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Term Paper on Intellectual Property Rights
Term Paper # 1. Meaning and Features of Intellectual Property Rights:
There is third type of property what we call intellectual property. The product/process/idea which is outcome of the brain of a person and can be used on commercial scale for benefit of human kind is called intellectual property. In other words, intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used on commercial scale.
The main features of intellectual property are given below:
1. It is measured in terms of new ideas, processes, products, inventions and innovations developed by a person.
2. It requires lot of intellectual inputs in terms of thinking, planning and fine tuning of new ideas/products/processes, etc.
3. It requires considerable amount of funds and other resources to develop new products/processes.
4. The main problem with intellectual property is that it can be copied, reproduced and used by others resulting in loss of inventor. Hence protection of intellectual property is essential so that the inventor can derive maximum benefits from his invention.
The rights to intangible property that is the product of the human intellect are referred to as intellectual property rights. Intellectual property may be protected by copyright, trademark or patent. The holder of intellectual property rights is usually the person or persons who developed the product or the organization that funded it.
Term Paper # 2. Forms of Intellectual Property Rights:
The intellectual property rights are broadly divided into two groups, viz.:
(A) Primary rights and
(B) Sui-generis rights.
These are briefly discussed below:
(A) Primary Rights:
Primary rights include copyrights, patents, trademarks, trade secret, trade names, domain names, industrial designs, geographical indications, etc.
(B) Sui-Generis Rights:
Sui-generis refers to things of their own kind or things with unique characteristics. Such rights include database rights, mask work, plant breeders rights, traditional knowledge, moral rights and supplementary protection certificate.
(A) Primary Rights:
1. Copyrights:
The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work is called copyright.
Main features of copyrights are briefly presented below:
a. It provides protection for a specific duration.
b. It is applicable in all countries.
c. The copyright holder has the rights to authorize others to use the protected work.
d. It is applicable to books, movies, music, paintings, photographs and software.
e. The information cannot be reproduced as such without written permission. However, the information or idea can be used by any one.
2. Patent:
Patent is an official document which grants sole rights to the inventor for manufacturing and marketing his product/process/invention to derive benefits.
Main points are as follows:
(i) It is a legal document issued by a central government that grants exclusive rights for the production, sale and profit from the invention of a product or process for a specific period of time. Patents also grant the right to prevent others from copying the invention.
(ii) An official license is granted by the Patent Office to issue exclusive right to an individual or business for production or sale of a specific invention,
(iii) It is a document that allows the patent owner to prevent others from making, using or selling the invention protected by the patent.
3. Trademark:
A trademark or trade mark is a distinctive sign of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities.
Main features of trademarks are briefly presented below:
(i) A trademark can be a word, name, symbol, device or mark which is used to identify and distinguish the goods or services of one company from goods or services of another.
(ii) Trademark is used to identify its product and to distinguish them from others. It is the name of a product made by a particular person or company.
(iii) The period of protection for a trademark varies, but can generally be renewed indefinitely.
4. Industrial Design:
An industrial design or simply a design is the ornamental or aesthetic aspect of an article produced by industry or handicraft; registration and renewals provide protection for, in most cases, up to 15 years.
Main points about industrial designs are given below:
(i) Industrial design is an applied art whereby the aesthetics and usability of products may be improved for marketability and production.
(ii) It includes from sinks and furniture to computers.
(iii) It can be protected upto 15 years.
5. Utility Models:
A utility model is an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention, without his authorization, for a limited period of time.
The important points about utility model are listed below:
(i) Utility model is an intellectual property rights to protect inventions.
(ii) Utility models are also known as petty patents, petty inventions, petty innovations, utility innovations, minor patents and small patent.
(iii) The rights conferred by utility models are similar to those granted by patent laws but has a shorter term.
(iv) They are registered with National Patent Office.
(v) They are more suited to incremental inventions.
6. Geographical Indication:
The World Intellectual Property Organization (WIPO) helps in protection of Geographical Indications [GI]. About 170 geographical indications have been registered by Lisbon Agreement members up to 1997. Now this number would be much more.
