‘Intellectual property right’ is the much touted phrase in today’s era of market competition and globalization. This article aims to introduce this concept that sounds hi-fi and is somewhat intriguing to a layman.
Everyone knows what a property is. In day to day parlance we associate the word property with some object or land that belongs to a particular person. So if I have an apartment in Delhi, it is my property. Now in law, the word is a little differently understood. It refers to the bundle of rights that a person possesses in relation to a particular object. It is defined as an exclusive right to possess, enjoy, use, transfer, alienate and exclude others from doing so an object. It comes down to a simple thing: if I have an apartment in Delhi, I have a right to use and enjoy it or to sell it or bequeath it to somebody and to prevent others from using or enjoying it. The same thing applies to a person’s artistic or creative works which constitute his intellectual property. Intellectual property is nothing but a creation of one’s mind. It may be an article, a song, or an invention. The property rights when granted for such intellectual property become the intellectual property rights.
The object of granting IPRs is to prevent unauthorized usage of someone’s artistic creation and thus encourage creativity and innovation. The rationale behind it is simple: If I have used my mind and expended my energy in writing an essay, other people should not be allowed to use it as their own without giving me due acknowledgement or compensation. Just like the owner of a house charges some money (rent) from a person who wants to live in that house as a tenant, the owner of an intellectual property (e.g a song) can charge a particular fee from anyone who wants to use it. Thus intellectual property rights are exclusive rights of an owner of an invention or a musical or literary work etc. to derive benefits from his work thus giving him financial incentives to innovate and create.
Once the concept of intellectual property rights is clear, a little more insight into this field may be interesting. It is because of these rights that the authors and music composers earn their living. They are paid for their work by the publishers who want to publish their books or songs. This type of IPR which is given for original works is known a copyright and extends to books, songs, dramatic works, paintings, photographs, movies etc. You can easily relate this to the ‘All rights reserved’ condition that one comes across in a book. That stipulates nothing but that anyone who wants to reproduce or transmit, in any form, any part of the publication cannot do so without the prior permission of the publisher. Here comes a question in your mind. It is the author’s original work, then why is the permission of the publisher required? Now that is because the author usually ‘assigns’ his copyright and related rights to the publisher. And this is why a copyright is called an IPR: the owner, like the owner of a tangible object, can give it away to anyone he wishes to and at any price! That is simple. Isn’t it? The Copyright Act, 1957 governs the registration and the term etc. of the copyright in our country. The term or length of the copyright differs from country to country. In India, a copyright persists during the life of the author plus sixty years after it.
IPRs also cover trademarks, patents, geographical indications, trade secrets, semi-conductor designs and industrial designs. While the latter few may not be very relevant in day-to-day life, the first three need a comprehensive discussion. Trademarks are the logos or the symbols that companies use to mark out and identify their products. The “Coca Cola” written in a distinctive flowing handwriting on a red background is the trademark of the soft drink and enables one to recognize the brand immediately. Similarly the Swoosh (tick mark) and the logo “Just Do It” are associated with the world famous brand “Nike”. Trademarks are a sine qua non for a fair and competitive market environment. If I open a company today and imitate a well established trademark, I may have to suffer grave legal consequences! Because such a company that is imitating the trademark may try to pass their products off as some other popular company’s thus taking advantage of their reputation and good will that they built up for themselves over the years. Here is a simpler version: If you go to a shop and ask for ‘Real’ juice, you expect to get ‘the ‘Real’ juice which is supposedly packed with real fruit nutrition and if you see a similar or same tetra pack (named perhaps ‘Reel’), you buy it because of the image ‘Real’ juice has in your mind! Even if the trademark is not registered, a successful case of ‘passing off’ or ‘trademark infringement’ can be made out against the other company if the one with the trademark is able to prove that the particular symbol or logo it is trying to protect has come to be associated with its products in the mind of the consumers.
Another interesting IPR is a geographical indication (GI). It is granted to products that are manufactured in a specific geographical location (a city, town or a locality). It is a kind of certification that the product possesses certain qualities and characteristics owing to its specific origin. It may relate to either the climate or soil of that place or a particular kind or process that is used there. Geographical Indications of Goods (Registration & Protection) Act, 1999 governs such matters. A GI is registered for a period of 10 years and can be renewed from time to time. Darjeeling tea, Basmati rice, Lucknow Chikan work and Muga silk of Assam are some popular Indian products that have a GI. Recently the “tirupati laddoo” that is served as Prasad in the Venkateshwara temple in Andhra Pradesh has been assigned the GI. It should be noted that as a consequence, in no other part of the world can that particular laddoo be manufactured and sold under the same name i.e under the pretence that it is the tirupati laddoo of Venkateshwara temple.
A patent is an IPR that is granted for an invention. Thus it is the exclusive right of an inventor to prevent others from making, using or distributing the patented invention without his permission. Again the specific procedure and requirements of granting a patent differ from country to country. But a patent is granted only when the invention is essentially novel, useful and non-obvious. The Patents Act, 1970 governs patents in India which are granted for a period of twenty years. The rationale behind granting a patent is that the inventor has spent his technical know-how or skills in inventing a drug, manufacturing process etc. and is ready to disclose it to others so that the people at large can be benefited. Now he must be given an adequate fee/acknowledgement for his work. There is however, in most countries, a provision of ‘compulsory license’ where the government gets the right to manufacture, use and distribute the invention even without the permission of the patent holder. This happens when the patent holder’s rights clash with public interests, for example, if he sets the price of an important drug so high that is not within the reach of the common man.
The concept of intellectual property rights is a boon to the modern society as it not only prevents people from taking undue benefits from other peoples’ works but also gives them an incentive to create and innovate. It is almost impossible to imagine the present world without these rights where there would be no system to protect the works of creators and authors and anyone could copy anything without any acknowledgement to the creator! The intellectual property rights form the very backbone of the modern, industrial society.
1 st year student, National Law Institute University, Bhopal.
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]