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Innovation and Patents

Copyrights

What is Copyright ?

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work..

Why should copyright be protected ?

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematography and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.

What is the scope of protection in the Copyright Act, 1957 ?

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.

What are the classes of works for which copyrights protection is available in India ?

Copyright subsists throughout India in the following classes of works:

  • Original literary, dramatic, musical and artistic works;
  • Cinematograph films; and
  • Sound recordings

What is a cinematograph film ?

" Cinematograph film ? means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and " cinematograph " shall be construed as including any work produced by any process analogous to cinematography including video films.

What is an India work ?

" Indian work " means a literary, dramatic or musical work,

  • The author of which is a citizen of India; or
  • Which is first published in India; or
  • The author of which, in the case of an unpublished work is, at the time of the making of the work, a citizen of India.

Whose rights are protected by Copyright ?

Copyright protects the rights of authors, i.e. creators of intellectual property in the form of literary, musical, dramatic and artistic works and cinematograph films and sound recordings.

Who is the owner of copyright in works by journalists during the course of their employment ?

In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.

What are the rights in a cinematograph film ?

In the case of a cinematograph film, copyright means the exclusive right

  • To make a copy of the film including a photograph of any image forming part thereof
  • To sell or give on hire or offer for sale or hire a copy of the film
  • To communicate the cinematograph film to the public.

What are the rights of a performer in a cinematograph film ?

Once a performer has consented for incorporation of his performance in a cinematograph film, he shall have no more performer's rights to that performance.

Does copyright subsist in a foreign work ?

Copyright of nationals or countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order.

What are the civil remedies for copyright infringement ?

A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts.

Which is the court having jurisdiction over civil remedies in copyright cases ?

The District Court concerned has the jurisdiction in civil suits regarding copyright infringement.

Is Copyright infringement a criminal offense ?

Yes. Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act.

What are the punishments for a criminal offense under the copyright law ?

The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs.50,000/-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one lakh.

Is copyright infringement a cognizable offense ?

Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offense in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a magistrate.

Can a police officer seize infringing goods without warrant ?

Yes. A police officer not below the rank of sub-inspector can seize without warrant all infringing copies of the work.

Term of Copyright

Is Copyright protected in perpetuity ?
No. It is protected for a limited period of time.

What is the term of protection of copyright ?

The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60 year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, the 60 year period is counted from the date of publication.

Designs

What is an Industrial Design ?

In every language, an industrial design generally refers to a product's overall form and function. An armchair is said to have a " good industrial design " when it is comfortable to sit in and we like the way it looks. For businesses, designing a product generally implies developing the product's functional and aesthetic features taking into consideration issues such as the product's marketability, the costs of manufacturing or the ease of transport, storage, repair and disposal.

From an intellectual property law perspective, however, an industrial design refers only to the ornamental or aesthetic aspects of a product. In other words, it refers only to the appearance of an armchair. Although the design of a product may have technical or functional features, industrial design, as a category of intellectual property law, refers only to the aesthetic nature of a finished product, and is distinct from any technical or functional aspects.

Industrial design is relevant to a wide variety of products of industry, fashion and handicrafts from technical and medical instruments to watches, jewelry, and other luxury items; from household products, toys, furniture and electrical appliances to cars and architectural structures; from textile designs to sports equipment. Industrial design is also important in relation to packaging, containers and " get - up " of products.

As a general rule, an industrial design consists of:

  • Three-dimensional features, such as the shape of a product.
  • Two - dimensional features, such as ornamentation, patterns, lines or colour of a product; or
  • A combination of one or more features.

Creative Designs in Business

Enterprises often devote a significant amount of time and resources to enhancing the design appeal of their products. New and original designs are often created to:

1. Customize products to appeal to specific market segments:

Small modifications to the design of some products (e.g. a watch) may make them suitable for different age groups, cultures or social groups. While the main function of a watch remains the same, children and adults generally have very different tastes in design.

2. Create a new niche market :

In a competitive marketplace, many companies seek to create a niche market by introducing creative designs for their new products to differentiate them from those of their competitors. This could be the case for ordinary items such as locks, shoes, cups and saucers to potentially expensive items such as jewelry, computers or cars.

