Intellectual Property Law- I

Transcription

1 READING MATERIAL Intellectual Property Law- I UNIT 2 Scope and Rationale of Intellectual Property Rights

2 INTELLECTUAL PROPERTY LAW- I 2 In the previous Unit we learnt that there are different rights associated with different types of intellectual property. In this Unit we will discuss the nature of different types of intellectual property. We will also briefly study the scope of the rights attached to each kind of intellectual property. This will help us understand the fundamentals of each form of intellectual property, and provide us with a base for understanding the concepts and content in subsequent Units of this Programme. One of the most important questions in the intellectual property law discourse is the rationale for providing intellectual property rights to individuals. In this Unit, we will study the reasons and justifications for providing intellectual property rights. We will also list the various legislation and international conventions governing intellectual property rights. Scope and Types of Intellectual Property The scope of intellectual property rights primarily covers the treatment of intangible products of intellectual property in a similar manner as physical property. In most countries, intellectual property laws grant certain kinds of exclusive rights over these intangible products in a way that is analogous to rights over real property, some expiring after a set period of time, and others lasting indefinitely. 1 Two Branches of Intellectual Property Intellectual property is usually divided into two branches namely, industrial property and copyright. a. Copyright: Copyright relates to artistic and literary creations such as books, music, paintings and sculptures, films, and technology- based works such as computer programs and electronic databases. Copyright grants certain exclusive rights to the owner.

3 INTELLECTUAL PROPERTY LAW- I 3 These exclusive rights include the right to issue copies of the work to the public for profit as well as non- profit purposes, renting or lending the work to the public, the rights to communicate the work by way of a broadcast, and the rights to make an adaptation of the work. The term of copyright depends on the kind of work, for example, for any literary, dramatic, musical, and artistic work; the term of copyright is the lifetime of the author plus sixty years, 2 whereas broadcasting rights are for a term of twenty- five years. 3 Illustration: The Wed Zeppelin came out with a song called Escalator to Heaven. The lyrics and the musical notes of the song are literary and musical work respectively and will be accorded copyright. b. Industrial Property: The Paris Convention for the Protection of Industrial Property, 1883 specifically defines the scope of industrial property, stating that industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour 4. Industrial property seeks to protect inventions, industrial designs, trademarks, service marks, layout- designs of integrated circuits, geographical indication, and trade secrets. 5 We should not misunderstand industrial property to be similar to movable or immovable property used for industrial production, such as factories and equipment. As discussed above, industrial property is a kind of intellectual property that relates to a creation of the human mind. Illustration: Dr. Magneto Singh invented a drug that permanently cures blood cancer. He subsequently patented the drug and also established a laboratory out

4 INTELLECTUAL PROPERTY LAW- I 4 of the money he generated from the sale of the drug. In this case, Dr. Singh has the intellectual property rights over the drug, and not the laboratory he established. The laboratory would consist of moveable or immoveable property and Mr. Singh will have the standard property rights granted under law in relation to moveable and immoveable property. To learn more about property law, please refer to our Programme on Property Law available on mylaw.net. Different Types of Industrial Property Patents: A patent is an exclusive right awarded to an inventor to prevent others from making, selling, distributing, importing, or using the invention, without license or authorisation. Usually, a patent is granted for a fixed period of time. In India, a patent is granted for a fixed period of twenty years 6. Industrial Designs: Industrial designs protect the aesthetic aspects (shape, texture, pattern, colour) of an object rather than its technical features. Industrial designs are applied to various products such as watches, jewellery, houseware, electrical appliances, and leisure goods. To obtain protection under domestic design laws, it is essential for an industrial design to be new or original. It should be noted that design laws protect aesthetic features and not the technical features of an article to which they are applied. Under Indian law, protection of an industrial design is granted for a period of ten years 7. Trade Marks: A trade mark is a distinctive sign or visual symbol. It may be a word, signature, name, device, label, letters, shapes, numerals, or combination of colours that clearly identifies certain goods or services produced or provided by a specific person or enterprise. The rights under domestic trade mark laws provide exclusive rights to use such signs, symbols, colours, letters, shapes, or names to identify

