Concept of Intellectual Property Rights (IPR): Intellectual property (IP) refers to creations of the mind such as inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.
IPRs are central to encouraging investment in research as without some form of protection, investors and inventors would not be able to benefit from their creative efforts.
Types of Intellectual Property Rights (IPR)
| Types | Details |
|---|---|
| Patents | An exclusive right granted for an invention. A patent provides the patent owner with the right to decide how – or whether – the invention can be used by others. |
| Copyright | A legal term used to describe the rights that creators have over their literary and artistic works. |
| Trademarks | It is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. |
| Industrial Designs | An industrial design constitutes the ornamental or aesthetic aspect of an article. It protects that appearance or aesthetic style. |
| Geographical indications | Signs used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin. |
| Trade Secrets | A trade secret is a formula, practice, process, design or compilation of information used by a business to obtain an advantage over competitors. The unauthorized acquisition, use or disclosure of such secret information is regarded as an unfair practice. |
International Arrangements for IPR
World Intellectual Property Organization (WIPO)
- The World Intellectual Property Organization is the United Nations agency dedicated to the use of intellectual property (patents, copyright, trademarks, designs, etc.) as a means of stimulating innovation and creativity.
- It was created in 1967 and headquartered in Geneva, Switzerland.
- WIPO currently has 193 member states. India became a member of WIPO in 1975.
- It publishes the Global Innovation Index, an annual ranking of countries by their capacity for, and success in innovation.
Objectives of WIPO
WIPO‘s two main objectives are:
- To promote the protection of intellectual property worldwide.
- To ensure administrative cooperation among the intellectual property Unions established by the treaties that WIPO administers.
Decision-making Structures of WIPO
- The terms governing WIPO’s mandate, functions, finances and procedures are set out in the WIPO Convention.
- All decisions governing WIPO’s strategic direction and activities are made by the member states.
- The WIPO Secretariat coordinates formal and informal meetings of the member state bodies throughout the year.
- It administers 26 treaties including the WIPO Convention.
WIPO Convention
The Convention establishing the World Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967 (Article 2(viii)) provides that intellectual property shall include rights relating to:
- Literary, artistic and scientific works,
- Performances of performing artists, phonograms and broadcasts,
- Inventions in all fields of human endeavor,
- Scientific discoveries,
- Industrial designs,
- Trademarks, service marks and commercial names and designations,
- Protection against unfair competition,
- All other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Trade Related Intellectual Property Rights (TRIPS)
TRIPS is the most important and comprehensive international agreement on intellectual property rights which came into effect on 1 January 1995.
The Agreement on TRIPS was negotiated with other international trade agreements during the Uruguay Round trade negotiations of the GATT (General Agreement on Tariffs and Trade) from 1986 to 1994.
As one of the World Trade Organization (WTO) agreements, it is totally binding for all WTO Member States.
The Agreement covers most forms of intellectual property including patents, copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations), industrial designs, trademarks, geographical indications, trade secrets, exclusionary rights over new plant varieties, etc.
The TRIPS Council is responsible for administering and monitoring the operation of the TRIPS Agreement. In its regular meetings, the TRIPS Council serves as a forum for discussion between members on key issues.
Main Features of the Agreement
Standards
In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member.
Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection.
The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions must be complied with. The TRIPS Agreement is thus sometimes referred to as a Berne and Paris-plus agreement.
Enforcement
The Agreement lays down certain general principles applicable to all IPR enforcement procedures.
In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.
Dispute settlement
The Agreement makes disputes between WTO members about the respect of the TRIPS obligations subject to the WTO’s dispute settlement procedures.
The obligations under the Agreement will apply equally to all member countries, but developing countries have a longer period to phase them in.
The TRIPS Agreement is a minimum standards agreement, which allows members to provide more extensive protection of intellectual property if they so wish.
Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.
Substantive standards of protection under TRIPS
Copyright
It gives the creators of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts, economic rights enabling them to control use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line.
It also gives moral rights to be identified as the creator of certain kinds of material, and to object to distortion or mutilation of it.
The purpose of copyright is to allow creators to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all.
However, copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
Computer programs, whether in source or object code, are protected as literary works.
Databases are eligible for copyright protection provided that they by reason of the selection or arrangement of their contents constitute intellectual creations.
Related rights
The provisions on protection of performers, producers of phonograms and broadcasting organizations constitute the related rights.
Performers shall have the possibility of preventing the unauthorized fixation of their performance on a phonogram (e.g. the recording of a live musical performance).
The fixation right covers only aural, not audiovisual fixations.
Broadcasting organizations have the right to prohibit the unauthorized fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of their television broadcasts.
The term of protection is at least 50 years for performers and producers of phonograms, and 20 years for broadcasting organizations.
Trademarks
The system helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets their needs.
