2.

if the proprietor elects to bring a suit for the recovery of damages for any such
contravention, and an injunction against the repetition thereof, to pay such damages as
may be awarded and to be restrained by injunction accordingly.

Unit – V

31. Explain how ‘Paris Convention’ has contributed for the International Protection of
IPRs.
Ans: The Paris Convention applies to industrial property in the widest sense, including patents,
trademarks, industrial designs, utility models (a kind of "small-scale patent" provided for by the laws
of some countries), service marks, trade names (designations under which an industrial or commercial
activity is carried out), geographical indications (indications of source and appellations of origin) and
the repression of unfair competition.

When there was no existence of any international convention in the field of industrial property, it was
difficult to obtain protection for inventions in different countries of the world due to the diversity of
laws. In addition, patent applications were filed at the same time in all countries to prevent a
publication in one country destroying the novelty of the invention in other countries. These practical
problems constituted a strong objective to overcome such problems in the case of IPR. In the late
nineteenth century, the development of a more international-oriented flow of technology and increased
international trade increased the need for harmonization of industrial property laws in both the patent
and trademark sectors. The Paris Convention is also administered by WIPO.

It came into existence to provide some international harmony in intellectual property laws and was
adopted on March 20, 1883, at Paris and enforced on July 7, 1884. It provides basic guidelines for the
protection of intellectual property such as patents, utility models, industrial designs, trademarks,
service marks, trade names, sources of information or signs of appeal, and some provisions for
harassment and national treatment of unfair competition. This treaty came into existence in India on
December 7, 1998. Under the convention, in the anti-discrimination principle, a member country is
empowered to grant nationals of other member countries the equal protection and advantages as it
grants to its own nationals. This anti-discrimination policy of the convention is also a fundamental
principle of many other intellectual property agreements and treaties.
National Treatment: National treatment can be defined with regards to the protection of industrial
property as each country who is a member of the Paris Convention must grant equal protection of their
invention to nationals of the other member countries as it grants to its own nationals. The relevant
provisions are included in Articles 2 and 3 of the Convention. Equal national treatment should be given
to citizens of countries that are not members of the Paris Agreement if they are domiciled in a member
country or if they have “legitimate and efficient” industrial or commercial establishments in the
country concerned.

However, there is no requirement to be the domicile of the country where protection is claimed may
be imposed upon nationals of member countries as a condition for benefiting from an industrial
property right. The doctrine of national treatment not only guarantees that the foreigners will be
protected, but also that they will not be discriminated on any basis. Example: A Russian national
applying for a patent in China will have the same patent rights and level of protection in China as a
Chinese national.

A framework of Priority: Another fundamental principle of the Paris Convention is a ‘framework of

priority’. Under the Paris Convention, an invention can be protected at the same time in various
countries. This also means of access to national patent systems to foreign applicants. An inventor has
the authority to claim the filing date of his first patent application in respective convention country as
an effective filing date for further subsequent applications (regarding the same invention) in any other
member country. Further, the applications must be filed within 12 months of the earliest application in
a matter to claim the priority date.

Example: A USA patent application is lodged on 10 March 2000. On 10 March 2001, the same patent
application is filed in China. China is a convention member and as a result, the Chinese application is
treated as though it was filed on 10 March 2000. If without the treaty, the patent in the example was
treated as though it was filed on 10 March 2002 in China, the invention would likely already have been
disclosed and thus un-patentable in China.

The meaning of the right of priority means that in the foreign country, the application of patent will be
filed from the earliest date of filing in the home country for purposes of the prior art. This is profitable
for an inventor , as it allows the inventor to prevent detrimental effects of public disclosure of his
invention that occurred after the earliest application and before filing in foreign countries.
 32. State the important/salient features of Convention of Biological Diversity (CBD) 1961.
Ans: Several international conventions and treaties related to biodiversity are under enforcement.
Convention on Biological Diversity (CBD), 1992 is the most important international convention
related to biodiversity, which brought new era in the field of biodiversity. The convention
recognized for the first time in international law that the conservation of biological diversity is “a
common concern of humankind” and is an integral part of the development process. The
agreement covers all ecosystems, species, and genetic resources. The Convention acknowledges
that substantial investments are required to conserve biological diversity. It argues, however,
that conservation will bring us significant environmental, economic and social benefits in return.

SALIENT FEATURES OF CONVENTION ON BIOLOGICAL DIVERSITY:

