Intellectual Property Rights

Intellectual property rights in India have assumed considerable significance at all levels. India has developed statutory, administrative and judicial framework to safeguard intellectual property rights, whether they relate to patents, trademarks, copyright or industrial designs. India has ratified the agreement establishing the World Trade Organization (WTO), which contains an agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights in order to reduce distortions and impediments to international trade. Further, India has one of the most modern copyright protection laws in the world.

A brief description of the intellectual property and the laws protecting the rights pertaining to the same is given below:

Meaning of copyright

Sec.14 of the Copyright Act, 1957: Copyright is a creation of law, by which exclusive right to copy, reproduce a work is conferred on a person, by operation of law.

literary,
dramatic,
Income Exempt from Tax
musical and
artistic works and
producers of cinematograph films and
Sound recordings.

It is a bundle of rights including, inter alia, rights of reproduction, communication to the public,adaptation and translation of the work.

Subject matters covered under the Copyright Act:

Literary work
Dramatic & Musical Work
Artistic Work
Cinematograph films
Sound recordings
Includes computer software

The basic condition (Sec.13) is that all the above mentioned work shall be original. Quality of the work is immaterial.

Importance of protection of Copyright:

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.

Registration of Copyright: Acquisition of copyright is automatic and it does not require any formality. Certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.

Scope of protection in the Copyright Act, 1957:

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.

Authorship and ownership: Ordinarily the author is the first owner of copyright in a work.
An Author:

In the case of a literary or dramatic work the author, i.e., the person who creates the work.

In the case of a musical work, the composer.

In the case of a cinematograph film, the producer.

In the case of a sound recording, the producer.

In the case of a photograph, the photographer.

In the case of a computer generated work, the person who causes the work to be created.

Term of protection of copyright:

The general rule is that copyright lasts for 60 years.
In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author.
In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, the 60-year period is counted from the date of publication.
Copyright is not protected in perpetuity.

Copyright Infringement: The commonly known acts involving infringement of copyright are

Making infringing copies for sale or hire or selling or letting them for hire.

Permitting any place for the performance of works in public where such performance constitutes infringement of copyright.

Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright.

Public exhibition of infringing copies by way of trade.

Importation of infringing copies into India.

Civil remedies for copyright infringement: A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts.

Copyright infringement as a criminal offence: Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act.

DESIGNS

Meaning of Design according to the Designs Act, 2000: "Design" means

Only the features of shape, configuration, pattern, ornament or composition of lines or colours.

Applied to any article whether in two dimensional or three dimensional or in both forms,

By any industrial process or means,

Whether manual, mechanical or chemical,

Separate or combined,

Which in the finished article appeal to and are judged solely by the eye. But does not include

any mode or principle of construction

or anything which is in substance a mere mechanical device.

The designs not registrable under the Act: A design shall not be registered if it:

is not new or original; or

has been disclosed to the public any where in India

or in any other country by publication in tangible form
or by use in any other way prior to the filing date,
or where applicable, the priority date of the application for registration

or is not significantly distinguishable from known designs or combination of known To protect new or original designs so created to be applied or applicable to particular article to be manufactured by industrial process or means. Sometimes purchase of articles for use is influenced not only by their practical efficiency but also by their appearance.

comprises or contains scandalous or obscene matter.

The object of registration of designs:

To protect new or original designs so created to be applied or applicable to particular article to be manufactured by industrial process or means. Sometimes purchase of articles for use is influenced not only by their practical efficiency but also by their appearance.

To see that the artisan, creator, originator of a design having aesthetic look is not deprived of his bonafide reward by others applying it to their goods.

The essential requirements for the registration of design under the Designs Act, 2000

The design should be new or original,

Not previously published or used in any country before the date of application for registration.
The novelty may reside in the application of a known shape or pattern to new subject matter.
If the design for which application is made does not involve any real mental activity for conception, then registration may not be considered.

The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article.

The features of the designs in the finished article should appeal to and are judged solely by the eye

Normally, designs of artistic nature like painting, sculptures and the like which are not produced in bulk by any industrial process are excluded from registration under the Act.

This implies that the design must appear and should be visible on the finished article, for which it is meant.

Thus, any design in the inside arrangement of a box, money purse or almirah may not be considered for showing such articles in the open state, as those articles are generally put in the market in the closed state.

The design should not include any trade mark or property mark or artistic works

The design should be applied or applicable to any article by any industrial process.

When any design suggests any mode or principle of construction or mechanical or other action of a mechanism, a suitable disclaimer in respect there of is required to be inserted on its representation, provided there are other registrable features in the design

Designs not registrable under the Act:

Of industrial plans, layouts and installations.

Any mode or principle of construction or operation or any thing, which is in substance a mere mechanical device,

For instance, a key having its novelty only in the shape of its corrugation or bend at the portion intended to engage with levers inside the lock associated with, cannot be registered as a design under the Act.

Under construction