You wrote a book which is like no other, or you designed a logo for a company which distinguishes it from all the others, or you invented something that can be used by the public in general. These are your creations, something born from your intellect, it is your property. Intellectual property is nothing but an intangible form of property which is a result of a person’s creativity.
World Intellectual Property Organization (WIPO) defines intellectual property as “creations of the mind such as, inventions, literary and artistic works, designs and symbols, names and images used in commerce. WIPO recognizes five (5) types of intellectual property, namely; Patent, Copyright, Trademark, Industrial design and Geographical Indication. In this article, we will be focusing on the first three types, i.e., patent, copyright and trademark.
For a patent to be granted, the following conditions are necessary:
Patent is a grant or a right given to an inventor for the protection of his invention. The grant is given by a government authority, which is Indian Patent Office (IPO) in the case of India. The Patents Act, 1970, defines Patent as “a patent for any invention granted under this act”. Whereas, Invention is defined as “a new product or process involving an inventive step and capable of industrial application. Thus, the protection given by a government authority for an individual’s invention is known as patent.
- It should have a subject matter. Something that can be patented.
- It should be something new, novel, something that is not in public domain or that it does not form part of the state of art.
- It should be inventive and should be capable of industrial application, which means that it should have some kind of utility.
Section 3 of the Patents Act describes what does not constitute as inventions, which is as follows:
- an invention which is frivolous or which claims anything obviously contrary to well established natural laws;
- 1[an invention the primary or intended use or commercial exploitation of which would be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;]
- the mere discovery of a scientific principle or the formulation of an abstract theory 2[or discovery of any living thing or non-living substance occurring in nature];
- 3[the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;]
- a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
- the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
- [omitted by Act 38 of 2002;]
- a method of agriculture or horticulture;
- any process for the medicinal, surgical, curative, prophylactic [diagnostic, therapeutic] or other treatment of human beings or any process for a similar treatment of animals 4* to render them free of disease or to increase their economic value or that of their products.
- 5[plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
- a mathematical or business method or a computer programme per se or algorithms;
- a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
- a mere scheme or rule or method of performing mental act or method of playing game;
- a presentation of information;
- topography of integrated circuits;
- an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.]
Section 53 (1) of the Patents Act talks about the term, which is twenty (20) years from the date of filing the application for the patent. The Explanation to the clause 1 of section 53 explains the term of patent in case of International applications, filed under the Patent Cooperation Treaty designating India, shall be twenty (20) years from the international filing date accorded under the Patent Cooperation Treaty.
1. Subs. by s. 4, ibid., for clause (b) (w.e.f. 20-5-2003).
2. Ins. by s. 4, ibid. (w.e.f. 20-5-2003).
3. Subs. by Act 15 of 2005, s. 3, for clause (d) (w.e.f. 1-1-2005).
4. The words “or plants” omitted by s. 4, ibid. (w.e.f. 20-5-2003).
5. Ins. by s. 4, ibid. (w.e.f. 20-5-2003).
Copyright is an exclusive right given to a person who is the brain behind a creative work, someone who created something ranging from literary, dramatic work to sound recordings. It protects the expression of a unique or creative idea and does not protect the idea. For example A, an author comes up with this great idea for his book, but before he could publish it, he sees someone else’s book with some similar storyline. What can he do now? Nothing, as what he thought of was just an idea and was not expressed and an idea is not protected under the Copyright Act, 1957.
Section 14 of the Act defines copyright as “the exclusive right subject to the provisions of the Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:—
- in the case of literary, dramatic or musical work, not being a computer programme,-
- to reproduce the work in any material form including the storing of it in any medium by electronic means;
- to issue copies of the work to the public not being copies already in circulation,
- to perform the work in public, or communicate it to the public,
- to make any cinematograph film or sound recording in respect of the work,
- to make any translation of the work,
- to make any adaption of the work,
- to do, in relation to a translation or an adaption of the work, any of the acts specified in relation to the work in sub-clauses (a) to (f);
- in the case of a computer programme-
- to do any of the acts specified in clause (a),
- to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme,
Provided that, such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.
- In the case of an artistic work,
- To reproduce the work in any material form including-
- The storing of it in any medium by electronic or other means, or,
- Depiction in three-dimensions of a two-dimensional work, or,
- Depiction in two-dimensions of a three-dimensional work,
- To communicate the work to the public,
- To issue copies of the work to the public not being copies already in circulation,
- To include the work in any cinematograph film,
- To make any adaption of the work,
- To do in relation to adaption of the work any of the acts specified in relation to the work in sub-clauses (a) to (d).
- In the case of cinematograph film-
- To make a copy of the film including-
- A photograph of any omage forming part thereof, or,
- Storing of it in any medium by electronic or other means,
- To sell or to give on commercial rental or offer for sale or for such rental, any copy of the film,
- To communicate to the public,
- In the case of sound recording-
- To make any other sound recording embodying it, including storing it in any medium by electronic or other means,
- To sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording,
- To communicate the sound recording to the public.
As a common rule in India, copyright is given for a term of sixty (60) years for the above mentioned types of works for which copyright can be granted. Chapter 5 of the Copyright Act, 1957 deals with the term of copyright.
Sub-clause (zb) to Section 2 of the Trade Marks Act, 1999 defines trade mark as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. So a logo of a company is a trademark, a tagline distinguishing it is a trademark. It gives the owner of the trademark a legal right which protects him in case of unauthorized use. In India, shape of goods can also be trademarked; the only requirement is that it can be graphically represented clearly.
Different types of Trade Marks that can be registered in India are Product Marks, Service Marks, Certification Marks, Shape Marks, etc. The term of a trade mark is for a period of ten (10) years, which can be further renewed. The Trade Mark law covers registration, process of registration, prevention, penalties and remedies.
India has seen a surge in the field of intellectual property and the rights associated with it. Patents, copyrights and trademarks are the backbone of the IP industry. We are seeing more registrations for the protection of a person’s creativity and hard work. The above discussed rights are all similar when it comes to protecting uniqueness of an entity and are yet so different. All these rights protect different types of work, invention or a product or service for a certain period of time. It is on us to make the people around us aware about their intellectual property rights and the consequences of their unawareness. If these rights would not be protected, there would be no respect of ideas and innovations, no place for hard work and unauthorized use of an entity’s valuable asset.