Introduction Intellectual Property Rights (IPRs) in India have developed over a period of time and with the development of technology and its impact on the world stage, many people have begun to understand the Intellectual Property Rights, which they possess, and are doing all they can to ensure that it is not only respected but enforced. In this knowledge and technology era, intellectual capital has taken centre stage, and the rights attached thereto have become 'gold', as ideas, inventions, and commodities are being protected. Companies and businesses the world over, understand that the nature of their business can take them to various jurisdictions, as they sell their services to a diverse consumer base.
These rights which are still at the infancy stage have not been left out, as the rights which are country specific; determine the nature of protection that'll be afforded to each right. Therefore, when considering doing business in India, it is advisable to have these rights protected. What are IPRs? Before describing what IPRs are, it is important to give a description of the term.
According to the World Intellectual Property Organization, Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce. Just like every property - real property and personal property which we have rights to, the same applies to Intellectual Property, as an inventor, designer and artist has rights to his/her Intellectual Property. Intellectual Property Regime in India The Intellectual Property Regime in India is derived from Common Law and Statutory Law. In the case of the former, a landmark Copyright Case such as B.K. Dani v/s State of M.P where it was upheld that the right arising from the registration of the book can be the subject-matter of civil or criminal remedy. In the case of the later, India has enacted several laws which protect certain rights and this has also come to being based on its membership to various international organizations and being a signatory to various international conventions.
World Trade Organization (WTO)
India has been a member since 1995 and also ratified the agreement establishing the WTO which sets out Trade-Related Aspects of Intellectual Property (TRIPS) which came into force on 1st January 1995. What this agreement does is that it sets out the minimum standard for enforcing and protecting IPRs in its member countries, and minimising imbalances in international trade. However, since each legal system is different and India operates a common law system, there'll be a few major differences in the IP Regime and the rights when compared to those of other developed countries.
World Intellectual Property Organization (WIPO)
India is also a member of World Intellectual Property Organization and joined in 1975. Types of IPRs In India, there are various types of IPRs which are recognised by statutory law and some will be looked at in this article.
Patent - The Patents Act, 1970 (as amended in 2005) The Patents Act has been amended several times in India in order to comply with its obligation under TRIPS. It was first amended in 1999, then in 2002 and finally in 2005. It important for an inventor to register his patent under the Patents Act and in so doing, the inventor and co-inventor as the case may be will have some rights set under the Act in Section 50.
The Copyright Act, 1957 (as amended) India's Copyright Act was amended in 1999 and is a full reflection of the Berne Convention on Copyrights which India is a party. Despite this, there are still copyright infringement issues in India, and this can be particularly rife in the movie industry. With this in mind, it is important that people in the creative and artistic industry register their copyright as doing this will prove their ownership in the advent of criminal proceedings - especially against infringers.
To register the copyright, the owner will have to do this at the Copyright Office in person, or a representative as internet piracy of films, music, books and software is an issue in India The Importance of IPRs in Cyberspace In the case of University of London Press v University of Tutorial press, Peterson J stated - What is worth copying is prima facie worth protecting.
This statement sums up the importance of copyright protection, trademark, designs and domains are all interconnected with electronic technology, as the world has become more interconnected which can result in cross border issues concerning IPRs in Cyberspace. The standards have been set by WIPO in terms of copyright protection in cyberspace and this is what the WIPO Copyright Treaty aims to achieve. Also, the WIPO Performances and Phonograms Treaty (WPPT) which are known together as the 'Internet Treaties', strive to prevent unauthorised access to creative works on the internet or through other digital network. As more content are shared online through digital means such as movies, music etc, it is only important that Intellectual Property Rights in Cyberspace are accorded the same protection as any other rights. Registering and Enforcing IPRs In India, there's a well-established statutory and judicial framework available to ensure that these rights are safeguarded. However, like many legal systems in the world, the main challenge is that of enforcement, as the legal system can be slow, time-consuming and prevent the administration of justice.
Nevertheless, to enforce IPRs in India, they have to be registered. For the enforcement of any of the rights, the party can do so by bringing an action to the civil courts, or either by criminal prosecution. The governing laws in India have set out the procedures for both civil and criminal proceedings when a party seeks to enforce his rights.
Depending on the circumstances, the party enforcing the rights is best suited to initiate civil or criminal proceedings against the infringing party. In the case of the former, the party can seek relief such as damages and in the case of the latter, the party can seek relief such as imprisonment or fines.
Furthermore, when initiating criminal proceedings for the enforcement of these rights against an infringement of Trademark, infringement of Copyright, Geographical Indication, Plant Variety and Semiconductor Integrated Circuits Layout Design, the following criminal actions can also be initiated:
i. Registration of First Information Report (FIR); or
ii. Filing of a Criminal Complaint before a Competent Magisterial Court with an application for issue of search and seizure warrants directing the police to raid of the premises of the accused for seizure of the infringing material and arrest of the infringers.
Registration of IPRs Patents
For patents, when individual registrations are made, they must be made in India. However, in the case of other rights other than industrial designs, an application can be made under the terms of the Patent Cooperation Treaty, which is a quicker option. Trademarks For trademarks, they should be registered within India.
Treaties and Reciprocal Agreements India is a member to numerous conventions such as:
The Paris Convention The Paris Convention entered into force on December 7, 1998. Under this convention, any person from a signatory state can make a patent application or a trademark in another signatory state and will be given the same rights of enforcement that the national of that state will be given. The Berne Convention India became a party to this convention on April 1, 1928.
Under this convention, each member state accords the same level of recognition of the copyright of authors from other member states in the same way as the copyright of its own nationals. The Patent Cooperation Treaty The Patent Cooperation Treaty entered into force on December 7, 1998. Under this convention, members of each signatory state can obtain a 'bundle' of patent applications in different jurisdictions by filing a single application. The Madrid Protocol The Madrid Protocol entered into force on July 8, 2013. Under this protocol, it is possible to protect a trademark in different jurisdictions by filing a single application.