Intellectual Property Rights-II

May-2014

UNIT-I

Q.No:1(a) What is Copyright? Examine the nature and salient feature of

copyright Act.

Introduction:-

The Copyright Act, 1957 came into effect from January 1958. This Act has
been amended five times since then, i.e., in 1983, 1984, 1992, 1994 and 1999, with
the amendment of 1994 being the most substantial. Prior to the Act of 1957, the
Law of Copyrights in the country was governed by the Copyright Act of 1914.
This Act was essentially the extension of the British Copyright Act, 1911 to India.

Nature of Copyright:-

The law does not permit one to appropriate to himself what has been produced by
je labour skill and capital of another. This is the very foundation of copyrights
law. The object of copyright law is to protect the author of the copyright work
from an unlawful reproduction or exploitation of his work by others. Copyright
protection is essential to encourage exploitation of copyright work for the benefit
of the public. The exploitation is done by entrepreneurs like publishers, film
producers or sound recording producers to whom the owner of copyright the
assigns or licenses the particular rights. If the entrepreneur is to recover the capital
invested and earn profits he has to be protected from Unauthrised reproduction
otherwise a pirate would reproduce the work at a fraction of the original cost of
production and undersell the producer. In the case of sound recording and
cinematograph films a pirate could ruin the producers by his piracy. Without legal
protection for a certain period no entrepreneur will undertake publication of books
or production of sound recording or films. In ancient times creative writers,
musicians and artists wrote, composed or made their works mainly for fame and
recognition rather than to earn a living or make profits. Copying was a laborious
and expensive process. The importance of copyright protection was recognised
only after the invention of the press in the 15 th century which enabled the
reproduction of books in large numbers practicable.
Salient features of Indian Copyright Act
The Copyright Act consists of 15 chapters divided into 79 sections. Following are
the salient features of the copyright Act.

1. Chapter I contains the usual preliminary sections including the definitions. Some
new rights also came to be recognized, with the result that some new terms have
been incorporated and defined (7), (2).

2. Chapter II establishes a copyright office under the control of the Registrar of

Copyrights who, in turn, is required to act under the supervision and directions of
the Central Government. It may be mentioned that the registration of a copyright is
not compulsory or a pre-condition in India for acquiring a copyright or for
enforcing the rights there under. A register kept at the Copyright Office, in which
the names of titles or works and the names and addresses of authors, publishers,
and owners of copyright are entered. The Copyright Board can examine the
reasonableness of the charges or royalties claimed by a copyright society and to
consider applications for the grant of licences for public performances of works
etc.

3. Chapters III to VI of the Act are really the heart and they deal with the meaning
of a copyright and the works in which a copyright subsists, the ownership of a
copyright and the rights of the owner (including on assignment of the copyright),
the terms of the copyright and licences, etc. Section 13 of the Chapter III clearly
states that copyright will subsist throughout India in literary, dramatic, musical,
and artistic works. Copyright also subsists in cinematograph films and sound
recordings. The work must, however, be first published in India or the author of the
work must be a citizen of India. What exactly is the meaning and scope of a
copyright in respect of the above classes of works has been explained in Section 14
of the Chapter III. This includes interalia, reproduction, performance,
communication, translation, or adaptation of a work. Rental rights are also
recognized as a part of the copyright in a work such as a cinematograph film or a
computer programme.

4. Chapter IV of the Act concerns itself with the ownership of a copyright and the
rights of the owner. Subject to certain exceptions, the author of a work is the first
owner of the copyright. The exceptions include proprietary rights in a magazine in
which an article is first published or the commissioning of an artistic work or a
work produced under a contract of service. In case of films, the copyright vests
with the film producer. Similarly in cases of musical works recorded on
phonograph record, the copyright vests with the manufacturer of the original
master record from which other records are made. The owner of a copyright can
assign his rights there under on terms and conditions set out in a written document.

5. The term of a copyright is dealt with in Chapter V of the Act. Initially, the term
was fixed at 50 years but by an amendment to the Act with effect from 28th
December, 1991, the period was increased to 60 years. In the case of a published
literary, dramatic, musical and artistic work (other than a photograph) the period is
reckoned from the beginning of the year after the death of the author. In the case of
a photograph, cinematograph film or a sound recording the period is reckoned from
the year following the publication of the work.

6. Chapter VI of the Copyright Act deals with licencing of the copyright. The
owner of a copyright is entitled to grant any interest in the copyright by a licence
given by him in writing.

7. Chapter VII concerns itself with Copyright Societies which is a new concept so
far as the Copyright Act is concerned in as much as prior to the amendment of the
Act in 1994.

8. Chapter VIII of the Act concerns itself with the rights of broadcasting
organizations and of performers. This right subsists for 25 years beginning from
the calendar year next following the year of broadcast. An amendment made in
1999 this right now subsists for 50 years from the beginning of the calendar year
next following the year of performance. Both these rights are not absolute in as
much as these rights are deemed not to be infringed if a recording of such a
broadcast or performance is made for private use or for bona fide purposes such as
research, teaching, or as news of current events etc.

9. Chapter IX of the Act deals with a copyright obtained in a foreign country. The
applicability of the Copyright Act to foreign works is reciprocal.
10. Chapters X and XI of the Act deal with the registration and infringement of
copyright while Chapters XII to XIV deal with civil remedies and criminal
offences under the Act.

In terms of Section 51 of the chapter XI, a copyright is said to be infringed

when a person violates the exclusive right of the owner of a copyright without a
license having been granted to him to exploit the work commercially by way of
sale or hire or distribution or exhibition.

11. On the other hand, Section 52 of the Act provides that certain acts shall not
constitute an infringement of copyright. While a large number of such exceptions
have been mentioned, it may be useful to refer only to a few of them such as fair
dealing in a literary, dramatic, musical or artistic work for the purposes of private
use, criticism, or review thereof; in respect of a computer programme, making
copies there of or adaptation of the computer programme will not be an
infringement of the copyright if the purpose is to utilize the programme for which
it was supplied or to make back-up copies thereof for protection against loss or
destruction or damage.

12. Unauthorised hire and sale of copies of video films, cassette recordings for
public performances and books is regarded as violation of Copyright Laws in
India. Against such violations definite measures have been provided under the
Indian Copyright Act as amended in 1984 and 1994.

13. The civil remedies postulated by the Act are those of an injunction, damages,
and rendition of accounts, etc. The punishment for a criminal violation was,
initially, punishable with imprisonment up to a period of one year or with fine or
both but after piracy became a major problem, the period of imprisonment has
been made a minimum of six months and it may extend up to three years.
Similarly, a minimum fine of Rs.50, 000/- can be imposed which may extend up to
Rs.2, 00,000/-.
 OR

Q.No:1(a) what is infringement of copyright? What constitutes infringement?

What are the remedies available for infringement? Explain.

Introduction:

The owner of a copyright work has the exclusive right to do certain acts in
respect of the work. If any person does any of these acts without authority he will
be committing an infringement of the copyright in the work. The nature of the
rights depends upon the nature of the work. Reproduction of the work in any
material form, performance of the work in public and communication of the work
to the public in certain forms are the usual methods by which the copyright in any
work is commercially exploited for profit. If any person without authority
commercially exploits the work for profit he will be infringing the copyright.

Meaning of infringement:-

Section 2(m) of the Indian copyrights Act defines copyright as follows:

i) In relation to a literary, dramatic, musical or artistic work, a reproduction

thereof otherwise than in the form of a cinematograph film;
ii) In relation to a cinematograph film, a copy of the film made on any
medium by any means;
iii) In relation to a sound recording, any other recording, embodying the
same sound recording, made by any means;
iv) In relation to a programme in which such a broadcast reproduction right
or a performer’s right subsists under the provisions of his Act, the sound
recording or a cinematograph film of such programme or performance;
v) If such reproduction, copy or sound recording is made or imported in
contravention of the provisions of this Act.

INFRINGEMENT

Section 51 to 53A of the copyrights Act deals with infringement of copyrights.

ACTS CONSTITUTING INFRINGEMENT

a. When any person without a license from the owner of the copyright, or the
 Registrar of Copyright (in certain situations) or in contravention of the
conditions of a license,

i. does anything the exclusive right to do which belongs to the

copyright owner, or

ii. knowingly permits for profit any place to be used for the performance
of the work in public which continues an infringement of the work,
or

b. When any person, makes for sale or hire, or sells or lets for hire, or offers
for sale or hire, or exhibits in public for trade or import (except two copies
other than cinematography film or record for personal use) any infringing
copies of the week.

