Developed countries show early trends of intellectual property which has been important for the promotion of invention in industrial development. Recognition of patent system started from the 1980s in Petroleum, Pharmaceutical and chemical industries and recently in biotechnology and copyrights.
Intellectual Property Rights which was first recognized in 1883 as Paris Convention for the Protection of Industrial Property and then after in 1886 of Berne Convention. Both these treaties are currently administered under a specialized body of United Nation i.e, WIPO (World Intellectual Property Organization). It is a global forum for Intellectual Property (IP) services, policy, information and cooperation. WIPO works for the development of a balanced and effective international IP system that enables innovation and creativity benefits to all.
India as a member of World Trade Organization (WTO), which set down minimum rules for different forms of intellectual property (IP) directives as applied to the nationals of other WTO Members and became a signatory of the TRIPS (Trade-Related Aspects of Intellectual Property Rights ) in the year 1995 which is an international agreement between all the member nations of the WTO. TRIPS sets down minimum standards for the regulation of many forms of Intellectual Property by the national governments.
Types of Intellectual Property:
- Copyright: Copyright is a legal term that is used to describe the rights that creators have over their creative and literary works. Works covered by copyright range from paintings, books, music, sculptures and films, to computer programs, databases, advertisements, maps and technical drawings. Copyrights Act, 1957 is the governing rule.
- Patents: A patent is an exclusive legal right recognized for an invention. A patent right provides the patent owner with the right to decide whether or how- the invention can be used by others. In exchange for this patent right, the patent owner makes technical information about the invention publicly available in the published patent document. It is governed in India by the Patents Act 1970 and Patent Rules 2003.
- Trademarks: A trademark is a sign or a symbol capable of differentiating the goods or services of one venture from those of other enterprises. Trademarks had been used from the ancient times when artisans used to put their signature or "mark" on their products. It is governed in India through Trademarks Act 1999 and Trademarks Rules 2002.
- Industrial designs: An industrial design comprises of the ornamental or aesthetic aspect of an article. A design may consist of two-dimensional features, such as the shape or surface of an article, or of three-dimensional features, such as patterns, lines or colour. Design Act 2000 and Rules 2001 is the governing law.
- Geographical Indication: Geographical indications means any indication of origin that is used on goods that have a certain geographical origin and possess qualities, a reputation or traits that are essentially traceable to that place of origin. Mostly, a geographical indication includes the name of the place or specific identity of the origin of the goods. The Geographical Indications of Goods (Registration & Protection) Rules 2002 and The Geographical Indications of Goods (Registration & Protection) Act 1999, is the governing rule.
- Trade secrets: Trade secrets are Intellectual Property rights on confidential information which can be sold or licensed. The unauthorized accession, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.
- Plant Breeders’ Rights: Plant breeders’ rights (PBRs) are granted for new and distinct varieties of plant. When PBR is granted, the breeder gets especial rights in relation to transmitting material of their new plant variety.
Issues of Intellectual Property Rights in India:
IPR-related issues in India like copyrights, trademarks, patents, geographical indications and design are governed by the Patents Rules 2003 and Patent Act 1970, Trademarks Rules 2002 and the Trademarks Act 1999, Design Act 2000 and Rules 2001, Indian Copyrights Act, 1957, and The Geographical Indications of Goods (Registration & Protection) Rules, 2002 and The Geographical Indications of Goods (Registration & Protection) Act 1999, respectively. Some of these Acts/Regulations are more than decades-old and outdated. As there are a lot of loopholes and some of them are still vague. However, there are several more issues like:
- The process to Product Patents:- The Fundamental difference lies in the fact that the former provides protection to the processes only while the latter to the products. It becomes difficult when it comes to getting IP rights on pharmaceuticals and food products. India has a mixed development model of the economy where this approach is taken to safeguard the interest of the domestic company
- Compulsory licensing:- Under this government can compel the owner company or other companies to mass-produce some products irrespective of who got the patent.
- Drug price control order:-Under these provision companies cannot charge unfair prices for drugs or generic medicine, As companies does to safeguard investment.
- Indian Patent Act:- Section 3(d) of the Indian Patent Act prevents multinational companies from evergreening their patents just by making minor changes.
- IPR regime in India consists of robust IP laws, it lacks effective enforcement, for which “least priority given to adjudication of IP matters”.
- The key challenge is to sensitize the judiciary and the enforcement officials and to take up IP matters, at par with the other economic offences, by bringing them under their policy radar.
- The challenges also lie due to the lack of an IP fund, which can be used for further boosting the IP culture in the country.
- IPR provides exclusive rights over assets, it's a major challenge for the country to balance the interests of the inventors and the interests of the society at large.
- Lack of efficient control of these regulations or a think- tank body especially for IPRs.
- Recent changes in IP laws, various IP related issues have sprung up, which are highly complex in nature.
India and IPR related issues at the Global level :
India and the United States of America are continuously on rift over all aspects of Intellectual Property Rights ranging from Patents, Copyrights, Trademarks and Geographical Indicators. India still continues to remain on the US ‘Priority Watch List’. United States Trade Representatives (USTR) publishes the report on Priority Watch List those who violate IPR rules of WIPO. The main issues between both countries are:
- The most controversial issue is Section 3 and Section 84 of the Indian Patent Act 1970. In which former consists of Evergreening that means Patent for new forms of existing medicines and later for Compulsory licensing.
