SITA LAB REPORT (I.P)

Engineering College,

Ajmer

ABSTRACT

The standard literature on this subject generally relies on the thesis of the

incentive to create and/or disclose new ideas, traditionally linked to the solution of the

public goods provision problem. However, although this argument undoubtedly

remains valid in the general case, in several circumstances, it fails to satisfactorily take

into account various consequences arising from the dynamic effect of intellectual

property rights on the market structure and from the emergence of new social behaviors

which significantly affect the consumption and the production paradigm, such as

the case of peer-to-peer systems or the Open Source movement.

The main conclusion that seems to emerge from this review is that the

economic evaluation of intellectual property based on a more suitable representation of

facts and specific features of inventive and creative contexts might reveal a totally

different overall balance of welfare and therefore lead to different regulatory and

policy indications.

The problem of intellectual property protections has been seriously

discussed since the first launch of intellectual property negotiations within the

framework of the General Agreement on Tariffs and Trade (GATT). These

discussions have particularly centered on negotiations with regard to the

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) in

the eighth round of the GATT negotiations.

This round is often referred to as the Uruguay Round. Most of the Association of

South East Asian Nations (ASEAN) countries, such as Indonesia, Malaysia, and

Thailand, are members of the GATT.

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CHAPTER 1

INTELLECTUAL PROPERTY RIGHTS

1.1 INTRODUCTION AND OVERVIEW:-

Intellectual property is unique, as it is the fruit of personal creation and

inventiveness. It might be a poem that you write, the name your hairdresser thinks

up to sell his or her services, or a mother’s invention for a non-spill cup for

babies. It can also be a Picasso painting, an Akira Kurosawa film, a Naguib

Mahfouz novel, a new method of irrigation for farmers in arid regions, the

invention of the light bulb, a computer chip or a jet turbine engine. In the future,

intellectual property creators aim to deliver more abundant food resources, clean

energy and cures for illnesses from cancer to the common cold. In virtually every

instance, intellectual property stimulates progress, transforming society and adding

value to our lives. Intellectual property refers to creations of the mind: inventions;

literary and artistic works; and symbols, names and images used in commerce.

Intellectual Property Rights (IPR) is the collective name for new and unique

ideas, products and creations resulting from human creativity and innovation. Copyright,

Trademarks, Patents, Database Rights and Performance Rights are the most

relevant rights with regards to those that may apply to digital content. In most

cases, once a creative endeavor or innovation is protected, like property, the

associated rights can be traded, bought and sold, bequeathed and licensed.

1.2 WHY DOES INTELLECTUAL PROPERTY NEED PROTECTION:-

Society provides legal rights over intellectual property to encourage the

production of inventions and creative works that benefit society, and to help innovators

and creators make a living from their work. These rights, which can belong to

individuals or organizations, are recognized by governments and courts. The system is

designed to benefit society as a whole, in both developed and developing countries,

striking a delicate balance to ensure that the needs of both the creator and the user

are satisfied. This balance is maintained through checks within the intellectual property

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system itself and in the larger regulatory framework, to ensure that the system is

sustainable and beneficial to all stakeholders.

Intellectual property is divided into two categories:

Industrial Property

Copyright and related rights

Fig 1.1 Types Of Intellectual Property

Industrial Property includes patents for inventions, trademarks, industrial designs

and geographical indications.

Copyright covers literary works (such as novels, poems and plays), films, music,

artistic works(e.g., drawings, paintings, photographs and sculptures) and architectural

design. Rights related to copyright include those of performing artists in their

performances, producers of phonograms in their recordings, and broadcasters in

their radio and television programs.

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1.3 INTELLECTUAL PROPERTY RIGHTS:-

Intellectual property rights are like any other property right. They allow

creators, or owners, of patents, trademarks or copyrighted works to benefit from

their own work or investment in a creation. These rights are outlined in Article27 of the

Universal Declaration of Human Rights, which provides for the right to benefit from

the protection of moral and material interests resulting from authorship of scientific,

literary or artistic productions. The importance of intellectual property was first

recognized in the Paris Convention for the Protection of Industrial Property (1883) and

the Berne Convention for the Protection of Literary and Artistic Works (1886). Both

treaties are administered by the World Intellectual Property Organization (WIPO).

1.4 PROMOTE AND PROTECT INTELLECTUAL PROPERTY:-

There are several compelling reasons. First, the progress and well-being of

humanity rest on its capacity to create and invent new works in the areas of

technology and culture. Second, the legal protection of new creations encourages the

commitment of additional resources for further innovation. Third, the promotion and

protection of intellectual property spurs economic growth, creates new jobs and

industries, and enhances the quality and enjoyment of life. An efficient and equitable

intellectual property system can help all countries to realize intellectual property’s

potential as a catalyst for economic development and social and cultural well-being.

The intellectual property system helps strike a balance between the interests of

innovators and the public interest, providing an environment in which creativity and

invention can flourish, for the benefit of all.

