INTRODUCTION TO INTELLECTUAL

PROPERTY RIGHTS

q  According to Salmond ‘Rights’ means

“ An interest recognized and protected by a rule or justice.
Interest respect for which is a duty and disregard is a
wrong.”

q  Interests: Things which are to man’s advantage, e.g.:

interest in freedom or reputation or property.
q  Property covers the proprietary rights.
q  Property Corporeal
Incorporeal
RC COOPER VS. UOI 1980 SC 564
Property means the highest right a man can have to
anything, being that right which one has to land or
tenements, goods or chattels which does not
depend on another’s courtesy.
it includes ownership, estates and interests in
corporeal things, and also rights such as trade-
marks, copyrights, patents and even rights in
personam capable of transfer or transmission,
such as debts; and signifies a beneficial right to or
a thing considered as having a money value, I
especially with reference to transfer or succession,
and to their capacity of being injured
CONCEPT OF INTELLECTUAL PROPERTY

q  Intellectual Property Right is sine qua non of every society.

q  Intellectual property intellectual work which is produced
by the intellect of a person.

q  Effective Intellectual Property System

Very basis of the foundation of a country
Dynamic tool for wealth creation

q  Country to succeed not just land, labour and capital

but creativity and innovation.
Intangible rights protecting the products of human
intelligence and creation
 Emergence of IPR

Creativity

Envisioning & insights

q  Two different words

‘Intellect’ Latin word ‘Intellectus’ meaning

perception (perception or faculty of knowing and
reasoning)
Property material object belonging to a
particular person
q  Property created by the intellect of a person is called as

‘Intellectual Property’

q  Rights incurring from the intellectual property are called

‘Intellectual Property Rights’

q  Law which protects these Intellectual property is called

‘Intellectual Property Rights Law’.

WHY PROTECTION
q  Intellectual property exclusive rights to their
creators acts as an incentive to the creator to
develop his intellectual property
and share the intellectual property
rather than keeping it a secret

q  Main motivation of protection

to encourage the creator
reward his creativity

q  The contribution of intellectual property to industrial

and economic development of a country is
substantial. The prosperity achieved by nation is the
result of exploitation of their intellectual property.
 GENESIS
q  By grant- initiator of ideas incorporated in the products is
remunerated and the system of grant assures value to the investment
made in the entities.

q  New or original imagination or ideas- product- exclusive domain of

the initiator.

q  Exclusion of others from using without permission- recognition to the

rights of the holder.

q  IP regime necessary to create order in the society- chaos.

q  IPR necessary tool to protect commercial venture and recognizing

human effort and capital investment.
q  Contract between creator and sovereign state
Ø  Protection for revelation

q  Balance between rights of creator and public

interest
Ø  Rights and limitations and exceptions
 ORGANIZATION STRUCTURE – IP OFFICES

Ministry of Industry &

Commerce

Office of the Controller

General of Patents,
Designs
And Trademarks

Trade Marks Registry Geographical Patent

Patent office
Designs wing ( Kolkatta, Delhi, Indications Information
( Kolkatta, Delhi,
(Kolkatta) Mumbai, Ahmedabad Registry Service
Mumbai, Chennai)
Chennai) ( Chennai) ( Nagpur)
 JUSTIFICATION TO ‘WHY SHOULD WE GRANT
PROTECTION TO INTELLECTUAL PROPERTY’
q  Ethical or moral arguments: it is justified
because law recognizes an author’s natural or
human rights over the products of their labour.

q  Instrument justification: intellectual property

induces or encourages desirable activities.

q  The owner has exclusive right over his intellectual

property and no one can used his property without
his consent. However the owner can assign his
intellectual property or interest in his property to
someone else.
NATURAL RIGHT THEORY: LABOUR THEORY
(LOCKE’S THEORY)

Ò  Property right is a natural right. A person has a

right to own the creation of his mind in the
same manner he owns creation of his labour.

