LAW

Intellectual Property
Universal Origins of Intellectual Property

Development Team
Role Na Affiliation
me
Principal Professor (Dr.) Ranbir Singh Vice Chancellor,
Investigator National Law University,
Delhi
Paper Coordinator Mr. Yogesh Pai Assistant Professor of
Law, National
Law
University, Delhi
Content Writer Dr. Vishwas Devaiah Associate
(CW)
Professor,
Jindal Global
Law School,
Sonipat
Content Reviewer Mr. Pratyush Kumar National Law University,
(CR) Delhi
 Module
Detail
Subject name L
a
w
Paper Intellectual
name Property
Module name/ Universal Origins of Intellectual Property
Title
Module Law/IP/#02
Id
Pre- requisites Conceptual understanding of IPRs, different types of IPRs,
need for IPRs
Objective To get a fundamental understanding about how different
s categories of IPRs developed historically in
different
jurisdictions
Key words Intellectual property, history of intellectual property, origins of
IPR, history of patents, copyright, trademarks, guilds
 Structure of
Module

Topic
Sub Topic
Introduction

1.1 The Stationers’ Copyright

1. Origins of Copyright Law
1.2 Statute of Anne
1.3 The battle of publishers

2.1 Guilds and marks

2. Origins of Trade mark law
2.2 Common law and Statutory developments

3.1 Genesis of the patent system

3. Origins of the patent law
3.2 Traces of modern patent system in England

3.3 Setting the base for Statute of Monopolies

3.4 Statute of Monopolies 1623

4.1 Copyright
4. Indian History of Intellectual Property 4.2 Trademark
4.3 Patents
4.4 Industrial Designs
4.5 New Legislations in the Post-
TRIPS Context
Summary

Self-Check Exercises
Introduction

Intellectual Property Rights (IPR) as we know have become part of

everyday life. New technologies, creative works and marks on consumer

3
 products have become subject matter of protection under different IPR regimes. In
this module we will examine the universal origins of copyright, trade mark and
patents which will enable us to put into perspective as to how the modern day IPR
framework took shape.

Learning Outcome:
To understand the need for familiarizing with the history of IP laws
To understand the context in which distinct IP law evolved
To understand how and why countries maintained different standards of IP or calibrated IP
based on their development needs
To distinctly understand the origins of different types of IPRs- copyrights, patents and
trademarks
To understand how early case law jurisprudence has shaped IP law and how courts balanced
monopoly with public interest

1. Origins of Copyright Law

It is well known that in ancient Egypt most of the writing was on leaves and
1
parchments. As replication was time consuming most of the works remained

confined to a specific region in which it was created. 2 Romans nurtured a system of

dictation that enabled quick replication of a book.3 However, even with this practice,
books largely remained out of the reach of the ordinary people. Although wooden
print blocks were invented in China, it was fairly cumbersome to print and was largely
unknown to the outside world. 4

1
Ronan Deazley, Martin Kretschmer, Lionel Bently, Privilege and Property: Essays on the History of
Copyright (Open Book Publishers 2010).
2
Ibid.
3
Ibid.
4
Ibid.
The use of paper and the subsequent invention of the movable printing press by
Gutenberg in the 15th century revolutionized the literary world. 5 The movable printing
press enabled publishers to replicate multiple copies of books which could be
distributed in various parts of the world. Thus, the printing press enabled creative
works of authors to reach people beyond territorial limits within a short span of time.
This influx of creative work spawned the growth of intellectual exchange and critical
reflection. This resulted in numerous works that questioned the role of the clergy and
the monarchs.6 To control the circulation of works that were largely against the church
and the monarch, a system of censorship was introduced that would filter out such
works from being circulated and published.7

Later, a system of licensing was introduced wherein only certain recognized printers
were allowed to publish certain works for a specific period of time. 8 Such licenses or
privileges were issued in the city of Venice to control the flow of information.
Similarly, Queen Elizabeth in England granted privileges in the form of monopolies to
printers. 9 Any unauthorized publication by a printer was punished and his privileges

revoked.10

5
Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books (Cassell and Company
1889).
6
Ibid.
7
Ibid.
8
David Suanders, Authorship and Copyright (Routledge 1992).
9
Ibid.
10
Ibid.
 Point to
Remember

The use of paper and the subsequent invention of the movable printing press by Gutenberg
in the 15th century revolutionized the literary world. The movable printing press enabled
publishers to replicate multiple copies of books which could be distributed in various parts
of the world. Thus, the printing press enabled creative works of authors to reach people
beyond territorial limits within a short span of time. This influx of creative work spawned
the growth of intellectual exchange and critical reflection. This resulted in numerous works
that questioned the role of the clergy and the monarchs. To control the circulation of works
that were largely against the church and the monarch, a system of censorship was introduced
that would filter out such works from being circulated and published.