In general it is the commercial exploitation of the work in any form by a person

without authority that constitutes infringement.

ACTS NOT CONSTITUTING INFRINGEMENT

The Copyright Act provides certain exceptions to infringement. The object of

these provisions is to enable the encouragement of private study and research and
promotion of education. They provide defenses in an action for infringement.

The exceptions come under the following categories:

1. reproduction for use in judicial proceedings and for use of members of the
legislature,

2. publication of short passages, restricted reproduction or performance for

educational purposes,

3. making of records under license from Copyright Board on payment of

royalty,

4. playing of records or performance by a club or society for the benefit of the

members of religious institutions,

5. reproduction of an article on current economic, political, social or religious

 matters in newspapers, magazines etc,

6. reproduction of a few copies for use in libraries or for research or private

study,

7. matters published in official gazettes including Act of Parliament (subject

to certain conditions ) or its translation,

8. making of a drawing, engraving or photograph of an architectural work of

art, or a sculpture kept in a public place,

9. use of artistic work in a cinematography film,

10.use of an artistic work (author not the owner of copyright) by the author of
any mould, cast, sketch, plan, model, etc., made by him for the work,

11.making of an object in three dimension of an artistic work in two

dimensions subject to certain condition, and

12.Reconstruction of a building in accordance with architectural drawings.

13.Fair dealing without commercial benefits.

Copyright law does not prevent a person from taking what is useful from an
original work and create a new work with additions and improvements. Under the
guise of a copyright the owner of a copyright cannot ask the court to close all the
venues of research and scholarship and all frontiers of human knowledge.

REMEDIES AGAINST INFRINGEMENT

Sections 54-62 of the copyright act deals with civil remedies and sections 63-
70 deals with the criminal remedies available to the owner of copy right for
infringement of copyright.

There are three kinds of remedies against infringement of copyright, namely:

1. Civil remedies

Injunction damages or account of profit, delivery of infringing copy and damages

for conversion.
(a) Interlocutory Injunction:- in order to secure immediate protection from a
threatened infringement or from the continuance of an infringement, a plaintiff
may apply for an interlocutory injunction pending the trial of the action or further
orders.

(b) Damages:- there are two types of damages available to a successful plaintiff,
one under section 55 for infringement and another under section 58 for
conversion. The copyright owner is entitled to treat all in infringing copies of his
work as if they were his own property.

Accounts of profits:- the owner of copy right also have another remedy called
accounts of profits. It means the infringer has to give the profit which he has
generated during infringement of copyright.

2. Criminal remedies

In addition to civil remedy the copyright Act enabled the owner of the copyright
to take criminal proceeding against an infringer. Knowledge or means rea is an
essential ingredient of the offence. These two remedies are distinct and
independent and can be availed of simultaneously. The offence of infringement of
copyright punishable with imprisonment which may extend from a minimum
period of six month to a maximum of three years and with a fine of the order of
Rs.50,000 to Rs.2.00 lakhs. A police officer of the rank of sub-inspector and
above is given the power to seize without warrant, all infringing copies of the
work and accessories for making infringing copies wherever found, to be
produced before a magistrate.

3. Administrative remedies

Administrative remedies consist of moving the Registrar of copyrights to ban the

import of infringing copies into India when the infringement is by way of such
importation and the delivery of the confiscated infringing copies to the owner of
the copyright and seeking the delivery.

JURISDICTION OF COURTS

A suit or other civil proceedings relating to infringement of copyright is filed in

the District Court or High Court within whose jurisdiction the plaintiff resides or
carries on business or where the cause of action arose irrespective of the place of
residence or place of business of the defendant

LIMITATION

The period of limitation for filing the suit is three years from the date of
infringement.

Q.No:1(b) writes a short note on computer software and copyright.

Considering the extent to which programme and communication software

are goring on market size and economic value, the nature of protection to be
provided is extremely important. Software is easily reproducible and can be copied
cheaply. It can easily be converted from one computer language to another. In the
absence of devices that inhibit copying, the cost of copying software packages for
most systems is low. In India, computer software does not form the subject matter
of patents as the requirement of the patent law is that the “process must result in
something “tangible” and “vendible”.

Therefore, computer software is considered as “literary Work” under section

2 (o) of the copyright Act. Thus, reading of the relevant section leads one to
conclude that in India, copyright would subsists in computer software provide it is
inter alias “original”.

What is essential is that the work must not be copied from another work, but
must originate from another. Copyright subsists in computer software provided
sufficient efforts and skill has been expanded to give it a new and original
character.

The computer programme consists of –source code and object code. Source
code is a computer programme written in any of the several programming language
employed by computer programmers. An object code is the version of a
programme in which the source code language code is converted or translated into
the machine language of the computer with which it is to be used. Copyright exists
in this language; it is not entirely clear whether copyright exist in source code or
object code or both.
 OR
Q.no:1(b) A paper setter picks up an extract from “suitable boy” a popular
novel authored by Vikram set and asks question based on the extracts in the
English literature question paper set by him. Whether Vikram Seth can bring
an action against the paper setter for infringement? Decide.

Solution:- No, Vikram Seth cannot bring an action against the paper setter
for infringement because publication of short passages, restricted reproduction or
performance for educational purposes does not amount to infringement. Section
52(i) of the Indian Copyrights Act, 1957 says that, the reproduction of any work:

(i) By a teacher or a pupil in the course of an instruction; or

(ii) As part of the questions to be answered in an examination; or
(iii) In answers to such questions, does not amount to infringement.

Hence, putting a question in the question paper taken from novel does not
amount to infringement of copyright and the author cannot bring an action against
the paper setter, according to Section 2(i) of the Copyrights Act 1957.

UNIT-II

Q.No:2(a) Define “Biological Diversity”. Mention the salient features of the

Biological Diversity Act, 2002.

Introduction:

Biodiversity encompasses the variety of all life on earth. India is one of the
17-mega diverse countries of the world. With only 2.5% of the land area, India
already accounts for 7.8% of the global recorded species. India is also rich in
traditional and indigenous knowledge, both coded and informal. India is Party to
the Convention on Biological Diversity (CBD) (1992). Recognizing the sovereign
rights of States to use their own biological resources, the Convention expects the
Parties to facilitate access to genetic resources by other Parties subject to national
legislation and on mutually agreed upon terms (Article 3 and 15 of CBD). After an
extensive and intensive consultation process involving the stakeholders, the Govt.
of India has brought Biological Diversity Act, 2002.
Summary of Biological Diversity Act, 2002:

Biological Diversity Act, 2002 contains 12 Chapters divided into 65

Sections and many subsections, Notified Notifications and Rules. It came into
force on 5th February 2003 Management structure of Biodiversity Act is a three
tiered structure at the national, state and local level.

Definition:-

Biodiversity is defined under Section 2(b) as, the variety and variability
among living organisms and the ecological complexes of which they are part and
includes diversity within species or between species and of ecosystems.

Salient features of the Biological Diversity Act:-

unforeseen effects of climate changes is one of the essential key component

for developing varieties and animal species with standing temperature extreme
floods, droughts, outbreak of diseases reducing the crop productivity and directly
causing untold hardship to farming community. Biodiversity is a multi-disciplinary
subject involving diverse activities and actions. The stakeholders in biological
diversity include the Central Government, State Governments, institutions of local
self-governmental organizations, industry, etc. One of the major challenges before
India lies in adopting an instrument, which helps to realize the objectives of
equitable sharing of benefits enshrined in the Convention on Biological Diversity.

Following are the important features of Biological Diversity Act, 2002.

