In today’s high-tech age of the Internet and rapid globalization, there is greater interconnectivity amongst various regional spaces, physical and spatial. Fast melting barriers leading to almost instant knowledge and information flows across boundaries-geographical &culturalposing opportunities as well as threats. With the advent of knowledge economies, knowledge protection assumes all the more significance, apart from its creation and management. Without doubt, these days, knowledge itself has become a commodity to be traded in. Earlier, it was possession of tangible or physical property which was far more important, in the knowledge driven economies of today, intangible assets such as knowledge, creative genius, innovation capability etc., have become more important. Possession of these determines one’s competitive edge over others. These intangible assets are known as the Intellectual Property or IP and it is the likes of inventions, new designs, brand name, logo, paintings, artistic works, written compositions, etc. Simply put, Intellectual Property is nothing but the creations of the mind. Tangible assets like buildings, property, machines, factories, land are subject to destruction by disasters both natural and man-made, ranging from terrorism, bomb blasts to floods, earthquakes, Tsunamis and volcanic eruptions. Intangible assets like creativity and innovation potential cannot be destroyed by any of these. As long as the human being is alive, his genius is alive and kicking. Japan, for example, has in the last one week experienced severe loss of physical property due to the triple disaster of Earthquakes, Tsunamis and the Nuclear power plant blowing up. But as long as the people and their creative ingenuity live on, the intangibles can help once again rebuild the physical property through their expertise, knowledge and innovation, as they have done in the past.
Intellectual Property Rights (IPRs) are the rights of the creator over his creations. They are exclusive rights and are valid for a certain fixed duration of time. So, IPRs are not perpetual. Also, all IP rights do not follow the same time period of validity. There are a number of legal mechanisms for protection of IPRs,depending on the category of rights to be protected. Intellectual Property is divided into two categories: Industrial property and Copyrights. The former consists of Patents, Industrial Designs, Trade Marks and Geographical Indications etc. Copyrights pertain to Literary, Artistic and Scientific works and the like. Depending on “what” kind of creativity is to be given protection, the appropriate mechanism can be used. There are different methods of registration of the IP Rights and each of the rights has a certain fixed duration of protection. IP Rights can be assigned, sold, licensed or mortgaged, like any physical property and therefore have a great commercial value for the creator.
Intellectual Property Rights (IPRs) are the rights of the creator over his creations. They are exclusive rights and are valid for a certain fixed duration of time. So, IPRs are not perpetual. Also, all IP rights do not follow the same time period of validity. There are a number of legal mechanisms for protection of IPRs,depending on the category of rights to be protected. Intellectual Property is divided into two categories: Industrial property and Copyrights. The former consists of Patents, Industrial Designs, Trade Marks and Geographical Indications etc. Copyrights pertain to Literary, Artistic and Scientific works and the like. Depending on “what” kind of creativity is to be given protection, the appropriate mechanism can be used. There are different methods of registration of the IP Rights and each of the rights has a certain fixed duration of protection. IP Rights can be assigned, sold, licensed or mortgaged, like any physical property and therefore have a great commercial value for the creator.
India is currently facing multifold challenges related to Intellectual Property Rights. The biggest challenge, to my mind, relates to the protection of Intellectual Property Rights of Indian citizens in foreign jurisdictions on the principles of reciprocity in the legislations and judicial approach. The Indian courts are protecting the Intellectual Property Rights of foreign citizens by treating their rights at par with those of Indian citizens without insisting on the evidence of distinctiveness or actual physical use in India. However, such protection is not being afforded to the Indian citizens in most of the countries. The second challenge is the conflict of views amongst different judges of the same High Court on the same proposition oflaw leading to uncertainty of law. The well established principles of law are being ignored by the higher courts resulting in utter confusion in the mind of subordinate judiciary and Intellectual Property owners. The third challenge is to upgrade the functioning and competency of Intellectual Property Tribunals to such levels which can inspire confidence in common man for fair, honest and timely determination of his IP Rights and dispensation of justice. Fourth is, the need to curtail the over ambitious aspirations of corporates to extend the scope of Intellectual Property Rights to scuttle legitimate competition or honest trade practices.
The ideas, methods and concepts are not protected under the Copyright law. Copyright subsists in the material form in which the ideas are translated. In other words, it is the “expression” in which the idea is given a form which is protected and not the idea itself. Similarly, methods or concepts, per se, are not protected, but the original works as may be derived by the use of the methods or concepts are protected. Different persons may have same idea or concepts independently of each other. However, their expression or the form in which such ideas or concepts are conveyed may differ. It is thus the form of expression which qualifies to be the subject matter of Copyright.
The works which are subject matter of Copyright are fully protected from its misuse or abuse on the Internet. Approximately 136 countries in the world are signatories to the Berne Convention, under which each country is obliged to afford protection to the authors of original works in the same manner in which the protection is provided by each of such countries to their own nationals. An infringement of copyright on the Internet is a civil as well as criminal wrong under the Indian Copyright Act and the owner of copyright is entitled to seek all such remedies under the law as are available to him, as if the infringement has taken place in the physical form.
What exactly are Trade Marks? As the name suggests, these are distinctive marks used to distinguish goods or services of one enterprise/person from those of another. In India, such marks are governed by the Indian Trade Marks Act. The first Indian Trade Marks Act of 1940 was based on the 1938 British Trade Marks Act. Then came the Indian Trade and Merchandise Act of 1958, which gave way to the current Trade Marks Act of 1999. Though passed in December 1999, this Act finally became operational from September 15, 2003 and brought in many positive changes. In the new Act, duration of protection of a Trade Mark has been increased from 7 years to 10 years. Also, it allows for filing of a single application for registering a mark in more than one class. Punishment for Trade Marks related offences has been enhanced. With this new Act, India fulfills its obligations under the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement.