1.1 The Stationers’ Copyright

In the 16th century, Edward VI granted the Charter of the Stationers’ Company
which empowered a group of printers in London to govern and control the printing of
books.11The Charter allowed the Stationers to decide what to publish and it also

equipped them to search for illegal printers and books.12 The Stationers Company had

the power to seize, take or burn the books that were not registered with them. 13
Through the Charter, the King effectively exercised censorship and it also benefited
the London printers who were part of the Stationers Company as it allowed them to
prevent entry of any new printers. 14
Registration of book titles was largely vested with the Stationers Company who

11
Ronan Deazley, Rethinking Copyright: History, Theory, Language (Edward Elagr 2006).
12
Ibid.
13
Brad Sherman, ‘Remembering and Forgetting: The Birth of Modern Copyright Law’ in David
Comparing
Nelken Legal Cultures (Ashgate 1997) 237-266
14
Ibid.
kept control of it for themselves.15 This in away acted as a copyright although it

largely protected the publishers' interest as opposed to that of the author. 16The
publishers exercised perpetual monopoly over their right to publish books and
numerous policies were created to avoid competition.17

1.2 Statute of Anne

In 1694, Stationers’ company was not allowed to extend their monopoly as

their power to register books and control publishing was not renewed by the
Parliament which recognized the fact that this system failed to recognize the author. 18
In 1709, the Statute of Anne was passed by the Parliament that recognized the rights
of the author. This was the earliest legislation on copyright.

The Statute of Anne came into force in 1710 and it aimed at recognizing the rights of
the author to protect his work.19 The Statute of Anne allowed the author’s work to be
protected for a period of 14 years, which could be extended to a further period of 14
years only if the author was alive at the end of the first term. 20 Works created prior to
the enforcement of the Statute of Anne were extended copyright protection for a
period of 21 years from the date of its creation. 21 This meant that the publisher’s
monopoly over printing books was no longer perpetual. Works of Shakespeare and
others created

15
Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books (Cassell and Company
1889).
16
Ibid.
17
Ibid.
18
Ronan Deazley, Martin Kretschmer, Lionel Bently, Privilege and Property: Essays on the History of
Copyright (Open Book Publishers 2010).
19
Ibid.
20
Ibid.
21
Ibid.
long before 1710 could now be published by other printers which created resentment
amongst the London publishers.22
.

1.3 The battle of publishers

The publishers, especially those in London, challenged the duration of the

copyright set out in the Statute of Anne. 23 Multiple cases were filed and the publishers
argued that the duration of copyright should be interpreted as monopoly in perpetuity
as recognized under common law.24 The validity of the duration set under the Statute
of Anne was questioned. They also argued that limiting the duration of copyright
protection offered no incentive to the authors to come up with creative work as they
25
may not earn enough and that their estate would not be able to inherit the rights.
However, other publishers (including the Scottish publishers) argued that perpetual
monopoly would impede the flow of information and push the society towards the
dark ages.26 The House of Lords though dismissed such cases and confirmed that

there is no perpetual copyright.27 This enabled works beyond 21 years (i.e if created
prior to 1710) to be available in the public domain to everyone without any
restriction.28 The seeds of the modern day copyright originated in the Statute of Anne

and the subsequent battle between publishers.29

22
Ronan Deazley, Rethinking Copyright: History, Theory, Language (Edward Elagr 2006); Augustine
Birrell, Seven Lectures on the Law and History of Copyright in Books (Cassell and Company 1889).
23
Ibid.
24
Millar v. Taylor; Midwinter v Hamilton; Donaldson v Beckett
25
Donaldson v Beckett
26
Ibid.
27
Ibid.
28
Ibid.
29
Benedict Atkinson and Brian Fitzgerald, A Short History of Copyright: The Genie of Information
(Springer 2014).
 2. Origins of Trademark Law

