Intellectual Property Rights (IPR) | UPSC

What is copyright?

• Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works.
• Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.

Copyright Law :

• Copyrights in India are governed by “The Copyright Act, 1957”.

What is a patent?

• A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.
• To get a patent, technical information about the invention must be disclosed to the public in a patent application.

Criteria for issuing Patents in India :

• Novelty: it should be new (not published earlier + no prior Public Knowledge/ Public Use in India)
• Non-obviousness: It must involve an inventive step (technical advanced in comparison to existing knowledge + non‐obvious to a person skilled in the relevant field of technology)
• Industrial use: It should be capable of Industrial application

Patents in India & Law : 

• Patents in India are governed by “The patent Act 1970”
• It was amended in 2005 to make it compliant with TRIPS.

What cannot be patented?

• Frivolous Invention: Invention that harms public order/Morality/ health of animals, plants & humans
• Methods of agriculture or horticulture
• Traditional Knowledge
• Computer Program
• Inventions related to Atomic Energy
• Plants & Animals
• Mere discovery of scientific principle

What is a trademark?

• A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.
• Trademarks are protected by intellectual property rights.

Trademark And India Law :

• Trademarks in India are governed by Trade Marks Act 1999 which was amended in 2010.

What is an industrial design?

• In a legal sense, an industrial design constitutes the ornamental aspect of an article.
• An industrial design may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color.

Industrial Design In india & Law :

• Industrial Designs in India are governed by “The Designs Act 2000”.

What is a geographical indication?

• A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.
• In order to function as a GI, a sign must identify a product as originating in a given place.
• In addition, the qualities, characteristics or reputation of the product should be essentially due to the place of origin.
• Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production.
• It also provides comfort to customers about the authenticity of that product.
• Once the GI protection is granted, no other producer can misuse the name to market similar products.

What is the difference between a Geographical Indication (GI) & a Trademark?

• A trademark is a sign/word/phrase used by an entity to distinguish its goods & services from those of others.
• A geographical indication tells consumers that a product is produced in a certain place & has certain characteristics that are due to that place of production.
• A trademark gives the entity the right to prevent others from using the trademark.
• On the other hand, GI may be used by all producers who make their products in the place designated by a geographical indication.

What is a Trade Secret?

• Trade secrets are intellectual property (IP) rights on confidential information which may be sold or licensed.

In general, to qualify as a trade secret, the information must be:

• Commercially valuable because it is secret,
• Be known only to a limited group of persons, and
• Be subject to reasonable steps taken by the rightful holder of the information to keep it secret, including the use of confidentiality
• Agreements for business partners and employees.

The unauthorized acquisition, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.

What is Plant Variety Protection ?

• It refers to the protection granted for plant varieties.
• These rights are given to the farmers & breeders to encourage the development of new varieties of plants.
• Plant variety protection in India is governed by “The Protection of Plant Varieties & Farmers’ Rights (PPV&FR) Act, 2001”.

Patent Evergreening Prevention

• One of the most important intellectual property rights issues challenges is the prevention of the evergreening of the patents for multinational companies.
• Evergreening is strategy for extending the term of granted patent which is about to expire without increasing therapeutic efficacy in order to retain royalties.
• As we know, the companies cannot evergreen their patents simply by making minor changes.
• So, section 3(d) in the Indian Patent Act (IPA) possess as one of the biggest issues with regards to IPR.
• This act bars the grant of patents to new forms of substances.
• This has discouraged investments from western countries.

Subsidies & IPR Issues

• A major form of subsidies includes food subsidy, fertilizer subsidy, education subsidy, etc.
• For the complete implementation of TRIPS agreements, one needs to reduce or eliminate these subsidies.
• Thus, GOI needs to create a balance between providing subsidies & providing IP rights in India.

The Product Patents Process

• A product patent protects a product.
• It offers high protection to the original inventor to reduce the competition for the same product.
• Whereas a process patent protects the process through which one manufactures the product & not the product.
• It reduces the element of monopoly in the market.
• As India is a part of the TRIPS agreement, the agreement requires all its members to shift their patent regime from process to product patent.
• This remains a challenge for India, as process patent would be more helpful to a country like India.
• This is since India is a developing country & ordinary people are struggling with basic necessities like food.

Protecting traditional knowledge

• Traditional knowledge, especially in the field of medicine, is like a gold mine.
• GOI is bound to protect traditional knowledge by not allowing MNC’s to get patents on traditional culture.
• Above all, the government has created a Traditional Knowledge Digital Library (TKDL) to prevent the patenting of traditional knowledge.
• So, this is one of the intellectual property rights issues in India.

Compulsory Licensing & Drug Price Control Order

• One of the most important intellectual property rights issues that the government needs to address is the use of compulsory licensing.
• Compulsory licenses are authorizations given to a third-party by the Government to make, use or sell a particular patented product without the need of the permission of the patent owner.
• The provisions regarding compulsory licenses are given in the Indian Patents Act, 1970 & in the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement.
• It is a relaxation available to the developing countries under the TRIPS agreement, something which organizations misuse sometimes.
• Moreover, under section 84 of the IPA, a company can acquire a compulsory license for “private commercial use” under certain circumstances.
• With the Drug Price Control Order, the company needs to justify the price of the drug with regards to investments.
• If someone plays foul, then the government has the right to intervene.
• Multinationals are asking the government to revoke this provision.

Paris Convention

• Paris Convention for the Protection of Industrial Property (1883) 
• Since it deals only with Industrial property, it covered only Patents and Trademarks.
• It was among the first treaties to recognize various principles of international trade like National Treatment, Right of Priority, Common rules, etc.

Berne Convention

• Berne Convention for the Protection of Literary & Artistic Works (1886).
• It provided for copyright system. It doesn’t provide for any formality to claim protection.
• Protection is automatically accorded to any creation, provided work is original and other conditions under the treaty are fulfilled.
• It means that your work, if original, is already protected.
• You can claim that you have copyright.

World Intellectual Property Organization (WIPO)

• WIPO is one of the 17 specialized agencies of the United Nations (UN).
• WIPO was created to promote and protect intellectual property (IP) across the world by cooperating with countries as well as international organizations.
• It began operations in 1970.
• Headquarters: Geneva, Switzerland.
• WIPO currently has 193 member states.

WIPO’s activities include : 

• Hosting forums to discuss and shape international IP rules and policies,
• Providing global services that register and protect IP in different countries,
• Resolving transboundary IP disputes,
• Helping connect IP systems through uniform standards and infrastructure, and
• Serving as a general reference database on all IP matters.

India joined WIPO in 1975.

Trade-Related Aspects of the Intellectual Property Rights (TRIPS)

• TRIPS is an international agreement on intellectual property rights.
• It is a landmark and most comprehensive treaty on Intellectual property.
• TRIPS was the result of discussions held in the Uruguay round which led to the formation of WTO.
• This treaty is an offshoot of the General Agreement on Trade in Goods (GATT).
• This treaty provided a robust Dispute Resolution Mechanism and stringent penal provisions under the auspices of WTO.
• It came into force in 1995 & is binding on all members of the World Trade Organization (WTO).

TRIPS deal with 8 kinds of property rights :

• • Patents,
  • Trademarks,
  • trade dress,
  • Copyrights,
  • Industrial Designs,
  • Plant Varieties,
  • Integrated Circuits and layouts, and
  • Geographical Indication.