Ò  Nothing can be called with greater prosperity

man’s property than the fruits of his labour.
PERSONALITY THEORY

Ò  Intellectual property laws are to be there to protect the

author’s or the inventor’s manifestation of his
personality.
Ò  This is also backed by the need for the safeguarding of the
individual’s freedom of expression.
Ò  As propounded by Hegel, a person would be more self
assertive when she/he owns property. He will feel more
equal (equality).
UTILITARIAN THEORY

Ò  Utilitarian is institution socially beneficial. It

states that we have intellectual property
systems because it has the effect on the
betterment /economic/ of the society.

Ò  Its correctness is to be assessed in the

economic success of the countries.
q  So this protection to the intellectual property is
given by the Intellectual Property Rights Law
q  Intellectual Property Rights Law

area of law
concerned with legal rights
Associated with creative effort
Commercial reputation
Goodwill
q  Law deters others from copying or taking unfair
advantage of the work of other person without his
consent .
 HUMAN RIGHTS AND IPRS
q  IP laws responsible for converting remunerative
opportunities into protectable rights.
q  Article 17 UDHR (1948) recognizes the right to
own property alone as well as in association with
others.
q  Article 27 recognizes the right to participate in the
cultural life of community, to enjoy arts and to
share in the scientific advancement.
q  Article 27(2) protects the right of authors to moral
and material interests resulting from scientific,
literary or artistic production.
q  Article 25 of UDHR “Everyone has the right to a standard of

living adequate for the health and well-being of himself and of his

family, including food, clothing, housing and medical care and

necessary social services, and the right to security in the event of

unemployment, sickness, disability, widowhood, old age or other lack

of livelihood in circumstances beyond his control.”

q  Drugs, medicines and therapeutic diagnosis and sophisticated

apparatus for diagnosis.

 RIGHTS FLOWING FROM INTELLECTUAL
PROPERTY
q  Personal or positive or private right

q  Intangible Property- creation of mind

q  Negative right

q  Time bound right

q  Right of assignment or right to license

 NEED FOR INTELLECTUAL PROPERTY

q  Incentive to the individual for new creations

q  Due recognition to creators and inventors

q  Ensuring availability of genuine and original

products

q  Economic development
 TYPES OF INTELLECTUAL PROPERTY

q  Copyright
q  Patent
q  Trademarks
q  Geographical indications
q  Design
q  Trade secrets
q  Integrated circuits
q  Traditional knowledge
ACTS
q  the Copyright Act, 1957
q  The Trademarks Act, 1999

q  T h e G e o g r a p h i c a l i n d i c a t i o n s o f G o o d s
(Registration and Protection) Act,1999
q  The Designs Act, 2000

q  The Patents Act, 1970

q  The Protection of Plant Verities and Farmers' Right

Act, 2001
q  The Biological Diversity Act, 2002

q  The Semiconductor Integrated Circuits Layout

Design Act, 2000
 WORLD INTELLECTUAL PROPERTY
ORGANIZATION (WIPO)
q  Created by the Convention Establishing World
Intellectual Property Organization (WIPO)
q  Convention signed in Stockholm in 1967 and
came into force in 1970
q  Got the status of specialized agency of United
Nations in 1974.
q  Mission of WIPO

“ To promote the protection of intellectual

property rights world wide and extend the benefits
of international intellectual property system to all.”
q  WIPO is the global forum for intellectual
property services, policy, information and
cooperation. It is a self-funding agency of the
United Nations, with 191 member states.
q  Director General: Daren Tang

q  India is a member of WIPO and joined it in

1975
q  List of events :

1873: International exhibition of inventions in Vienna

1883: birth of Paris Convention for the protection of
Industrial Property
1886: adoption of Berne Convention for the
protection of literary and artistic works

The Paris and Berne Convention set up International

Bureau
1893: the two bureaus united to form an
international orgainzation called Bureau
Interationalaux Reunis Pour la Protection de la
Propriete intellectuelle (BIRPI) based in Berne,
Switzerland

1960: BIRPI moved to Geneva

1970: WIPO established

1974: WIPO became a UN specialized agency

FUNCTIONS OF WIPO

1. To promote the development of measures

designed to facilitate efficient protection of
intellectual property rights through out the world.