It is well known that archeologists have found evidence that ancient Greeks
used symbols and marks on their artefacts and potteries. 30 Similarly, Egyptians used
symbols on pyramids to indicate the origin of those structures. Romans used symbols
on bricks and the sword manufacturers in England were required to use symbols to
identify the makers.31 The idea was largely to trace the defective swords to the maker.
Subsequently, as trade increased, marks and symbols were used by merchandise
markers to clearly identify the territory from which the goods originated.32

2.1 Guilds and Marks

It was not until the emergence of the guild system in the 14 th and 15th century that
33
marks and symbols were associated as source identifiers. The emergence of the
guild system and the increase in trading activities led to increased demand for goods
that maintained high quality.34 Some guilds like the London bakers gained reputation

for quality.35

However, guilds also faced risks from counterfeiters who cashed in on the reputation
of certain guilds. 36 In order to maintain the reputation of the guilds, it was necessary
to come up with measures that enabled guilds to identify whether a product is a
counterfeit or not.37 Marks were introduced by

30
Abraham Greenberg, ‘The Ancient Lineage of Trade-Marks’ (1951) 33 Journal of Patent Office
Society 876.
31
Ibid.
32
Ibid.
33
Merchant, 'Trade-Marks-Past and Present', (1954) 36 Journal of Patent Office Society 341.
34
Ibid.
35
Ibid.
36
Ibid.
37
Ibid.
guilds to clearly identify the origin of the product.38Every guild member was required
to not only use the guild mark but also identify himself. In effect a product would bear
the guild mark, street name and the year of manufacture. 39 This facilitated all the guild
members to trace back the product to its maker within the guild. In case a product fell
below a particular standard they could haul up the particular maker or remove him
from the guild.40

Thus, in the middle ages marks were used to protect the goodwill of the guild and any
counterfeiter would be subject to harsh punishment.

2.2 Common law and Statutory Developments

Individual traders and manufacturers gained prominence with the breaking up of

guilds and they used marks to fiercely protect their products from counterfeiters.
Many cases were fought in the courts and counterfeiters were subject to the rulings of
the court.41 Early trademark jurisprudence developed through common law tort based
actions.

The earliest recorded case decided by the English courts was brought by Sandford
42
who sold clothes with the mark ‘JD’. Sandford had gained reputation for fine
quality clothes in the market and consumers would buy

38
Sidney Diamond, 'Historical Development of Trademarks, (1983) 73 Trademark Representative 222.
39
Ibid.
40
Ibid.
41
Lionel Bentley, ‘From communication to thing: historical aspects of the conceptualization of
trademark as property’ in Graeme B. Dinwode and Mark D. Janis, Trademark Law and Theory: A
Handbook of Contemporary Research (Edward Elgar: 2008) pp.3-41.
42
Ibid.
clothes relying on the mark impressed on the clothes. 43 Sandford brought a case
stating that the defendant had deceitfully used the mark on low quality clothes and
sold it for two years.44As a result of the defendant’s low quality goods it became
difficult for the plaintiff to sell his goods in the market as customers and traders who
bought from the defendant associated the goods to be of low quality. Sandford
alleged the tort of deceit and trespass.45 Court allowed Sandford to recover damages

from the defendant for interfering with his property.46

In Sykes v Sykes, the English courts had the opportunity to decide on the right to use a
mark in 1824.47 Plaintiff complained that the defendant used his mark “Sykes” on his
product, which affected his sales. Court agreed that the defendant was relying on the
reputation of the plaintiff to sell his goods.48 Subsequent cases were brought on the

basis of deceit, i.e. defendant defrauded the plaintiff. 49 In Millington v Fox, it was
decided by the courts that it is immaterial whether defendant knew about the existence
of the plaintiff’s marks.50 If the plaintiff had gained reputation using a particular mark

then it was assumed that he had property rights in the mark.51The common law
developments later on led to the passing off jurisprudence, which is a prevalent
practice in modern day trademark litigation.

