Intellectual Property Rights- Changing Indian Scenario

An overview of IPR Globally:

Intellectual property rights (IPR) encourage the innovation and creativity that is fundamental to sustained economic growth. Unfortunately, the growing global trade in pirated and counterfeit goods threatens innovation, workers’ livelihoods, health, and safety. Fake products—such as CDs, DVDs, software, electronic equipment, clothing, pharmaceutical products, and auto parts—Intellectual property refers to property created with the use of intellect or creation of mind. The h i t of man's brains can with utmost propriety be called his property. Such creation is vested with the status of property because of commercial value of the intellectual creation. Intellectual property right is a right recognised and sanctioned by law. It is an intangible, incorporeal right granted by the statute. The creative intelligence of man is displayed in multiform ways of aesthetic expression but it is often happens that economic systems so operates that the priceless divinity which we call artistic or literary creativity in man is exploited and master, whose works are invaluable are victims of piffling payments.' Therefore, the public opinion in defence of human rights to intellectual property led to declaration of human right and various conventions.
The Universal Declaration of Human Rights, 1948 mandates state parties to protect the private incentive for innovators as well as the public interest of maximising access to the fruits of innovation. Article-27 states that I) everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and benefits. ii) Everyone has the right to the protection of the moral and material interest resulting & from any scientific, literary or artistic production of which he is the author. The agreement on Trade-related aspects of Intellectual Property Rights, 1944, well known, as 'TRIPS Agreement' is part and parcel of the WTO set up. The TRIPS agreement binds all the members of the WTO, which seeks to reduce distortions and impediments to international trade. Article 9 to 14 of the Agreement deal with the copyright and,related rights. The term 'related rights' appearing in the Agreement refers to the neighbouring rights, which are provided to performers, producers of phonograrns and broadcasting organisations.