i. CBD recognizes that Conservation of Biological Diversity is a common concern of
humankind. Earlier, biodiversity was considered heritage of humankind. But CBD recognizes
that States have sovereign right over their biological resources. CBD puts the responsibility
of conservation and sustainable use of biological resources on the states. (Art. 3 of CBD) Thus,
states have sovereign right to exploit their biological diversity as per their policies. Previously
biodiversity was considered heritage of humankind. State is responsible to control their
resources without damaging the environment of other states.
ii. CBD has recognized that certain human activities have reduced biodiversity. The reason being
the lack of information and knowledge about biodiversity and need to develop scientific,
technical and institutional capabilities.
iii. Therefore, CBD stresses upon the need to establish the mechanism for fair and equitable
sharing of benefits arise from biodiversity and their related traditional knowledge, especially
the need of full participation of women at all levels in policy making and implementation for
biodiversity conservation.
iv. CBD seeks to establish strong cooperation among states, regions, intergovernmental
organizations and non-governmental sectors, special consideration to developing countries
(more for the LDCs) to provide additional financial resources and relevant technologies.
Accordingly, each contracting country has to cooperate other countries for the conservation
and sustainable use of biodiversity. The cooperation can be bilateral or multilateral. If
necessary, any party can ask help from competent international organizations for arranging
cooperation.
v. CBD is committed to conserve and sustainable use of biological diversity for the benefit of
present and future generations. (Art. 6 of the CBD)
 a) Develop national strategies plans or programmes for the conservation and susta1nable
use of biological diversity or adapt for this purpose existing strategies plans or programmes
which shall reflect, inter alia, the measures set out in this Convention relevant to the
Contracting Party concerned; 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.”
vi. CBD envisages identification and monitoring system for effective conservation of
biodiversity, under Article 7, and for in situ conservation under Article 8 and for ex situ
conservation under Article 9.
a) Identify components of biological diversity important for its conservation and sustainable
use having regard to the indicative list of categories set down in Annex I;
b) Monitor, through sampling and other techniques, the components of biological diversity
identified pursuant to sub-paragraph (a) above paying particular attention to those
requiring urgent conservation measures and those which offer the greatest potential for
sustainable use;
c) Identify processes and categories of activities which have or are likely to have significant
adverse impacts on the conservation and sustainable use of biological diversity, and
monitor their effects through sampling and other techniques; and
d) Maintain and organize, by any mechanism, identification and monitoring activities
pursuant to sub-paragraphs (a), (b) and (c) above.”

33. Discuss the background, objects and salient features of TRIPS Agreement.
Ans: 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. It was negotiated at the end of the Uruguay Round of the General Agreement
on Tariffs and Trade (GATT) in 1994. The TRIPS Agreement is one of the most significant WTO
accords. The Agreement went into effect on January 1, 1995.

The General Agreement on Tariffs and Trade (GATT) was the only multilateral mechanism
overseeing international commerce until the World Trade Organization (WTO) was established in
1995. Under GATT, there were eight rounds of negotiations, the first five of which were solely
focused on tariffs, while the sixth round included discussions on anti-dumping measures, which
included provisions for member nations to control the dumping of goods into their territory by other
nations that could harm their economies.

TRIPS 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.

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.

Objectives of TRIPS: 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. The TRIPS Agreement
protects intellectual property in trade-related regions to a large extent and is regarded as a
comprehensive new framework for intellectual property standards protection. The TRIPs Agreement
also has the distinction of being the first legal agreement to address all areas of intellectual property
with a number of specific clauses.
Salient Features of TRIPS Agreement: Specifically, TRIPS contains requirements that nations’
laws must meet for: copyright rights, including the rights of performers, producers of sound
recordings and broadcasting organizations; geographical indications, including appellations of origin;
industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new
plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also
specifies enforcement procedures, remedies, and dispute resolution procedures.

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.”

The three main issues governed by the agreement are:

 Standard– All member states are required to provide a minimum set of criteria for the protection
of IPRs in each of the IP categories covered by the Agreement. Each area of IP is addressed in
such a way that the major aspects of protection, such as the subject matter sought to be protected,
the rights to be granted, and possible exceptions to such rights, as well as the minimum period of
protection, are all explicitly stated.

 Enforcement– The second set of clauses focuses on domestic processes and remedies for
intellectual property rights enforcement. The Agreement establishes a set of broad rules that
apply to all IPR enforcement actions. It also includes rules on civil and administrative processes
and remedies, provisional measures, particular border requirements, and criminal proceedings, all
of which outline the procedures and remedies that must be provided so that the right holders can
successfully exercise their rights.

 Dispute settlement– Disputes occurring between WTO members over responsibilities emanating
from the TRIPS Agreement are subject to the WTO’s dispute resolution processes.

The whole TRIPS Agreement is further divided into seven parts which contain the complex
provisions regarding intellectual property:

 Part I- General Provisions and Basic Principles (Article 1 to Article 8)

 Part II- This part covers the requirements for the availability, scope, and application of
intellectual property rights. (Article 9 to Article 40)
 Part III- The enforcement of IPRs is the focus of this part. (Article 41 to Article 61)
 Part IV: This part covers the procedures for obtaining and maintaining intellectual property
rights. (Article 62)
 Part V: This part deals with the prevention and resolution of conflicts resulting from the
provisions of the Agreement. (Article 63 to Article 64)
 Part VI: This part is about transitional agreements. (Article 65 to Article 67)
 Part VII: This part of the Agreement deals with a variety of institutional arrangements. (Article
68 to Article 73).
34. Explain the object and salient features of Berne convention. Explain of 'Berne
Convention'.
Ans: Bern is the capital of Switzerland. This convention was held in Switzerland, in the year 1887.
Berne Convention is considered to be the very first international treaty in the field of Copyrights. It
got revised in 1896 (Paris), then in 1908 (Berlin),1914 (Berne), 1928 (Rome), 1948 (Brussels), then
in 1967 and finally in 1971 (Paris). Berne Convention has 38 articles which are broadly divided into
two categories:

• Article 1-21: They deal with rights, duties, and obligations of member states.