43
Ibid.
44
Ibid.
45
Lionel Bentley, ‘From communication to thing: historical aspects of the conceptualization of
trademark as property’ in Graeme B. Dinwode and Mark D. Janis, Trademark Law and Theory: A
Handbook of Contemporary Research (Edward Elgar: 2008) pp.3-41.
46
Ibid.
47
Frank I. Schechter, The Historical Foundations of the Law Relating to Trade-marks (The Lawbook
Exchange 1925).
48
Ibid.
49
Ibid.
50
David Higgins, ‘Trademarks and Infringements in Britain’ in Teresa da Silva Lopes and Paul Duguid,
Trade Marks, Brands and Competitiveness (Routledge 2010).
51
Leather Cloth Co. v. American Leather Cloth (1865) 11 ER 1435. See Christopher Wadlow, The Law
of Passing-off: Unfair Competition by Misrepresentation (Sweet & Maxwell 2011).
The Merchandise Marks Act passed in 1862 was the first statute that allowed traders
to bring action on the basis of deceiving the owner of the mark. 52 Subsequently in
1875, the Trademark Registration Act was passed which facilitated for the registration
53
of the marks. In 1905, the Trademark Act allowed for a process of registering the
marks on the basis of intent to use and it introduced a system of examining the
marks.54 Thus the genesis of the modern day trademark can be traced to both common
law and statutory developments in England.

3. Origins of the patent law

It is said that one of the earliest monopoly was granted in Greece to a cook for a new
dish that he created. In subsequent years, the guilds in the Roman Empire were
55
granted some form of monopoly over their innovative products. However, these
monopolies were granted to guilds only in exchange for training two generations of
56
apprentices. Such an exchange facilitated the transfer of know-how rather than the
technology being confined to limited members of the guild. For instance, the Venetian
glassmakers followed this model.

However, these monopolies were largely meant to protect the know-how of the guild

as opposed to protecting the individual.57

52
Lionel Bentley, ‘From communication to thing: historical aspects of the conceptualization of
trademark as property’ in Graeme B. Dinwode and Mark D. Janis, Trademark Law and Theory: A
Handbook of Contemporary Research (Edward Elgar: 2008) pp.3-41.
53
Ibid.
54
Ibid.
55
Harold George Fox, Monopolies and Patents: A Study of the History and Future of the Patent
Monopoly (University of Toronto Press 1947).
56
Ibid.
57
Ibid.
3.1 Genesis of the patent system
The earliest form of a patent system can be linked to the practices followed in
Florence and Venice.58It is said that some form of monopoly was granted to a ship
builder who had come up with a technique that allowed the ship to carry heavy
material.59 It is said that the municipal corporation of Florence granted the ship builder

a monopoly for a period of three years.60

In subsequent years Venice came up with a framework that protected innovators who
61
came up with novel inventions. However, these claims remain inconclusive and
ambiguous.

3.2 Traces of Modern Patent System in England

England in the middle-ages sought to offer what is known as Letters Patent and Royal
Charters which were monopolies granted by the monarch.62The King clearly declared
that a person is entitled to monopolize the market and all others should cease from
making the product as it is listed in the Letters Patents.63

Letters Patents were granted in the 12th century and gradually extended to certain

guilds that had gained prominence.64 Subsequently, it was extended to individuals as

the guild system crumbled. Letters Patent though did not require the recipient of the
monopoly protection to showcase a new invention

58
Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800
(Cambridge 2002).
59
Ibid.
60
Ibid.
61
Ibid.
62
Allan A. Gomme, Patents Of Invention: Origin And Growth Of The Patent System In Britain
(Longmans 1946).
63
Ibid.
64
Ibid.
 or introduce innovative products in the market.65
Privileges on the other hand were monopolies granted to those who came up with new
technologies and wanted to introduce it in the country.66The King used it as an

incentive to lure foreigners to introduce new innovations in England. 67 The objective

was to ensure that England remained competitive with continental Europe which had
greatly benefitted from various new technologies in the middle ages.68 So, foreign
artists and innovators were encouraged to introduce their technologies in England in
exchange for a monopoly over a short period of time.69

However, they were supposed to train locals about the new technology by taking

locals as apprentice. 70 Thus, many privileges were granted which benefitted England.
Queen Elizabeth granted several privileges during her reign but allowed it only if the
new technology was worked within the territory and local artisans were trained. 71 The

privilege allowed the person to extend monopoly for a period of 14 years. 72Privileges
were easily granted and it lured a number of artists and innovators to introduce new
art or technology in England.73