Return on Investments / Invention / Innovation:
The main classification of IPR is 1) Industrial Property & 2) Copyrights
Where Copyrights law dealing with a protection of an Author’s original creation, on the other hand, ‘Industrial Rights’ is for corporate to create dominant over Innovation and Brand Protection. Sustaining new Innovation for an organization’s growth and Brand protection by using the mechanism of Trade mark Registration is essential to survive in the globalized business platform.
Whereas; world’s leading MNCs headquarters’ based in India, the changing growth of IPR related Laws and statutory regulation is significantly adding in the new context of IPR.
Amendments / Introduction of New Legislation
1. Copyrights. India’s Copyrights Act, 1957 as amended by Copyright (Amendment) Act, 1999, fully reflects Berne Convention on copyrights. Additionally, India is party to the Geneva Convention for the protection of rights and procedures of Phonograms and to the Universal Copyright Convention. India is also an active member of World Intellectual Property Organization (WIPO) and UNESCO. The copyright act has been amended periodically to keep pace with changing requirements. The recent amendment has brought the copyrights law in line with development in Satellite broadcasting, Computer software and Digital technology. The amended law has made provisions for the first time to protect performer’s rights as envisaged in the Rome Convention. On the other hand, on the implementation front, several measures have been adopted to strengthen and streamline the enforcement of copyrights. These measures comprise setting up of a Copyrights Enforcement Advisory Council, training programs for enforcement officers and setting up special policy cells to deal with cases relating to infringement of copyrights.
2. Trademarks. With regards to Trademarks, the TRIPS agreement provides that the initial registration of trademarks, and each renewal of registration shall be for a term of not less than 7 years. The registration shall be renewable for an indefinite period. Compulsory licensing of trademarks is not permitted. Keeping in view the requirement of TRIPS agreement, changes in trade and commercial practices, globalization of trade, need for simplification and harmonization of trade marks registration systems, a comprehensive review of the Trade and Merchandise Marks Act, 1958 was made and a Bill to repeal and replace the act has since been passed by the parliament and notified in the gazette on 30-12-99. This amendment not only makes the Trademarks law compatible to the TRIPS agreement, but also harmonizes it with international systems and practices.
3. Geographical Indications. The TRIPS agreement contains a general obligation that parties (countries) shall provide the legal means for interested parties (countries), to prevent the use of any means in the designation or presentation of good that indicates or suggests, that the good in question originates in a geographical area, other than the true place of origin, in a manner which misleads the public, as to the geographical origin of the good. There is no obligation under the agreement to protect geographical indications which are not protected in their country of origin or which have fallen into disuse in that country. A new law for the protection of geographical indications, viz. The Geographical Indications of Goods (Registration and Protection) Act 1999 has also been passed by the parliament and notified on 30-12-99.
4. Industrial Designs. Obligations envisages, in the TRIPS agreement, in respect of industrial designs are that independently created designs that are new or original shall be protected. Individual governments have been given the option to exclude from protection, designs dictated by technical or functional considerations, as against aesthetic consideration, which constitutes the coverage of industrial designs. The right accruing to the right holder is the right to prevent third parties not having his consent from making, selling or importing articles or embodying a design, which is a copy or substantially a copy of the protected design, when such acts are undertaken for commercial purposes. The duration of protection is to be not less than 10 years. A new law repealing replacing The Designs Act, 1911 has been passed by parliament in the budget session, 2000. This act has been brought into force from 11-05-01.
5. Patents. The basic obligation in the area of patents is that, invention in all branches of technology whether products or processes shall be patent able if they meet the three test of being new, involving an inventive step and being capable of industrial application. In addition to the general security exemption which applied to the entire TRIPS agreement, specific exclusions are permissible from the scope of patent ability of inventions, the prevention of whose commercial exploitation is necessary to protect public order or morality, human, animal, plant life or health or to avoid serious prejudice to the environment. Further, members may also exclude from patent ability of diagnostic, therapeutic and surgical methods of the treatment of human, animals and plants, other than microorganisms and essentially biological processes for the production of plant and animals. The TRIPS agreement provides for a minimum term of protection of 29 years counted from the date of filing. India has already implemented its obligations under Articles 70.8 and 70.9 of TRIPS agreement. A comprehensive review of the Patents Act, 1970 was also made and a bill to amend the same was introduced in parliament on 20th December, 1999 and notified on 25-06-02 to make the patent law TRIPS compatible.
Modernization of Intellectual Property Administration
The Government, in a series of strategic responses to economic liberalization and globalization, has put on priority the modernization of IP Administration. Following steps have been taken:
1. Modernization of patent offices, located at Mumbai, Delhi, Chennai and Kolkata (Head Office), sanctioned at a cost of Rs. 75.79 crores in December, 1998. The components of
project included, human resource development, computerization and re-engineering of work practices, clearance of backlog of pending applications and operational and financial autonomy.
2. Effective steps have been taken in terms of acquisition of additional accommodation for Delhi, Kolkata and Chennai offices and its renovation, computerization of operations, provision of additional staff, improvement of library facilities and novelty search facilities, etc.
3. Efforts have been made to improve the working of the patent offices within the resources available and that the problem of backlog is also being attacked through 50% higher monthly target for disposal of patent applications per examiner.
4. A steering committee, comprising representatives of Patent Offices, NIC, NID, NPC, Finance Wing, etc., regularly monitors the progress of implementation.
5. Website of Patent Office (http://patentoffice.nic.in) was launched. Work manual of the office is put in use. Information brochures on different aspects of intellectual property, including patents, have been released. On-line search facilities have also been established.
6. e-Filing of Application for Patent/ Trademark is now available with the website of Controller General of Patent, Design and Trade mark (http://ipindia.nic.in).

Number of measures to strengthen the enforcement of copyright law has been taken by the Government of India. The summary of the same is as follows:
1. The Government has brought out A Handbook of Copyright Law to create awareness of copyright laws amongst the stakeholders, enforcement agencies, professional users like the scientific and academic communities and members of the public. Copies of the Handbook have been circulated free-of-cost to the state and central government officials, police personnel and to participants in various seminars and workshops on IPR.
2. National Police Academy, Hyderabad and National Academy of Customs, Excise and Narcotics conducted several training programs on copyright laws for the police and customs officers. Modules on copyright infringement have been included in their regular training programs.
3. The Department of Education, Ministry of Human Resource Development, Government of India has initiated several measures in the past for strengthening the enforcement of copyrights that include constitution of a Copyright enforcement Advisory Council (CEAC), creation of separate cells in state police headquarters, encouraging setting up of collective administration societies and organization of seminars and workshops to create greater awareness of copyright laws among the enforcement personnel and the general public.
4. Special cells for copyright enforcement have so far been set up in 23 States and Union Territories, i.e. Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra
& Nagar Haveli, Daman & Diu, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab, Sikkim, Tamil Nadu, Tripura and West Bengal.
5. The Government also initiates a number of seminars/workshops on copyright issues. The participants in these seminars include enforcement personnel as well as representatives of industry organizations. As a consequence of the number of measures initiated by the government, there has been more activity in the enforcement of copyright laws in the country. Over the last few years, the number of cases registered has gone up consistently
6. The Indian Patent and Trademark Office (IPTO) notified the 3rd draft patent amendment rules, 2010.
A few major highlights from the draft rules are:
Our IPTO becomes an International Preliminary Examination Authority (IPEA) and International Search Authority (ISA) upon publication of the rules in the Official Gazette. IPTO's Delhi office will perform the function of the IPEA.
The rules also define a specific section relating to the format of applications to be submitted before the Controller. All documents except affidavits and drawings, should be submitted in a font that is not less than 0.28" and have at least 1.5 line spacing. The document should be on A4 paper, with defined margins (4 cm for top and left, 3cm for bottom and right). Each sheet must be numbered in Arabic numerals in the bottom centre.Numbering to be provided after every 5 lines.