1.5 HOW IS INTELLECTUAL PROPERTY PROTECTED?

Different types of intellectual property – literary and artistic creations,

inventions, brand names, and designs, to name a few – are protected in different

ways:

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Creations in the fields of literature and the arts, such as books, paintings,

music, films as well as software, are generally protected through copyright

or so-called neighboring rights;

Technological inventions are typically protected by patents;

distinctive features – such as words, symbols, smells, sounds, colours and

shapes – that distinguish one product or service from another, can be

protected by trademark rights;

the specific external appearance given to objects, such as furniture, car body

parts, tableware, clothing or jewellery, may enjoy design protection;

Geographical indications (e.g. Parma ham) and trade secrets are also

considered to be types of intellectual property and most countries provide

some form of legal protection for them;

Legal protection for safety and efficacy studies data for certain regulated

products (e.g. plant science products and pharmaceuticals) is increasingly

provided in many parts of the world.

This wide array of tools can be used by people and businesses at all levels.

Almost all businesses in all countries – the vast majority of which are small

enterprises – use trademarks for marketing their goods and services. Copyrights are

even more easily available. The moment someone writes a text, composes some

music or draws an image, he or she will have copyright to the result. Intellectual

property law limits what can be protected and for how long. Intellectual property

rights do not protect ideas. They protect only expressions of ideas, in the case of

copyrights, and inventions fulfilling certain strict and well-established criteria in the

case of patents.

These limitations and conditions are built-in mechanisms to balance the

rights of intellectual property owners with the interests of society. Intellectual

property rights allow innovators and creators to choose the terms on which they

distribute their work. They can choose, for example, to license and sell their works

or inventions, to make them available for free, or to allow their use subject to

certain conditions. In the patent area, patented technologies are shared on certain

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terms as common technical standards to improve the interoperability of different

systems, thus simplifying the lives of consumers. Looking forward, as economies

develop, the use and value of intellectual capital will gradually replace the value of

raw materials as a percentage of capital input toward economic growth. As such,

intellectual property is an increasingly important asset that must be continually

nurtured, protected and stimulated to grow.

The World Economic Forum Global Competitiveness Report indicates

correlation between the protection of intellectual property rights and national

competitiveness. In 2004, the 20 countries that were perceived as having the most

stringent intellectual property protection were classed among the top 27 in the

WEF’s growth competitiveness index. Conversely, the 20 countries perceived as

having the weakest intellectual property regimes were ranked among the bottom

36 for growth and competitiveness.

Intellectual property rights (IPRs) affect international trade flows when

knowledge-intensive goods move across national boundaries. The importance of

IPRs for trade has gained more significance as the share of knowledge-intensive

or high-technology products in total world trade has doubled between 1980 and

1994 from 12 percent to 24 percent. At the international level, IPRs have

traditionally been governed by several conventions—most prominently the Paris

Convention for patents and trademarks and the Berne Convention for copyrights—which

are administered by the World Intellectual Property Organization (WIPO).

In the 1980s, mounting disputes over IPRs led to the inclusion of trade-

related IPRs on the agenda of the Uruguay Round of multilateral trade negotiations.

The resulting Agreement on Trade-Related Aspects of Intellectual Property Rights,

(TRIPS) of 1994 represents the most far-reaching multilateral agreement toward

global harmonization of IPRs. Several studies have attempted to estimate the extent

to which IPRs relate to trade . Maskus and Penubarti (1995) use an augmented

version of the Helpman-Krugman model of monopolistic competition to estimate

the effects of patent protection on international trade flows. Their results indicate

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that higher levels of protection have a positive effect on bilateral manufacturing

imports into both small and large developing economies. These results are

confirmed by Primo Braga and Fink (1997), whose results for a similar model

showed the same positive link between patent protection and trade flows. This

study provides new evidence regarding the effects of patent protection on

international trade. It uses a gravity model of bilateral trade flows and estimates

the effects of increased protection on a cross section of 89 by 88 countries. It

improves on previous studies in two respects.

First, we estimate the gravity model for two different kinds of aggregates: total

nonfuel trade and high-technology trade. Moreover, we address the problem of zero trade

flows between countries by adopting a bivariate probit model. Second, to measure

the strength of IPR regimes, we use a fine-tuned index on national IPR systems

developed by Parkand Ginarte (1997). Our results confirm previous findings

suggesting a positive link between IPR protection and trade flows for the

aggregate of nonfuel trade. However, IPRs are not found to be significant for

high-technology trade flows.

CHAPTER 2

INDUSTRIAL PROPERTY

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Industrial Property includes patents for inventions, trademarks, industrial

designs and geographical indications. The broad application of the term “industrial”

is clearly set out in the Paris Convention for the Protection of Industrial Property

(Article 1 (3)): “Industrial property shall be understood in the broadest sense and

shall apply not only to industry and commerce proper, but likewise to agricultural

and extractive Understanding Industrial Property industries and to all manufactured

or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals,

mineral waters, beer, flowers, and flour.”

These include patents to protect inventions; and industrial designs, which

are aesthetic creations determining the appearance of industrial products. Industrial

property also covers trademarks, service marks, layout-designs of integrated circuits,

commercial names and designations, as well as geographical indications, and

protection against unfair competition. In some of these, the aspect of intellectual

creation, although existent, is less clearly defined.

What counts here is that the object of industrial property typically consists of

signs transmitting information, in particular to consumers, as regards products and

services offered on the market. Protection is directed against unauthorized use of

such signs likely to mislead consumers, and against misleading practices in

general.

2.1 PATENT:-

A patent is an exclusive right granted for an invention – a product or

process that provides a new way of doing something, or that offers a new technical

solution to a problem. A patent provides patent owners with protection for their

inventions. Protection is granted for a limited period, generally 20 years.