For businesses, Trade Marks, if exploited intelligently, can be a very sound business strategy. According to the Indian Act, a mark can be a word (including a coined one), phrase, name (in a particular style), label, sign, logo, symbol, brand name etc. It can also be the three dimensional signs, shape and packaging of goods or even colour combinations which are used to distinguish one’s goods or services. Some commonly seen examples of Trade Marks include the logos of “Air India”, “Airtel”, “Apple” computers, “Microsoft Windows” or phrases like “What an idea, Sir Jee” or “YehDilMaange More” etc. Talking of colour combinations, remember that Purple and White automatically remind you of Cadbury’s. That’s the capturing value of Trade Marks for enterprises.
As regards the creative and cultural industries, the Intellectual Property that comes into play is Copyrights. Industries like film, fashion, art, publishing, writing etc., abound with examples. In fact, as is evident from the spate of Copyright allegations amongst the fashion and the film fraternities in the recent past, these rights have become quite popular. The SuneetVerma-Aki Narula case over Rani Mukherjee’s costume in “BuntyAurBablee”, wasn’t missed by anybody. In the music and film industry, Copyright infringement cases reported are on the rise. Not so long ago, the Copyright controversy involving the music of the film “Krazzy 4” on the eve of its release is an example. How about the more recent ones like ChetanBhagat’s “Five Point Someone” and the Hindi film “Three Idiots” controversy?
Now what is this Copyright? Copyright, as the name suggests, is simply “the right to copy”. Strange, but yes! The catch is in the fact that, this “right to copy or make copies” lies only with the creator of the work in question. That means, if others copy the creation it is infringement. The Indian Copyright Act of 1957 gives protection to “original literary, dramatic, musical and artistic works”. Copyright, however, protects the expression of an idea rather than the idea itself. It is a legal protection bestowed on the creator of anoriginal piece of work. The works in which copyright comes into play are books, paintings, lyrics, scripts and music etc. There are however exceptions to this right. Research, private study, news reporting and also use of works in library and in legislatures (for judicial proceedings) or making of sound recordings of musical or dramatic works under certain conditions, are permitted. All this comes under fair use. Copyright comprises two basic rightsEconomic Rights and Moral Rights. While the Economic Rights cover the right of reproduction, broadcasting, adaptation, translation, public performance etc.; the Moral Rights include the creator’s right to object in case of any distortion or mutilation or modification of his creation that may affect his honour and reputation. The ChetanBhagat- “Three Idiots” controversy comes within the purview of Moral Rights. It is about the “Right of Attribution” falling under Section 57 (which deals with Moral Rights) of the Indian Copyright Act.
In the recent times Indian businesses have been able to exploit Trademarks intelligently. This is because awareness amongst all level of business – large corporate to SMEs and even start ups – is increasing significantly as they become brand conscious trying to pull out best possible value thereof. Classic examples are that of the Tata Group, which is now known the world over; recent acquisition of ParasPharma (makers of Moov, Krake, Dermi Cool etc.) by Reckitt Benckiser (an MNC); recent sale of SWEEKAR brand of Merico to the US giant Cargil, to name a few. Even the rankings by Brand Finance, an international brand consultancy, show that 9 Indian brands are appearing amongst world’s 500 best brands, viz., Tata, Reliance, SBI, Airtel, IOC, BPCL, Infosys, ICICI and WIPRO. This clearly shows that Indian brands are now well recognized and Indian businesses are able to exploit it intelligently, a far cry from the scenario about 5- 7 years ago.
Like any other IP rights, Copyright can also be assigned. But, these rights are different from the other IPRs. Copyright is a sort of automatic right that comes into force the moment a work is created. The formality of registration here is not mandatory, though of course it may come in handy in a court of law as prima facie evidence. The term of duration of protection of a Copyrighted work is 60 years from the year following the death of author (creator). Several amendments have been made to the Copyright Act of 1957. In all, five amendments have been made in the Act till 1999, when it became TRIPS compliant. The amendments have now included Computer software programs to be also covered under Copyrights by defining them as literary works. Efforts are on to amend this Act further to take into account things such as writers’ or lyricists’ rights in a film or increasing Copyright duration ofphotographs. Hopefully then, issues like the ones between producers and lyricists, for which personalities from the film industry like Aamir Khan and JavedAkhtar had been pushing will be resolved
Regarding controversies, in a most high profile recent case of Copyright infringement, Germany’s Defence Minister, Karl Theodor Zu Guttenberg faced allegations on his Ph.D thesis. His law dissertation from University of Bayreuth was alleged to contain plagiarized material. Finally, in the beginning of March this year, with political pressure mounting, the popular Defence Minister had to give in. He ultimately stepped down from his position and resigned. On the Indian front too, contrary to earlier patterns, the scenario has changed and people are making efforts to assert their rights and get the wrongdoers punished. Ace designer Ritu Kumar has led the way by filing a case against people exploiting her designs and even had them arrested. So, IPRs, are not just about rights to be protected, but also wrongs to be prevented. They need to be asserted, managed and exploited well.
Some food for thought: who owns the copyright to the “copyright statement” that we all use in books and various publications? Got the answer anyone??
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