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INTRODUCTION TO

INTELLECTUAL PROPERTY

RIGHTS

WHAT IS IPR?

 (^) Creation or innovation of brain is intellectual property. Just as one can ‘own’ a physical property and have legal rights over it, IPR is a set of legal rights which allows people to own their creativity and innovation.  (^) Earlier time, inventions and creations by people were part of ‘common property ’. There was no requirement of payment, permission to use or copy these creations. With time, commercial significance of these properties came to light and towards end of 20 th^ century, IPR emerged.

IMPORTANCE OF IPR

 (^) Economic and social development dependent on creativity.  (^) Recognition and dignity to the creators  (^) Incentive to the creators.  (^) Earlier, the natural resources were most valuable assets for a nation but in the Information economy of 21 st century, it is the ‘idea’ and the right to profit from it, is most valuable!

MAJOR FORMS OF IP

COPYRIGHT

 However, 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.

 Protect and reward creativity

 Economic and social development of a society is dependent on

creativity.

COPYRIGHT

 Copyright infringement refers to the unauthorized use of

someone’s copyrighted work. Thus, it is the use of someone’s

copyrighted work without permission thereby infringing certain

rights of the copyright holder, such as the right to reproduce,

distribute, display or perform the protected work.

PATENT

Patent excludes others, from making, using, selling, importing the

patented product or process for producing that product for those

purposes without his consent.

An invention is patentable subject matter if it meets the following

criteria – i) It should be novel. ii) It should have inventive step or it

must be non-obvious iii) It should be capable of Industrial

application

Unlike Copyright, need to be applied for and is not acquired

automatically.

No concept of international patent. It is territorial.

TRADEMARK

 (^) Trademark infringement is the unauthorised usage of a mark that is identical or deceptively similar to a registered trademark.  (^) The term deceptively similar here means that when an average consumer looks at the mark, it is likely to confuse him/her of the origin of the goods or services.

DESIGN

 (^) Protection of aesthetics of any article or product of manufacture  (^) Such article can be 2D or 3D  (^) Article should be capable of being made and sold separately  (^) Many times, it is the appearance of the article which guides our choice rather than its use.  (^) Registration of design will reward the creator of design and prevent others from copying it and gaining advantage

PHILOSOPHICAL JUSTIFICATIONS

LOCKEAN JUSTIFICATION/ LABOUR

THEORY

 (^) Natural Rights Theory. IP mix of someone's labour plus output.  (^) Locke would readily grant patent right if an individual exerts labour to come up with an innovative product or machine that is useful.  (^) Locke’s labour theory can be used to justify patent protection for Watt’s steam engine as he had mixed his labour to develop a new technology. As per Locke, an author, painter, photographer or musician who has exerted his labour to express his original thoughts in the form of a book, paint, phot or music album should readily be granted a copyright.

LOCKEAN JUSTIFICATION/ LABOUR

THEORY

 (^) However this can be acquired provided there is enough and as good left in common for others  (^) Locke expresses concern that if a particular substance is not available in abundance, then property rights over it would deny others of access to that scarce resource. In such instances, an individual who has exerted his labour over the scarce resource cannot claim property rights in it. (EXAMPLE- GENES)