A Patent is a legal monopoly, which is granted for a limited time by a

country to the owner of an invention. Merely to have a patent does not give the

owner the rights to use or exploit the patented invention. That right may still be

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affected by other laws such as health and safety regulation, or the food and drugs

regulation or even by other patents.

The patent, in the eyes of the law, is a property right and it can be given

away, inherited, sold, licensed and can even be abandoned. As it is conferred by

the government, the government, in certain cases even after grant or even if it

has been, in the meantime, sold or licensed, can revoke it.

A Patent gives an inventor the right for a limited period to stop others from

making, using, selling or importing an invention without the permission of the

inventor. That is why patent is called a "negative right"

Patents are generally concerned with functional and technical aspects of

products and processes and must fulfill specific conditions to be granted.

Most patents are for incremental improvements in known technology –

evolution rather than revolution. The technology does not have to be

complex.

Patent rights are territorial; an Indian patent does not give rights outside of

India.

Patent rights last for up to 20 years in India and in most countries outside

India.

Depending on where you wish your patent to be in effect, you must apply

to the appropriate body. In India, this is The Indian Patent Office. There

are various Patent Offices around the world. Alternatively , a Patent Agent

can apply on your behalf.

2.1.1 PROCEDURE FOR FILLING PATENT APPLICATION:-

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Fig 1.2 Procedure of filling patent application:-

Legal Basis

The Patents Act 1970, as amended by The Patents (Amendment) Act 2005.

The Patents Rules, 2003, as amended by The (Amendment) Rules 2006.

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Filing Application

Any person, even if he or she is a minor, may apply for a patent either alone or

jointly with any other person. Such persons include the inventor, or his assignee or legal

representative in the case of an ordinary application or, in the case of a priority

application, the applicant in the convention country or his assignee or his legal

representative. A corporate body cannot be named as an inventor. Foreigners and

nationals not living in India need an address for service in India for this purpose. They

may appoint a registered agent or representative whose address for service can be the

address for service in India.

Place of filing:

An application for patent must be filed at the Patent Office branch within whose

territorial jurisdiction the applicant resides or has his principal place of business or

domicile. A foreign applicant must file in the Patent Office branch having jurisdiction

over the place where his address for service is located.

Priority:

Priority can be claimed from the earliest corresponding application in a

convention country, provided that the Indian application is filed within twelve months of

the priority date. Multiple and partial priorities are allowed.

Specification:

A priority application must be filed with a complete specification in the first

instance but a non-priority application may be filed with either a provisional specification

or a complete specification. Where a provisional specification is filed in the first instance,

a complete specification must be filed within twelve months. Where two or more

provisional specifications have been filed, the specifications may be cognated and all the

subject matter may be incorporated into a single complete specification to be lodged

within twelve months of the date of the earliest filed provisional specification.

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Naming of inventor(s):

As regards non-priority applications, the inventor(s) must be named in the

application form. As regards priority applications, a declaration as to inventorship must

be filed with the application or within a maximum period of six months.

Information of corresponding applications in other countries:

It is necessary at the time of filing a patent application in India, to inform the

Controller of the details of all corresponding applications in other countries and to

undertake to keep the Controller so informed up to the grant of the Indian application.

Failure to do so could result in the refusal of the application in case it is opposed, or even

revocation of a patent in proceedings before the High Court.

2.1.2 WHY ARE PATENTS NECESSARY?

Patents provide incentives to individuals by recognizing their creativity and

offering the possibility of material reward for their marketable inventions. These

incentives encourage innovation, which in turn enhances the quality of human life.

2.1.3 WHAT KIND OF PROTECTION DO PATENTS OFFER?

Patent protection means an invention cannot be commercially made, used,

distributed or sold without the patent owner’s consent. Patent rights are usually

enforced in courts that, in most systems, hold the authority to stop patent

infringement. Conversely, a court can also declare a patent invalid upon a successful

challenge by a third party.

2.1.4 WHAT RIGHTS DO PATENT OWNERS HAVE?

A patent owner has the right to decide who may – or may not –use the

patented invention for the period during which it is protected. Patent owners may

give permission to, or license, other parties to use their inventions on mutually

agreed terms. Owners may also sell their invention rights to someone else, who then

becomes the new owner of the patent. Once a patent expires, protection ends and the

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invention enters the public domain. This is also known as becoming off patent,

meaning the owner no longer holds exclusive rights to the invention, and it becomes

available for commercial exploitation by others.

2.1.5 WHAT ROLE DO PATENTS PLAY IN EVERYDAY LIFE?

Patented inventions have pervaded every aspect of human life, from electric

lighting (patents held by Edison and Swan) and sewing machines (patents held by Howe

and Singer), to magnetic resonance imaging (MRI) (patents held by Damadian) and the

iPhone (patents held by Apple). In return for patent protection, all patent owners are

obliged to publicly disclose information on their inventions in order to enrich the

total body of technical knowledge in the world. This ever increasing body of public

knowledge promotes further creativity and innovation. Patents therefore provide not

only protection for their owners but also valuable information and inspiration for

future generations of researchers and inventors.

