Intellectual Property Rights

intellectual property rights

Background
The term Intellectual Property (IP) reflects the idea that its subject matter is the product of the mind or the intellect. These could be in the form of Patents; Trademarks; Geographical Indications; Industrial Designs; LayoutDesigns (Topographies) of Integrated Circuits; Plant Variety Protection and Copyright. Patents, designs, copyrights and trademark are industrial property as they are used in some form of industry or business.
intellectual property rights 2

Copyrights
The object of copyright law is to encourage authors, composers, artists and designers to create original works by rewarding them with the exclusive right for a limited period to exploit the work for monetary gain.

intellectual property rights

 It protects the writer or creator of the original work from the unauthorized reproduction or exploitation of his materials. There is no copyright in ideas. Copyright subsists only in the material form in which the ideas are expressed.

intellectual property rights

 Works protected by copyright are: 1) Original, Literary, dramatic, musical and artistic works; 2) Cinematographic film; and 3) Records

intellectual property rights

Literary Work
Copyright subsists in original literary works and relates to the expression of thought, but the expression need not be original or novel. The work must not be copied from another work but must originate from the author. Two authors independently producing an identical work will be entitled for copyright in their respective works. The emphasis is more on the labor, skill judgment and capital expended in producing the work. It includes tables, compilations and computer programs. intellectual property rights 6

Dramatic Work
Copyright subsists in original dramatic work and its adaptation. It includes any piece or recitation, choreographic work Entertainment in dumb show The scenic arrangement or acting form of which is fixed in writing otherwise But does not include a cinematograph film.
intellectual property rights 7

 Copyright subsists in original musical work and includes any combination of melody and harmony, either of them reduced to writing or otherwise graphically produced or reproduced. An original adaptation of a musical work is also entitled to copyright. There is no copyright in a song. A song has its words written by one man and its music by another; is words have a literary copyright, and so has its music. These two copyrights are entirely different and cannot be merged. In cases where the word and music are written by the same person, or where they are owned by the same person, he would own the copyright in the song.
intellectual property rights 8

Musical work

Artistic work means A painting, A sculpture, A drawing including a diagram, map, chart or plan, An engraving or a photograph, whether or not any such work possesses artistic quality; An architectural work of art; and any other work of artistic craftsmanship. The work need not possess any artistic quality but the author must have bestowed skill, judgement and effort upon the work. A poster used in advertisement is an artistic work. But advertisement slogans consisting of a few words only are not copyright matter.
intellectual property rights 9

Artistic work

In case of literary, dramatic or musical work, A copyright gives the right to do and authorize the doing of any of the following acts, namely to reproduce the work in any material form; to publish the work; to perform the work in public; to produce ,reproduce ,perform or publish any translation of the work; to make any cinematographic film or a record in respect of work; to communicate the work by broadcast or to communicate to the public by loud-speaker or any other similar instrument the broadcast of the work; to make any adaptation of work; to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clause (i ) to (iv).
intellectual property rights 10

In the case of the artistic work, a copyright gives the right to do or authorize the doing of any of the following acts, namely-

to reproduce the work in any material form; to publish the work; to include the work in any cinematography film; to make any adaptation of work; to do in relation to an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (iii).
intellectual property rights 11

CINEMATOGRAPHIC FILM
Cinematographic film includes the sound track, if any. It also includes any work produced by any process analogous to cinematography. A video film is considered to be a work produced by a process analogous to cinematography. A movie may be taken of a live performance like sport events, dramatic or musical performance.
intellectual property rights 12

In the case of cinematography film,

to make copy of the film; to cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public; to make any record embodying the recording in the part of the sound track associated with the film by utilizing such sound track; to communicate the film by broadcast.
intellectual property rights 13

RECORDS
Record means Any disc, tape, perforated roll or other device in which sounds are embodied so as to be capable of being reproduced there from. The sound track in a cinematography film is not a record unless it is separately recorded in a disc tape or other device. Where the record is made directly from a live performance the owner of the disc or tape in which the recording is made will be the owner of the copyright.
intellectual property rights 14

In the case of a record, copyright gives the right to do or authorize the doing of any of the following acts by utilizing the record, namely

to make any other record embodying the same recording ; to cause the recording embodied in the record to be heard in the public; to communicate the recording embodied in the record by broadcast;

intellectual property rights

15

HOW TO OBTAIN COPYRIGHT

In order to secure copyright protection what is required is that the author must have bestowed upon the work sufficient judgment, skill and labor or capital. It is immaterial whether the work is wise or foolish, accurate or inaccurate or whether it has or has not any literary merit. In order to qualify for copyrights the works apart from being original, should satisfy the following conditions (except in he case of foreign works) 1. The work is first published in India. 2. Where the work is first published outside India the author, at the date of publication must be a citizen of India. If the publication was made after the authors death the author must have been at the time of his death a citizen of India. 3. In case of unpublished work the author is at the date of making the work a citizen of India or domiciled in India. 4. In case of the architectural work of art, the work is located in India.
intellectual property rights 16

REGISTRATION OF COPYRIGHT
The steps for Registration: Application in triplicate with prescribed fees. Applicant to serve notice of his application to every person who has any interest in the subject matter. If the Registrar receives any objection he may after holding such inquiry as he deems fit, enter such particulars of work in the register of copyright, which he considers proper. Registrar then sends copies of the entries made in the register to the parties concerned
intellectual property rights 17

