The intellectual property law scenario in India: Is it strong enough?


The Article is an overview of the intellectual property rights scenario prevalent in India and makes an attempt to understand as to whether the current system in place is strong enough. It includes an overview of the different Acts in place, the steps taken by the Government so far to improve the situation and what more can be done to strengthen it.

Introduction


The current century can be attributed as that of information revolution. Economies today are driven by knowledge. It is this knowledge that fosters innovation which in turn pushes the economies of nations. It is in the context of this knowledge-economic age that brain power assumes more significance than the traditional resources of land, labour and capital.

Such knowledge resources that are the creations of the mind, skill and intellect and that can be turned into valuable assets or property are known as intellectual property of mankind.

In today's age, intellectual property has immense value in the market as useful commodities that drive the economy forward and as such, they deserve adequate protection. Innovation has been a hallmark of advancement of technology and therefore, must be encouraged. It is thus essential that innovators are encouraged further and their creations safeguarded so that they are not appropriated by others. The creator has rights over his creations and they must be subjects of protection. But at the same time, his creations must be made available in the public domain to be utilized for the benefit of all.

Thus, a balance needs to be maintained between access of those creations to the public and rights bestowed on the innovator to prevent him from exercising monopoly.

In the age of globalization, useful creations of the mind are also objects of trade. Therefore, every country must have an appropriate and well-established intellectual property right (IPR) mechanism in place.

IPR as a subject is an emerging field and has assumed great significance as evident from the fact that many multinational companies have invested substantially in research and development (R&D) in India. Any company that plans to go overseas, first and foremost, tries to ensure that their intellectual assets will be adequately protected in the host country because there are increasing cases of attempts of piracy of people's knowledge resources.

Thus, IP can be designated as an important tool for technical, industrial and economic development worth of protection.

Defining IPR


As already stated, intellectual property are creations of the mind. They can include a book, a song, a composition, choreography, an invention, a design, a logo or a trademark etc. They are intangible assets and accord exclusive rights to their proprietors. They cannot be exhausted by consumption. It is to be understood that rights subsist over the work and not the object containing the work. For instance, copyright does not subsist over a book per se but the contents of the same and how it has been expressed in the book. It is to be noted that when it comes to copyright, it subsists on the expression of the idea and not the idea itself.

IP legislations and treaties (that have been ratified) by India


IPR is an emerging field and it is on the account of this fact that India currently has a weak IPR system in place although significant efforts have been made to strengthen the same. Nevertheless, over the last few decades, India has taken steps in its attempt to establish a decent IP system.
First and foremost, in the field of legislation, India has a slew of Acts in place, pertaining to the major IPR, namely, The Copyright Act, 1957, The Patents Act, 1970, The Trademarks Act, 1999, The Designs Act, 2000, The Geographical Indication Act, 2003.

India is also a member of the TRIPS Agreement, 1995, that expands to The Trade Related Aspects of IPR, under the WTO Agreement (World Trade Organization). TRIPS is the most comprehensive multilateral agreement that provides for the basic standards of protection to IPR in the member countries. This Agreement brought IP under the rubric of trade for the first time. All of the above mentioned legislations have been enacted and as and when required amended to make them TRIPS-compliant.

India became a member of the World Intellectual Property Organization (WIPO), 1967, a specialized agency of the UN and the global forum for IP services, policy, information and cooperation in 1975. India is also a member of the Paris Convention for the Protection of Industrial Property, 1883 (one of the first IP treaties) and Berne Convention for the Protection of Literary and Artistic Works, 1886, Universal Copyright Convention, 1951, Rome Convention of 1961, Patent Cooperation Treaty, 1970, (PCT, that provides for obtaining of patents in several countries by filing a single application), WTO in 1995 and the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, 1980.

WTO members were required to include IP protection in their national laws.

Major IP legislations in India


As stated, India has The Copyright Act, 1957, The Patents Act, 1970, The Trademarks Act, 1999, The Designs Act, 2000, The Geographical Indication Act, 2003 so far.

The Copyright Act, 1957 protects original literary, dramatic and musical works, cinematography films and sound recordings. Copyright requires no official registration and is thus an automatic right whose duration varies with the nature of the work but is usually the lifetime of the author plus sixty years. Under Indian Copyright law, the author of the work is generally considered the first owner of the copyright however there are also provisions of licensing, assignment or working under "contract of service" or apprenticeship and in the latter, it vests with the employer of the author.

The Act also has administrative, civil and criminal remedies for copyright infringement. The recent amendments have been made in the year 2012. The Act had been amended five times prior to 2012, once each in the years 1983, 1984, 1992, 1994 and 1999, to meet with the national and international requirements.