2.1.6 HOW IS A PATENT GRANTED?

The first step in securing a patent is to file a patent application. The

application generally contains the title of the invention, as well as an indication

of its technical field. It must include the background and a description of the

invention, in clear language and enough detail that an individual with an average

understanding of the field could use or reproduce the invention. Such descriptions

are usually accompanied by visual materials –drawings, plans or diagrams – that

describe the invention in greater detail. The application also contains various

“claims”, that is, information to help determine the extent of protection to be

granted by the patent.

2.1.7 WHAT KINDS OF INVENTIONS CAN BE PROTECTED?

An invention must, in general, fulfill the following conditions to be

protected by a patent. It must be of practical use; it must show an element of

“novelty”, meaning some new characteristic that is not part of the body of existing

knowledge in its particular technical field. That body of existing knowledge is called

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“prior art”. The invention must show an “inventive step” that could not be deduced by a

person with average knowledge of the technical field. Its subject matter must be

accepted as “patentable” under law. In many countries, scientific theories, mathematical

methods, plant or animal varieties, discoveries of natural substances, commercial

methods or methods of medical treatment (as opposed to medical products) are not

generally patentable.

2.1.8 WHO GRANTS PATENTS?

Patents are granted by national patent offices or by regional offices that carry

out examination work for a group of countries – for example, the European Patent

Office (EPO) and the African Intellectual Property Organization(OAPI). Under such

regional systems, an applicant requests protection for an invention in one or more

countries, and each country decides whether to offer patent protection within its

borders. The WIPO- administered Patent Cooperation Treaty (PCT) provides for the

filing of a single international patent application that has the same effect as national

applications filed in the designated countries. An applicant seeking protection may

file one application and request protection in as many signatory states as needed.

2.2 TRADEMARK :-

A trademark is a distinctive sign that identifies certain goods or services

produced or provided by an individual or a company. Its origin dates back to

ancient times when craftsmen reproduced their signatures, or “marks”, on their

artistic works or products of a functional or practical nature. Over the years, these

marks have evolved into today’s system of trademark registration and protection.

The system helps consumers to identify and purchase a product or service based

on whether its specific characteristics and quality – as indicated by its unique

trademark– meet their needs.

A Trademark is any sign which can distinguish the goods and services of

one trader from those of another. A sign includes words, logos, colours, slogans,

three-dimensional shapes and sometimes sounds and gestures.

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A trademark is therefore a "badge" of trade origin. It is used as a

marketing tool so that customers can recognize the product of a particular trader.

To be registrable in India it must also be capable of being represented

graphically, that is, in words and/or pictures.

2.2.1 CHANGES IN THE INDIAN TRADE MARK LAW:-

A new Trademark regime has been introduced in India since September 15,

2003. The new Trade Marks Act, 1999 has many innovative features:

Service Marks:

A mechanism is now available to protect marks used in the service industry. Thus

businesses providing services like computer hardware and software assembly and

maintenance, restaurant and hotel services, courier and transport, beauty and health care,

advertising, publishing, educational and the like are now in a position to protect their

names and marks.

Collective Marks:

Marks being used by a group of companies can now be protected by the group

collectively.

Well-known marks:

Marks, which are deemed to be well known, are defined. Such marks will enjoy

greater protection. Persons will not be able to register or use marks, which are imitations

of well-known trademarks.

Enlarged scope of registration:

Persons who get their marks registered for particular goods in a particular class

and commence using their marks can sue and prevent other persons from

(i) Using the same or similar marks even for different goods falling in other classes;

(ii) Using the same or similar marks even only as part of their firm name.

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(iii) Using the same or similar mark only in advertising or on business papers;

(iv) Unauthorized oral use of the said trademark.

Stringent punishment:

Punishment for violating a trademark right has been enhanced. The offence

has now been made cognizable and wide powers have been given to the police to

seize infringing goods. At the same time the power of the Courts to grant ex

parte injunctions have been amplified.

Appellate Board:

An appellate board (IPAB) has been constituted based in Chennai for

speedy disposal of Appeals and rectification applications.

Expedited procedure:

Mechanisms have been set in place for expediting search and registration by

paying five times the normal fee.

Enhanced renewal period:

Registered trademarks need to be renewed every ten years.

License agreements do not need to be compulsorily registered.

Marks may include the shape of goods.

Marks may include a combination of colors.

2.2.2 WHAT DO TRADEMARKS DO?

Trademark protection ensures that the owners of marks have the exclusive

right to use them to identify goods or services, or to authorize others to use them

in return for payment. The period of protection varies, but a trademark can be renewed

indefinitely upon payment of the corresponding fees. Trademark protection is legally

enforced by courts that, inmost systems, have the authority to stop trademark in

fringement. In a larger sense, trademarks promote initiative and enterprise

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worldwide by rewarding their owners with recognition and financial profit. Trademark

protection also hinders the efforts of unfair competitors, such as counterfeiters, to use

similar distinctive signs to market inferior or different products or services. The

system enables people with skill and enterprise to produce and market goods and

services in the fairest possible conditions, thereby facilitating international trade.

2.2.3 WHAT KINDS OF TRADEMARKS CAN BE REGISTERED?

Trademarks may be one or a combination of words, letters and numerals.

They may consist of drawings, symbols or three dimension a signs, such as the

shape and packaging of goods. In some countries, non-traditional marks may be

registered for distinguishing features such as holograms, motion, color and non-

visible signs (sound, smeller taste).

