society including freedom of expression, voting right to youth, on the one hand and the growing corruption with rising nexus between politics, bureaucracy and criminals on the other. The world has also changed with the birth of a number of newly independent developing nations leading to a change in the outlook of the nation state.
With ever increasing of trade in goods and services and the accompanying changes in the society in all spheres, intellectual property rights (IPR) have become more vulnerable to infringements. The central theme behind the IPR is that the author should, get his due not only to keep up with the technological development but also to maintain the R&D costs. In an era of development one expects a wide number of IP rights coming up which require protection all over the world including India in all areas of software, management, science and technology, market and business models. New ideas, expressing products meant to improve the quality of the life, are a part of the human civilization thought lacked formal protection in earlier times. The relatively most recent and comprehensive attempt towards IP is
Understanding IPR, in Contemporary Perspective
As stated above IPRs may be reviewed in terms of patents, copyrights, trademarks and total secrets as given below:
A patent in general is a document, issued, by government describes an invention and thereby creates 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 solution to a specific problem in the field of technology and it relates to a product or a process. 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. of the remedies of the wound. 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 culture identity for a community and if there is any need for its protection.
Before we further elaborate “traditional knowledge” and its India context that it is not patentable, patentability has to be defined.
Patent means a patent for any invention granted under this the Patents Act, 1970. [Section 2(1)(m) of The Patents Act, 1970]. Thus, only an “invention” is patentable. So what is an invention?
An invention is something that involves an inventive step. An inventive step is that element of the invention that makes the invention novel and non-obvious. Simply put, for anything to be patentable it needs to be new and not obvious. But to whom should it be not obvious?
It should be not obvious to a ‘person skilled in the art’ [Sec 2(1)(ja)]. A person skilled in the art is a person whose mind has been tutored in the relevant art and is a person who has been presumed to have knowledge of all the relevant material with regard to that art. So after having such skills and knowledge if an invention would have been obvious this person then such an art is not patentable.
Traditional knowledge is primarily not patentable because it is something that is already known.
Now, an invention that is in effect traditional knowledge or which is an aggregation or duplication of known properties of traditionally known properties of traditionally known component or components is not an invention.[Section 3(p)] In other words, any invention that does not add anything new and non-obvious to something that has been already known in the form of traditional knowledge is not a ‘new invention’ and hence cannot be patented.
So, since the aforementioned criteria of patentability, that is, novelty and non-obviousness are not met in case of traditional knowledge, it is not patentable. But this does not mean that any invention that is based on such traditional knowledge is not patentable. It is more clear in the case of Badische Anillin & Soda Fabrik vs Cochrane et al, a patent was granted for the process of making Anthracene. Alizarine is a natural dye 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. Anthracene is a product made out of coal-tar which in effect has similar properties, uses and chemical composition as Alizarine. The US Supreme Court said that a man made product which in effect is a traditional knowledge is not patentable. But a product based on traditional knowledge may be patentable provided it meets the requirements of novelty, non-obviousness and utility.
Thus, the patent sought on turmeric as a healing agent is a traditional knowledge. But not a novel product made through a novel process or processed through a chemical composition. Such a traditional knowledge which is passed on orally in general from generation and indicates an identity of a community is protected under the Indian Patents Act, 1970 under Section 3(p); but any invention that is in effect traditional knowledge is not patentable.
Generally speaking a trademark refers to any visible sign ( a design or a slogan) that has the capacity to identify or individualize goods of a given enterprise and distinguishes them from those of others and thus it solely indicate its source of the product.(k1) 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 of Justice Markandey Katju and Gyan Sudha Mishra has 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 Rights: words, names, slogans and designs are given for 10 years and renewable every 10 years with evidence of use in commerce (k2).
Trade Secrets: Any information such as 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)
Trade Secrets: the ownership rights can conceivably last forever if the information is kept confidential. However, independent discovery or development of the proprietary information will then create two or more independent owners of the information, if they also keep the information confidential.(k4)
Copyright protection has become the most important subject matter ‘Copyright’ are the exclusive rights, which the law confers on authors (creator) to maintain their own terms and conditions for letting their intellectual property. The oldest of all these exclusive rights is the right of the author of a book to print copies of it. This was the right conferred by the first copyright law, which was enacted in the U.K. in 1709 and is commonly known as the ‘Queen Anne’s Statute’. 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. This is what is meant by the phrase ‘all rights reserved’ found in many works.
Once a material is published anywhere in a member country of the Berne Convention, it becomes a copyrighted material and 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 many countries copyright protection lasts longer than this minimum term. For example, in the USA and in countries of the European Union, copyright protection usually lasts during the life of the author plus 70 years after the author’s death. However, it does not protect ideas or mere fact.
Internet information is also a subject matter of copyright, as it is available in public domain. Information transferred and transmitted on internet may already be a copyrighted. But the situation becomes complicated because some times it becomes difficult to identify persons deal with the transaction of information the internet service provider, the content provider, the user person (downloading the information) and the bulletin board service provider. The situation gets compounded when a collection of copyrighted works is transacted. For instance, multimedia represents an amalgamation of computer programme, audio visual work, text, sound recording and databases. These components may be separately protected through copyrights or some other regime. The question, which arises, independent of the internet is: who is the owner of such a work and what exactly needs to be protected?. A deeper analysis would show that it is difficult to determine the actual author owner of multimedia, 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, musical, dramatic work nor it is a database or a computer programme. However, the multimedia works have immense potential, digital revolutionis benefitting the society and is turning out to to be a large revenue generator for different stakeholders. But the wrong and unauthorized use of such copyrighted information is to be brought into the legal domain to ensure that internet does not encourage unlawful use of any copyrighted material.
Copyright law is that branch of IPR that deals with the rights of intellectual author (creators), various forms of creativity, not only in print form but also in other ways in which mind can perceive and imagination can afloat to work on. Such as literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings.
[ WIPO Intellectual Property Handbook: Policy, Law and Use Pg40
Copyright and Related Rights
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 tells about the works in which copyright subsists; and Section 14 gives the meaning of copyright. (k6)
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, particularly one 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 further R&D, creative idea, designs to root out 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 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.
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.
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.
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]
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)
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 original source material 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 domain or copyrighted works. 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 Constitution
IV checks n balances
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.
[Intellectual Property rights protection in India: An analysis, @Zinnov LLC
In Bangalore Banashankari 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’s Romeo and Juliet adapted into plays, ballets and other artistic forms across the world, the story of Shakuntala and Dushyant, in India interpreted and depicted through different regional adaptations in various forms (Ramayana and the Mahabharatha).
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.
With rising globalisation trends accompanied by advances in ICT the challenges for IP management has become daunting with more and more count
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