However, Queen Elizabeth exercised her powers to grant privileges largely to favour
the nobility and keep them happy.74 Such abuse of power extended to grant of
privileges over making of salt, making of cards and such other
65
Hulme E. Wyndham, ‘The history of the patent system under the prerogative and at common law’ (1897) 12
Law Quarterly Review 141-154.
66
Ibid.
67
Ibid.
68
Ibid.
69
Hulme E. Wyndham, ‘The history of the patent system under the prerogative and at common law: Sequel’
(1990) 16 Law Quarterly Review 44.
70
Ibid.
71
Ibid.
72
Klaus Boehm and Aubrey Silberston, British Patent System: Administration, Volume 1 (Cambridge University
Press 1967).
73
Ibid.
74
Ibid.
routine products known to people and practiced by many. 75 Grant of such privileges
prevented other traders from practicing a known art. This resulted in monopoly

situations and subsequent price rise.76

During the latter years of Queen Elizabeth’s reign grant of such privileges was
challenged in the courts.77 In Darcy v Allen the question before the court was whether

the grant of privilege for making of playing cards was legitimate. 78 Elizabeth had
granted privilege to make playing cards for a period of 14 years and it was further
extended to 12 years.79 This prevented several card makers from making cards and
also affected their livelihood. It also led to a monopoly situation that resulted in the
increase in prices.80 It was stated that such privileges were illegitimate as the
monopoly was over a known technology. It was also argued in the case that this
81
resulted in the abuse of powers by the Queen. Although the court did not revoke the
privilege it galvanized members of the society and the political representatives to
challenge grant of privileges.

3.3 Setting the Base for Statute of Monopolies

Members of the House of Commons raised concerns about the abuse of power by the
royalty in granting privileges that inconvenienced traders and common people.82King
James who had succeeded Queen Elizabeth agreed that privileges harmed the society
and cancelled many privileges issued by

75
Ibid.
76
Ibid.
77
Sean Bottomley, The British Patent System and the Industrial Revolution 1700-1852: From Privilege to
Property (Cambridge University Press 2014).
78
Ibid.
79
Ibid.
80
Ibid.
81
Ibid.
82
Elizabeth Read Foster, ‘The Procedure of the House of Commons against Patents and Monopolies,
1621-1624’ in Allen D. Boyer (eds), Law Liberty and the parliament: Selected Essays on the Writings of
Sir Edward Coke (Liberty 2004).
the previous reign.83

However, King James continued to issue such privileges which irked the members of
84
the House of Commons. One such instance is the grant of privileges given to a

group of tailors who could monopolize tailoring in the region of Ipswich. 85 This
created resentment amongst local tailors who were out of business due to the grant of
this privilege. However, the English court declared such privileges to be illegitimate
as it was against free trade.86 The courts though stated that privileges could be granted

to introduce new technologies that did not exist previously. 87 However, King James

continued on similar lines and issued several privileges that resulted in monopolies.88

3.4 Statute of Monopolies 1623

The Parliament initiated steps to pass a legislation based on the review report
submitted in the House of Commons.89 In 1623, the Parliament passed the Statute of

Monopolies which was a framework to grant patents for new inventions. 90 However, it
clearly detested granting of monopolies to things that were already known to ordinary
people.91

The Statute of Monopolies in effect introduced a system of novelty and the

83
Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800
(Cambridge 2002).
84
Ibid.
85
Ibid.
86
Ibid.
87
Ibid.
88
Elizabeth Read Foster, ‘The Procedure of the House of Commons against Patents and Monopolies,
1621-1624’ in Allen D. Boyer (eds), Law Liberty and the parliament: Selected Essays on the Writings of
Sir Edward Coke (Liberty 2004).
89
Ibid.
90
Klaus Boehm and Aubrey Silberston, British Patent System: Administration, Volume 1 (Cambridge
University Press 1967).
91
Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800
duration of patent monopoly was for a period of 14 years. 92 The logic for granting
monopoly period for 14 years can be linked to the idea of training at least two
generation of apprentices (each apprenticeship lasted for 7 years). In subsequent
years, the Statute of Monopolies was amended several times and it incorporated the
concept of granting patents to those who approached the patent office first.93

Similarly, after nearly two hundred years of the Statute of Monopolies it was amended
94
to incorporate the need to file a written description of the invention. Until then
inventors could file written description of the invention on a voluntary basis.