3. Strengthen brands:

Creative designs are often also combined with distinctive trademarks to enhance the distinctiveness of a company's brand(s). Many companies have successfully created or redefined their brand image through a strong focus on product design.

Why protect industrial designs ?

An industrial design adds value to a product. It makes a product attractive and appealing to customers, and may even be its unique selling point. So protecting valuable designs should be a crucial part of the business strategy of any designer or manufacturer.

By protecting an industrial design through its registration at the national or regional intellectual property office, the owner obtains the exclusive right to prevent its unauthorized copying or imitation by others. This makes business sense as it improves the competitiveness of a business and often brings in additional revenue in one or more of the following ways:

By registering a design you are able to prevent it from being copied and imitated by competitors, and thereby strengthen your competitive position.

Advantages of Registration

  • Registering a valuable design contributes to obtaining a fair return on investment made in creating and marketing the relevant product, and thereby improves your profits.
  • Industrial designs are business assets that can increase the commercial value of a company and its products. The more successful a design, the higher is its value to the company.
  • A protected design may also be licensed (or sold) to others for a fee. By licensing it, you may be able to enter markets that you are otherwise unable to serve.
  • Registration of industrial designs encourages fair competition and honest trade practices, which, in turn, promote the production of a diverse range of aesthetically attractive products.

What rights are provided by industrial design protection ?

When an industrial design is protected by registration, the owner is granted the right to prevent unauthorized copying or imitation by third parties. This includes the right to exclude all others from making, offering, importing, exporting or selling any product in which the design is incorporated or to which it is applied. The law and practice of a relevant country or region determine the actual scope of protection of the registered design.

Exclusive Rights

Let us assume that your company has designed an umbrella with an innovative design, registered it at the national IP Office, and has therefore obtained exclusive rights over umbrellas bearing that design. What this means is that if you discovered that a competitor is making, selling or importing umbrellas bearing the same or substantially the same design you will be able to prevent him from using your design and, possibly, obtain compensation for damages which your business has suffered from the unauthorized use of that design. So, while you cannot stop competitors from making competitive products you may prevent them from making products that look just like yours and having a free ride on your creativity. For details on how to enforce your rights you are advised to consult an IP lawyer.

What can be registered as an industrial design ?

As a general rule, to be able to be registered, a design must meet one or more of the following basic requirements, depending on the law of the country:

  • The design must be " new " . A design is considered to be new if no identical design has been made available to the public before the date of filing, or the application for registration.
  • The design must be " original " . A design is considered original if it has been independently created by the designer and is not a copy or an imitation of existing designs.
  • The design must have " individual character " . This requirement is met if the overall impression produced by a design on an informed use differs from the overall impression produced on such a user by any earlier design which has been made available to the public.

What cannot be protected by industrial design rights ?

Designs that are generally barred from registration in many countries include the following:

  • Designs that do not meet the requirements of novelty, originality and/or individual character.
  • Designs that are considered to be dictated exclusively by the technical function of a product; such technical or functional design features may be protected, depending on the facts of each case, by other IP rights (e.g. patents, utility models or trade secrets).
  • Designs incorporating protected official symbols or emblems (such as the national flag).

How do you register a design ?

To register a design in your own country you must generally take the following steps:

  • Fill in the application form provided by us including your name, contact details and drawings, and/or photographs of the design(s) in question (standard formats are usually specified).

Trademarks

The Trade Marks Registry was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules made thereunder. It acts as a resource and information Centre and is a facilitator in matters relating to trademarks in the country.

The objective of the Trade Marks Act, 1999 is to register trademarks applied for in the country and to provide for better protection of trademark for goods and services and also to prevent fraudulent use of the mark.

The main function of the Registry is to register trademarks which qualify for registration as per provisions of the Trade Marks Act and Rules, and to maintain the Register of trademarks.

After accession to the Madrid Protocol, a treaty under the Madrid System for international registration of trademarks, the Trade Marks Registry also functions as an office of origin in respect of applications made by Indian entrepreneurs for international registration of their trademarks and as an office of the designated Contracting party in respect of international registrations in which India has been designated for protection of the relevant trademarks.

The Head Office of the Trade Marks Registry is at Mumbai and branch offices are at Ahmedabad, Chennai, Delhi and Kolkata. For the purposes functions related to international applications and registrations under the Madrid Protocol, an International Registration wing is set up in the Head Office of the Trade Marks Registry at Mumbai.

