Tuesday, 15 May 2012



 

Intellectual Property Rights
(A Report for IP Dome)
-Anusha Ramesh, Intern at IP Dome

 
“An idea that is developed and put into action is more important than an idea that exists only as an idea.”- Buddha

DEFINITIONS:

The World Trade organization defines Intellectual Property Rights as “the rights given to people over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time.”
It further goes on to add, “Intellectual property rights are traditionally divided into two main categories:
  • Copyright and rights related to copyright: i.e. rights granted to authors of literary and artistic works, and the rights of performers, producers of phonograms and broadcasting organizations. The main purpose of protection of copyright and related rights is to encourage and reward creative work.
  • Industrial property: This includes-
      • (1) the protection of distinctive signs such as trademarks and geographical indications, and
      • (2) Industrial property protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.”

The World Intellectual Property Organization (WIPO) describes that IPR “allows creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.”

HISTORY ABOUT INDUSTRIAL PROPERTY RIGHTS

The use of the term Intellectual Property dates back to the 18th century. The administrative secretariats of the Paris Convention (1883) and the Berne Convention (1886) merged in 1893 and formed the United International Bureaux for the Protection of Intellectual Property. This later became the World Intellectual Property Organization.
An agreement on cooperation between WIPO and the WTO came into force on 1 January 1996. The agreement provides cooperation in three main areas:

  • notification of, access to and translation of national laws and regulations
  • implementation of procedures for the protection of national emblems
  • and technical cooperation.

IMPORTANCE OF INTELLECTUAL PROPERTY RIGHTS

There are several compelling reasons why IPRs are necessary. First, the progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture.
 Second, the legal protection of new creations encourages the commitment of additional resources for further innovation.
Third, the promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life. An efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a catalyst for economic development and social and cultural well-being. The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish, for the benefit of all.
To quote the Global Intellectual Property Centre “The current global economic crisis is focusing renewed attention on the urgent need to incentivize and protect innovation to both solve the world’s most challenging problems and to generate jobs and economic growth.”
It further goes on to add that the role of IPRs is five-fold:
·         To create and supports high paying jobs
·         To drive economic growth and competitiveness
·         To protect consumer at household levels
·         To generate breakthrough solutions to global challenges
·         To encourage innovations and reward entrepreneurs

TYPES OF IPRs:

                                                                                                                                                             INDUSTRIAL PROPERTY:
o   PATENTS:
A patent is an exclusive right granted for an invention –a product or process that provides a new way of doing something, or that offers a new technical solution to a problem.
A patent provides patent owners with protection for their inventions. Protection is granted for a limited period, generally 20 years. Patents provide incentives to individuals by recognizing their creativity and offering the possibility of material reward for their marketable inventions. These incentives encourage innovation, which in turn enhances the quality of human life.
Patent protection means an invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. Patent rights are usually
enforced in courts that, in most systems, hold the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.
A patent owner has the right to decide who may – or may not –use the patented invention for the period during which it is protected. Patent owners may give permission to, or license, other parties to use their inventions on mutually agreed terms. Owners may also sell their invention rights to someone else, who then becomes the new owner of the patent. Once a patent expires, protection ends and the invention enters the public domain. This is also known as becoming off patent, meaning the owner no longer holds exclusive rights to the invention, and it becomes available for commercial exploitation by others.
Patented inventions have pervaded every aspect of human life, from electric lighting (patents held byEdison and Swan) and sewing machines (patents held by Howeand Singer), to magnetic resonance imaging (MRI) (patents held by Damadian) and the iPhone (patents held by Apple).
In return for patent protection, all patent owners are obliged to publicly disclose information on their inventions in order to enrich the total body of technical knowledge in the world. This everincreasing body of public knowledge promotes further creativity and innovation. Patents therefore provide not only protection for their owners but also valuable information and inspiration for future generations of researchers and inventors.
TRADE MARK:
A trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company. Its origin dates back to ancient times when craftsmen reproduced their signatures, or “marks”, on their artistic works or products of a functional or practical nature. Over the years, these marks have evolved into today’s system of trademark registration and protection. The system helps consumers to identify and purchase a product or service based on whether its specific characteristics and quality – as indicated by its unique trademark– meet their needs.
Trademark protection ensures that the owners of marks have the exclusive right to use them to identify goods or services, or to authorize others to use them in return for payment. The period of protection varies, but a trademark can be renewed indefinitely upon payment of the corresponding fees. Trademark protection is legally enforced by courts that, in most systems, have the authority to stop trademark infringement.

INDUSTRIAL DESIGN:
An industrial design refers to the ornamental or aesthetic aspects of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or two-dimensional features, such as patterns, lines or color. Industrial designs are applied to a wide variety of industrial products and handicrafts: from technical and medical instruments to watches, jewelry and other luxury items; from house wares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods.
To be protected under most national laws, an industrial design must be new or original and nonfunctional. This means that an industrial design is primarily of an aesthetic nature, and any technical features of the article to which it is applied are not protected by the design registration. However, those features could be protected by a patent.

GEOGRAPHICAL INDICATION:
A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to that place of origin. Most commonly, a geographical indication consists of the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local geographical factors, such as climate and soil. Whether a sign functions as a geographical indication is a matter of national law and consumer perception.
Geographical indications may be used for a wide variety of agricultural products, such as, for example, “Tuscany” for olive oil produced in a specific area of Italy, or “Roquefort” for cheese produced in that region of France.