This change was largely brought about because of the decision in Liardet v Johnson.95
The plaintiff claimed that he had a patent over making of cement and the defendant
infringed it by making cement without his permission. 96 The defendant argued that the
plaintiff’s invention was already known and as such no patent should have been
granted.97 The defendant showed literature that existed prior to the grant of the patent.
98
Justice Mansfield while delivering the judgment stated that all patent applicants
should clearly describe their invention in a written form and file it in the office along
with the patent application.99

92
Ibid.
93
Ibid.
94
Seaborne D. Davies, ‘The early history of the patent specification’, (1950) 50 Law Quarterly Review
pp.86-109
95
John N. Adams, ‘History of the patent system’ in Toshiko Takaneka (eds.) Patent Law and Theory
(Edward Elgar 2009).
96
Ibid.
97
Ibid.
98
Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800
(Cambridge 2002).
99
Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800
Similarly, in subsequent years the Statute of Monopolies was amended and later on
replaced by other legislations that led to the development of the modern day patent

law.100
4. History of Indian IP
It is pertinent to note that IP in India has a colonial past. Some of the current
legislations have been re-enacted in post-independent India. However, various kinds
of IP laws have been extended to India in the colonial period. India specific laws were
also enacted during this period. The following provides a brief review of the history
of IP laws in India.

4.1 Copyright

The system governing Copyright in India has undergone a gradual evolution,

spanning over a period of 150 years and occurring in three different phases. Phase I
was marked with the enactment of the 1847 British statute on copyright which
provided copyright protection for lifetime of the author plus 7 years after the demise
of the author, with 42 years as the maximum period of protection.

The second phase commenced with the enactment of Copyright Act, 1914 in India
which was largely modeled after the 1911 British Copyright Act, with certain minor
departures in the form of criminal sanctions for copyright infringement and
modification of the scope of term of 10 years as envisaged for sole authors. The 1914
Act continued to govern the Copyright system in India with minor amendments and
modifications until the enactment of the 1957 Act and its adoption in January, 1958.

100
Ibid.
The third phase witnessed the enactment of the first Copyright law of independent
India in 1957. With subsequent amendments in 1883, 1994, and 1999; the 1957
underwent the most significant amendment in the year 2012 to incorporate the
provisions for protecting copyright in the context of digital space. The Act was again
amended in 2017 to reflect the changes made by the Finance Act of 2017. The
Copyright Act, as amended by the Finance Act of 2017 in conjunction with the
Copyright (Amendment) Rules, 2016 administer the present day Copyright system in
India.

4.2 Trademark

In line with the universal evolution of trademark system, the Indian law on Trademark
has also developed in tandem with industrialization. From the time when craftsmen
marked their products with their signatures to establish identity to the time when we
witness continual turf wars for acquisition and use of trademarks, the trademark
system has experienced significant changes.

Earlier trademark law in India was governed by the common law system of passing
off and equity, which was prevalent in England before enactment of the Registration
Act, 1875. The first legislation on trademark in India was the Trade Marks Act of
1940, which was based on the UK Trade Marks Act, 1838.

In 1958, the Trade & Merchandise Act was enacted to consolidate the law governing
trademarks in a single piece of legislation. This Act was subsequently repealed by the
Trade Marks Act of 1999 which was enacted in compliance of the TRIPS Agreement,
1994. The Act was further amended in 2010. Trademark Rules underwent a major
overhaul in 2017, transforming and streamlining the procedure related to trademark
registration and the
present day trademark system is governed by the Act and the Rules, amended in 2010
and 2017 respectively.
4.3 Patents

The present day Patent law system in India has undergone an intense evolutionary
process during the last 162 years. It traces its roots back to the Act VI of 1856, which
was enacted with the primary objective of encouraging new and useful manufactures
and promoting disclosure of inventions by their inventors. It was based on the British
Patent Law of 1852 and granted certain exclusive privileges to inventors for 14 years.

However, as it had been enacted without permission from the British Crown, it was
repealed in 1857, followed by enactment of a new legislation for granting exclusive
privileges in 1859 as Act XV of 1859. This Act introduced certain modifications to
the earlier legislation, including limiting the grant of exclusive privileges only to
useful inventions and extending the priority period from 6 months to 12 months. This
Act marked certain divergences from the British Act of 1852, particularly in
permitting assignees to make applications in India and using publication in India or
United Kingdom to ascertain novelty.

