Nature of IPR Justification for IPR Issues in IPR Legal Framework of IPR Bearing of International Law in IPR Specific

types of IPR Patents Copyright Trademark

Creation of human mind (Intellect) Intangible property Exclusive rights given by statutes Attended with limitations and exceptions Time-bound Territorial

Necessary to promote innovation and commerce requiring substantial up-front investments and risk.. Adam Smith a system that did not give inventors control of their inventions would result in a rivalry in waiting for others rather than an effort to distance others in originating improvements.Clark

Schumpeters work emphasized three principles: (1) Innovations creative destruction; (2) technological innovation . and this linkage explains the rapid economic growth of the Western economies; and (3) large monopolistic firms are the prime source of technological innovation because they are best able to bear the high costs of technological innovation

, there is an underutilization of the informationArrow Creates a monopoly and incentives to remain a monopolyGilbert and Newbury If I have seen further than other men, it is by standing on the shoulders of giants Sir Issac Newtonmost inventions are not only outputs but also inputs to the creative process,

Public Interest vs Private Interest Newer forms of IPR Scope of IPR ..breadth and depth IPR ..fostering or preventing innovation

Common Law Statute made law

Globalization WTO Developed and Developing country perspective.

Patents Copyright Trademark Design Geographical Indications Layout Design and Integrated Circuits Protection of New Plant Varieties

Trade Secrets Control of anti competitive practices in contractual licenses.

A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem The limited monopoly right granted by the state enables an inventor to prohibit another person from manufacturing, using or selling the patented product or from using the patented process, without permission. Period of Patents - 20 Years

What is an Invention?

Sec.2(1)(J) Invention means a new product or process involving an inventive step and capable of industrial application

Invention must

relate to a Process or Product or both be new (Novel) involves an inventive step be Capable of industrial application not fall under Section 3 and 4

Invention must not be

Published in India or elsewhere
In prior public knowledge or prior public use with in India

Claimed before in any specification in India

A feature of an invention that

involves technical advance as compared to the existing knowledge or have economic significance or both and

makes the invention not obvious to a person skilled in the art

Invention is capable of being made or used in any kind of industry

Under Section 3 and Section 4

Scope of Copyright Original Literary, Dramatic, Musical and Artistic Works

Work: Ideas expressed in material form No copyright in ideas or facts

Cinematograph Films Sound Recordings

Two Kinds of Rights

Moral Rights
To protect personality of author

Economic Rights
To bring economic benefits

Right of Authorship Right of Integrity

Digital Manipulation No Right for Display

Inalienable Rights

Right of Reproduction

Right of Distribution/Issuing Copies

Making copies e.g. an edition of a novel Storage in computer memory

Digital Distribution

Right of Communication to the Public

Public Performance Internet Communication

Adaptation Rights
Conversion into another form e.g. literary to drama Abridgement Picturizations, comic formats

Right to make a cinematograph film or sound recording Translation Rights Rental Rights Resale Rights for original artistic works.

Literary author Drama Dramatist Music Composer Artistic work Artist e.g. Painter, sculptor, architect Photograph Photographer Author of Computer Programme Person who causes the work to be created Cinematograph film producer Sound Recording - producer

In the course of employment employer Employment by newspaper, magazine employer has publishing right; other rights with author Photograph, painting, cinema for valuable consideration person who pays money

Lecture delivered in public Person delivering Government Work Government Public Undertaking Work public undertaking Work of International Organization International Organization

Work of apprentice to Teacher If teacher writes a book then teacher because he is employed to teach and not write Question Papers Paper setter Encyclopedia, dictionary editor for collection Music under contract by film producer film producer

Literary, dramatic, Musical and Artistic Works published during life time of author: Life + 60 years All Other Works: 60 years from date of publication
Posthumous, Anonymous Works Works of Government and Organizations Cinema and Sound Recording Photograph

A name of an enterprise or a Mark capable of being

represented graphically, distinguishing the goods or services of one person from those of others e. g., LUX,

Godrej, TVS

,Telco, 555, APPLE

Device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packing or combination of colours or any combination thereof.

o sign , words, letters, numbers, o drawings, pictures, emblem, o colours or combination of colours, o shape of goods, o graphic representation or packaging or o any combination of the above

as applied to an article or a product.

Patents, designs and copyright are protected only for a limited period. On the other hand, in general, a registered trade mark can be protected in perpetuity subject only to the following conditions: It is used and renewed periodically and The registered proprietor takes prompt action against infringers.

Trade Marks are registered by national trade mark registries and are valid in that country Registration is made after examination and publication Period of registration is for 10 years but can be renewed indefinitely

A person who sells his goods under a particular trade mark acquires limited exclusive right to use of the mark in relation to those goods. A trade mark may be registered or unregistered. An unregistered trade mark is called common law mark. A trade mark when registered gets a stable existence. A registered trade mark can be in relation not only to its existing use but also for a proposed use.

Marks on goods Service Marks Certification trademark Collective Marks Well known marks Trade Names

Service Marks include banking, education, finance, insurance, real estate ,entertainment, repairs, transport, conveying news and information, advertising etc Certification Trade marks: Certified by the Proprietor as having characteristics like geographical origin, ingredients, quality e.g.AGMARK,WOOLMARK Certification
mark cannot be used as a trade mark.