A geographical indication is a sign used on goods that have a specific geographical origin and often possesses qualities or a reputation that are due to that place of origin. In other words, a geographical indication is a name or sign used on certain products or which corresponds to a specific geographical location or origin (e.g. a town, region, or country).
Main points related to GI are as follows:
(i) So far geographical indications have been registered in some advanced countries because they have developed the system of protecting GI.
(ii) In the past, wines, spirits, cheeses, tobacco, which account for 88%, have been registered as GI. Wines and spirits account for almost 71% of all registrations.
(iii) In addition to wines and spirits, there is need for protection of agricultural products as GI. For this there is need to establish a multilateral system of, identification and registration of GI.
(iv) Geographical Indication may be an agricultural, natural or manufactured goods or product.
7. Trade Secret:
A “trade secret” is anything [a formula, process, method, mechanism, tool, pattern or device] which the disclosing party desires to keep secret. Trade secrets usually include such things as the manufacturing details for a product, variations or alternative uses.
The main points about trade secret are briefly presented as follows:
(a) There is no specific period for trade secret. It may continue lifelong or for generations together.
(b) There is no need of registration for trade secret.
(c) It does not provide opportunity to others for improvement of innovation.
(d) It is not applicable to books, equipments, plant varieties, designs which are openly used.
8. Related Rights:
Related rights are rights which are similar to authors’ right but which are not connected with the actual author of the work.
Main points about related rights are given below:
(i) Related rights are similar to copyrights.
(ii) Related rights come under primary property rights.
(iii) Related rights are also known as neighbouring rights.
(iv) Related rights are closer to copyrights but are not covered by the Berne Convention.
(v) Related rights are covered by Rome Convention, 1961.
9. Trade Names:
A trade name is the name under which a product is commercially known. The commercial name by which a chemical is known is called trade name. One chemical may have a variety of trade names depending on the manufacturers or distributors involved.
Main points related to trade name are given below:
(i) It is also known as business name, trading name, assumed name, brand name and corporate name.
(ii) It may or may not be registered.
(iii) It distinguishes a particular business from others.
(iv) It can be exclusive or non-exclusive.
(v) It is generally used on letter heads and bank accounts.
(vi) It is the name given to a particular substance by each company that manufactures it.
(vii) It is the name under which a company conducts its business.
It is the business name of the person or organization making and/or selling a particular product. “General Motors, Inc” is the “trade name” of the company.
10. Domain Names:
Domain refers to the unique name that identifies an internet site. Domain names have two or more parts separated by dots. For example www(dot)ask-edi(dot)com or www(dot)bcbsks(dot)com.
The term domain name has multiple related meanings:
(i) It identifies a web site on the internet (e.g., company (dot) com); also referred to as a URL. [Uniform Resource Locator].
(ii) It allows reference to Internet sites without knowing the true numerical address.
(iii) It refers to the official name of a computer connected to the Internet, (e.g., “www(dot)microsoft(dot)com”).
(iv) It is the unique name of a computer on the Internet that distinguishes it from other systems around the world.
(v) These are sometimes colloquially (and incorrectly) referred to by marketers as “web addresses”.
(B) Sui-Generis Rights:
Sui-generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. In Intellectual Property, there are rights which are known as being sui generic to owners of a small class of works.
Such Intellectual Property Rights include:
(1) Database rights,
(2) Mask work,
(3) Plant breeders’ rights,
(4) Farmers’ rights,
(5) Moral rights,
(6) Supplementary protection certificate, and
(7) Indigenous intellectual property,
A brief account of all these is presented as follows:
(1) Database Rights:
A ‘database right’ is an intellectual property right given to a computer database.
The main points about database rights are as follows:
(i) In most countries database are covered by copyright law to some degree.
(ii) The database rights were introduced by European Union Law to provide greater protection to collection of information.
(iii) Database right is covered by sui-generic rights.
(iv) Duration:
Database rights last for 15 years, but can be extended if the database is updated.
(v) Protection:
Database right prevents copying of substantial parts of database. The protection is over the information, not over the form of expression.
(2) Mask Work Rights:
A mask work is a two or three-dimensional layout of an integrated circuit (IC or “chip”), i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections.
Main points related to mask work are listed as under:
(i) Duration – Rights for semiconductor mask work lasts only for two years (if unregistered) or 10 years (if registered).