2. To perform administrative tasks

3. To encourage the conclusion of international

agreements designed to promote the protection of
intellectual property
4. To offer cooperation to the states requesting
legal and technical assistance in the field of
intellectual property

5. To assemble and disseminate information

concerning the protection of intellectual property
and carry out and promote studies in this field

6. To maintain services facilitating the

international protection of intellectual property
SERVICES PROVIDED BY WIPO
q  Services provided to the governments, businesses
and society realize the benefits of IP are:
1.  a policy forum to shape balanced international IP
rules for a changing world;
2.  global services to protect IP across borders and to
resolve disputes;
3.  technical infrastructure to connect IP systems and
share knowledge;
4.  cooperation and capacity-building programs to
enable all countries to use IP for economic, social
and cultural development;
5.  a world reference source for IP information
ACTIVITIES BY WIPO

q  WIPO’sorganizational structure is based on

seven Sectors, each headed by a Deputy
Director General (DDG) or Assistant Director
General (ADG), under the overall leadership of
the Director General. The sectors are namely:
 Brands &
Designs
Sector
Copyright &
Global
Creative
Issues
Industries
Sector
Sector

Global
Developm
Infrastruct
ent Sector
ure Sector

Administratio
Patents
n&
&Technology
Management
Sector
Sector
 ALTERNATIVE DISPUTE RESOLUTION
q  The WIPO Arbitration and Mediation Center
(September 1993) is a neutral, international and
non-profit dispute resolution provider that offers
time- and cost-efficient alternative dispute
resolution (ADR) options.
q  WIPO mediation, arbitration, expedited arbitration,
and expert determination enable private parties to
efficiently settle their domestic or cross-border IP
and technology disputes out of court.
q  The WIPO Center is also the global leader in the
provision of domain name dispute resolution
services under the WIPO-designed UDRP.
 WIPO INTERNET DOMAIN NAME DISPUTE
RESOLUTION
q  December 1999- first provider of dispute
resolution services under the Uniform Domain
Name Dispute Resolution Policy (UDRP)
adopted by Internet Corporation for Assigned
Names and Numbers(ICANN).
q  UDRP provides holders of trademark rights with
an administrative mechanism for the efficient
resolution of disputes arising out of registration
and by use by third parties in bad faith of
domain names.
 ECONOMIC DEVELOPMENT PROGRAMME
q  W I P O’ sC oop erati on for D evel op m en t
Programme (now called Economic development
Programme) is closely interwoven with
g ove r n m e n t a l a n d i n te r g ove r n m e n t a l
cooperation, including WIPO’s agreement with
the WTO whereby WIPO assists developing
countries in the implementation of WTO’s
agreements.
 CONCLUSION
q  WIPO’s mission is to promote, through
international cooperation, the creation,
dissemination, use and protection of works of the
human mind for economic, cultural and social
progress of mankind.
q  WIPO presently administers 26 treaties.
q  WIPO is active in dispute resolution through WIPO
Arbitration and Mediation Centre.
q  WIPO launched WIPONET in 1999, a worldwide
global intellectual property information network.
q  Four organs: General Assembly, Conference,
Coordination Committee and International Bureau.
 WORLD TRADE ORGANIZATION
q  15 December 1993- final text of Uruguay round
accepted.
q  WTO, with India being founder member, came into
effect on 1 January, 1995.
q  Predecessor of WTO was GATT (General Agreement
on Trade and Tariffs)- multilateral agreement
regulating international trade.
q  Preamble of GATT ‘ reduction of tariffs and other
trade barriers and elimination of preferences on
reciprocal and mutually advantageous basis.
q  Signed in 1947 lasted till 1994 replaced by WTO.
q  Youngest international organization designed to
supervise and liberalize international trade.
q  WTO deals with the following:
1.  Administering W TO trade agreements
( I mp l e m e n t a t i o n , Ad m i n i s t r a t i o n a n d
Operation of trade policies)
2.  Trade negotiations
3.  Committees, bodies and Council
4.  Building trade capacity (increasing of trade
c a p a c i t i e s a n d i mp l e m e n t te c h n i c a l
standards- developing counties.)
q  The WTO’s predecessor, the general agreement
on tariffs and trade(GATT),was establish after
World War II in the wake of other multilateral
institutions dedicated to International
economic corporation.
q  GATT was the only multilateral instrument
governing international trade from 1948 until
the WTO was established on January 1,1995.
 OBJECTIVES OF WTO

