Nature, Concept and Theories of Intellectual Property Rights

    Property was said to be classified as movable or immovable during the ancient era. But with the impact of the industrial revolution and rapid changes in science, technology, and culture, a new term of definition of property came into existence called ‘Intellectual Property’. New rights and properties like patents, copyrights, and designs are exclusively under the classification of Intellectual Property, which grabbed the attention of the people due to its unique characteristics. Intellectual Property refers to the creation of minds, innovations, inventions like literary and artistic works and designing work of symbols, images and names that can be used in the field of commerce.

    NATURE OF IPR

    Intellectual Property deliberates a broader sense of definition of the legal property which is a result of the industrial activities, scientific acts and artistic works. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of the creators to their creations and inventions and such rights of the public in access to those creations. The second is to promote, as a deliberate act of government policy, creativity and dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.

    The expression ‘industrial property’ covers inventions and industrial designs. Simply stated, inventions are new solutions to technical problems, and industrial designs are aesthetic creations determining the appearance of industrial products. In addition, industrial property includes trademarks, service marks, commercial names and designations, including indications of source and appellations of origin, and protection against unfair competition. Hence the aspect of intellectual creations -although existent -is less prominent, but what counts here is that the object of industrial property typically consists of signs transmitting information to consumers, in particular, as regards products and services offered on the market, and that the protection is directed against unauthorized use of such signs which is likely to mislead consumers and misleading practices in general.

    Scientific discoveries are not the same as inventions. The general treaty on the International Recording of Scientific Discoveries, 1978 defines a ‘scientific discovery’ as ‘the recognition of phenomena, properties or laws of the material universe not hitherto recognized and capable of verification. Inventions are new solutions to specific technical problems. Such solutions must, naturally, rely on the properties or laws of the materials universe , otherwise they could not be materially or ‘technically’ applied, but those properties or laws need not be properties or laws’ not hitherto recognized’. An invention puts to new use, to new technical use, the said properties or laws, whether they are recognized (“discovered”) simultaneously with making the invention or whether they were already recognized (“discovered”) before and independently from the invention.

    OBJECTIVES OF IPR

    Following are some of the objectives of IPR:

    • To create public awareness about the economic, social and cultural benefits of IPRs among all sections of the society.
    • To stimulate the generation of IPRs.
    • To have strong IPR laws which protect the rights of the owners with larger public interest.
    • To modernize and strengthen service oriented IPR administration.
    • To make the IPR more valuable through commercialization of products and services.
    • To strengthen the law enforcement as well as the judiciary related to IPR to avoid the IPR irregularities.
    • To strengthen human resources and expand such for teaching, learning, training and skill development related to IPR.

    TYPES OF IPR

    PATENT

    Patent is a right granted exclusively to an invention of a product or process that provides a new way of doing something unique or completely new with the out of the box concept or that offers a new technical solution to a problem. A patent provides ownership to the concerned patent of the product or process for the protection of their inventions and it is being granted for a limited period of time that can be considered as generally 20 years.

    Patent is a very necessary aspect in the current era of competitive market and to maintain sustainability in the industrial reforms. Patents provide market rewards for inventions and these rewards enhance the field for better competition by grabbing more and unique opportunities and encourage inventions as well. An invention must generally fulfil some criteria to be protected by a patent. It must be of practical use and should have some novelty or introduction of new technique to the particular technical field which was not a part of the existing body. The invention must show new, unique and inventive steps that could not be deduced by a person with an average knowledge of the technical field. Its subject matter hence can be accepted as ‘Patentable’ under law. In many countries, scientific theories, mathematical experiments, plant or animal varieties, discoveries of natural substances, commercial methods and medical methods are not considered as ‘Patentable’. [2]

    Patent Protection gives full rights and authorities to the patent owner. No one can make, use, distribute or sell the particular invention commercially without the permission and consent of the patent owner. A patent owner has the authority to who may or may not use the patent. Patent owners can give permission to other parties to use their inventions on a basis of mutual agreement. Owners may also sell their rights to a third party and that will become the new owner of the patent hence after. Once a patent expires, the protection ends there and the invention comes under the public domain.