5 INTELLECTUAL PROPERTY LAW- I 5 the producer of a product and protect its associated reputation. One of the primary features that a mark must have in order to obtain a trademark is the distinctiveness of the mark in identifying the proprietor s goods or services. Under Indian law, the period of protection is ten years 8. For instance, marks such as Apple, Nokia, and Exxon are registered marks. Geographical Indications: A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities, a reputation, or characteristics that are essentially attributable to that place of origin. Usually, a geographical indication includes the name of the place of the goods for example Champagne, Mysore Silk, and Darjeeling Tea. Whether a sign is recognised as a geographical indication is a matter of national law and India has separate legislation governing the issues relating to geographical indication. Under Indian law, protection of a geographical indication is granted for a period of ten years 9. Trade Secrets: A trade secret consists of data or information relating to a business that is not usually known to the public, and that the owners generally attempt to keep confidential. 10 A trade secret can comprise of any data or information, so long as it is intended by the owner to be a secret and is kept as a secret. For instance, the most quoted trade secret and the one which has established the credibility that trade secrecy can be ensured is the case of the Coca- Cola formula, which is kept locked in a bank vault in Atlanta, can be opened only by a resolution of the company's board and is known to only two employees at the same time. The public has no access to the names of those employees and they are not allowed to fly on the same air plane. 11 As we can see from the above statement, unlike other forms of intellectual property, trade secrets are essentially internal instruments. The responsibility for their protection remains with the owner of the secrets. 12

6 INTELLECTUAL PROPERTY LAW- I 6 India does not have specific legislation in relation to trade secrets, though, courts in India have recognised the importance of trade secrets. Note this we will learn about copyrights, patents, and trade marks in detail in later Units of this Programme. To learn more about the other forms of intellectual property rights; please refer to our Programme on Intellectual Property Law- II available on mylaw.net. Contemporary Rationale for Intellectual Property Protection Let us discuss the rationale for existence of intellectual property rights and intellectual property law. We can do this, to start with, simply by breaking up the term intellectual property into two parts. Intellectual refers to the mind and, more particularly, to the effort of the mind. This part of the term tells us that this area of law is concerned with the realm of human creation, novelty, and inventiveness. It relates to the property that a person creates through the application of their mind. The word property tells us that intellectual property, like any other form of property, consists of a bundle of rights in the hands of the owner. Therefore, intellectual property can be transferred, exclusively used, and commercially exploited. As we have already seen, this form of property is slightly different from other forms of property because it is created rather than acquired. Therefore, intellectual property rights are a reward for the creative effort of the creator or the owner. If the creator has employed mental abilities and effort to create something, they might expect something in return for sharing it with the world. For instance, if a movie is made and lots of time and

7 INTELLECTUAL PROPERTY LAW- I 7 effort have been spent on it, then the creator will want some sort of reward for this effort. Therefore, the law gives the creator the exclusive right to decide how that movie should be used or exploited, and allows the creator to reap the commercial profits, if any, that the movie makes. Therefore, it can be said that the rationale behind intellectual property law is to provide innovators with incentives for their efforts. The concept of incentives is an essential foundation for intellectual property laws. If we want to ensure that innovators continue to undertake activities and research that lead to growth in the sciences and the arts, then we have to build a solid barrier against copying, and protect the rights of the innovators over their creations. Further, it is acknowledged that providing limited monopoly rights over intellectual creations creates incentives and competitiveness in the market. 13 Historical Approaches to Intellectual Property Let us now consider some of the historical perspectives on the treatment of intellectual property. In ancient times, the Christians and Greeks viewed information and ideas as gifts from God. As a result, ideas could not be owned by one person but were owned collectively or, in certain cases, belonged to the ruler of that kingdom. Further, the works of these artists were rewarded mainly by the elites of society and the patronage they received from them. 14 With John Locke s Second Treatise in 1690 and Edward Young s Conjectures on Original Composition in , the intellectual community found support for providing more rights to authors and artists. The ideas of these two men were able to influence society to begin to embrace the concept of ownership of intellectual property. Locke argues that laborers have a private property right in the products of their labor because individuals mix their labor