TERM OF COPYRIGHT
The term of copyright varies according to the nature of the work and whether the author is a natural person or a legal person e.g. a Corporation, Government Institution, etc., or whether the work is anonymous or pseudonymous.
In the case of literary, dramatic, musical or artistic work (other than a photograph) when published during the lifetime of the author, copyright subsists during the lifetime of the author plus fifty years. This is a universally accepted term. Where the work is of joint authorship the fifty years period will start after the death of the author who dies last. In the case of anonymous or pseudonymous works the terms of copyright is until fifty years from the year of publication. If the identity of the author is disclosed before the expiry of the fifty years period the term will extend to fifty years after the death of the author.

intellectual property rights

18

 In the case of posthumous publications the term will be fifty years from the year of publication. The period of copyright for a photograph is fifty years from the year of its publication. For cinematography film and record also the term is fifty years of publication. Where the first owner of copyright is the government or a public undertaking the term of copyright is fifty years from the year of publication. Copyright works of International Organization also have a term of fifty years from the year of publication.
intellectual property rights 19

WHO IS THE FIRST OWNER OF COPYRIGHT

The author of the work is the first owner. In case the author is employed by newspaper, magazine etc under a contract of service, the proprietor will be the first owner in the absence of an agreement to the contrary in the case of a literary, dramatic or artistic work. Where a photograph is taken, or a painting or portrait drawn for a valuable consideration at the instance of person, such person is the first owner. Where any address or speech is delivered in public, the person delivering is the first owner and where it is delivered on behalf of another person such other person is the first owner. In case of Government work, Government shall be the first owner. In case of work made or published by or under any public undertaking, it shall be the first owner.
intellectual property rights 20

WHAT IS A PATENT
Patent, under the Act, is a grant from the Government to the inventor for a limited period of time, the exclusive right to make use, exercise and vend his invention. After the expiry of the duration of patent, anybody can make use of the invention

intellectual property rights

21

WHAT IS AN INVENTION
Invention means any new and useful art, process, method or manner of manufacture machine, apparatus or other article substance produced by manufacture and includes any new and useful improvement of any of them, and alleged invention
intellectual property rights 22

An invention, therefore is the creation of intellect applied to capital and labor, to produce something new and useful. Such creation becomes the exclusive property of the inventor on grant of patent.

intellectual property rights

23

APPLICATION FOR A PATENT

An application for a patent may be made by the actual inventor of the invention, or an assignee of the right to make an application or a legal representative of either. It is the person who first applies for a patent who is entitled to the grant. A prior inventor of the invention who applies subsequently will not get the patent as against the first applicant.
intellectual property rights 24

RIGHTS OF A PATENTEE
The owner of the "Patent", i.e. patentee is entitled to deal with such property in the same manner as owner of any other moveable property. The patentee can sell the whole or part of this property (Patent). He can also grant license to other(s) to use the patented property. He can also assign such property to any other(s). Such sale, license or assignment of such patented property naturally has to be for valuable consideration, acceptable mutually.

intellectual property rights

25

PERIOD OF PATENT
The term for patents in India is 20 years from the date of filing of the application for the patent. It is the responsibility of the patentee to maintain an issued patent by paying the annuities until the patent expires. After 20 years term the invention claimed in the patent falls into the public domain. Restoration of a patent that lapses due to nonpayment of renewal fees can be made within one year of lapse.
intellectual property rights 26

WHAT IS A TRADEMARK?
A trademark is a mark used in relation to goods for the purpose of indicating a connection between the goods and some person having the right as proprietor to use the mark It is a visual symbol in the form of a word, device or a label applied to articles of commerce with a view to indicate to the purchasing public that they are goods manufactured or otherwise dealt in by a particular person or a particular organisation as distinguished from similar goods manufactured or dealt in by others
intellectual property rights 27

FUNCTIONS OF A TRADEMARK
A trademark serves the purpose of identifying the source or the origin of goods. Trademark performs the following four functions. It identifies the product and its origin. It proposes to guarantee its quality. It advertises the product. The trademark represents the product. It creates an image of the product in the minds of the public particularly the consumers or the prospective consumers of such goods.
intellectual property rights 28

MARKS NOT REGISTERABLE

The use of which would be likely to deceive or cause confusion. A mark the use of which would be contrary to any law for the time being in force A mark comprising or containing scandalous or obscene matter A mark comprising or containing any matter likely to hurt the religious susceptibilities of any class or section A mark which would be disentitled to protection in court of law A mark which is identical with or deceptively similar to a trademark already registered in respect of the same goods or goods of the same description
intellectual property rights 29

COMPARITIVE ANALYSIS OF PATENT, COPYRIGHT AND TRADEMARK

intellectual property rights

30

PATENT Right Protected Right conferred in respect of a new invention to manufacture the product patented or use the process patented.

COPYRIGHT Right conferred in respect of original, literary, dramatic, musical and artistic works, cinematograph film and records.

TRADEMARK Right conferred to use a particular mark, which may be a symbol, word, device applied to articles of commerce to indicate the distinctiveness of goods.

Time Period

14 years and in case of food and drugs 5 or 7 years.

Life time plus 50 years for literary, dramatic, musical and artistic works. 50 years from year of publication for records.
The author or publisher of, or owner of or other person interested in the copyright in any work.

7 years and may be renewed from time to time.

Who Can Register

Actual inventor or an assignee of the right to make an application or legal representative of either.

Proprietor of the trademark and application may be made in the name of an individual, partners of a Firm, Corporation, Government department or Trust. Licensing the right by registration of the licensee as a registered user.

Commercial Use

Assigning rights or licensing them to industrialists for a lump sum payment or royalty basis. Injunction, Damages, Accounts of profits.

By assigning or licensing the right to others on a royalty or lump sum basis. Civil, Criminal, Administrative.

Remedy For Infringement

Injunction, Damages, Accounts of profits 31