In addition to identifying the commercial source of goods or services,

several other trademark categories also exist. Collective marks are owned by an

association whose members use them to indicate products with a certain level of

quality and who agree to adhere to specific requirement set by the association. Such

associations might represent, for example, accountants, engineers or architects.

Certification marks are given for compliance with defined standards but are not

confined to any membership.

2.2.4 HOW IS A TRADEMARK REGISTERED?

First, an application for registration of a trademark must be filed with the

appropriate national or regional trademark office. The application must contain a clear

reproduction of the sign filed for registration, including any colors, forms or three-

dimensional features. It must also contain a list of the goods or services to which

the sign would apply. The sign must fulfill certain conditions in order to be

protected as a trademark or other type of mark. It must be distinctive, so that

consumers can distinguish it from trademarks identifying other products, as well as

identify a particular product with it. It must neither mislead nor deceive customers

nor violate public order or morality.

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Finally, the rights applied for cannot be the same as, or similar to, rights already

granted to another trademark owner. This may be determined through search and

examination by national offices, or by the opposition of third parties who claim to have

similar or identical rights.

2.2.5 HOW EXTENSIVE IS TRADEMARK PROTECTION?

Almost all countries in the world register and protect trademarks. Each

national or regional office maintains a Register of Trademarks containing full

application information on all registrations and renewals, which facilitates

examination, search and potential opposition by third parties. The effects of the

registration are, however, limited to the country (or, in the case of regional registration,

countries) concerned. To avoid the need to register separate applications with each

national or regional office, WIPO administers an international registration system for

trademarks. The system is governed by two treaties: the Madrid Agreement Concerning

the International Registration of Marks and the Madrid Protocol. Persons with a link

(be it through nationality, domicile or establishment) to a country party to one or both

of these treaties may, on the basis of a registration or application with the trademark

office of that country (or related region), obtain an international registration having

effect in some or all of the other countries of the Madrid Union.

2.3 INDUSTRIAL DESIGN:-

An industrial design refers to the ornamental or aesthetic aspects of an

article. A design may consist of three-dimensional features, such as the shape or

surface of an article, or two-dimensional features, such as patterns, lines or color.

Industrial designs are applied to a wide variety of industrial products and

handicrafts: from technical and medical instruments to watches, jewelry and other

luxury items; from house wares and electrical appliances to vehicles and architectural

structures; from textile designs to leisure goods. To be protected under most national

laws, an industrial design must be new or original and non functional. This means that

an industrial design is primarily of an a esthetic nature, and any technical features of

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the article to which it is applied are not protected by the design registration.

However, those features could be protected by a patent.

2.3.1 WHY PROTECT INDUSTRIAL DESIGNS?

Industrial designs are what make an article attractive and appealing; hence,

they add to the commercial value of a product and increase its marketability.

When an industrial design is protected, the owner – the person or entity that has

registered the design – is assured an exclusive right and protection against

unauthorized copying or imitation of the design by third parties .This helps to

ensure a fair return on investment. An effective system of protection also benefits

consumers and the public at large, by promoting fair competition and honest trade

practices, encouraging creativity and promoting more aesthetically pleasing products.

Protecting industrial designs helps to promote economic development by encouraging

creativity in the industrial and manufacturing sectors, as well as in tradition alerts

and crafts.

Designs contribute to the expansion of commercial activity and the export of

national products. Industrial designs can be relatively simple and inexpensive to

develop and protect. They are reasonably accessible to small and medium-sized

enterprises as well as to individual artists and crafts makers, in both developed and

developing countries.

2.3.2 HOW CAN INDUSTRIAL DESIGNS BE PROTECTED?

In most countries, an industrial design must be registered in order to be

protected under industrial design law. As a rule, to be registered, the design must be

“new” or “original”. Countries have varying definitions of such terms, as well as

variations in the registration process itself. Generally, “new” means that no identical

or very similar design is known to have previously existed. Once a design is registered,

a registration certificate is issued. Following that, the term of protection granted is

generally five years, with the possibility of further renewal, in most cases for a

period of up to 15 years.

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Hardly any other subject matter within the realm of intellectual property is

as difficult to categorize as industrial designs. And this has significant implications

for the means and terms of its protection. Depending on the particular national law

and the kind of design, an industrial design may also be protected as a work of

applied art under copyright law, with a much longer term of protection than the

standard 10 or15 years under registered design law. In some countries, industrial design

and copyright protection can exist concurrently. In other countries, they are mutually

exclusive: once owners choose one kind of protection, they can no longer invoke the

other. Under certain circumstances an industrial design may also be protectable under

unfair competition law, although the conditions of protection and the rights and

remedies available can differ significantly.

2.3.3 HOW EXTENSIVE IS INDUSTRIAL DESIGN PROTECTION?

Generally, industrial design protection is limited to the country in which

protection is granted. The Hague Agreement Concerning the International

Registration of Industrial Designs, a WIPO administered treaty, offers a procedure

for international registration of designs. Applicants can file a single international

application either with WIPO or the national or regional office of a country party to

the treaty. The design will then be protected in as many member countries of the

treaty as the applicant designates.

2.4 GEOGRAPHICAL INDICATION:-

Fig 2.3 Geographical Indication

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A geographical indication is a sign used on goods that have a specific

geographical origin and possess qualities or a reputation due to that place of origin.

Most commonly, a geographical indication consists of 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 geographical factors,

such as climate and soil.