1. To regulate access to biological resources of the country equitable share in

benefits arising out of the use of biological resources.
2. to conserve and sustainable use of biological components.
3. Setting up of National Biodiversity Authority (NBA), State Biodiversity Board
(SBB) and Biodiversity Management Committees.
4. NBA and SBB are required to consult BMCs in decisions relating to bio-
resource / related knowledge within their Jurisdiction.
5. To respect and protect knowledge of local communities traditional knowledge
related to biodiversity.
6. To secure sharing of benefits with local people as conservers of biological
resources and holders of knowledge and information relating to the use of
biological resources.
7. All foreign nationals / organizations require prior approval of NBA for obtaining
biological resources and / or associated knowledge for use.
8. Indian scientists / individuals require approval of NBA for transferring results of
research to foreign nationals / organizations.
9. Conservation and development of areas of importance from the standpoint of
biological diversity by declaring them as biological diversity heritage sites.
10. Protection and rehabilitation of threatened species.
11. Involvement of institutions of State Government in the broad scheme of the
implementation of the Biological Diversity Act through constitution of
committees.
12. Protect India’s rich biodiversity and associated knowledge against their use by
foreign individuals and organizations without sharing benefits arising out of such
use and check Bio-piracy.
13. Indian Industry needs prior intimation to SBB to obtain bio resource. SBB has
right to restrict if found to violate conservation and sustainable use and benefit
sharing.
14. Provisions for notifying heritage sites by State Government in consultation
with local body.
15. Creation of National, State and Local Biodiversity Fund and its use for
conservation of biodiversity.
16. Prior approval is needed from NBA for IPRs in any invention in India or
outside India on Bio resource

OR

Q.No:2(a) Discuss the constitution, powers and functions of National

Biodiversity Authority.

Introduction:

Section 8 of the Bio Diversity Act deals with the establishment of a body to
be called the National Biodiversity Authority by the Central Government by
notification in the Official Gazette for the purposes of this Act, The National
Biodiversity Authority shall be a body corporate by the name aforesaid, having
perpetual succession and a common seal, with power to acquire, hold and dispose
of property, both movable and immovable, and to contract, and shall by the said
name sue and be sued. The head office of the National Biodiversity Authority
shall be at Chennai and the National Biodiversity Authority may, with the previous
approval of the Central Government, establish offices at other places in India.
Constitution of National Biodiversity Authority (NBA):

NBA consists of the following members.

(a) A Chairperson who shall be an eminent person having adequate knowledge on

conservation and sustainable use of biological diversity.
(b) Three ex-officio members to be appointed by the Central Government, one
representing the Ministry dealing with Tribal affairs, two representing the Ministry
dealing with Environment and Forests of whom one shall be the Additional
Director General of Forests.
(c) Seven ex-officio members appointed by the Central Government to represent
respectively the Ministries of the Central Government dealing with:
i. Agricultural Research and Education,
ii. Biotechnology,
iii. Ocean Development,
iv. Agriculture and Cooperation,
v. Indian Systems of Medicine and Homeopathy,
vi. Science and Technology, and
vii. Scientific and Industrial Research.
(d) Five non-official members appointed amongst specialists and scientists,
representatives of industry, conservers, creators and knowledge holders of
biological resources.

Functions and Powers of NBA:

Section 18 of the Bio Diversity Act speaks especially about the functions
and powers of the Biodiversity Authority which are as follows:-

1. Regulate activities, approve and advice the government of India on research,

commercial, bio-survey and bio-utilization.
2. Grant approval to Section 3, 4 and 6.
3. Certain persons not to undertake Biodiversity related activities without approval
of National Biodiversity Authority (Section 3).
4. Results of research not to be transferred to certain persons without approval of
National Biodiversity Authority (Section 4).
5. Application for IPR rights not to be made without approval of National
Biodiversity Authority (Section 6).
6. Perform such other functions as may be necessary to carry out the provisions of
this act. Approvals by NBA:
7. Any person who intends to access or apply for a patent or any other form of IPR
protection whether in India or outside India referred to sub-section (1) of Section 6
may make an application prescribed by NBA.
8. Any person who intends to transfer any biological resource or knowledge
associated thereto referred to sub-section (1) of Section 3 shall make an application
in such form and in such manner as may be prescribed to the National Biodiversity
Authority.
9. Determination of equitable benefit sharing by National Biodiversity Authority.
State Biodiversity Board (SBB):
10. Establishment of State Biodiversity Board in every State.
11. State Government may by notification in the Gazette be able to establish the
SBB in their State name e.g. Tamil Nadu Biodiversity Board.
12. No State Biodiversity Board shall be constituted for a Union Territory and in
relation to Union Territory; the National Biodiversity Authority shall exercise the
powers and perform the functions of a SBB for the Union territory.

Approval by National Biodiversity Authority:-

Further sections 19-21 of the Biodiversity act deals with the approval by the
National biodiversity Authority

The National Biodiversity Authority Constituted an Expert Committee to

develop guidelines for benefit sharing for the access of biological resource
occurring in India or associated knowledge there to for research or for commercial
utilization or for bio survey and bio utilization.

The Authority while granting approval to any person for access or for
transfer of results of research or applying for patent and IPR or for third party
transfer of the accessed biological resource and associated knowledge may impose
terms and conditions for ensuring equitable sharing of the benefits arising out of
the use of accessed biological material and associated knowledge. No person who
has been granted approval under section 19 shall transfer any biological resource
or knowledge associated there which is the subject matter of the said approval
except with the permission of the National Biodiversity Authority 20 (1).

Any person who intends to transfer any biological resource or knowledge

associated thereto referred to in subsection (1) shall make an application from and
in such manner as may be prescribed by the National Biodiversity Authority. 20(2)
 The guidelines shall provide for monetary and other benefits such as royalty;
joint ventures; technology transfer; product development; education and awareness
raising activities institutional capacity building and venture capital fund. The
formula for benefit sharing shall be determined on case-by-case basis. The
Authority will soon notify guidelines. There are few examples of benefit sharing in
place in some countries.

Q.NO:2(b) Write a note on Bio-Piracy

To check Bio-piracy, the proposed legislation provides that access to

biological resources and associated knowledge is subject to terms and conditions,
which secure equitable sharing of benefits. Further, it would be required to obtain
the approval of the National Biodiversity Authority before seeking and IPR based
on biological material and associated knowledge obtained from India.

Meaning:-

Bio piracy means biological theft . the act of taking some bio materials from
someone unlawfully; it is illegal collection and usage of indeginous plants ect., by
international companies who patent for their uses.

For example, India’s indigenous product ‘basmati’ rice has become USA’s
patent. The process of producing “atta” or wheat flour from whole wheat was also
patented by an American company.

Definition:-
Bio piracy is defines as th theft or usurpation of genetic materials especially
Plants and other biological materials by patent process without paying fair
compensation to the people/nations in whose territory such materials were
originally discovered.

Exemptions provided in the Act:

The Biological Act, 2002 provides for the following exemptions which are not
called as Bio- Piracy.

•Exemption to local people and community of the area for free access to use
biological resources within India.
•Exemption to growers and cultivators of biodiversity and to Vaids and Hakims to
use biological resources.
•Exemption through notification of normally traded commodities from the purview
of the Act.
•Exemption for collaborative research through government sponsored or
government approved institutions subject to overall policy guidelines and approval
of the Central Government.

OR

Q.No:2(b) Biodiversity Management Committee

Section 41 of the Biodiversity Act deals with the constitution of the

Biodiversity Management Committee, The provision says as follows:-

Constitution of Biodiversity Management Committee:

41.(1) Every local body shall constitute a Biodiversity Management Committee

within its area for the purpose of promoting conservation, sustainable use and
documentation of biological diversity including preservation of habitats,
conservation of land races, folk varieties and cultivars, domesticated stocks and
breeds of animals and microorganisms and chronicling of knowledge relating to
biological diversity.
Explanation:- For the purposes of this sub-section,–
(a) "Cultivar" means a variety of plant that has originated and persisted under
cultivation or was specifically bred for the purpose of cultivation;
(b) "Folk variety" means a cultivated variety of plant that was developed, grown
and exchanged informally among farmers;
(c) “Landrace” means primitive cultivar that was grown by ancient farmers and
their successors.
(2) The National Biodiversity Authority and the State Biodiversity Boards shall
consult the Biodiversity Management Committees while taking any decision
relating to the use of biological resources and knowledge associated with such
resources occurring within the territorial jurisdiction of the Biodiversity
Management Committee.
(3) The Biodiversity Management Committees may levy charges by way of
collection fees from any person for accessing or collecting any biological resource
for commercial purposes from areas falling within its territorial jurisdiction.
 UNIT-III

Q.No:3(a) Discuss the rights recognised for the farmer under the plant
varieties and farmer’s Right Act, 2001.

Introduction:-

The final Act, embodying the results of Uruguay Round of Multilateral

Trade Negotiations, done at Marrakesh on the 15 th of April, 1994 provides for the
establishment of the world Trade Organisation. The Agreement on TRIPS is part of
the final act.