Apart from the above, the Registry has to discharge various other functions like offering preliminary advice as to registrability; causing a search to be made for issue a certificate under Section 45(1) of the Copyright Act, 1957 to the effect that no trademark identical with or deceptively similar to such artist work as sought to be registered as a copyright has been registered as a trademark; providing public information and guidance to the public on the subject; providing information to various government agencies including Police, Central Excise personnel, Public Grievance Redressal, maintenance of top class IP library, the production of annual statistical report, production of official Trade Marks Journal in electronic form and submit an Annual Report to Parliament.

The Controller General of Patents, Designs and Trade Marks heads the TRADE MARKS Registry offices and functions as the Registrar of TRADE MARKS. He, from time to time, assigns functions of the Registrar to other officers appointed by the Central Government and such officers also function as Registrar in respect of matters assigned to them.

Presently all the functions of the Trade Marks Registry are performed through an automated Trade Marks System. The Central Server of TMR is at Intellectual Property Office (IPO) Building in Delhi and Disaster Recovery server is at IPO, Mumbai. All branches of the Trade Marks Registry are connected to the main server in Delhi with Virtual Private Network (VPN). All the actions done by the office staffs through the TMS are recorded in the central server on real time basis.

Patents

Brief about Indian Patent System

  • The first legislation in India relating to patents was the Act VI of 1856. The objective of this legislation was to encourage inventions of new and useful manufactures and to induce inventors to disclose secret of their inventions. The Act was subsequently repealed by Act IX of 1857 since it had been enacted without the approval of the British Crown . Fresh legislation for granting ‘exclusive privileges’ was introduced in 1 859 as Act XV of 1859. This legislation contained certain modifications of the earlier legislation, namely, grant of exclusive privileges to useful inventions only and extension of priority period from 6 months to 12 months. This Act excluded importers from the definition of inventor. This Act was based on the United Kingdom Act of 1852 with certain departures which include allowing assignees to make application in India and also taking prior public use or publication in India or United Kingdom for the purpose of ascertaining novelty.
  • In 1872, the Act of 1859 was consolidated to provide protection relating to designs. It was renamed as “The Patterns and Designs Protection Act” under Act XIII of 1872. The Act of 1872 was further amended in 1883 (XVI of 1883) to introduce a provision to protect novelty of the invention, which prior to making application for their protection were disclosed in the Exhibition of India. A grace period of 6 months was provided for filing such applications after the date of the opening of such Exhibition.
  • This Act remained in force for about 30 years without any change but in the year 1883, certain modifications in the patent law were made in United Kingdom and it was considered that those modifications should also be incorporated in the Indian law. In 1888, an Act was introduced to consolidate and amend the law relating to invention and designs in conformity with the amendments made in the U.K. law.
  • The Indian Patents and Designs Act, 1911, (Act II of 1911) replaced all the previous Acts. This Act brought patent administration under the management of Controller of Patents for the first time. This Act was further amended in 1920 to enter into reciprocal arrangements with UK and other countries for securing priority. In 1930, further amendments were made to incorporate, inter-alia, provisions relating to grant of secret patents, patent of addition, use of invention by Government, powers of the Controller to rectify register of patent and increase of term of the patent from 14 years to 16 years. In 1945, an amendment was made to provide for filing of provisional specification and submission of complete specification within nine months.
  • After Independence, it was felt that the Indian Patents & Designs Act, 1911 was not fulfilling its objective. It was found desirable to enact comprehensive patent law owing to substantial changes in political and economic conditions in the country. Accordingly, the Government of India constituted a committee under the Chairmanship of Justice (Dr.) Bakshi Tek Chand, a retired Judge of Lahore High Court, in 1949 t o review the patent law in India in order to ensure that the patent system is conducive to the national interest. The terms of reference included
    • To survey and report on the working of the patent system in India;
    • To consider whether any special restrictions should be imposed on patent regarding food and medicine;
    • To suggest steps for ensuring effective publicity to the patent system and to patent literature, particularly as regards patents obtained by Indian inventors;
    • To consider the necessity and feasibility of setting up a National Patents Trust;