After 30 years of being in force, this Act was amended in 1888 to reflect the 1883
amendment to the British Patent law and was named as the Inventions and Designs
Act, 1888. A fresh legislation in 1911, named The Indian Patents and Designs Act
was enacted to replace previous legislations and brought the administration of Patents
under the supervision of Controller of Patents. The Act underwent further
amendments in 1920, 1930, and 1945.
After India attained independence, the Act of 1911, as amended in 1920, 1930, and
1945 was deemed to be insufficient to govern the patent system, owing to significant
political and economic changes. Based on the recommendations of committee under
the Chairmanship of Justice (Dr.) Bakshi Tek Chand, the 1911 Act was further
amended in 1950. After another amendment in 1952, the 1911 was ultimately
replaced in 1970 by the Patent Act of 1970 which was enacted on recommendation of
N. Rajagopala Ayyangar Committee. The new Act 0f 1970 was made applicable in
1972 with the introduction of Patent Rules 1972. This Act has been subsequently
amended in 1994, 1999, 2002, and 2005 and continues to govern the Patent system in
India, with supplementation by the Patent (Amendment) Rules, 2006.

4.4 Industrial Designs

The first legislation in India to grant protection to new designs was enacted in the
form of Patterns and Designs Protection Act, 1872 which provided inventors with the
exclusive privilege to make, sell, and use a new pattern and design in India and also to
authorize others to do the same, albeit for a shorter duration.

This Act was succeeded by the Inventions and Designs Act, 1888 which was enacted
to consolidate and amend the legal provisions governing the protection of inventions
and designs. The provisions governing design protection were enacted in a separate
part. Later, this Act was replaced by British Patent and Designs Act, 1907 after which
the Indian Patent and Designs Act, 1911 was modeled. The provisions of the Act
governing Patents were repealed by the Patents Act, 1970 and subsequently, the
Designs Act, 2000 repealed the Designs Act, 1911. The Act and the Design Rules
came into force in 2001.
The present day Industrial Design regime is governed by the Designs Act, 2000 and
Designs Rules, 2001 as amended in 2008 and further in 2014.

4.5 New Legislations in the Post- TRIPS Context:

In 1994, India signed the TRIPS Agreement and subsequently, to comply with the
provisions of the agreement governing the protection of different types of intellectual
property, enacted certain sui-generis legislations to protect intellectual property which
was not appropriately protected by the existing IP regime, leading to over-protection
or under-protection.
Geographical Indications of Goods (Registration and Protection) Act, 1999 The
TRIPS agreement lays down provisions in Articles 22 to 24 for protection of
geographical indications. However, the TRIPS agreement does not require WTO
members to enact a distinct GI legislation provided the mandate of the agreement is
complied with by WTO members. To comply with the mandate, India chose to enact
the sui-generis Act for protecting Geographical Indications.
The Protection of Plant Varieties and Farmers’ Rights Act, 2001
Article 27.3 of TRIPS agreement requires the member countries to protect plant
varieties either by a patent system or by a sui-generis system or by a combination
thereof. To offer protection to plant varieties and to protect farmer’s rights, India
enacted the Protection of Plant Varieties and Farmers’ Rights Act, 2001.

The Semiconductor Integrated Circuits Layout-Design Act, 2000

To conform to Section 6 (Article 35 to 38) of the TRIPS agreement, India enacted the
Semiconductor Integrated Circuits Layout-Design Act, 2000 as a
supplemental act to designs and with a view to protect semiconductor integrated
circuits layout-designs.

Summary
It can be gleaned from the above sections that the modern day copyright, trademark
and patent laws evolved over centuries. The copyright legislation came about in the
form of Statute of Anne primarily to end the monopoly and control exercised by the
book publishers. The idea was to largely encourage authors and enable them to
exercise rights in their works as opposed to the control exercised by the publishers. In
doing so the Statute of Anne abolished perpetual monopolies exercised by publishers.
Similarly, the trademark practices were largely shaped by the needs of guilds and
individual traders to keep out counterfeits.