India having ratified the said Final Act, has made the law on plant varieties on the
basis of section 5 of TRIPs which reads, “Members may also exclude from
patentability plants and animals other than micro-organism and essentially
biological process for the protection of plant or animals other than non-biological
and microbiological processes. However, members shall provide for the protection
of plant varieties either by patent or by an effective sui generis system or by any
combination thereof.

Chapter 6 Sections 39-46 deals with the farmer’s Rights. Following are the
rights of farmers provide under the act:-

1. Farmer’s Rights (Section 39):-

Section 39 provides as follows:-

(i) a farmer who has bred or developed a new variety shall, be entitled for
registration, and other protection in like manner as a breeder of a variety
under this Act;

(ii) the farmers’ variety shall be entitled for registration if the application
contains declaration as specified in clause (h) of sub-section (1) of Section
18;

(iii) a farmer who is engaged in the conservation of genetic resources of land

races and wild relatives of economic plants and their improvement through
selection and preservation shall be entitled in the prescribed manner for
recognition and reward from the Gene Fund :
 Provided that material so selected and preserved has been used as
donors of genes in varieties registrable under this Act;

(iv) a farmer shall be deemed to be entitled to save, use, sow, resow,

exchange, share or sell his farm produce including seed of a variety
protected under this Act in the same manner as he was entitled before the
coming into force of this Act:

The explanation for the purposes of clause (iv), says that, “branded
seed” means any seed put in a package or any other container and labeled in
a manner indicating that such seed is of a variety protected under this Act.

2. Certain informations to be given in application for Registration. (Section

40) :-

A breeder or other person making application for registration of any variety

under Chapter III shall disclose in the application the information regarding the
use of genetic material conserved by any tribal or rural families in the breeding
or development of such variety. The Registrar may, after being satisfied that the
breeder or such person has willfully and knowingly concealed such information,
reject the application for registration.

3. Rights of communities (Section 41):-

Any person or group of persons (whether actively engaged in farming or

not) or any governmental or non-governmental organisation may, on behalf of any
village or local community in India, file in any center notified, with the previous
approval of the Central Government, by the Authority. In the Official Gazette, any
claim attributable to the contribution of the people of that village or local
community, as the case may be, in the evolution of any variety for the purpose of
staking a claim on behalf of such village or local community.

Where any claim is made under sub-section (1), the center notified under
that sub-section may verify the claim made by such person or group of person or
such governmental or non-governmental organisation in such manner as it deems
fit, and if it is satisfied that such village or local community has contributed
significantly to the evolution the variety which has been registered under this Act,
it shall report its findings to the Authority.
 When the Authority, on a report under sub-section (2) is satisfied, after such
inquiry as it may deem fit, that the variety with which the report is related has been
registered under the provisions of this Act, it may issue notice in the prescribed
manner to the breeder of that variety and after providing opportunity to such
breeder to file objection in the prescribed manner and of being heard, it may
subject to any limit notified by the Central Government, by order, grant such sum
of compensation to be paid to a person or group of persons or governmental or
non-governmental organisation which has made claim under sub-section (1), as it
may deem fit.

Any compensation granted under sub-section (3) shall be deposited by the

breeder of the variety in the Gene Fund.

4. Protection of innocent infringement (Section 42):-

A right established under this Act shall not be deemed to be infringed by a

farmer who at the time of such infringement was not aware of the existence of such
right. A relief which a court may grant in any suit for infringement referred to in
Section 65 shall not be granted by such court, nor any cognizance of any offence
under this Act shall be taken, for such infringement by any court against a farmer
who proves, before such court, that at the time of the infringement he was not
aware of the existence of the right so infringed.

5. Authorization of farmers’ variety (Section 43):-

Where an essentially derived variety is derived from a farmers’ variety, the

authorization under sub-section (2) of Section 28 shall not be given by the breeder
of such farmers’ variety except with the consent of the fanners or group of fanners
or community of farmers who have made contribution in the preservation or
development of such variety.

6. Exemption from fees (Section 44):-

A farmer or group of farmers or village community shall not be liable to pay

any fees in any proceeding before the Authority or Registrar or the Tribunal or the
High Court under the Act or the rules made under it.
 The explanation appended to the section says for the purposes of this
section, “fees in any proceeding” includes any fees payable for inspection of any
document or for obtaining a copy of any decision or order or document under the
Act or the rules, made under it.

OR

Q.NO:3(a) Discuss the procedure for Registration of Registrable plant

varieties.

Introduction:-

Section 15 of the Plant varieties and farmer’s Right Act says that, a new
variety shall be registered if it conforms to the criteria of novelty, distinctiveness,
uniformity and stability. An extra variety shall be registrable under this act within a
specified period if it conforms to such criteria of distinctiveness, uniformity and
stability as shall be specified under the regulation.

Procedure for registration of registrable plant varieties:-

Section 14 to 23 of the plant varieties and Farmer’s Right act speaks about
procedure for Registration of Plant varieties and essentially Derived Variety. The
following is the procedure for registration.

1. Application for Registration, Section 14:-

Any person specified in Section 16 may make an application to the

Registrar for registration of any variety -

(a) Of such genera and species as specified under sub-section (2) of

Section 29; or

(b) Which is an extant variety; or

(c) Which is a farmer’s variety.

2. Persons who may make application Section 16:-

(1) An application for registration under Section 14 shall be made by-

 (a) Any person claiming to be the breeder of the variety; or

(b) Any successor of the breeder of the variety; or

(c) Any person being the assignee of the breeder of the variety in respect of
the right to make such application; or

(d) Any farmer or group of farmers or community of farmers claiming to be

the breeder of the variety; or

(e) Any person authorised in the prescribed manner by a person specified

under clause (a) to (d) to make application on his behalf; or

(f) Any university or publicly funded agricultural institution claiming to be

the breeder of the variety.

(2) An application under sub-section (1) may be made by any of the persons
referred to therein individually or jointly with any other person.

3. Compulsory variety denomination, Section 17:-

(1) Every applicant shall assign a single and distinct denomination to a

variety with respect to which he is seeking registration under this Act in
accordance with the regulations.

(2) The Authority shall, having regard to the provisions of any international
convention or treaty to which India has become a party, make regulation
governing the assignment of denomination to a variety.

(3) Where the denomination assigned to the variety does not satisfy the
requirement specified in the regulations, the Registrar may require the
applicant to propose another denomination within such time as may be
specified by such regulations.

(4) Notwithstanding anything contained in the Trade .Marks Act, 1999 (47
of 1999) denomination assigned to a variety shall not be registered as a trade
mark under that Act.

4.. Form of application, Section 18:-

(1) Every application for registration under Section 14 shall-

(a) be with respect to a variety;

(b) state the denomination assigned to such variety by the applicant;

(c) be accompanied by an affidavit sworn by the applicant that such variety

does not contain any gene or gene sequence involving terminator
technology;

(d) be in such form as may be specified by regulations;

(e) contain a complete passport data of the parental lines from which the
variety has been derived along with the geographical location in India from
where the genetic material has been taken and all such information relating
to the contribution, if any, of any farmer, village community, institution or
organisation in breeding, evolving or developing the variety;

(f) be accompanied by a statement containing a brief description of the

variety bringing out its characteristics of novelty, distinctiveness, uniformity
and stability as required for registration;

(g) be accompanied by such fees as may be prescribed;

(h) contain a declaration that the genetic material or parental material

acquired for breeding, evolving or developing the variety has been lawfully
acquired; and

(i) be accompanied by such other particulars as may be prescribed:

Provided that in case where the application is for the registration of farmers’
variety, nothing contained in clauses (b) to (i) shall apply in respect of the
application and the application shall be in such form as may be prescribed.

(2) Every application referred to in sub-section (1) shall be filed in the office
of the Registrar.

(3) Where such application is made by virtue of a succession or an

assignment of the right to apply for registration, there shall be furnished at
the time of making the application, or within such period after making the
application as may be prescribed, a proof of the right to make the
application.
5. Test to be conducted, Section 19:-

(1) Every applicant shall, along with the application for registration made under
this Act, make available to the Registrar such quantity of seed of a variety for
registration of which such application is made, for the purpose of conducting tests
to evaluate whether seed of such variety along with the parental material conform
to the standards as may be specified by regulations :

Provided that the Registrar or any person or test center to whom such seed has
been sent for conducting test shall keep such seed during his or its possession in
such manner and in such condition that its viability and quantity shall remain
unaltered.

(2) The applicant shall deposit such fees as may be prescribed for conducting
tests referred to in sub-section (1).