    TRADEMARK

    A trademark is a unique sign that identifies and signifies particular goods or services produced or provided by an individual or company. This trademark system helps the consumer to identify and purchase a product or service based on its specific characteristics and quality as indicated by its unique trademark.

    Trademark protection ensures that the owners of marks have the exclusive right to use them to identify goods or services, or to authorize others to use them in return for payment.  The period of protection varies, but a trademark can be renewed indefinitely upon payment of the corresponding fees. Trademark protection is legally enforced by courts that, in most systems, have the authority to stop trademark infringement. Trademarks help the enterprise to gain financial profit with market recognition. Trademark protection also hinders the efforts of unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior or different products or services. It can be granted anyone who can certify that their products meet certain established standards. Some examples of recognized certification are the internationally accepted “ISO 9000” quality standards and Ecolabels for products with reduced environmental impact.

    Trademarks may be one or a combination of words, letters and numbers. They may consist of drawings, symbols or three-dimensional signs such as the shape and packaging of goods. In some countries, non-traditional marks may be registered for distinguishing features such as holograms, motion, colour and non-visible signs. In addition to identifying the commercial source of goods or services, several other trademark categories also exist. Collective marks are owned by an association whose members use them to indicate products with a certain level of quality and who agree to adhere to specific requirements set by the association. Such associations represent, for example, accountants, engineers or architects. Certification marks are given for compliance with defined standards but are not confined to any membership.

    It is a regime of the law giving protection to graphic representation to words or logos or depending on the jurisdiction question such as sound or smells which are distinctive in nature and serve as source identification. There is also a recent phenomenon which is representing goods in their smell and sound. It is to be found on the goods associated with them. It enables the customer to identify the goods from others. They serve as a source identifier. Trademarks perform communication functions. Once there is a valid representation, it gives the mark owner an exclusive right. It begins with registration and publication of the mark. But there are exceptions which serve what trademarks registered serve which are not registered. It means they deserve protection even though they are not registered. They exist forever so long as the good with which they are associated continue to be sold. But they require renewal. [3]

    INDUSTRIAL DESIGN

    An industrial design refers to the ornamental aspects of an article. A design may consist of three-dimensional features such as the shape or surface of an article, or two-dimensional features, such as patterns, lines or color. Industrial design is applied to various industrial products 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.

    Industrial designs are what make an article attractive and appealing hence they add to the commercial value of a product and increase its marketability. When an industrial design is protected, the owner or the entity who has registered the design is assured an exclusive right and protection against unauthorized copying or imitation of the design by third parties. An effective system of protection also benefits consumers and the public at large, by promoting fair competition and honest trade practices, encouraging creativity and promoting more pleasing products.

    Industrial designs protection helps to promote economic development by encouraging creativity in the industrial and manufacturing sectors as well as in traditional arts and crafts. Industrial designs can be relatively simple and inexpensive to develop and protect. They are reasonably accessible to small and medium-sized enterprises as well as to individual artists in both developed and developing countries.

    Some call this design right (European) and some call it patentable design, industrial design (WIPO and other international organizations). A design is a kind of intellectual property which gives an exclusive right to a person who has created a novel appearance of a product. It deals exclusively with appearance. The principles which have been utilized in developing industrial design law are from experiences of patent and copyright laws. It shares copyright laws because the design is artistic. It shares patent law because there are scientific considerations. Design law subsists in a work upon registration and communication. It makes them close to patent law since they are also founded in patent law. Duration is most of the time 20 years like the patent law trademark Rights law.

    GEOGRAPHICAL INDICATION

    Indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin.” Geographical indications are valuable to producers from particular regions for the same reasons that trademarks are valuable. First, they are source identifiers; they identify goods as originating in a particular territory, or a region or locality in that territory. Geographical indications are also indicators of quality; they let consumers know that the goods come from an area where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographic origin. It is used to indicate the regional origin of particular goods, whether they are agricultural products or manufactured goods ; provided that those goods derive their particular characteristics from their geographic origin. Any producer who meets the standards set by the GI owner can use a GI. In the United States, the owner of a GI can be any legal entity be it a government, an association of producers, or even an individual.