Whether a sign functions as a geographical indication is a matter of

national law and consumer perception. Geographical indications may be used for a

wide variety of agricultural products, such as , for example, “Tuscany” for olive oil

produced in a specific area of Italy, or “Roquefort” for cheese produced in that region of

France. The use of geographical indications is not limited to agricultural products.

They may also highlight specific qualities of a product that are due to human factors

found in the product’s place of origin, such as specific manufacturing skills and

traditions. The place of origin may be a village or town, a region or a country. An

example of the latter is “Switzerland” or “Swiss”, perceived as a geographical

indication in many countries for products made in Switzerland and, in particular, for

watches.

2.4.1 WHAT IS AN APPELLATION OF ORIGIN?

An appellation of origin is a special kind of geographical indication used

on products that have a specific quality exclusively or essentially due to the

geographical environment in which the products are produced. The term geographical

indication encompasses appellations of origin. Examples of appellations of origin that

are protected instates party to the Lisbon Agreement for the Protection of Appellations

of Origin and their International Registration are “Bordeaux” for wine produced in the

Bordeaux region of France, “Prosciutto di Parma” – or Parmaham – for ham

produced in the Parma province of Italy or “Habana” for tobacco grown in the

Havana region of Cuba.

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2.4.2 WHY DO GEOGRAPHICAL INDICATIONS NEED PROTECTION?

Geographical indications are understood by consumers to denote the origin

and quality of products. Many of them have acquired valuable reputations which, if not

adequately protected, may be misrepresented by commercial operators. False use of

geographical indications by unauthorized parties, for example “Darjeeling” for tea that

was not grown in the tea gardens of Darjeeling, is detrimental to consumers and

legitimate producers. The former are deceived into believing they are buying a

genuine product with specific qualities and characteristics, and the latter are deprived

of valuable business and suffer damage to the established reputation of their

products.

2.4.3 WHAT IS THE DIFFERENCE BETWEEN A GEOGRAPHICAL

INDICATION AND A TRADEMARK?

A trademark is a sign used by a company to distinguish its goods and

services from those produced by others. It gives its owner the right to prevent

others from using the trademark. A geographical indication guarantees to

consumers that a product was produced in a certain place and has certain

characteristics that are due to that place of production. It may be used by all

producers who make products that share certain qualities in the place designated

by a geographical indication.

2.4.4 WHAT IS A “GENERIC” GEOGRAPHICAL INDICATION?

If the name of a place is used to designate a particular type of product,

rather than to indicate its place of origin, the term no longer functions as a geographical

indication. For example, “Dijon mustard”, a kind of mustard that originated many years

ago in the French town of Dijon, has, overtime, come to denote mustard of that kind

made in many places.

Hence, “Dijon mustard” is now a generic indication and refers to a type of

product, rather than a place.

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2.4.5 HOW ARE GEOGRAPHICAL INDICATIONS PROTECTED?

Geographical indications are protected in accordance with national laws and

under a wide range of concepts, such as laws against unfair competition, consumer

protection laws, laws for the protection of certification marks or special laws for the

protection of geographical indications or appellations of origin. In essence, unauthorized

parties may not use geographical indications if such use is likely to mislead the public as

to the true origin of the product. Applicable sanctions range from court injunctions

preventing unauthorized use to the payment of damages and fines or, in serious cases,

imprisonment.

2.4.6 WHAT IS WIPO’S ROLE IN THE PROTECTION OF GEOGRAPHICAL

INDICATIONS?

WIPO administers a number of international agreements that deal partly or

entirely with the protection of geographical indications (in particular, the Paris

Convention and the Lisbon Agreement).

WIPO meetings offer Member States and other interested parties the opportunity

to explore new ways of enhancing the international protection of geographical

indications.

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CHAPTER 3

COPYRIGHT AND RELATED ISSUES

Fig 3.1 Copyright

Copyright Registration in India 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 its distortion or its mutilation. (Material protected by copyright is termed a

"work".)

However, copyright does not protect ideas, names or titles. The purpose of

copyright law in India is to allow copyright registrants to gain economic rewards for their

efforts and so encourage future creativity and the development of new material which

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benefits us all. Copyright material is usually the result of creative skill and/or significant

labor and/or investment and without protection, it would often be very easy for others to

exploit material without paying the creator. Most uses of copyright material therefore

require permission from the copyright owner. However there are exceptions to copyright,

so that some minor uses may not result in copyright infringements.

Copyright protection is automatic as soon as there is a record in any form of the

material that has been created. Under the Indian Copyright Act there is a provision to

register copyright although this is voluntary.

Copyright laws grant authors ,artists and other creators protection for their

literary and artistic creations, generally referred to as “works”. A closely associated field

is “related rights” or rights related to copyright that encompass rights similar or identical

to those of copyright, although sometimes more limited and of shorter duration. The

beneficiaries of related rights are: performers (such as actors and musicians) in their

performances; producers of phonograms (for example, compact discs) in their sound

recordings; and broadcasting organizations in their radio and television programs.

Works covered by copyright include, but are not limited to: novels, poems, plays,

reference works, newspapers, advertisements, computer programs, databases, films,

musical compositions, choreography, paintings, drawings, photographs, sculpture,

architecture, maps and technical drawings.