(3) The tests, referred to in sub-section (1) shall be conducted in such manner
and by such method as may be prescribed.

6. Acceptance of application or amendment, Section 20:-

(1) On receipt of an application under Section 14, the Registrar may, after
making such inquiry as he thinks fit with respect to the particulars contained in
such application, accept the application absolutely or subject to such conditions or
limitations as he deems fit.

(2) Where the Registrar is satisfied that the application does not comply with
the requirements of this Act or any rules or regulations made thereunder, he may,
either-

(a) Require the applicant to amend the application to his satisfaction; or

(b) reject the application :

Provided that no application shall be rejected unless the applicant has been
given a reasonable opportunity of presenting his case.

7. Advertisement of application, Section 21:-

 Where an application for registration has been accepted, the registrar has, as
soon as may be, to advertise the application with conditions and limitations
subjects to which it has been accepted. The advertisement must also carry the
specifications of the variety for registration including its photograph or drawing,
inviting objections from the persons interested in the matter. Opposition has to be
filed within three months on payment of prescribed fee. The grounds of opposition
can be that the opponents is entitled under the Act, or that registration would not be
in public interest or that the variety may have adverse effect on environment.

8. Registrar to consider grounds of opposition, Section 22:-

The Registrar shall consider all the grounds on which the application has
been opposed and after giving reasons for his decision, by order, uphold or reject
the opposition.

Registration of essentially derived variety, Section 23:-

An application can be made for registration of an essentially derived variety

of the genera or species specified by the central Government under section 29(2). It
has to be made by the person referred to in section 14 and in the manner specified
in section 18 as if the word “ variety” has been substituted with the words
“essentially derived variety”. The documentation and fees for this purpose is
prescribed under rules. The Registrar has to forward the application with its
documents to the authority. The authority has to examine whether the variety
presenred is really derived from the initial variety. It has to do this by conducting
prescribed tests by following prescribed procedure. On its satisfaction, the
authority may direct the Registrar to register the essentially derived variety. The
registrar has to do so accordingly. If the authority is not satisfied, it may refuse the
application.

Q.NO:3(b) write a note on National Gene Fund

Section 45 of the Plant Varieties and Farmer’s Right Act deals with
establishment of national gene fund.

(1) The Central Government shall constitute a Fund to be called the National
Gene Fund and there shall be credited thereto-
 (a) the benefit sharing received in the prescribed manner from the breeder of
a variety or an essentially derived variety registered under this Act, or
propagating material of such variety or essentially derived variety, as the
case may be;

(b) the annual fee payable to the Authority by way of royalty under sub-
section (4) of Section 35;

(c) the compensation deposited in the Gene Fund under sub-section (4) of
Section 41;

(d) the contribution from any national and international organisation and
other sources.

(2) The Gene Fund shall, in the prescribed manner, be applied for meeting-

(a) any amount to be paid by way of benefit sharing under sub-section (5) of
Section 26;

(b) the compensation payable under sub-section (3) of Section 41;

(c) the expenditure for supporting the conservation and sustainable use of
genetic resources including in-situ and ex-situ collections and for
strengthening the capability of the Panchayat in carrying out such
conservation and sustainable use;

(d) the expenditure of the schemes relating to benefit sharing framed under
Section 46.

OR

Q.No:3(b) Relief against Infringement

1. What amounts to infringement Section 64:-

A right established under this Act is to be taken as infringed by a person-

(a) who, not being the breeder of a variety registered under this Act or a
registered agent or a registered licensee of that variety, sells, exports, imports or
 produces such variety without the permission of its breeder or within the scope
of a registered licence or registered agency without permission of the registered
licensee or registered agent.

(b) who uses, sells exports, imports or produces any other variety giving
such variety, the denomination identical with or deceptively similar to the
denomination of a variety registered under this Act in such manner as to
cause confusion in the mind of general people in identifying the registered
variety.

2. Suit for infringement: - section 65

A suit for the infringement of a variety registered under the Act; or relating
to any right in a variety registered under this Act, shall be instituted in any
court inferior to a District Court having jurisdiction to try the suit. “District
Court having jurisdiction” means the District Court within the local limits of
whose jurisdiction of the cause of action arises.

3. Relief in suits for infringement: - Section 66

The relief which a court may grant in any suit for infringement referred to in
Section 65 includes:-

(i) An injunction and at the option of the plaintiff,

(ii) Damages or

(iii) A share of the profits or accounts of profits

The order of injunction under sub-section (1) may include an ex-parte

injunction or any interlocutory order for any of the following matters, namely:-

(a) discovery of documents ;

(b) Preserving of infringing variety or documents or other evidence which

are related to the subject-matter of the suit;

(c) Attachment of such property of the defendant which the court deems
necessary to recover damages, costs or other pecuniary remedies which may
be finally awarded to the plaintiff
 UNIT-IV

Q.NO:4(a) What is a design? Discuss the origin and development of Designs

law.

Introduction:

Protecting and enforcing intellectual property rights remains one of the most
acute legal challenges facing domestic and international businesses. An industrial
design is the ornamental or aesthetic aspect of an article. Industrial designs are
applied to a wide variety of products of industry and handicrafts from technical and
medical instruments to watches, jewelry, and other luxury items; from house wares
and electrical appliances to vehicles and architectural structures; from textile
designs to leisure goods. As these designs consist of the aesthetic features they do
not provide any protection to the technical features of the article.

Meaning of Designs:-

Consumers are influenced by the appearance of the article in their choice.

Many people blindly choose the article which catches their eye by appearance. At
the time of purchase, people are attached by a design which has an artistic merit.
Some articles with a particular design may attract the public and within a short
period, the whole stock may e sold n the market. Hence, design of goods increases
profits by attracting customers. Producers hunt for an attractive design which will
increase sales. Some intellectuals do hard work by putting much thought, time and
expenses to find a design for a particular article which will increase sales.

Hence, a design is something which is applied to an article and is not the

article itself. An article to which the design is to be applied must be something
which is to be delivered to the purchaser as a finished good.

Definition of Design:-

Section 2(d) of the Indian Designs Act 2000 defines “Designs” as follows.

Designs means the features of shape, configuration, pattern, ornament or

composition of lines or colours applied to any article whether in two dimensional
or three dimensional or in both forms, by any industrial process or means, whether
manual, mechanical or chemical, separate or combined, which in the finished
article appeal to and are judge solely by the eye. Thus in general rule, s design
consists of:

1. Three dimensional features, such as the shape of a product,

2. Two dimensional features, such as ornamentation, patterns, lines or colours
of a product,
3. A combination of one or more such features.

Origin and development of Designs in India:-

The patterns and Designs act was the first designs legislation in India
enacted by British rulers. The Act provided the inventors of new patterns and
designs in India, the exclusive, privilege of making, selling and using the invention
in India or authorizing others to do so for the shorter duration of time. The Act
1872 was followed by the inventions and Designs Act 1888 which consolidated
and amended the la relating to the protection to inventions and designs and
contained provisions relating to designs in a separate part. The Act of 1888 was
replaced by the British patents and Designs Act 1907, which increased the
maximum term of protection to 15 years. Where in a remedy for groundless threats
of infringements proceedings was introduced and provisions requiring article to be
marked was relaxed. The British patents and designs Act 1907 which became the
basis of the Indian patents and Designs act 1911. The Patents Act 1907 replaced
the patent provisions of the 1911 Act. The Designs Act f 1911 was governing the
field of industrial Designs.

Since the enactments of the 1911 Act considerable progress has been made
in the field of science and technology. Hence the legal system for the protection of
industrial designs required to ne made more efficient and compatible with the
current requirement and standard in order to ensure effective protection to
registered designs. It was also essential to promote design activity in order to
promote the design element in an article of production. Since 1911 a number of
extensive amendments have been made in the Designs Act. In the mean time
Indian made tremendous progress in the field of science and technology. There has
been increase in the industrial designs and as well the registration of designs. To
provide more effective protection to registered designs and to promote designs
activity in order to promote designs element in an article of production it has
become necessary to make the legal system of providing protection to industrial
designs more efficient. It is also intended to ensure that the law does not
unnecessarily extend protection beyond what is necessary to create the required
incentive for design activity while removing impediments to the free use of
available designs. To achieve these objectives and in order to repeal the designs
Act 1911, the Designs Act 2000 was enacted by parliament.

Changes brought by the designs Act 2000: A Brief Look.