q  WTO reiterates the objectives of GATT, some of

them are as follows:-
q  Promote trade flows by encouraging nations to
adopt nondiscriminatory and predictable trade
policies.
q  Raising standard of living and income.
q  Introduce sustainable development.
 FUNCTIONS OF WTO

q  Acting as a forum for multilateral trade

negotiations.

q  Seeking to resolve trade disputes.

q  Acting as a watchdog of international trade.

q  Maintaining trade related database.

 AGREEMENTS
General Agreement
General Agreement
on Tariffs and Trade TRIPs
on Trade in Services
(GATT)
• Agriculture • Air transport
• Textile , Clothing • Movement of
• Health regulations natural persons
for farm products • Financial services
• Anti- dumping • Shipping
measures • telecommunication
• Custom valuation
methods
• Subsides
 TRADE RELATED ASPECT OF INTELLECTUAL
PROPERTY RIGHTS
q  International agreement administered by WTO
protection of intellectual property
enforcement of intellectual property
q  TRIPs 7 parts
73 articles
q  Preamble ‘reduce distortions and impediments to
international trade and taking into account the
need to provide effective and adequate protection
of intellectual property and ensure measures and
procedures to enforce intellectual property rights
do no themselves become barrier to legitimate
trade.’
 Copyright
Articles 9- 14

Undisclosed Trademarks
Information
Articles 39 Articles15- 21

Subject
Lay out
Designs of matter Geographical
Integrated Indications
Circuits Articles 22- 24
Articles 35- 38

Industrial
Patents
Designs
Articles 27- 34
Articles 25- 26
 ARTICLE 7 OBJECTIVES
The protection and enforcement of intellectual
property rights should contribute to the
promotion of technological innovation and to
the transfer and dissemination of technology, to
the mutual advantage of producers and users
of technological knowledge and in a manner
conducive to social and economic welfare, and
to a balance of rights and obligations.
ENFORCEMENT OF TRIPS
q  Article 3 National treatment: treatment no less
favorable that it accords to its own nationals
with respect to IP.
q  Article 4 Most favored nation: any advantage,
favour, privilege or immunity granted to any
member/ non- member – accorded
unconditionally to the nationals of all members.
q  Article 70 protection of existing subject matter:
date of application of agreement- protection to
IP. No protection if falls into public domain.
 ARTICLE 8 PRINCIPLES
q  Members to adopt measures for following
purposes provided that such measures which are
in consistent with TRIPs:
1.  Protection of public heath and nutrition

2.  Promotion of public interest in sectors of vital

importance to their socio- economic and
technological development.
3.  Prevention of abuse of IPRs by the right holders.

4.  To prohibit the resort to practices which

unreasonably restrain trade or adversely affect
the international transfer of technology.
 TRANSITIONAL ARRANGEMENTS
q  Came into force on 1 January 1995

q  Developed Countries on 1 January 1996

q  Developing Countries on 1 January 2000 (5 years)

q  Least Developing Counties 10 years (Article 66)

q  Article 66.2 developed counties to provide

incentives to enterprises to encourage technology
transfer to LDCs.