Certifies that the goods on which it is applied are made of 100% wool. It is registered in 140 countries and licensed to the companies which assure that they will comply with the strict standards set out by the Woolmark company , the owner of the mark.

COLLECTIVE MARK is a Mark that distinguishes the goods -or services of members of association from marks of other undertakings Who owns collective Mark ? Association of persons It could be manufacturers, producers, suppliers, traders or other profession bodies like institute of chartered accountants, test cricketers association etc.

Well known trade mark in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the firstmentioned goods or services.

Trade names are names, terms or designations that serve to identify and distinguish an enterprise and its business activities from those of other enterprise and its business activities Whereas the trademark distinguishes the goods or services of an enterprise, a trade name identifies the entire enterprise and symbolizes the reputation and goodwill of the business as a whole.

A Trade mark should have the following essential elements:

1.

A Trademark should have Distinctive Character (Distinctiveness of the Trademark)

A trade mark would be considered a good trade mark when it is distinctive.

Features of Distinctiveness Distinctiveness may be class dependent.

What is distinctive in relation to one class of goods may not be so in relation to another class of goods. The TM may be united wholly to one or more specified colours and this colour combination may become the distinctive character of the particular mark.

Distinctiveness may be inherent or acquired. Inherent distinctiveness means that the mark or get up is distinct in itself from everything else and no one can justifiably claim the right to use it. E.g. RIN, ZEN. Acquired distinctiveness means Distinctiveness through use. E.g. the trade marks Yashica, Hawkins, Surf and Lux have acquired distinctiveness through use as also they are distinctive due to the inherent quality of why being invented words.

2. Trademark should preferably be an invented word. The best trade marks are invented words. E.g. ZEN ( a car) , DIO (non-geared scooter). 3. Trademark, if it is a word, or name, then it should be easy to pronounce and remember. E.g. Lux for soap, Maruti Zen for car, Mercedes for cars, Levis for jeans, Reynolds for pens, Parker for pens etc. 4. In case of a device mark, the device should be capable of being described by a single work. E.g. Camel for Camel Ink, Kingfisher bird for Kingfisher Beer.

5. Trade mark should be easy to spell correctly and write legibly.

6. It should not be descriptive but may be suggestive of the quality of goods. For example, a mark A-I would generally suggest superior quality. Avon (A-1) cycles for instance. 7. It should be short. E.g. Flex, Bru, Rin. 8. It should appeal to the eye as well as ear. 9. It should satisfy the requirements of registration. 10. It should not belong to the class of marks prohibited for registration. E.g. Mark prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950

(1) The trade marks (a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person; (b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service; (c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade, shall not be registered :

(2) A mark shall not be registered as a trade mark if

(a) it is of such nature as to deceive the public or cause confusion;

(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; (c) it comprises or contains scandalous or obscene matter; (d) its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).

(3) A mark shall not be registered as a trade mark if it consists exclusively of (a) the shape of goods which results from the nature of the goods themselves; or (b) the shape of goods which is necessary to obtain a technical result; or (c) the shape which gives substantial value to the goods.

THREE OUTSTANDING FEATURESWHICH MAKE DIGITAL REVOLUTION UNIQUE ARE THE RESULTANT

1. 2. 3.

Cyberspace Knowledge Economy Speed with which it has a transformed knowledge industrial economy into

Economy

APPLICATION OF JURISPRUDENTIAL CONCEPTIONS TO CYBERSPACE.

FRAGILE EVIDENCE

Sovereignty and exercise of Jurisdiction which are attributes of statehood are linked to territorial nexus In Cyberspace territorial boundaries are meaningless Internet address has no relation to the physical location of the computer or its user Law implies the application of coercive force but this is not feasible over individuals not within the territory

Cyberspace

permits

anonymity

and

pseudo

anonymity

Users can mask their real flesh and blood identities and assume digital avatars anonymous remailers facilitate sending messages without revealing their identity or origin

Cyberspace calls into question many traditional

legal conceptions like

Ownership Freedom of expression Liability Property etc

Regulation skeptics Governments should not regulate Cyberspace Reasons Laws involved on geographical basis have no application to cyberspace which is borderless Cyberspace transactions occur simultaneously in all jurisdictions assumption of jurisdiction by multiple states will lead to jurisdictional mayhem Architecture of Cyberspace precludes previous notice of applicable laws

Electronic Record authentication and legal recognition of digital signatures and electronic records. E-Governance Authorities / tribunals specified under the Act. Suitable amendments to Indian Penal Code and Indian Evidence Act besides Bankers Book Act and RBI Act in order to take cognizance of electronic records/evidence

"Intermediary" with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

Betamax case vs Napster VTR tapes vs Peer to Peer sharing

65 Tampering with Computer Source Documents 66 Computer Related Offences (Substituted vide ITAA 2008) If any person, dishonestly, or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to two three years or with fine which may extend to five lakh rupees or with both.

66 B Punishment for dishonestly receiving stolen computer resource or communication device (Inserted Vide ITA 2008) 66C Punishment for identity theft. (Inserted Vide ITA 2008) 66D Punishment for cheating by personation by using computer resource (Inserted Vide ITA 2008)

66 E Punishment for violation of privacy. (Inserted Vide ITA 2008) Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both