Origin and Background of Intellectual Property Rights
Earlier during ancient time the creativity was attributed only to the divine origin. The concept that existed during ancient time was that human being did not create anything on their own rather discovered which already existed or converted one form to another. It was believed that there is only one creator and i.e. God. Even at one point art was regarded as discovery, and not something created.
When we look at the creativity then we look at two broad classes of thinking –
Firstly would be Religion ,which initially told us that creativity was the province of god and then we had ,Renaissance ,where individual was given more importance and we moved to individual centric world ,said that it’s not only the creation of god that matters but the creation of individual also matters.
The term Intellectual Property as phrase was not in use till the creation of World Intellectual Property Organization (WIPO). Earlier it used to be Patent and Trademark office, but recently it rebranded as Intellectual property office, an official instance where the word came into current usage.
What is Intellectual Property Right ?
To understand Intellectual Property Rights we need to understand first what’s the meaning of these words here –
– it refers to our ability to think and understand ideas coming out of our intellect .Idea is something which comes out of our mental effort .So, it covers the mental labour that comes out of the mind. The mental effort here is the creative effort , something which is exclusive to human being.
when we talk about property ,real property e.g. land , because of the physical boundaries its whole area can be find out, its measurement can be ascertained by looking in the sale deed . In case of a pen ,this also exist in time and space but ,when we are talking about property in Intellectual Property Rights, then this is not about something which can be ascertained just by looking at it.
E.g. An invention of a software for improvement in computer,the improvement is hard to see and recognize because it rests inside the computer unless someone explains or analyses it. So ,If someone comes with an invention he has to tell as to what invention he made, how and its application, must be in writing.
Rights refers to something which you get legally. It can be justified , recognized and protected. Right can be of general nature (right to vote, privacy etc) also, can be exclusive rights(right to property) when the rights are exclusive you can stop others from using it.
IPR refers to rights which emanate from IP which are capable of being protected (copyright,patent). Violation of such rights will lead to infringement.
E.g. If someone wrote a book he/she can stop others from making copies of that book ,because he has exclusive rights over it .This kind of exclusive rights have to be protected.
KINDS OF INTELLECTUAL PROPERTY RIGHTS
- PATENT:- If an idea in itself is in form of an invention then it is protected by patent.It gives the inventor the right to make, sell, use, offer for sale ,import .
- COPYRIGHT:- If the idea is in form of literary work or an artistic work, cinematographic, is protected by copyright. It gives the creator fixed number of years to print ,to publish ,to perform ,to film or to record artistic musical or other cinematographic work.
- TRADEMARK :- If an idea is of recognizable sign ,design or expression which identifies product or services of particular source, is protected by traders. It pertains to using a symbol or a word that is legally registered or established by or used as representing a company or its products or services .
e.g- Nike mark or Benz Mercedes design.
It gives you the right to use in company or wherever the creator is working and can stop others from using it.
- REGISTERED DESIGN:- If an idea is an ascetic design, a design pleasing to eyes but have no functional component to it, is protected by registered design. If it has any functional component then it cannot be a registered design.
It is the process by which it is protected what the right holder has claimed . It’s the process by which the right becomes official and recognized, people can verify it and also because it is backed by law. It can be done by the government or the state. It confers sanctity over Intellectual Property Rights.
The process of registration also varies as the subject matter is different .
In case of Trademark and copyright it’s more like matching what has gone before, the registry checks it and if its similar then can raise objection ,if not you can get it. In case of design also if you have a unique one and you are the first person to file then you get your right.
But Patent follow a different path in the “Patent specification “ everything must be done in writing, disclosed in detail ,differentiating with other inventions before it or proximate to it ,explaining its contribution ,the features, advantage ,what went before the invention ,the background ,purpose and it ends with Claims- the concluding part for what the protection is granted.
There can be substantial or technical objections. Substantial objections like whether it is patentable according to Indian law, or if it is already preceded or something obvious for everybody to do. This process of office raising objection over a patent application is Patent Prosecution.
In India the scrutiny is done by the Patent office and when you will pass the test then you will be granted patent, it will give you title, protection for a limited time provided you give required fees.
For Patent, the duration for which the right is granted is 20 years from the date of application.
For Copyright, the duration for which the right is granted is the life of author plus 60 years, so it’s quite a substantive right.
For Trademark, its fixed term but can be renewed as long as the right holder pleases ,sometimes 100 years or so because they have paid charges to keep it alive.
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Author: Aditi Trivedi,
Intern at Lawportal,
Author: Aditi Trivedi,
Faculty of law, Delhi University ,1st year law student