The main aim of the Designs Act of 2000 is to cope up with the increase in
the registration of designs and to encourage the progress in industrial growth. The
act helps to prevent the pinning down of competitors which would block
technological growth. With reference to the definition of the term design under
section 2(d) of the Designs Act, 2000 the following features have been added:

1. It includes the composition of lines or colours applied to any article.

2. Such article may be either in two dimensional forms or in three dimensional
from or both.
3. It does not include any artistic work ad defined under the copyright Act.

Hence, the designs Act, of 2000 does not include the trade and the property
mark alone also includes the “article works”, therefore the definition under the
act of 2000 is an improved one and more comprehensive.

Further the Act of 2000 enhances the initial period of registration from 5 to
10 years, to be followed by further extension of a period of 5 years, while the
Act of 1911 gives a protection of 5 years. Thus it can be seen that the Act of
2000 is far more superior and efficient which encourages technological growth
in India. India has adopted the ‘first to file’ system, which means that the right
holder should file the application on the earliest point of time to rule out the
possibility of any other person claiming for the right of the intended designs.
 OR

Q.NO:4(a) what amounts to piracy of registered designs? Discuss the remedies

against piracy.

Introduction:

The registered owner of a design is given the exclusive right to do

certain things in relation to articles which embody the design and in respect of
which the design has been registered. Copy right in a registered design gives the
proprietor the exclusive right to apply the design to any article in any class in
which the design is registered. The task of determining whether or not a design has
been infringed can be broken down in many ways. It is necessary to determine the
types of actives that constitute piracy. It is necessary to ascertain in the scope of
the registered design. It is then necessary to determine whether the defendant’s
article is the same as, or not substantially different from, the registered design.

Meaning of pirated Article:-

A pirated article is an article covered by the registration of design or a

fraudulent or obvious imitation thereof which has been applied and used without
the licence or written consent of the registered proprietor for the purpose of sale,
whether such article has been made in India or imported.

The following persons could be infringers of a copyright in a design:-

a. A person who has applied the design or a fraudulent or obvious imitation

thereof to the article for the purpose of sale without the licence or consent of
the proprietor.
b. A person who has caused the design to be applied or its imitation as
aforesaid.
c. A person who has done anything with a view to enable the design to be
applied as aforesaid.
d. A person who has imported for the purpose of sale a printed article without
the consent of the registered proprietor.
e. A person who has published or exposed or caused to be published or
exposed for sale a pirated article knowing that it is pirated article.

Piracy of registered Design:-

 Section 22 of the Designs Act deals with Piracy of Registered Design. Under
this act, the commission of following three acts by a person other than the
registered proprietor of that design amounts to piracy of registered design. These
acts are:

(1) For the purpose of sale, to apply the design is registered or any fraudulent or
obvious imitation thereof, except with the licence or written consent of the
registered proprietor, or to do anything with a view to enable the design to
be so applied; or

(2) To import for the purposes of sale, without the consent of the registered
proprietor, any article belonging to the class in which the design has been
registered, and having applied to it the design or any fraudulent or obvious
imitation thereof; or

(3) Knowing that the design or any fraudulent or obvious imitation thereof has
been applied to any article in any class of articles in which the design is
registered without the consent of the registered proprietor, to publish or
expose or cause to be published or exposed for sale that article.

Any of the aforesaid acts shall constitute piracy only when it is committed
during the existence of copyright in any design. Further, it is necessary that the
acts constituting piracy should have been done for the purpose of sale, and not
merely for private or personal use. It is further required that the forbidden acts
have been done in relation to any article in any class of goods in which the
design is registered, and not in relation to other class of goods.

Remedies against Piracy:-

The designs Act provides two alternative remedies to the proprietor of

registered design. It is provided that if any person acts in contravention of the
copyright in the registered design, he shall be liable to pay the registered
proprietor of the design a sum not exceeding Rs. 25,000 for every contravention
recoverable as a contract debt. But the total sum recoverable in respect of any
one design shall not exceed Rs 50, 00. The proprietor may bring a suit for the
recovery of damages for any such contravention, and for an injunction against
the repetition thereof. If he succeeds, he will be entitled to recover such
 damages as may be awarded by the court and restrain the defendant in terms of
the injunction granted by the court. Plaintiff cannot avail both the remedies he
or she has to elect one of them.

A suit for infringement or any other proceeding for relief has to be filled in
the district court having jurisdiction in such case. However, where the
defendants invoke any of the grounds on which the registration of a design may
be cancelled the court shall transfer the suit or such other proceeding to the
High Court for decision.

Following are the remedies available to the plaintiff for piracy of registered
design:-

1. Interlocutory Application:- the plaintiff may seek the interlocutory

injunction during the pendency of infringement suit. The plaintiff must
make out a prima facie case show that the balance of convenience in his
favour. An interlocutory injunction will not normally be granted where
damages would provide an adequate remedy, if the plaintiff claim succeeds.
2. Final Injunction:- if the plaintiff succeed at the trail in establishing
infringement of his registered design, he will normally be entitled to a
permanent injunction to restrain future infringement because there is always
a possibility of the recurrence of such infringement. The object of granting
injunction is to prevent such recurrence and restore the status quo. In
exceptional cases, however, if it can be shown that there is no such
likelihood of any recurrence, then an injunction may be refused.
3. Damages:- the plaintiff in an infringement suit is entitled to recover damages
where he establishes infringement. The measures of damages s the loss caused
to the plaintiff by the defendant’s wrongful conduct. A practical method of
assessing damages is to assess them on the basis of a reasonable royalty upon
all infringing articles made and sold by the defendant. Alternatively damages
may be assessed to compensate plaintiff for the loss of sales suffered by him on
account of the sale of the infringing articles by the defendant, or other damage
caused to him thereby, e.g.; reduction in price.

Q.NO:4(b) write a note on registration of copyright.

The registered proprietor of a design has the copyright in the design.

Copyright is defined as the exclusive right to apply a design to any article in
any class in which it is registered. If the design consists of several parts and
registered without limitation or explanation the exclusive right conferred is
limited to the design as a whole and not to the individual parts even if they are
capable of separate registered. The registered proprietor of a design is the owner
of the right in the design and he possesses copyright over the design. The
registered proprietor of a design is given the exclusive right to commercially
exploit articles to which design is applied.

Copyright in Design:-

Section 11 to 20 the designs Act 2000, deals with copyright in registered

Design

The registration of a design confers on the registered proprietor, copyright in

the design for a period of ten years from the date of registration. If, before that
expiration of the said ten years, application for the extension of the period of
copyright are made in the prescribed manner to the controller, the controller
shall, on payment of the prescribed fee, extend the period of copyright for a
second period of five years from the expiration of the original period of ten
years, the design will fall in public domain, and will become public property.
Prior to the coming into being of the TRIPS agreement the term or duration of
the monopoly over a registered design was not uniform among the countries
and there were different duration of protection offered by the countries.
However, the TRIPS agreement has uniformly fixed the term of the protection
of a registered design as ten years. The Indian Designs Act, 2000 contemplates
the same while extending protection to the registered designs.
 OR

Q.No:4(b) Powers and Duties of Controller

Chapter VII Sections 32-36 of the Indian Designs Act, 2000 deals with
powrs and duites of controller which are as follows:-

1. Power of Controller in Proceedings under Act (Section 32):-

Subject to any rules made in this behalf, the Controller in any proceedings
before him under this Act shall have the powers of a civil court for the purpose
receiving evidence, administering oaths, enforcing the attendance of witnesses,
compelling the discovery and production of documents, issuing commissions for
the examining of witnesses and awarding costs and such award shall be executable
in any court having jurisdiction as if it were a decree of that court.

2. Exercise of Discretionary Power by Controller (Section 33):-

Where any discretionary power is by or under this Act given to Controller,

he shall not exercise that power adversely to the applicant for registration of a
design without (if so required within the prescribed time by the applicant) giving
the applicant an opportunity of being heard.

3. Power of Controller to Take Directions of the Central Government (section

34):-

The Controller may, in any case of doubt or difficulty arising in the

administration of any of the provisions of this Act, apply to the Central
Government for directions in the matter.

4. Refusal to Register a Design in Certain Cases (Section 35):-

(1) The Controller may refuse to register a design of which the use would, in
his opinion, be contrary to public order or morality.

(2) An appeal shall lie to the High Court from an order of the Controller under
this section.