(ii) The exclusive rights in mask work are somewhat like those of copyright – the right to reproduce the mask work or distribute an IC made using mask work.
(iii) Reproduction for reverse engineering of a mask work is permitted by law.
(iv) Mask work rights exist when they are created, even without registration.
(v) Protection under mask work cannot be provided to a mask that is not original.
Database and Copyright:
There are some similarity and some differences between database and copyrights which are presented in Table 42.3.
Database and Mask Work
There are some similarities and some differences between database and mask work which are presented in Table 42.4.
(3) Plant Breeders’ Rights:
Plant breeders’ rights, also known as plant variety rights (PVR), are intellectual property rights granted to the breeder of a new variety of plant. Plant Breeders Rights are granted to novel plant varieties that are distinctive, uniform, and stable (e.g., cultivars bred true-to-type for desired traits). The legal protection of a new plant variety is granted to the breeder or his successor. The effect of PBR is that prior authorization is required before the material can be used for commercial purposes.
Main Features:
Main features of Plant Breeders’ Rights in relation to registration, duration, validity, matters covered, requirements, transfer control, enforcement, rights protected and infringement, are briefly presented below:
(i) Registration:
Registration is essential to get legal rights. There is no protection without registration. A nominal processing fee is charged for registration.
(ii) Duration:
The period of protection varies with plant species. It is 15 years for field crops, 18 years for trees, vines, fruit trees, ornamental trees and shrubs [UPOV 1978].
(iii) Validity:
The protection of the Plant Breeders’ Rights, is valid only in the country where it has been registered. The protection in other countries can be obtained by filing separate application in each country.
(iv) Matters Covered:
The protection right can be granted for varieties of all botanical genera and species. The variety should have a designation [name] as per the rule of International Code of Nomenclature.
(v) Requirements:
There are four basic requirements for protection of a variety under PBR, viz.:
(a) Novelty,
(b) Distinctiveness,
(c) Uniformity and
(d) Stability.
(vi) Transfer:
An authorized plant breeder has right to authorize other interested persons for commercial production and marketing of his variety on royalty basis.
(vii) Control:
The authorized plant breeder has right to prevent others from commercial production and marketing of his variety without permission.
(viii) Enforcement:
The Plant Breeders’ Rights come into force immediately after registration of the variety.
(ix) Rights Protected:
It provides exclusive rights to the owner for commercial production and marketing of his variety.
(x) Infringement:
Unauthorized production and marketing of a, registered variety by other person amounts to infringement. The owner has the right to take legal action against the infringer and claim damages.
Advantages of PBR:
i. Breeders get benefit of their variety.
ii. PBR help in faster development of seed industry.
iii. PBR lead to improvement in quality because of competition.
iv. PBR are useful in procurement of good material on payment basis.
v. PBR help in enrichment of genetic resources.
Disadvantages:
i. It will promote monopoly.
ii. It will encourage unhealthy practices.
iii. It may lead to increase in prices.
iv. There will be reduction in genetic variability.
v. There will be compulsion to purchase fresh seed every year.
(4) Farmers’ Rights:
Farmers’ rights refer to the rights arising from the past present and future contributions of farmers in conserving, improving and making available plant or animal genetic resources, particularly those in the centres of origin/diversity. In other words, the legal rights provided to farmers to save, use, sow, replant, exchange share or sell his farm produce including seed of a variety protected under Plant Variety Protection Act refer to Farmers Rights. The purpose of these rights is to ensure full benefits to farmers and support the continuation of their contributions.
The FAO Conference held in Rome from 11-29 November, 1989 endorsed the concept of Farmers Rights with a view to:
(i) Ensuring global recognition of the need for conservation and the availability of sufficient funds for these purposes;
(ii) Assisting farmers and farming communities throughout the world, especially those in areas of original diversity of plant genetic resources, in the protection and conservation of their PGR and of the natural biosphere; and,
(iii) Allowing the full participation of farmers, their communities and countries in the benefits derived, at present and in the future, from the improved use of PGR.
(5) Moral Rights:
Moral rights are a special extension to copyright that gives the originator of a copyrighted work rights over its use. The originator can specify moral conditions on the use or exploitation of their creation, even when the rights are licensed or sold to others.