Our more experienced readers would appreciate that the format of the application is similar to that of EPO requirements (See Rules 46, 47 and 49).
Hopefully, once the rules are officially notified- it would be possible for the IPTO to publish a complete application and subsequently its file history.

Indian IPR goes internationally
Keeping bio-piracy at bay by protecting traditional knowledge or popular folklore and sharing its benefits with stake-holders are issues that will be reiterated by an Indian delegation participating in a WIPO meeting on the issue starting in Geneva on Monday (April 24,2006).
Representatives from different ministries, including Education, Science and Technology and Commerce, are participating in The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore: Ninth Session, held under the aegis of the WIPO(World Intellectual Property Organization).
The challenge is not only in tightening Indian laws to prevent misappropriation of traditional knowledge but to ultimately get other countries also to be part of an international treaty that binds them on similar lines. This way, traditional knowledge gets protected, whether it is Chinese medicine or popular African folklore, another IP expert said.
With India recognising product patents, the law should prevent the misuse of documented and undocumented forms of traditional knowledge. Prior informed consent needs to be taken from stakeholders of the traditional knowledge if it was being used for commercial purposes and the benefits should be shared with these communities who have used the knowledge for generations, he added.
Between the Patents (Amendment) Act 2005 and the Bio-diversity Act, India has taken steps to prevent the misuse of traditional knowledge, said a Government official who is participating in this week's WIPO meet.
The Traditional Knowledge Digital Library further lists out details on Indian medicine in languages such as Japanese, German, French and Spanish, besides English.
This keeps Patent offices across the world informed, so it can keep at bay brazen attempts to patent traditional Indian medicine, the official added.(sources’: The Hindu Business Line)
• In recognition of the efforts made by the Government of India in modernising its intellectual property systems as well as infusing transparency and openness in the system, the 170 plus Member States of the World Intellectual Property Organization (WIPO), in the recently concluded General Assemblies of WIPO, endorsed India’s recognition as an International Searching Authority (ISA) and an International Preliminary Examining Authority (IPEA).
• India and other developing countries are set to block the attempts of the developed nations to restrict access to digital material in a bid to check violation of copyright at the 18th session of the Standing Committee on Copyrights, to be held by World Intellectual Property Organisation in Geneva.
• In addition to its anti-software piracy activities, Business Software Alliance (BSA), will also now lobby with the Indian government to sign the World Intellectual Property Organisation (WIPO) copyright treaty. BSA, which is a global agency backed by major software vendors like Microsoft and Adobe, will also put pressure on the Indian government officials to strengthen the enforcement of the existing copyright legislation to bring down software piracy.
• On the Day of June 24,2008 Union Minister of Commerce and Industry Kamal Nath on Monday stated that a bilateral agreement on Intellectual Property Rights (IPR) cooperation between the intellectual property offices of India and Singapore will be signed shortly. During his bilateral meeting with Lim Hng Kiang, Minister for Trade and Industry of Singapore, Nath informed that as regards the Association of Southeast Asian Nations (ASEAN)-India FTA, considerable progress was made during the last meeting in Bali and added: I am now hopeful that we would be able to achieve our target of announcing the conclusion of negotiations at the AEM-India consultations in August. During the interaction, Kamal Nath said that Singapore was India s fifth largest merchandise trading partner and fourth largest merchandise export market and added that India s exports to Singapore grew by 16 per cent in the year 2007-08 compared to a growth of 42 per cent in the imports from Singapore . He further stated that Singapore ranks fourth in terms of foreign direct investment in India during the period 1991-2008 with investments of 4.7 billion dollars. The total bilateral trade during 2006-07 was 11.49 billion dollars and has increased by 25.88 per cent to 13.42 billion dollars in the year 2007-08 (upto February 2008) over the same period in 2006-07. Major items of Indian exports to Singapore were: petroleum (crude and products); other commodities; transport equipments; electronic goods and non-ferrous metals. Major items of Indian imports from Singapore were: electronic goods; petroleum (crude and products); organic chemicals; machinery (except electrical and electronic) and project goods.
The top five sectors attracting Foreign Direct Investment (FDI) inflows from Singapore are: petroleum and natural gas, mining, services sector, construction activities and power, whereas the top five sectors attracting technology transfer are: electrical equipments (including computer software and electronics), hotel and tourism, food processing industry, chemicals (other than fertilizer) and miscellaneous mechanical and engineering industries. (ANI)