5. Appeals to the High Court (Section 36):-

 (1) Where an appeal is declared by this Act to lie from the Controller to the
High Court, the appeal shall be made within three months of the date of the order
passed by the Controller.

(2) In calculating the said period of three months, the time (if any) occupied in
granting a copy of the order appealed against shall be excluded.

(3) The High Court may, if it thinks fit, obtain the assistance of an expert in
deciding such appeals, and the decision of the High Court shall be final.

(4) The High Court my make rules consistent with this Act as to the conduct
and procedure of all proceedings under this Act before it.

UNIT-V

Q.No:5(a) Discuss the salient features of Convention on Bio-Diversity.

Introduction
The Earth's biological resources are vital to humanity's economic and social
development. As a result, there is a growing recognition that biological diversity is
a global asset of tremendous value to present and future generations. At the same
time, the threat to species and ecosystems has never been as great as it is today.
Species extinction caused by human activities continues at an alarming rate.

Meaning of biological diversity:-

The term “biological Diversity” is commonly used to describe the number

and variety of living organisms on the planet. According to Article 2 of
Convention Biological Diversity, Biological diversity means the variability among
living organisms from all sources including, inter alia, terrestrial, marine and other
aquatic ecosystem and the ecological complexes of which they are part; this
includes diversity within species, between species and of ecosystem
History of the convention:-

In response, the United Nations Environment Programme (UNEP) convened

the Ad Hoc Working Group of Experts on Biological Diversity in November 1988
to explore the need for an. international convention on biological diversity. Soon
after, in May 1989, it established the Ad Hoc Working Group of Technical and
Legal Experts to prepare an international legal instrument for the conservation and
sustainable use of biological diversity. The experts were to take into account "the
need to share costs and benefits between developed and developing countries" as
well as "ways and means to support innovation by local people". By February
1991, the Ad Hoc Working Group had become known as the Intergovernmental
Negotiating Committee. Its work culminated on 22 May 1992 with the Nairobi
Conference for the Adoption of the Agreed Text of the Convention on Biological
Diversity. The Convention was opened for signature on 5 June 1992 at the United
Nations Conference on Environment and Development (the Rio "Earth Summit").
It remained open for signature until 4 June 1993, by which time it had received 168
signatures. The Convention entered into force on 29 December 1993, which was
90 days after the 30th ratification. The first session of the Conference of the Parties
was scheduled for 28 November – 9 December 1994 in the Bahamas. To date,
there are 193 Parties.

Objectives:-

The objectives of the Convention on Biological Diversity are expressed in its

article 1:

 the conservation of biological diversity;

 the sustainable use of its components; and
 the fair and equitable sharing of the benefits arising out of the utilization of
genetic resources, including by appropriate
o access to genetic resources,
o transfer of relevant technologies,
o Funding.

The Convention is thus the first agreement to address all aspects of

biological diversity: species, ecosystems and genetic resources. It is indeed the first
time that genetic diversity is specifically covered in a binding global treaty.
Salient Features of the CBD:-

1. The Convention on Biological Diversity was inspired by the world community's

growing commitment to sustainable development.

2. It represents a dramatic step forward in the conservation of biological diversity,

the sustainable use of its components, and the fair and equitable sharing of benefits
arising from the use of genetic resources.

3. The Convention recognizes for the first time, that the conservation of biological
diversity is "a common concern of humankind" and an integral part of the
development process.

4. The Convention recognizes that all humanity has an interest ensuring the
conservation of biological diversity, including poor nations, women and
indigenous people, and that it needs to be addressed by concerted international
action.

5. Article 6 of this convention stipulates general measures for conservation and

sustainable use of biological resources:

a. "develop national strategies, plans or programmes for the conservation

and sustainable use of biological diversity or adapt for this purpose
existing strategies, plans or programmes which shall reflect the
measures set out in this Convention; and
b. Integrate as far as possible and as appropriate, the conservation and
sustainable use of biological diversity into relevant sectoral or cross-
sectoral plans, programmes and policies."

6. Articles 8 and 9 refer to biological techniques to ensure success of the biological

diversity objectives, including both in-situ and ex-situ measures.

7. Article 10 identifies ways in which member countries should promote

sustainable development practices in order to ensure long-term diversity of
biological resources.

8. The Convention encourages throughout its text the cooperation and coordination
between member countries, particularly with respect to North-South relationships.
These provisions seek to prevent the exploitation of ecologically-rich countries by
economically-rich countries.
9. The governing body of the CBD is the Conference of the Parties (COP). This
ultimate authority of all governments (or Parties) that have ratified the treaty meets
every two years to review progress, set priorities and commit to work plans.

10. In 2010, Parties to the CBD adopted the Strategic Plan for Biodiversity 2011–
2020, a ten-year framework for action by all countries and stakeholders to
safeguard biodiversity and the benefits it provides to people.

11. The Secretariat of the Convention on Biological Diversity (SCBD) is based in

Montreal, Canada. Its main function is to assist governments in the implementation
of the CBD and its programmes of work, to organize meetings, draft documents,
and coordinate with other international organizations and collect and spread
information. The Executive Secretary is the head of the Secretariat.

12. The Convention puts much emphasis on the exchange of information and the
cooperation between countries. To help these processes, the CBD has set up an
international network of partners called the Clearing-House Mechanism (CHM).
This website contributes to the CHM network by illustrating what Belgium is
doing in the framework of the CBD.

OR

Q.No:5(a) Discuss the background and salient features of TRIPS Agreement.

Introduction:-

The Agreement on Trade Related Aspects of Intellectual Property

Rights (TRIPS) is an international agreement administered by the World Trade
Organization (WTO) that sets down minimum standards for many forms of
intellectual property (IP) regulation as applied to nationals of other WTO
Members.[2] It was negotiated at the end of the Uruguay Round of the General
Agreement on Tariffs and Trade (GATT) in 1994.

The TRIPS agreement introduced intellectual property law into the

international trading system for the first time and remains the most comprehensive
international agreement on intellectual property to date. In 2001, developing
countries, concerned that developed countries were insisting on an overly narrow
reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration.
The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating
for example that TRIPS can and should be interpreted in light of the goal "to
promote access to medicines for all."
Background of TRIPS agreement
TRIPS agreement was negotiated at the end of the Uruguay Round of the
General Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the
culmination of a program of intense lobbying by the United States, supported by
the European Union, Japan and other developed nations. Campaigns of unilateral
economic encouragement under the Generalized System of Preferences and
coercion under Section 301 of the Trade Act played an important role in defeating
competing policy positions that were favored by developing countries, most
notably Korea and Brazil, but also including Thailand, India and Caribbean Basin
states. In turn, the United States strategy of linking trade policy to intellectual
property standards can be traced back to the entrepreneurship of senior
management at Pfizer in the early 1980s, who mobilized corporations in the United
States and made maximizing intellectual property privileges the number one
priority of trade policy in the United States.
After the Uruguay round, the GATT became the basis for the establishment
of the World Trade Organization. Because ratification of TRIPS is a compulsory
requirement of World Trade Organization membership, any country seeking to
obtain easy access to the numerous international markets opened by the World
Trade Organization must enact the strict intellectual property laws mandated by
TRIPS. For this reason, TRIPS is the most important multilateral instrument for the
globalization of intellectual property laws. States like Russia and China [3] that
were very unlikely to join the Berne Convention have found the prospect of WTO
membership a powerful enticement.
Furthermore, unlike other agreements on intellectual property, TRIPS has a
powerful enforcement mechanism. States can be disciplined through the WTO's
dispute settlement mechanism.
Salient Features of TRIPS Agreement:-
The TRIPs agreement consists of 73 sections divided into 7 parts each parts has its
own features which discussed as follows:-
1. Part I of the TRIPS act deals with General Provisions and Basic Principles from
Art 1-8. In this part there is specific mention of obligations of parties, Art 1: Nature
and Scope of Obligations Art 2: Intellectual Property Conventions Art 3: National
Treatment Art 4: Most-Favoured-Nation Treatment Art 5: Multilateral Agreements
on Acquisition or Maintenance of Protection Art 6: Exhaustion, Art 7: deals with
objectives and Art 8: deals with principles.

2. Part II of the TRIPS agreement speaks about scope and use of Intellectual
Property Rights. Intellectual Property Rights i.e. copyright and Related Rights (art
9-14), Trade Marks ( Art 15-21) Geographical Indication (Art 22-24), Industrial
Designs (Art 25&26), Patents (Art 27 -34), Layout–designs of Integrated Circuits
(Art 35-38) and Protection of Undisclosed Information (Art-39) are discussed
separately in succeeding chapters.