Trademark provides protection to the owner of the mark by ensuring the exclusive right to use it, to identify goods or services, or to authorize another to use it in return for payment.
The period of protection varies, but a trademark can be renewed indefinitely beyond the time limit on payment of additional fees.
Trademark protection is enforced by the courts, which in most systems have the authority to block trademark infringement.
Trademarks may be one or a combination of words, letters, and numerals.
They may consist of drawings, symbols, three- dimensional signs such as the shape and packaging of goods, audible signs such as music or vocal sounds, fragrances, or colors used as distinguishing features.
Patent
Patent protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made.
If a patent application is granted, it gives the owner the ability to take a legal action under civil law to try to stop others from making, using, importing or selling the invention without permission. This may involve suing the alleged infringer through the courts.
The TRIPS Agreement requires member countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability.
There are three permissible exceptions to the basic rule on patentability:
- One is for inventions contrary to order public or morality-this explicitly includes inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment.
- The second exception is that members may exclude from patentability diagnostic, therapeutic and surgical methods for the treatment of humans or animals.
- The third is that members may exclude plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than nonbiological and microbiological processes.
Any country excluding plant varieties from patent protection must provide an effective sui generis system of protection. (Article 27.3 (b).
Geographical Indication (GI)
A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin.
Most commonly, a geographical indication includes the name of the place of origin of the goods.
Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil.
Whether a sign is recognized as a geographical indication is a matter of national law.
Geographical indications may be used for a wide variety of products, whether natural, agricultural or manufactured.
Industrial Designs
Articles 25 and 26 of the agreement says members must ensure that fresh or unique industrial designs generated independently are protected.
The Agreement promises to preserve industrial designs for a minimum of 10 years.
When such activities are conducted for commercial objectives, the right holder can ban third parties who do not have the holder’s agreement from producing, importing or selling items that incorporate the protected design.
Layout-Designs of Integrated Circuits
TRIPS Agreement requires Member countries to protect the layout-designs of integrated circuits in accordance with the provisions of the IPIC Treaty (the Treaty on Intellectual Property in Respect of Integrated Circuits), negotiated under the auspices of WIPO in 1989.
These provisions deal with, inter alia, the definitions of “integrated circuit” and “layout-design (topography)”, requirements for protection, exclusive rights, and limitations, as well as exploitation, registration and disclosure.
Protection of Undisclosed Information
Article 39 of the Agreement requires member states to provide trade secret protection in accordance with the Agreement’s provisions.
TRIPS mandates that member countries should create national legislation to prevent such information from being revealed to, obtained by, or used by third parties without the agreement of the person who is lawfully in possession of it, in a manner that is inconsistent with fair trade practices.
Such information must be confidential, have commercial value as a result of its confidentiality, and have been subjected to reasonable efforts to keep it hidden in order to be granted protection.
Control of Anti-competitive Practices in Contractual Licenses
The TRIPS Agreement recognizes some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.
Member countries may adopt, consistently with the other provisions of the Agreement, appropriate measures to prevent or control practices in the licensing of intellectual property rights which are abusive and anti-competitive.
Plant Breeder’s Rights
Plant breeder’s rights came into international discourse in the 1960s, when improved varieties of crop plants began to usher several developed and developing nations in the era of high farm productivity or Green Revolution.
Plant Breeders’ Rights offers legal protection for the investment plant breeders make in breeding and developing new varieties.
This protection is open to breeders of any species of plant; agricultural, horticultural and ornamental.
Plant Breeders’ Rights are thus a form of intellectual property designed specifically to protect new varieties of plants.
UPOV
- The International Union for the Protection of New Varieties of Plants, known as “UPOV,” is an intergovernmental organization with headquarters in Geneva.
- The mission of UPOV is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society.
- It was established by the International Convention for the Protection of New Varieties of Plants (the “UPOV Convention”), which was signed in Paris in 1961.
- The Convention entered into force in 1968. It was revised in Geneva in 1972, 1978 and 1991. The 1991 Act entered into force on April 24, 1998. This is the presently accepted version of the UPOV Convention.
- The purpose of the UPOV Convention is to ensure that the members of the Union acknowledge the achievements of breeders of new varieties of plants, by granting to them an intellectual property right, on the basis of a set of clearly defined principles.
- To be eligible for protection, varieties have to be (i) distinct from existing, commonly known varieties, (ii) sufficiently uniform, (iii) stable and (iv) new in the sense that they must not have been commercialized prior to certain dates established by reference to the date of the application for protection.
- The UPOV Convention sets out a minimum scope of protection and offers members the possibility of taking national or regional circumstances into account in their legislation.
Also Read:
Internet of Things (IoT) Device, Working and Benefits
Cyber Security – Concept, Types, Sources of Cyber Threats