New arena of IPR in India:

Publicity & Image Rights: The right of publicity and the right of image flow from the right to privacy of individuals. The jurisprudence on publicity and image rights is in its nascent stages in India. The judiciary is yet to recognize the right of publicity and the right of image as distinct legal rights. In ICC Development (International) Ltd v Arvee Enterprises ((CS) OS 1710/2002)
This is of strategic importance for celebrities who intend to use their image and likeness to identify their own or an authorized line of merchandise.Recently, well-known Indian actress Mallika Sherawat registered her name as a trademark.

Data Protection: The importance of IP exponentially increases in companies that are planning to execute some of their core projects offshore and in companies that need to provide access to classified company data to the offshore location for BPO/Call center initiatives. It is important for companies to understand IP rights in India and the best practices that can be followed to protect the IP.



‘Raises of IPR firms and Lawyers in India:-


The current issue of Businessworld showcases the legal hotshots who are dominating the booming Intellectual Property Rights (IPR) arena. From well known industry specialists like Remfry & Sagar and Anand and Anand to newer, upcoming firms like Titus & Co., the article takes a look at the firms’ specialty, revenue and clients.
The article also takes a look at the firms’ revenues for the year of 2009-2010, fees charged per hour, the firms’ top clients as well as the top cases that have been fought by the firm. The figures that these questions throw up give an interesting insight into the growth of the IP market in India.

ND- Not Disclosed
Source: Businessworld, August 2010
Among the firms that agreed to disclose their revenue figures for the year mentioned, the clear market leader continues to be Remfry & Sagar which is also one of the oldest law firms in India set up in 1827. Its staggering revenue of Rs.121 crore ($26 million) and fees of $90 to 1000 (Rs. 4,000 to 46,000) per hour clearly show that the Vidya Sagar led firm is the doyen of India’s IPR business.
While reading the article, it seems that the most interesting facet of this feature piece is the staggeringly high hourly fees that are charged by the firms across the board. From Remfry & Sagar’s $ 26 million (Rs. 121 crore) revenue to hourly rates as high as Rs. 46,000 ($1,000), it is a clear sign that the IP market in India is on a fast track. With able lawyers who keep up to date on the latest developments in the IP world from around the world, it is clear that the sky is the limit for this area of law.
An interesting feature of the article is the issue of security among the IP firms. Security measures include a no cell phone rule except for Partners and hiring which might be restricted to referrals and grooming home grown talent. Despite these measures there is still scope for a slip up as was evidenced by Diljeet Titus. In 2005 a Nigerian law associate and three other employees of Titus got away with data from the firm’s computers. Titus filed a suit against and eventually won but the firm later decided against prosecuting these associates.
The article also tracks the rise of rise of IP filings in India, with figures doubling in the last few years.

Showing that the leading IPR lawyers at these firms are not just all about the law, the article also has a few rarely seen insights in the non working life of these mavericks. For example, did you know that Pravin Anand, Managing Partner at Anand and Anand created an IP board game or that Dev Robinson, IPR Partner at AMSS is a keen photographer?
The article also showcases ten prominent IPR cases in recent times apart from tracking the growth of IPR in India and showcasing IPR laws that are in the works.

Conclusion:-
In India Intellectual Property will no longer be seen as distinct or self contained domain, but rather as an important and effective policy instrument that would be relevant to a wider range of socio – economic, technological and political concerns. Moreover, as technological advancements have become a requirement for sustained growth in the future, a new emphasis is emerging on research and development. It is for this reason that intellectual property and its protection have gained greater importance. Intellectual Property has now been recognized as an important tool for technical, industrial and economic development. As globalization deepens further, it also increasingly encompasses the sharing, utilization and enjoyment of IP products like inventions, designs, books, etc. India is fast developing into a technology producing country, particularly in biotechnology, information technology and pharmaceuticals sector.