The Patents Act, 1970 provides protection to inventions; both product and process, the latter was included in the 2005 amendment. An invention relating to a product or a process that is new, involving inventive step and capable of industrial application can be patented in India. However, there are exceptions under Section 3 of the 1970 Act which include non-patentable inventions.
Patent in India is granted for a term of 20 years from the date of filing of the patent application. Patents can be renewed. The 1970 Act has only civil remedies in cases of infringement. India's patent law works under the "first to file" principle" which means that whoever files for a patent application earlier, is entitled to seek protection and not one who came up with the idea of such an invention

As per Section 2 (zb) of The Trade Marks Act, 1999 "trademark" can be defined 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."

The 1999 Act has been enacted keeping the obligations of India under the TRIPS Agreement into consideration. India also has The Trade Marks Rules of 2002. Trademark extends to both goods and services marks and subsists for a period of ten years.

The Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act) has also been enacted under TRIPS obligations that accords protection to goods whether agricultural, natural or manufactured that is unique to a particular country, region or locality in that territory where a given quality or reputation exists in the sense that the good originates from that place or any of the processes of production or preparation happens at that place. For example, Darjeeling Tea, Muga Silk of Assam, Malabar Pepper, Bangalore Blue Grapes, Kancheepuram Silk, Madhubani Paintings, Mysore Silk, Kullu Shawl, Nagpur Orange.

Basically, goods that have the GI tag are protected and it is ensured thus that similar goods that do not have the tag are not authentic and they cannot benefit under the goodwill or reputation enjoyed by the goods having the GI tag. GI protects the local farmers, workers or craftsmen of a place and boosts the economy of the place concerned and prevents unauthorized use of unscrupulous traders of GI-protected goods.

The Designs Act 2000 protects the visual design of objects and is supplemented by The Design Rules, 2001. It is not necessary that the designs must have some utility. It can include the shape of the object, configuration or composition of pattern or color. It can be in two-dimensional or three-dimensional form. The design can be created through industrial process or manually. They are valid for a period of ten years and can be renewed for five years.

IP System in India: A Critical Analysis


Even though India has a number of TRIPS-compliant legislations and policies in place, we have been unsuccessful in establishing a strong and robust IP system in place. A major stumbling block has been a weak IP enforcement mechanism because rights without enforcement have no value.
Strong enforcement mechanism assures companies that their creations, when they do business in India, will be sufficiently protected. Thus, a strong IP system is a pre-requisite for foreign investment and for innovators to bring out their creations in the public domain for public use and benefit. Only if inventors are assured of adequate protection would they consent to make their creations public. If free riders were to take benefit easily, it would deter trade, investment in R&D etc.

The market of a country must be adequately protected from such free riders and countries with strong IP system like the US and UK have sought to do so through not just legislations but strict barriers to market entry through strict regulations and rigid enforcement mechanism.

India's IP system, as mentioned, is weak. Although India has improved in the last two years (2014 and 2015), but they have proved to be inadequate compared to international standards. Although, it is good to note that R&D investments have gone up, new states of art labs have come up etc. but a lot needs to be done.

As a part of the Government's "Make in India" campaign, to make India a manufacturing hub, immense improvements have been made. Some of them are:
Modernization of IP offices and other infrastructure – E-filing facilities has been introduced to expedite the process of the grant of IPR to applicants in case of patent and trademarks since 20.07.2007.

Establishment of Intellectual Property Appellate Board (IPAB) in 2003 to hear appeals against the decisions of the Registrar under the Trade Marks Act and the GI Act.

Creation of the Department of Industrial Policy and Promotion (DIPP), a nodal Department of the Government of India for problems concerning the WIPO that is responsible for IPRs relating to patents, designs, trademarks, and Geographical indication of goods and oversees the initiative relating to their promotion and protection.

Many procedural technicalities have been relaxed to ensure "ease of doing business" and it is to be noted that as a consequence of the same India's ranking has moved 4 places higher to 130th position out of 189 countries against last year's adjusted ranking of 134, as per the World Bank's Doing Business Report, 2016.

Also Rules have been amended to put in place a user-friendly system for the processing of IP applications.

Conclusion


It is thus witnessed that India has a decent IP system in place. However, a lot needs to be done to enhance IP standards of enforcement in India like creation of awareness, fast-tracking the judicial process, appointment of specialized judges, digital rights management laws (that protects IP rights in the cyber world in the digital age), use of mediation as a technique of dispute resolution especially in businesses that involve a high number of IP cases etc and enactments merely are not sufficient.


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