- Getting difficulty in patent rights and maintaining these innovators.
- Restriction over the transparency of information.
- Outdated and insufficient trade secrets legal framework, the system for protecting against unfair commercial use.
- Criteria for compulsory licensing which provide an advantage to domestic companies.
- Distribution of royalties to the rights holder.
- Copyright policies do not provide incentive and commercialization of the content.
- Unauthorised disclosure to obtain market approval for pharmaceutical and agricultural chemical products.
- Issues of copyrights in the entertainment industries.
International Agreements on IPR:
India is a signatory to the following international IP agreements:
Paris Convention – It is primarily for the protection of industrial property. Under Paris Convention, any person or company from a signatory state can apply for a patent or trademark in any other signatory state, and it will be given the same enforcement rights and status.
Berne Convention – are for the protection of Literary and artistic works. Under this convention, each member state recognises the copyright of authors from other member states which are signatory, in the same way as the copyright of its own nationals.
Madrid Protocol – Under this convention, any person can register his trademarks in multiple countries by filing one international application. It enables to manage and renew trademarks through one centralized system.
Patent Cooperation Treaty (PCT) – Under this treaty , any person can seek patent protection in multiple countries by filing one application. PCT provides a strong basis for patenting decisions. It is used by the world’s major corporations, research institutions and universities.
India is not a signatory to the Hague Agreement, which allows registering an industrial design in many countries with a minimum of formalities and expenses.
Recent Initiative by the Government:
The DIPP (Department of Industrial Policy and Promotion) is responsible for the matters concerning the specialised UN agency on IPRs, the World Intellectual Property Organisation (WIPO), including coordination with other concerned Ministries or Departments.
- National IPR Policy: National IPR Policy for India adopted by the Govt in 2016.This policy laid down the future roadmap of IPRs in India. CIPAM (Cell for IPR Promotion and Management) has been set up to coordinate the implementation of the National IPR Policy. Major objectives of the policy are:
- IPR Awareness: Outreach and Promotion - Objective is to create awareness among people about the social, social and economic benefits of IPRs among all sections of society
- Legal and Legislative Framework - Objective is to have effective and strong IPR laws that balance the interests of rights owners with the larger public interest
- Generation of IPRs -Objective is to stimulate the generation of IPR
- Administration and Management - Objective is to modernize and strengthen service-oriented IPR administration
- Commercialization of IPR - Get proper value for IPRs through commercialization
- Enforcement and Adjudication - Objective is to strengthen the enforcement as well as adjudicatory mechanisms for combating IPR infringements
- Human Capital Development - Objective is strengthening and expanding human resources, institutions and capacities for teaching, research, training and skill-building in IPRs.
- IP awareness Programmes have also been undertaken in academic institutions, at both school and college level, as also for industry. Scheme for IPR Awareness – ‘Creative India; Innovative India’ conducted by CIPAM. The scheme targets to conduct IP awareness workshops/seminars in collaboration with industry organizations, academic institutions and other stakeholders across the country.
- Clearing Backlog/ Reducing Pendency: Steps were undertaken by the Government of India, including augmentation of technical manpower, have resulted in a greater reduction in pendency of IP applications. Automatic issuance of electronically generated trademark and patent trademark certificates has been introduced.
- IP Process Re-engineering: An amendment to Patent Rules, 2003 has been made to streamline processes and make them more user-friendly. India has acceded to the WIPO Performances and Phonograms Treaty (WPPT) ND WIPO Copyright Treaty (WCT), which extend the coverage of copyright to the internet and digital environment.
- Technology and Innovation Support Centres (TISCs): In collaboration with WIPO, 6 TISCs have been established in various institutions across different states.
- IPR Enforcement Toolkit for Police: An IPR Enforcement Toolkit has been prepared to assist police officials in dealing with IP crimes, in particular, Copyright piracy and Trademark counterfeiting.
- To streamline the whole process of IP applications, IP procedures have been made simpler and user-friendly by amending Patents Rules in 2016 and Trademarks Rules in 2017.
- Under the Finance Act, 2017, the Copyright Board has also been merged in the Intellectual Property Appellate Board.
Steps taken to enable and assist startups for filing of patents:
- As per the amended Patents Rules, 80% patent fee has been reduced for Startups as compared to larger companies.
- Under the SIPP(Scheme for Facilitating Startups Intellectual Property Protection), 208 Patent Agents have been empanelled for assistance by the Controller General of Patents, Designs and Trademarks , to provide assistance to Startups in the filing and preparation of their patent applications and, subsequently, during the stage of prosecution of applications before the Patent Office. Facilitator's fees are paid by the Government as per the norms of the scheme.
- Startups are also eligible for getting the processing of their patent applications expedited
In a globalized world economy, a robust Intellectual Property Right is needed. A global system of IPR must be there to fulfil the aspirations of both developed and developing countries. Indian government consistently working towards awareness, creation, protection and enforcement of IPR as a recent Global Innovation Index (GII) Report issued by WIPO has improved from 57th in 2018 to 52nd in 2019.
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