8 INTELLECTUAL PROPERTY LAW- I 8 with materials from the common that are free for all to use. The private property right in an individual's labor is mixed into the product of labor, and thus the private property right also attaches to the product of labor 16. Therefore the labourer deserves to be rewarded in order to encourage innovation and excellence. Young, on the other hand, asserted that the author contributed more than simply his labor to a book he imprinted its contents with his original personality 17, and therefore should be rewarded for work. These developments helped authors, artists, and investors to consolidate their position as the sole owner of their product. The social benefits to be gained are another justification for providing intellectual property rights. Attaching incentives to intellectual property encourages people to produce socially valuable goods and services. For instance, a large number of inventions would not be made, or shared with society, unless inventors believed that they could obtain profits that make it worth their while to make the effort involved and risk their time and investment. 18 Therefore, for society to benefit from the works of inventors, authors and artists, it is imperative to provide them with incentives. Therefore, we can conclude that the rationale for protection of intellectual property is based on the following basic premises: Providing appropriate incentives to society can increase innovation and creation of intellectual property. If such incentives are not provided, the level and degree of innovation will suffer. Therefore, economic reward for innovators is in the interests of entrepreneurs and the society in general. In this Unit, we have looked at the scope of intellectual property rights and the different types of intellectual property rights available. We have learnt that that the rights granted under different elements that constitute

9 INTELLECTUAL PROPERTY LAW- I 9 intellectual property rights are varied. For example, while a patent is primarily granted for an invention, copyright relates to artistic and literary creations. Similarly, other elements of intellectual property rights provide different sets of rights. We also learnt about the justifications and rationale for protection provided to the holders of intellectual property. With this understanding we will start our discussion on the concept of copyright in the next Unit.

10 INTELLECTUAL PROPERTY LAW- I 10 Suggested Reading Articles Benjamin G. Damstedt, Limiting Locke: A Natural Law Justification for the Fair Use Doctrine, Yale Law Journal 112 (February 2003) accessed at yale- law- journal/note/limiting- locke:- a- natural- law- justification- for- the- fair- use- doctrine/. Birgitte Andersen, The Rationales for Intellectual Property Rights: The Twenty- First Century Controversies, DRUID Summer Conference 2003, accessed at Carla Hesse, The Rise of Intellectual Property, 700 B.C. A.D. 2000: An Idea in the Balance, Daedalus, (2002) accessed at se.pdf. M.D. Nair, Protection of trade secrets, undisclosed information, The Hindu, November 22, 2001 accessed at ries/ htm. Priyanka Sardana and Vijay Sardana, Types and Scope of Intellectual Property, accessed at 7- types- and- scope- of- intellectual- property. Smita Srinivas, Intellectual Property Rights, Innovation and Healthcare: Unanswered Questions in Theory and Policy, 2 Economica (December 2008) accessed at llectualpropertyrights.pdf.

11 INTELLECTUAL PROPERTY LAW- I 11 1 Priyanka Sardana and Vijay Sardana, Types and Scope of Intellectual Property, accessed at types- and- scope- of- intellectual- property. 2 Section 22, The Copyright Act, 1957, accessed at content/uploads/2012/05/indian- Copyright- Act pdf. 3 Section 37, The Copyright Act, accessed at content/uploads/2012/05/indian- Copyright- Act pdf 4 Article 1 (3), The Paris Convention for the Protection of Industrial Property, 1883, accessed at 5 Article 1(1), the Paris Convention, accessed at 6 Section 53, The Patent (Amendment) Act, 2002, accessed at 7 Section 11, The Designs Act, 2000, accessed at 8 Section 25, The Trade Marks Act, 1999, accessed at 9 Section 18, The Geographical Indications of Goods (Registration and Protection) Act, 1999, accessed at 10 Ramesh K. Vaidyanathan, Trade Secrets and Confidential Information, Legal Era (September, 2010) accessed at secrets- and- confidential- information.pdf. 11 M.D. Nair, Protection of trade secrets, undisclosed information, The Hindu, November 22, 2001 accessed at 00.htm. 12 Nair, Protection of trade secrets, undisclosed information. 13 Smita Srinivas, Intellectual Property Rights, Innovation and Healthcare: Unanswered Questions in Theory and Policy, 2 Economica (December 2008) accessed at df at Carla Hesse, The Rise of Intellectual Property, 700 B.C. A.D. 2000: An Idea in the Balance, Daedalus, (2002) accessed at at Hesse, The Rise of Intellectual Property, 700 B.C.- A.D. 2000: An Idea in the Balance at Benjamin G. Damstedt, Limiting Locke: A Natural Law Justification for the Fair Use Doctrine, Yale Law Journal 112 (February, 2003) accessed at yale- law- journal/note/limiting- locke:- a- natural- law- justification- for- the- fair- use- doctrine/,at Hesse, The Rise of Intellectual Property, 700 B.C.- A.D. 2000: An Idea in the Balance at Birgitte Andersen, The Rationales for Intellectual Property Rights: The Twenty- First Century Controversies, DRUID Summer Conference 2003, accessed at