    • To consider the desirability or otherwise of regulating the profession of patent agents
    • To examine the working of the Patent Office and the services rendered by it to the public and make suitable recommendations for improvement; and
    • To report generally on any improvement that the Committee thinks fit to recommend for enabling the Indian Patent System to be more conducive to national interest by encouraging invention and the commercial development and use of inventions.
  • The committee submitted its interim report on 4th August, 1949 with recommendations for prevention of misuse or abuse of patent right in India and suggested amendments to sections 22, 23 & 23A of the Patents & Designs Act, 1911 on the lines of the United Kingdom Acts 1919 and 1949. The committee also observed that the Patents Act should contain clear indication to ensure that food and medicine and surgical and curative devices are made available to the public at the cheapest price commensurate with giving reasonable compensation to the patentee.
  • Based on the above recommendation of the Committee, the 1911 Act was amended in 1950(Act XXXII of 1950) in relation to working of inventions and compulsory licence/revocation. Other provisions were related to endorsement of the patent with the words ‘licence of right’ on an application by the Government so that the Controller could grant licences. In 1952 (Act LXX of 1952) an amendment was made to provide compulsory licence in relation to patents in respect of food and medicines, insecticide, germicide or fungicide and a process for producing substance or any invention relating to surgical or curative devices. The compulsory licence was also available on notification by the Central Government. Based on the recommendations of the Committee, a bill was introduced in the Parliament in 1953 (Bill No.59 of 1953). However, the Government did not press for the consideration of the bill and it was allowed to lapse.
  • In 1957, the Government of India appointed Justice N. Rajagopala Ayyangar Committee to examine the question of revision of the Patent Law and advise government accordingly. The report of the Committee, which comprised of two parts, was submitted in September, 1959. The first part dealt with general aspects of the Patent Law and the second part gave detailed note on the several clauses of the lapsed bills 1953. The first part also dealt with evils of the patent system and solution with recommendations in regards to the law. The committee recommended retention of the Patent System, despite its shortcomings. This report recommended major changes in the law which formed the basis of the introduction of the Patents Bill, 1965. This bill was introduced in the Lok Sabha on 21st September, 1965, which however lapsed. In 1967, again an amended bill was introduced which was referred to a Joint Parliamentary Committee and on the final recommendation of the Committee, the Patents Act, 1970 was passed. This Act repealed and replaced the 1911 Act so far as the patents law was concerned. However, the 1911 Act continued to be applicable to designs. Most of the provisions of the 1970 Act were brought into force on 20 th April 1972 with publication of the Patent Rules, 1972.
  • This Act remained in force for about 24 years without any change till December 1994. An ordinance effecting certain changes in the Act was issued on 31 st December 1994, which ceased to operate after six months. Subsequently, another ordinance was issued in 1999. This ordinance was subsequently replaced by t he Patents (Amendment) Act, 1999 that was brought into force retrospectively from 1 st January, 1995. The amended Act provided for filing of applications for product patents in the areas of drugs, pharmaceuticals and agro chemicals though such patents were not allowed. However, such applications were to be examined only after 31-12-2004. Meanwhile, the applicants could be allowed Exclusive Marketing Rights (EMR) to sell or distribute these products in India, subject to fulfilment of certain conditions.
  • The second amendment to the 1970 Act was made through the Patents (Amendment) Act, 2002 (Act 38 0f 2002). This Act came into force on 20 th May 2003 with the introduction of the new Patent Rules, 2003 by replacing the earlier Patents Rules, 1972
  • The third amendment to the Patents Act 1970 was introduced through the Patents (Amendment) Ordinance, 2004 w.e.f. 1 st January, 2005. This Ordinance was later replaced by the Patents (Amendment) Act 2005 (Act 15 Of 2005 ) on 4 th April, 2005 which was brought into force from 1-1-2005.

Patents Rules

Under the provisions of section 159 of the Patents Act, 1970 the Central Government is empowered to make rules for implementing the Act and regulating patent administration. Accordingly, the Patents Rules, 1972 were notified and brought into force w.e.f. 20.4.1972. These Rules were amended from time to time till 20 May 2003 when new Patents Rules, 2003 were brought into force by replacing the 1972 rules. These rules were further amended by the Patents (Amendment) Rules, 2005 and the Patents (Amendment) Rules, 2006. The last amendments are made effective from 5 th May 2006.