This was recognized by the courts which granted property rights in the marks and also
allowed actions for trespass. The patent law evolved to end the abusive grant of
privileges by the monarch and the Statute of Monopolies developed the practice of
granting patents to encourage the disclosure of new inventions to the society in
exchange for a limited monopoly.
 Points to Remember
The Statute of Anne, which was passed in the year 1709 and came into force in 1710, recognized the
rights of the author and was the earliest legislation on copyright.
Symbols and marks have been used by the ancient Greeks on their artefacts and potteries;
Egyptians on pyramids to indicate the origin of those structures; Romans on bricks; and the sword
manufacturers in England to identify the makers. However, it was not until the emergence of the
guild system in the 14th and 15th century that marks and symbols were associated as source
identifiers.
In the middle ages, marks were used to protect the goodwill of the guild and any counterfeiter
would be subject to harsh punishment.
Early trademark jurisprudence developed through common law tort based actions.
The earliest recorded case decided by the English courts was brought by Sandford who sold
clothes with the mark ‘JD’.
The Merchandise Marks Act passed in 1862 was the first statute that allowed traders to bring
action on the basis of deceiving the owner of the mark.
Subsequently in 1875, the Trademark Registration Act was passed which facilitated for registration
of the marks.
In 1905, the Trademark Act allowed for a process of registering the marks on the basis of intent to
use and it introduced a system of examining the marks.
Thus, the genesis of the modern day trademark can be traced to both common law and statutory
developments in England.
It is said that one of the earliest monopolies was granted in Greece to a cook for a new dish that he
created. In subsequent years, the guilds in the Roman Empire were granted some form of
monopoly over their innovative products.
Such an exchange facilitated the transfer of know-how rather than the technology being confined
to limited members of the guild. However, these monopolies were largely meant to protect the
know-how of the guild as opposed to protecting the individual.
The earliest form of a patent system can be linked to the practices followed in Florence and Venice.
However, the Statute of Monopolies, passed in 1623, enacted a framework to grant patents for new
inventions and with subsequent amendments, paved the way for modern day patent law.
In India, the Intellectual Property regime has had a colonial past. Some of the current legislations
have been re-enacted in post-independent India. However, various kinds of IP laws have been
extended to India in the colonial period. India specific laws were also enacted during this period.
The system governing Copyright in India has undergone a gradual evolution, spanning over a
period of 150 years and occurring in three different phases.
Phase I was marked with the enactment of the 1847 British statute on copyright, the second phase
commenced with the enactment of Copyright Act, 1914 in India which was largely modelled after
the 1911 British Copyright Act, with certain minor departures, and the third phase witnessed the
enactment of the first Copyright law of independent India in 1957.
 The Indian law on Trademark has also developed in tandem with industrialization.
Self-check Exercises
Earlier trademark law in India was governed by the common law system of passing off and equity,
which was prevalent in England before enactment of the Registration Act, 1875.
⮚ Examine thelegislation
The first need for familiarizing
on trademark with the was
in India history of IP laws
the Trade Marks Act of 1940, which was based on the
UK Trade Marks Act, 1838.
⮚ NoteInthe context
1958, in which
the Trade distinct IPAct
& Merchandise lawwas
evolved
enacted to consolidate the law governing trademarks in a
single piece of legislation. This Act was subsequently repealed by the Trade Marks Act of 1999 which
⮚ Howwas
andenacted in compliance
why countries of the TRIPS
maintained Agreement,
different 1994.
standards of IP or calibrated IP based
The present day Patent law system in India traces its roots back to the Act VI of 1856, which was based
on their development
on the needs?
British Patent Law of 1852 and enacted with the primary objective of encouraging new and
useful manufactures and promoting disclosure of inventions by their inventors.
⮚ HowFollowing
did earlythe
case law of
repeal jurisprudence shape of
this Act, enactment IPthe
lawnew
andAct
howXVcourts
of 1859balanced
and subsequent amendments to
this Act; a fresh legislation in 1911, named The Indian Patents and Designs Act was enacted to replace
monopoly with public interest?
previous legislation.

⮚ WhyThe 1911 Act was ultimately replaced in 1970 by the Patent Act of 1970 which was enacted on
is there a difference in the origins of different types of IPRs- copyrights,
recommendation of N. Rajagopala Ayyangar Committee.
patents and trademarks?