Issues relating to intellectual property rights.

What is Intellectual Property?

• Intellectual Property (IP) refers to creations of mind such as inventions, literary and artistic works, designs and symbols, names and images in commerce.
• By striking the right balance between the interests of innovators and wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
• Intellectual Property Rights are the rights which allow creators of patents, trademarks or copyrighted work to benefit them for their own work or investment.
  • These rights have been outlined in Article 27 of Universal Declaration of Human Rights.
  • The importance of IPR was first recognized in the Paris Convention for the protection of Industrial Property (1883) and Berne Convention for the Protection of Literary and Artistic Works (1886) (both administered by WIPO).
• IP activity in India is showing remarkable upward movement in the last 15 years with the number of Patents filed increasing nearly nine times.

Types of IPR

• Patent
  • A patent is granted for an invention which is a new product or process that meets conditions of novelty, non-obviousness and industrial use.
  • Patents in India are governed by “The patent Act 1970” which was amended in 2005 to make it compliant with TRIPS. 
• Trademark 
  • A trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one undertaking from those of other undertakings. 
  • Trade marks in India are governed by Trade Marks Act 1999 which was amended in 2010. 
  • Trade Mark Rules, 2017 has been notified which provides for ease of filing trademarks, rationalised trademark fee etc. 
• Geographical Indications 
  • It is a sign used on agricultural or natural or manufactured goods as originating or manufactured in a particular region of a country. It denotes its origin where a specific quality, characteristic or reputation of the product is essentially attributable to that origin. 
  • Geographical Indicators in India are governed by “The Geographical Indications of Goods (Registration & Protection) Act, 1999”.
• Copyright
  • Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. 
  • This right allows its creator the rights of reproduction, communication to the public, adaptation and translation of the work.
  • Copyrights in India are governed by “The Copyright Act, 1957”.
• Design 
  • An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. 
  • Designs in India are governed by “The Designs Act 2000”.
• Plant Variety Protection 
  • It refers to the protection granted for plant varieties. These rights are given to the farmers and plant breeders to encourage the development of new varieties of plants. 
  • Plant variety protection in India is governed by “The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001”.
    • India as a signatory to World Trade Organization in 1994, was obliged under Article 27(3) (b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), either to adopt a sui genesis system for plant variety protection or join the Convention of the International Union for the Protection of New Varieties of Plants (UPOV).  
    • The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001” was enacted by adopting sui generis system.
    • It’s the world’s only IPR legislation which grants intellectual property rights not only to the plant breeders but also to the farmers by protecting new, extant and farmers’ varieties.
  • Rights under the Act
    • Breeders’ Rights: Breeders will have exclusive rights to produce, sell, market, distribute, import or export the protected variety. Breeder can appoint agent/ licensee and may exercise for civil remedy in case of infringement of rights. 
    • Researchers’ Rights: Researcher can use any of the registered variety under the Act for conducting experiment or research. This includes the use of a variety as an initial source of variety for the purpose of developing another variety but repeated use needs prior permission of the registered breeder.
    • Farmers’ Rights 
      • A farmer who has evolved or developed a new variety is entitled for registration and protection in like manner as a breeder of a variety.
      • A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001 in the same manner as he was entitled before the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001.
      • There is also a provision for compensation to the farmers for non-performance of variety under Section 39 (2) of the Act, 2001; and 
      • Farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or the Tribunal or the High Court under the Act. It will be paid through National Gene Fund.
  • Recently, PepsiCo has sued nine farmers in Gujarat for alleged rights infringement on the grounds that they illegally grew its registered FC-5 potato variety (or FL-2027) used to make Lays chips.

IPR scenario in India

• In order to promote Intellectual Property in India Department of Industrial Policy and Promotion has taken various initiatives to ensure that intangible assets of the country are adequately protected such as:
• National IPR Policy 2016
  • It aims to promote a holistic and conducive ecosystem to catalyse the full potential of intellectual property for India’s economic growth and sociocultural development, while protecting public interest. 
  • The rationale for the National IPR Policy lies in the need to create awareness about the importance of IPRs as a marketable financial asset and economic tool.
  • Department of industrial policy and promotion (DIPP) is the nodal agency for all IPR issues and the policy will be renewed every five years in consultation with all the stakeholders. 
    • Cell for IPR Promotion and Management (CIPAM) is a professional body under the aegis of DIPP to ensure focused action on issues related to IPRs to ensure effective implementation of the National IPR Policy. It assist in simplifying and streamlining of IP processes, apart from undertaking steps for furthering IPR awareness, commercialization and enforcement.
      • CIPAM has launched ‘Scheme for IPR Awareness – Creative India; Innovative India’ under the aegis of DIPP.
  • The policy will also suggest incentives such as tax benefits and fee waivers to encourage R&D and IP creation to strengthen the Make In India/Start-up/Digital India initiatives. 
  • To protect ‘small inventions‘ developed especially in the informal / unorganised sectors, policy will promote ‘utility patents’ (with lower compliance burden and shorter period of protection, when compared to the normal patents) only for mechanical innovations.
  • Seven objectives –
    • IPR Awareness – To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
    • Generation of IPRs – To stimulate the generation of IPRs. 
    • Legal and Legislative Framework – To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest. 
    • Administration and Management – To modernize and strengthen service oriented IPR administration. 
    • Commercialization of IPR – Get value for IPRs through commercialization. 
    • Enforcement and Adjudication – To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements. 
    • Human Capital Development – To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
  • Limitations of IPR Policy 2016
    • The policy is based on the premise that more IPRs mean more innovation. However, there is little research that backs this assumption.
    • Openness, sharing and access to knowledge have been given back seat in the policy document.
    • Policy suggests researchers in public funded research organizations to mandatorily convert all research into IP. However, it is best left at the discretion of the inventor. 
    • Criminalizing the civil wrong of unauthorized copying such as movies and literature is prone to misuse.
    • To create an atmosphere of creativity and innovation, a holistic approach is required and not just IPR protection.
• Other steps taken by India for strengthening IPR focused on technology and innovation:
  • Filing of Patents and Trademarks applications has been made online. 
  • Almost all old Intellectual Property (IP) records have been digitized and new records are digitized immediately.
  • Automated Electronic modules have been adopted to process Patents and Trademarks applications which enabled achieving enhanced speed, accuracy and transparency. 
  • IP office has been transformed to enhance efficiency in processing of applications, uniformity and consistency in the examination of applications, bilateral cooperation at the international level, and raising awareness level of public.
  • To increase transparency and dissemination of information, the real time status of IP applications and e-registers is now open to the public MSMEs.
  • To encourage for innovation and seek protection for their inventions, a 50 per cent fee reduction has been provided.