COPY RIGHTS:
Copyright laws grant authors, artists and other creators protection for their literary and artistic creations, generally referred to as “works”. A closely associated field is “related rights” or rights related to copyright that encompass rights similar or identical to those of copyright, although sometimes more limited and of shorter duration.
The beneficiaries of related rights are performers (such as actors and musicians) in their performances; producers of phonograms (for example, compact discs) in their sound recordings; and broadcasting organizations in their radio and television programs.
Works covered by copyright include, but are not limited to:
novels, poems, plays, reference works, newspapers, advertisements, computer programs, databases, films, musical compositions, choreography, paintings, drawings, photographs, sculpture, architecture, maps and technical drawings.

CRITICISMS OF IPRs

1.      The basic public policy rationale for intellectual property laws is that they, in some way, protect the rights of the inventor, author, or creator. The rationale for patent law is that is grants the right to exclude others from making. Using, offering for sale, selling, or importing the invention in(to) the country where it was patented. The public policy rationale for trademark rights are that they may be used to prevent others from using a confusingly similar mark, but not to prevent others form making the same goods or from selling the same goods or services under a clearly different mark. The public policy rationale for copyright law is that it is a form of protection provided to the authors of “original works of authorship: including literary, musical, artistic, and certain other intellectual works, both published and unpublished.
2. Many people believe that intellectual property provides a temporary monopoly that protects the use or exploitation  of that good, supported by legal enforcement mechanism In fact, intellectual property protection cannot properly be thought f as providing an economic monopoly, at least in part, because a monopoly can only exist in the presence of a market and the ability of an actor to manipulate the market to a point where higher than competitive prices are able to be maintained, which is something that is rarely achievable by an  owner of intellectual property.
3. In this A contrary view is that the deprivation of possession occurs at the outset – when an inventor, author, composer, etc has a new idea, he or she has the choice of keeping that idea private and using it solely for personal benefit or sharing that idea with the public in the form of a new invention, book, song. Etc context, the grant of limited rights is a “bargain” that the public uses to induce the creator to give up possession at the time the rights are granted, and in this sense, there is a voluntary and irretrievable surrender of possession of the property of the creator. The unauthorized use of intellectual property is then seen as a violation of the fundamental bargain.
4. The global harmonization of intellectual p r o p e r t y   l e g i s l a t i o n   u n d e r   t h e   Wo r l d   Tr a d e Organization (WTO) has also been criticized, for example by the alter globalization movement. The exclusive rights granted by intellectual property laws are generally negative in nature and therefore only grant the holder of IP the ability to exclude third parties from infringing on their monopoly. For example, the owner of a registered trademark has an exclusive right to use their mark in relation to certain products or services, and can exclude others from using that mark in relation to those products or services (sometimes marks which are recognized as “famous” or “well known” are deemed to have developed sufficient goodwill and reputation to be protected across unrelated classes of products and services.)
5. Copyright licenses grant permission to do something. A patent license is a declaration not to do some things. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use. Intellectual property rights in India-India’s general argument was that is does acknowledge in principle the case for strict IPR protection, but this can be done only in phases suited by its own ground reality. The reality is that absence of international IPR protection for some decades has spawned employment for millions, so an overnight clampdown on IPR violators would foment social unrest. India’s general argument was that is does acknowledge in principle the case for strict IPR protection, but this can be done only in phases suited by its own ground reality. The reality is that absence of international IPR protection for some decades has spawned employment for millions, so an overnight clampdown on IPR violators would foment social unrest. The Indian government has formed an advisory committee to recommend changes in the 1970 Indian Patents Act. A temporary ordinance for patent protection implementing the “mailbox” provisions of the WTO TRIPS agreement and providing for exclusive marketing rights was issued in December 1994.

INTELLECTUAL PROPERTY RIGHTS IN THE NEWS:


·   The US government has recently put India, China and Pakistan along with 10 other countries on the "intellectual property watch list" for failing to prevent the theft of copyrighted property.Other nations on the watch list are Canada, Argentina, Algeria, Chile, Indonesia, Israel, Russia, Thailand, Ukraine and Venezuela.
·         Infosys has increased its patent filings by 50 per cent over FY11. During the 2012 fiscal, the company, in a filing to the Securities and Exchange Commission (SEC), said it has filed 143 unique patent applications in the United States Patent and Trademark Office (USPTO) and the Indian Patent Office. These patents were filed through Infosys Labs.
CONCLUSION AND MY LEARNING:

When I initially started working on the report, lots of questions baffled me. How can Intellectual property be of any value? After all, knowledge is something abstract, intangible and often ambiguous. How do know if your idea is original? How do you OWN an idea? Weren’t we all taught to share information? Will there be animosity because of trying to own knowledge?
However as I started doing the report, I realized something. Intellectual property is as substantial and real as any other tangible asset. It is the preamble to tangibility. After all without an idea, there is no creation, no production, no marketing and no economics.
I have come to realize that Intellectual Property lies at the heart of economic advancement, sustainable development and social equity.
In this competitive world, ideas are vociferous tools. To quote Joseph Stalin “Ideas are more powerful than guns. We would not let our enemies have guns, why should we let them have ideas?”  While I do not completely agree with the quote, I think it is up to us as individuals to innovate responsibly and claim ownership. After all, ideas can be rewarding as well as dangerous.

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