3.1 OWNER OF COPYRIGHT

In the case of a literary, dramatic, musical or artistic work, the general rule is that

the author, i.e. the person who created the work, is the first owner of the economic

rights under copyright. However, where such a work is made in the course of

employment, the employer is the first owner of these rights, unless an agreement

to the contrary has been made with the author.

In the case of a film, the principal director and the film producer are joint authors

and first owners of the economic rights and similar provisions as referred to above

apply where the director is employed.

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In the case of a sound recording the record producer is the author and first owner

of copyright; in the case of a broadcast, the broadcaster; and in case of a published

edition, the publisher.

Copyright is, however, a form of property which, like physical property, can be

bought or sold, inherited or otherwise transferred, wholly or in part. So, some or all of the

economic rights may subsequently belong to someone other than the first owner. In

contrast, the moral rights accorded to authors of literary, dramatic, musical and artistic

works and film directors remain with the author or director or pass to his or her heirs on

death. Copyright in material produced by a Government department belongs to the

Government of India.

Copyright owners generally have the right to authorize or prohibit any of the

following things in relation to their works:

Copying of the work in any way eg. photocopying / reproducing a printed page

by handwriting, typing or scanning into a computer / taping live or recorded

music.

Issuing copies of the work to the public.

Public delivery of lectures or speeches etc.

Broadcasting of the work, audio / video or including it in a cable programme.

Making an adaptation of the work such as by translating a literary or dramatic

work, transcribing a musical work and converting a computer program into a

different computer language or code.

Copyright is infringed when any of the above acts are done without authorisation,

whether directly or indirectly and whether the whole or a substantial part of a work,

unless what is done falls within the scope of exceptions to copyright permitting certain

minor uses of material.

There are a number of exceptions to copyright that allow limited use of copyright

works without the permission of the copyright owner. For example, limited use of works

may be possible for research and private study, criticism or review, reporting current

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events, judicial proceedings, teaching in schools and other educational establishments and

not for profit playing of sound recordings.

But if you are copying large amounts of material and/or making multiple copies

then you may still need permission. Also where a copyright exception covers publication

of excerpts from a copyright work, it is generally necessary to include an

acknowledgement. Sometimes more than one exception may apply to the use you are

thinking of. Exceptions to copyright do not generally give you rights to use copyright

material; they just state that certain activities do not infringe copyright. So it is possible

that an exception could be overridden by a contract you have signed limiting your ability

to do things that would otherwise fall within the scope of an exception.

It is important to remember that just buying or owning the original or a copy of a

copyright work does not give you permission to use it the way you wish. For example,

buying a copy of a book, CD, video, computer program etc does not necessarily give you

the right to make copies (even for private use), play or show them in public. Other

everyday uses of copyright material, such as photocopying, scanning, downloading from

a CD-ROM or on-line database, all involve copying the work. So, permission is generally

needed. Also, use going beyond an agreed license will require further permission.

3.2 WHAT RIGHTS DO COPYRIGHT AND RELATED RIGHTS

PROVIDE?

The creators of works protected by copyright, and their heirs and

successors (generally referred to as “right holders”), have certain basic rights under

copyright law. They hold the exclusive right to use or authorize others to use the

work on agreed terms. The right holder(s) of a work can authorize or prohibit :its

reproduction in all forms, including print form and sound recording; its public

performance and communication to the public; its broadcasting; its translation into

other languages; and its adaptation, such as from a novel to a screenplay for a film.

Similar rights of, among others, fixation (recording) and reproduction are granted under

related rights. Many types of works protected under the laws of copyright and

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related rights require mass distribution, communication and financial investment for

their successful dissemination (for example, publications, sound recordings and films).

Hence, creators often transfer these rights to companies better able to develop

and market the works, in return for compensation in the form of payments and/or

royalties (compensation based on a percentage of revenues generated by the work). The

economic rights relating to copyright are of limited duration –as provided for in the

relevant WIPO treaties – beginning with the creation and fixation of the work, and

lasting for not less than 50 years after the creator’s death. National laws may establish

longer terms of protection.

This term of protection enables both creators and their heirs and successors to

benefit financially for a reasonable period of time. Related rights enjoy shorter terms,

normally 50 years after the performance, recording or broadcast has taken place.

Copyright and the protection of performers also include moral rights, meaning the

right to claim authorship of a work, and the right to oppose changes to the work that

could harm the creator’s reputation.

Rights provided for under copyright and related rights laws can be enforced by

right holders through a variety of methods and for a, including civil action

suits ,administrative remedies and criminal prosecution. Injunctions, orders requiring

destruction of infringing items, inspection orders, among others, are used to enforce

these rights.

3.3 WHAT ARE THE BENEFITS OF PROTECTING COPYRIGHT AND

RELATED RIGHTS?

Copyright and related rights protection is an essential component in fostering

human creativity and innovation. Giving authors, artists and creators incentives in the

form of recognition and fair economic reward increases their activity and output and

can also enhance the results. By ensuring the existence and enforceability of

rights ,individuals and companies can more easily invest in the creation, development and

global dissemination of their works. This, in turn, helps to increase access to and enhance

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the enjoyment of culture, knowledge and entertainment the world overhand also

stimulates economic and social development.

3.4 HOW HAVE COPYRIGHT AND RELATED RIGHTS KEPT UP WITH

ADVANCES IN TECHNOLOGY?