• Article 22-38: They deal with administrative and final clauses of this convention.
The major objective of this convention was to give a uniformity to the rights of authors in their literary
and artistic works. The convention contains some basic principles.

The first and the foremost principle was that there should be a principle of national treatment,
according to which, if any artistic work is originated in any one of the members states then, in that
case, it should be considered as originated in every state and it should be granted the same right as it
will get in its own country. Apart from the national treatment, they get it is very important that this
protection is granted automatically and there is no compulsion of getting oneself registered in that
country.

Another important provision of this convention is that it covers works or expressions of “folklore”.
Folklore refers to oral history which is passed down from generation to generation and is kept active
by the people in the culture. Now, this tradition and history consist of music, legends or even myths.
So, this convention gives protection to both published as well unpublished works.

Article 2(6) of the convention states that the convention is to operate for the benefit of both authors as
well his/her successors in title.

That is why Article 7 states that the minimum duration of protection is the whole life of the author and
50 years after his death. For cinematographic works, the duration of protection is 50 years after the
work has been made available to the public and in case it is not made available more than 50 years
after the making of such work.
This convention proved beneficial for its member countries as the work of its authors are automatically
protected from being plagiarized in other countries, which ultimately will help these authors in
expanding their market share across borders and deriving profit from it.

35. Explain the objectives of Convention on Bio-diversity (CBD).

Ans: The Convention on Biological Diversity (CBD) is the international legal instrument for "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" that has been ratified by 196
nations.

Its overall objective is to encourage actions, which will lead to a sustainable future. The conservation of
biodiversity is a common concern of humankind. The Convention on Biological Diversity covers
biodiversity at all levels: ecosystems, species and genetic resources. It also covers biotechnology,
including through the Cartagena Protocol on Biosafety. In fact, it covers all possible domains that are
directly or indirectly related to biodiversity and its role in development, ranging from science, politics and
education to agriculture, business, culture and much more.

The CBD’s governing body 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.

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.

The convention reminds decision-makers that natural resources are not infinite and sets out a philosophy
of sustainable use. While past conservation efforts were aimed at protecting particular species and habitats,
the Convention recognizes that ecosystems, species and genes must be used for the benefit of humans.
However, this should be done in away and at a rate that does not lead to the long-term decline of biological
diversity.
The convention also offers decision-makers guidance based on the precautionary principle that where
there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty
should not be used as a reason for postponing measures to avoid or minimize such a
threat.

The Convention acknowledges that substantial investments are required to conserve biological diversity.
It argues, however, that conservation will bring us significant environmental, economic and social
benefits in return.

Objectives of Convention on Biological Diversity: 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:
➔ access to genetic resources,
➔ transfer of relevant technologies,
➔ 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.

The Convention also 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. In other
words, 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.

Some of the many issues dealt with under the convention include:

 Measures and incentives for the conservation and sustainable use of biological diversity.
 Regulated access to genetic resources and traditional knowledge, including Prior Informed
Consent of the party providing resources.
 Sharing, in a fair and equitable way, the results of research and development and the benefits
 arising from the commercial and other utilization of genetic resources with the Contracting
Party providing such resources (governments and/or local communities that provided the
traditional knowledge or biodiversity resources utilized).
 Technical and scientific cooperation.
 Access to and transfer of technology, including biotechnology, to the governments and/or
local communities that provided traditional knowledge and/or biodiversity resources.
 Coordination of a global directory of taxonomic expertise (Global Taxonomy Initiative).
 Impact assessment.
 Education and public awareness.
 Provision of financial resources.
 National reporting on efforts to implement treaty commitments.

Unit – I
1. Computer software and copyright.
Ans: In India, the Intellectual Property Rights (IPR) of computer software is covered under the
Copyright Law. Accordingly, the copyright of computer software is protected under the provisions of
Indian Copyright Act 1957.

Computer program are literary works under the definition in the Copyright Act. A “computer
program” is a set of statements or instructions to be used directly or indirectly in a computer in order
to bring about a certain result. Copyright for computer programs prohibits copying of program
structure and design. The graphics, sounds, and appearance of a computer program also may be
protected as an audio-visual work; as a result, a program can infringe even if no code was copied.

Just as a copyright came into being when the original lines of source code were written by the
programmer, so another copyright comes into being for each addition or modification to the source
code that shows sufficient originality. Because of this, a computer program generally is protected not
by a single copyright but by a series of copyrights starting when it is first written and continuing
through the last modification.

Protection of Copyright Software: Generally, copyright laws protect the form of expression of an
idea, but not the idea itself. With respect to software, this typically means that the computer program,
in both human-readable i.e., Source Code and machine-executable form i.e., Object Code, and the
related manuals are eligible for copyright protection, but the methods and algorithms within a