3. The Article 40 of section 8 of Part-II covers the powers of the members

countries to control the misuse of licence privileged of multinationals.
4. Specifically, TRIPS requires WTO members to provide copyright rights,
covering content producers including performers, producers of sound recordings
and broadcasting organizations;
5. Geographical indications, including appellations of origin;
6. Part III from Art.41-61 of the TRIPS agreement sets out the legal procedures
and remedies for enforcement of Intellectual property Rights.
7. Part IV article 62 of the TRIPS Agreement deals with Acquisition and
maintenance of intellectual property Rights and Related Inert-Parties procedure.
8. Part V Art. 63-64 of the TRIPS agreement dispute prevention and settlement.
Agreement deals with understanding on Rule sand Procedure Governing the
Settlement of Disputes.
9. Part VI Art. 64-67 of the TRIPS Agreement transitional Arrangements. In view
of the special needs and requirements of least-developed Members, their economic,
financial and administrative constraints and their need for flexibility to create a
viable technological base. Further, in order to facilitate the implementation of the
TRIPS agreement, developed country members shall provide, on request and on
mutually agreed terms and conditions, technical and financial cooperation in
favour of developing and least- developed country members.
10. Part VII Art. 68-73 deals with institutional arrangements and final provisions.
Under this part there is an appointment of council for TRIPS to monitor the
operation of TRIPS agreement, in particular compliance with their obligation. It
further makes provision for the protection of existing subject matter, reviewing and
amendment.

Q.No:5(b) write a note on Berne Convention

Berne Convention

The Berne Convention is the principal treaty protecting the Authors and
Composers of Music and the same was last amended on September 28, 1979, the
convention says about the rights enjoyed by the authors/composers like right to
authorise, prohibit reproduction, adoption, etc., and provides for the limitations and
exemptions to the different rights and works confirmed on the performers,
Producers of Phonograms (Sound recording) under its provisions, it also allows the
ratified countries to provide exemptions to the protections confirmed on the
authors, performers and producers. The Convention specifically speaks of Fair
Use. The Berne Convention is ratified by 164 countries.

History of Berne Convention:-

Copyright protection on the international level began by about the middle of

the nineteenth century on the basis of bilateral treaties. A number of such treaties
providing for mutual recognition of rights were concluded but they were neither
comprehensive enough nor of a uniform pattern.

The need for a uniform system led to the formulation and adoption on September
9, 1886, of the Berne Convention for the Protection of Literary and Artistic Works.
The Berne Convention is the oldest international treaty in the field of copyright. It
is open to all States. Instruments of accession or ratification are deposited with the
Director General of the World Intellectual Property Organization (WIPO).

The Berne Convention has been revised several times in order to improve
the international system of protection which the Convention provides. Changes
have been effected in order to cope with the challenges of accelerating
development of technologies in the field of utilization of authors’ works, in order
to recognize new rights as also to allow for appropriate revisions of established
ones. The first major revision took place in Berlin in 1908, and this was followed
by the revisions in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in
Paris in 1971.

The purpose of the Stockholm revision was to provide for rapid

technological developments as well as the needs of newly independent developing
countries, and to introduce administrative and structural changes. As for the
preferential provisions for developing countries worked out in Stockholm, these
were further taken up at the Paris Revision Conference in 1971, where new
compromises were worked out.

Aim/objectives of Berne Convention

The aim of the Berne Convention, as indicated in its preamble, is “to

protect, in as effective and uniform a manner as possible, the rights of authors in
their literary and artistic works.” Article 1 lays down that the countries to which
the Convention applies constitute a Union for the protection of the rights of authors
in their literary and artistic works.

Basic Principles of Berne convention

The Convention rests on three basic principles. Firstly, there is the principle
of “national treatment”, according to which works originating in one of the
member States are to be given the same protection in each of the member States as
these grant to works of their own nationals .Secondly, there is automatic
protection, according to which such national treatment not dependent on any
formality; in other words protection is granted automatically and is not subject to
the formality of registration, deposit or the like. Thirdly, there is independence of
protection, according to which enjoyment and exercise of the rights granted is
independent of the existence of protection in the country of origin of the work.

Works Protected under Berne Convention:-

Article 2 contains a non-limitative (illustrative and not exhaustive) list of

such works, which include any original production in the literary, scientific and
artistic domain, whatever may be the mode or form of its expression. Derivative
works, that is those based on other pre-existing works, such as translations,
adaptations, arrangements of music and other alterations of a literary or artistic
work, receive the same protection as original works (Article 2(3)). The protection
of some categories of works is optional; thus every State party to the Berne
Convention may decide to what extent it wishes to protect official texts of a
legislative, administrative and legal nature (Article 2(4)), works of applied art
(Article 2(7)), lectures, addresses and other oral works (Article 2(2)) and works of
folklore (Article 15(4)). Furthermore, Article 2(2) provides for the possibility of
making the protection of works or any specified categories thereof subject to their
being fixed in some material form. For instance, protection of choreographic works
may be dependent on their being fixed in some form.

One of the important provisions is the one that covers works or expressions
of what is called “folklore.” Without mentioning the word, the Convention
provides that any member country may give protection to unpublished works
where the identity of the author is unknown, but where there is every ground to
presume that the author is a national of that country, by designating, through the
national legislation, the competent authority which should represent the author of
unknown identity and protect and enforce his rights in the countries party to the
Convention. By providing for the bringing of actions by authorities designated by
the State, the Berne Convention offers to countries whose folklore is a part of their
heritage, a possibility of protecting it.

OR

Q.NO:5(b) Write a note on Paris convention for the protection of Industrial

Property.

History

During the last century, before the existence of any international convention
in the field of industrial property, it was difficult to obtain protection for industrial
property rights in the various countries of the world because of the diversity of
their laws. Moreover, patent applications had to be made roughly at the same time
in all countries in order to avoid a publication in one country destroying the
novelty of the invention in the other countries. These practical problems created a
strong desire to overcome such difficulties.

The Vienna Congress, an International Congress on Industrial Property was

convened at Paris in 1878. Its main result was a decision that one of the
governments should be asked to convene an international diplomatic conference
“with the task of determining the basis of uniform legislation” in the field of
industrial property.

A Diplomatic Conference was convened in Paris in 1883, which ended with

final approval and signature of the Paris Convention for the Protection of Industrial
Property. The Paris Convention was signed by 11 States: Belgium, Brazil, El
Salvador, France, Guatemala, Italy, the Netherlands, Portugal, Serbia, Spain and
Switzerland. When it came into effect on July 7, 1884, Great Britain, Tunisia and
Ecuador had adhered as well, bringing the initial number of member countries to
14. El Salvador, Guatemala and Ecuador later denounced the Paris Convention to
join again in the 1990s. It was only during the first quarter of the 20th century and
then particularly after World War II that the Paris Convention increased its
membership more significantly.

Principal Provisions

The provisions of the Paris Convention may be sub-divided into four main
categories: -

1. National Treatment:

The first category contains rules of substantive law which guarantee a basic
right known as the right to national treatment in each of the member countries.
National treatment means that, as regards the protection of industrial property, each
country party to the Paris Convention must grant the same protection to nationals
of the other member countries as it grants to its own nationals. The relevant
provisions are contained in Articles 2 and 3 of the Convention.

2. Right of priority:-
 The second category establishes another basic right known as the right of
priority. The right of priority means that, on the basis of a regular application for
an industrial property right filed by a given applicant in one of the member
countries, the same applicant (or its or his successor in title) may, within a
specified period of time (six or 12 months), apply for protection in all the other
member countries. These later applications will then be regarded as if they had
been filed on the same day as the earliest application. Hence, these later
applications enjoy a priority status with respect to all applications relating to the
same invention filed after the date of the first application. They also enjoy a
priority status with respect to all acts accomplished after that date which would
normally be apt to destroy the rights of the applicant or the patentability of his
invention. The provisions concerning the right of priority are contained in Article 4
of the Convention.

3. Provisions concerning substantive law:-

The third category defines a certain number of common rules in the field of
substantive law like which contain either rules establishing rights and obligations
of natural persons and legal entities or rules requiring or permitting the member
countries to enact legislation following those rules.

4. Administrative framework:-

The fourth category deals with the administrative framework which has been
set up to implement the Convention, and includes the final clauses of the
Convention.