The main points related to moral rights are presented below:
(i) These are rights provided to authors and directors of copyrights to protect their personal interest in relation to their creations. These rights are provided beyond those strictly recognized in copyright law.
(ii) Moral rights were granted to authors under the Berne Convention (1989) giving the author:
(a) Right to attribution, and
(b) Right to integrity.
(iii) The creator of the work has the right of attribution and integrity, even after sale or transfer of the copyright.
(iv) Transfer:
The copyrights can be transferred or assigned to others, but moral rights cannot be transferred or assigned.
The author has right to object to any distortion, mutilation or other modification which would be prejudicial to his honour or reputation.
(6) Supplementary Protection Certificate:
This term is used in European Countries. This is an extension of the term given to pharmaceutical or plant protection patent. A supplementary protection certificate (SPC) is a sui-generis, patent-like, intellectual property right. This type of right is available for medicinal products, such as drugs, and plant protection products, such as insecticides, and herbicides.
Main points related to supplementary protection certificate are given below:
(i) It is in use in European Union member countries.
(ii) It is a sui-generis, patent like, intellectual property right.
(iii) The SPC comes into force only after the expiry of corresponding patent.
(iv) Duration:
It has maximum life time of 5 years when granted 10 years after filing date of a patent. The term would be less than 5 years if it is granted after 5 years from the date of filing the corresponding patent. However, the market exclusivity cannot exceed 15 years.
(v) The SPC provides long-term authorization to a patent for marketing.
(vi) Conditions of Issue:
It is issued against a patent generally immediately on expiry of the term of the patent. It cannot be issued before 5 years from filing date of corresponding patent.
(vii) The registration is required which is issued on national basis. A separately application is to be filed for registration in each country.
(7) Indigenous Property Rights:
The indigenous knowledge also known as traditional knowledge [TK] refers to the knowledge, innovations and practices of indigenous people and local communities. In other words, it is the knowledge gained through tradition from ancestors about plants and animals, medicines, agricultural practices and other matters.
Main points about traditional knowledge are listed below:
(i) Traditional knowledge can be protected by sui-generic rights.
(ii) Traditional knowledge is also known as indigenous knowledge or local knowledge or traditional ecological knowledge.
(iii) It covers the matured long-standing traditions and practices of certain regional, indigenous, or local communities. In other words, it is acquired from experience gained over the centuries and adapted to local culture and environment.
(iv) It includes knowledge about plants, animals, indigenous treatment of diseases through herbal medicines, cultural practices, etc.
(v) Traditional knowledge is based on teachings and experiences and is orally passed on from generation to generation to some persons only. Earlier, there were no written documents on traditional knowledge.
(vi) Some forms of traditional knowledge are expressed through stories, legends, folklore, rituals, songs and even laws.
(vii) There is difference between local knowledge and traditional knowledge. The former existed from decade to century, whereas the latter existed from millennia.
(viii) It is collectively owned by the people or natives of an ecosystem or region.
(ix) Traditional knowledge incorporates knowledge of ecosystem and code of ethics governing appropriate use of environment.
The ecological knowledge is composed of both traditional knowledge and experiential knowledge gained through personal experience.
Traditional knowledge is very important almost in every sphere of life. Hence, its protection is very necessary otherwise this valuable knowledge will be gradually lost.
Term Paper # 3. Advantages and Disadvantages of Intellectual Property Rights:
Intellectual Property Rights refer to the legal rights provided to an inventor to derive economic benefits from his invention/innovation.
The main advantages of IPR are as follows:
(i) It promotes healthy competition for invention/innovation among the intellectuals.
(ii) It helps in improving the quality of the product.
(iii) It makes available new ideas/ technologies to different countries.
(iv) It leads to faster development of industries/ organizations engaged in research and development work.
There are some disadvantages of Intellectual Property Rights which are briefly presented below:
(i) The procedure of registration, particularly of patents, is very lengthy.
(ii) It involves lot of money transaction in registration, renewal and licensing.
(iii) It invites lots of court cases due to infringements.
(iv) It may lead to monopoly of right holders, etc.