The field of copyright and related rights has expanded enormously during the last

several decades with the spectacular progress of technological development that has, in

turn, yielded new ways of disseminating creations by such forms of communication as

satellite

Broadcasting, compact discs and DVDs. Widespread dissemination of works via

the Internet raises difficult questions concerning copyright and related rights in this

global medium. WIPO is fully involved in the ongoing international debate to shape new

standards for copyright protection in cyberspace. In that regard, the Organization

administers the WIPO Copyright Treaty (WCT) and the WIPO Performances and

Phonograms Treaty (WPPT), known as the “Internet Treaties”. These treaties clarify

international norms aimed at preventing unauthorized access to and use of creative work

son the Internet.

3.5 HOW ARE COPYRIGHT AND RELATED RIGHTS REGULATED?

Copyright and related rights protection is obtained automatically without the

need for registration or other formalities. However, many countries provide for a

national system of optional registration and deposit of works. These systems facilitate,

for example, questions involving disputes over ownership or creation, financial

transactions, sales, assignments and transfer of rights. Many authors and performers do

not have the ability or means to pursue the legal and administrative enforcement of their

copyright and related rights, especially given the increasingly global use of literary,

music and performance rights. As a result, the establishment and enhancement of

collective management organizations(CMOs), or “societies”, is a growing and necessary

trend in many countries. These societies can provide their members with efficient

administrative support and legal expertise.

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CHAPTER 4

WORLD INTELLECTUAL PROPERTY ORGANIZATION

Established in 1970, the World Intellectual Property Organization (WIPO) is

an international organization dedicated to helping ensure that the rights of creators and

owners of intellectual property are protected worldwide, and that inventors and authors

are therefore recognized and rewarded for their ingenuity. This international

protection acts as a spur to human creativity, pushing back the limits of science

and technology and enriching the world of literature and the arts. By providing a

stable environment for marketing products protected by intellectual property, it

also oils the wheels of international trade.

WIPO works closely with its Member States and other constituents to ensure the

intellectual property system remains a supple and adaptable tool for prosperity and well-

being, crafted to help realize the full potential of created works for present and future

generations.

4.1 HOW DOES WIPO PROMOTE THE PROTECTION OF

INTELLECTUAL PROPERTY?

As part of the United Nations system of specialized agencies, WIPO serves as a

forum for its Member States to establish and harmonize rules and practices for the

protection of intellectual property rights. WIPO also services global registration

systems for trademarks, industrial designs and appellations of origin, and a global

filing system for patents. These systems are under regular review by WIPO’s Member

States and other stakeholders to determine how they can be improved to better serve the

needs of users and potential users.

Many industrialized nations have intellectual property protection systems that are

centuries old. Among newer or developing countries, however, many are in the process of

building up their patent, trademark and copyright legal frameworks and intellectual

property systems. With the increasing globalization of trade and rapid changes in

technological innovation, WIPO plays a key role in helping these systems to evolve

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through treaty negotiation; legal and technical assistance; and training in various forms,

including in the area of enforcement. WIPO works with its Member States to make

available information nonintellectual property and outreach tools for a range of audiences

–from the grassroots level through to the business sector and policymakers – to ensure its

benefits are well recognized, properly understood and accessible to all.

4.2 HOW IS WIPO FUNDED?

WIPO is a largely self-financed organization, generating more than 90 percent of

its annual budget through its widely used international registration and filing systems, as

well as through its publications and arbitration and mediation services. The remaining

funds come from contributions by Member States.

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CHAPTER 5

CONCLUSIONS

Intellectual property rights are often confusing and sometimes the topic of heated

debates. There are those who question the worth of creative products and projects,

claiming design and art are something anyone can do, regardless of training, experience,

or any inherent ability. As creative, a deterioration of intellectual property rights is a

dangerous possibility. By going public with our work, we have no recourse to prevent

others from using our designs, our photos, or our other artwork without paying us or even

offering proper credit.

And yet, creatives are just as often guilty of violating these rights as those who

aren’t in a creative profession (and sometimes, I think, more likely). We need to have

more respect for our fellow creators and their work, regardless of our perceptions of what

we think about their work and their process. If it was created by someone else, we need to

respect that and abide by their wishes when it comes to use, credit, and compensation.

As creative professionals, we often have a good idea of what goes into the things

we create. A web designer can look at a website and have a good idea of what went into

designing it. A graphic designer can look at a logo and get a sense of what tools were

used to create it. Outside design fields, other creatives also have a good sense of what

goes into their respective art forms.

But all too often, we don’t understand what goes into parallel creative professions.

Web designers don’t necessarily know what goes into creating a stock photograph.

Photographers might not have any clue what goes into creating a typeface. We look at

different creative pursuits and careers from within our own, narrow focus, often

overlooking important aspects of different creative industries.

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CHAPTER 7

BIBLIOGRAPHY AND REFERENCES

Websites:

[1]http:// en.wikipedia.org/wiki/Intellectual property

[2]http://www.ipmag.com/

[3]http:// www.rkdewan.com/

[4]http://www.wipo.int/about-ip/index.html

[5]http://www.wipo.int/freepublications/en/intproperty/

[6] http://www.nipo.in/

[7] http://www.ipindia.nic.in/

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SITA LAB REPORT (I.P)

Technology

Transcript of SITA LAB REPORT (I.P)