    In India geographical indications are protected and governed by the Geographical Indications of Goods (Registration and Protection) Act, 1999.

    Under the Geographical Indications of Goods (Registration and Protection) Act, 1999 an application can be made for registering a geographical indication by an association of persons or producers or any organization or authority representing the interests of the producers of the goods concerned under section 11 of the Act.

    Further, Section 18 of the Act provides that the registration of a geographical indication shall be for a period of 10 years and shall be renewed for a period of another 10 years on an application made in the prescribed manner and within the prescribed period and subject to the payment of the prescribed fees.

    COPYRIGHT

    Copyright covers literary works such as novels, poems, plays, films, music, artistic works like paintings, photographs and sculptures and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings and broadcasters in their radio and television programs.

    It provides a helpful means of protecting original content. It serves to give people credit for the work they do, which is something we can all appreciate. Therefore, if you ever consider copying someone else’s content, think of how it would make you feel if someone copied your original work and published it as their own. If you ever would like to use another person’s content, make sure to ask the author for permission first. And always give credit where credit is due.

    https://legalreadings.com/environmental-protection/

    THEORIES

    A growing percentage has been seen in the legal fields related to intellectual property rights in the recent years. With these changes and as a result of recent trends, there have been many debates related to the theories of IPR. The theories are as follows:-

    THE NATURAL RIGHTS THEORIES

    In order to justify IPR, the natural right theories considers that everyone has a natural property right on their respective ideas. As a matter of fact, the creation comes from the effort and creativity of its author. In other words, this theory does not make any difference between intellectual property and the traditional tangible property which includes the right to use, to exclude others from use and transfer the owned objects. Accordingly , anyone who violates the intellectual rights of an author, creator or inventor is considered to commit a duplicity or theft.

    THE UTILITARIAN THEORY

    By definition this theory is based on the fact that industrial development as well as cultural progress of goods and services have an impactful benefits on society. Consequently , in order to give a leverage to the inventions and the creation, this needs a guaranteed outcome relevant to the cost of work. intellectual rights represent an artificial encouragement from the aspect of the production and justifies profit that are brought to the whole society.

    THE ETHNIC AND REWARD THEORY

    This theory explains intellectual property rights with some moral and ethical aspects. the ethic requests a fair and proportional contribution for the effort that was made by the creator or the inventor towards the society’s utility. However the rewards are given to the people who do something extraordinary and disagreeable for the well being of the human kind.

    THE PERSONHOOD THEORY

    The theory justifies everyone’s personality and builds itself in works and creation. The developing of the personality is inherent to the property right we have. This theory claims that intellectual rights permit and protect the development of the personality.

    CONCLUSION

    Intellectual Property Rights provides ultimate immunity as well as complete authority to the owners holding the ownership of copyrights, patents, trademarks , etc. The rights empower the owners to file a suit or claim for rightful ownership in case of any kind of duplication or misuse of the particular product or service without the concerned authorization of the specified owner. The court of law should also consider the facts that the rights have been properly utilized and not used in a wrongful manner intentionally by the owner for his/her personal gain. The court should observe all the key notes that are mentioned in the memorandum between two parties i.e the owner and the authorized person specified in the memorandum to use copyrights, trademarks or patent specifically just to avoid any kind of conflict and personal vendetta by the owner or by the later one.

    REFERENCES

    [1] Federal Democratic Republic of Ethiopia Constitution article 40(2).

    [2] Dr. Claas Junghans, “Intellectual Property Management-A guide for Scientists, Engineers, Financiers and Managers” Wiley-VCH verlag GmBH (2006).

    [3] Ms. P. Bindu Madhavi, Asst. Professor,   Department of MBA, IARE, “Lecture Notes on Intellectual Property Rights”.


    BY ROCKY DAS | KINGSTON LAW COLLEGE

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