Different IPR Legislations and their implementation tools

Introduction

The concept of Intellectual Property Rights can be traced back to the 15th century when Venetian Law in 1474 gave us insight into what the concept of patents was and later, it was the invention of the Guttenberg’s printing press in the same century that introduced us to the world of copyrights. The doors to Intellectual Property Law have remained open, ever since.

There has been a steady growth and notable inroads were made in the 19th century in the form of the Paris Convention for the Protection of Industrial Property and the Berne Convention, a few years later. Large-scale industrialism challenged humanity to develop and expand their means of production and at a time when creativity ran wild, it was important for every individual to tag themselves to their creation. This motivated growth in economy and was amplified further in the 20th century with the establishment of the World Intellectual Property Organisation (1967) and the World Trade Organisation backed by the Trade Related Intellectual Property Rights (TRIPs) and the General Agreement on Tariffs and Trade in 1994.

The Indian Perception of IPR: Over Multiple Decades

Intellectual Property Rights and the laws related to it in India are governed by The Patents Act, 1970 which came into being after refinement of the Indian Patents and Designs Act, 1911. In the context of IPR in India, Copyright Act 1957 and the Trade and Merchandise Marks Act 1958 provide protection to Intellectual Property in addition to the Patents Act. 

All the legislations that deal with Intellectual Property have their own Modus Operandi and hence carve out a specific niche in which they operate. While the repeated amendments in the Patents Act was done in order to keep up with India’s international obligations through the TRIPs agreement, the Trademarks Act of 1999 broadened the scope beyond just goods and services and read infringement to be a stricter concept. An industrial product was considered to have the structural part and the functional part and through the Designs Act, 2000, the uniqueness of the structural part was protected and its portfolio did not extend to the functional part. These were the multiple areas which these legislations carved out so that they could operate with no major clashes.

Various Indian products made popular by their unique attributes linked to some geographical region was protected under the Geographical Indication of Goods Act, 1999 in order to preserve the distinctiveness of these products. This was done in order to enhance protection.

A lot of recommendations have been made since 2014 after the Narendra Modi Government came into power in order to structure and organise the laws related to Intellectual Property Rights in India. A vision for a better Intellectual Property Regime was on the cards and there have been numerous developments since then that pushed for the same cause. With the joint Indo-US working group on IPR and the IPR think-tank group, the focus surely has been on the development in IP laws in India.

There is a constant debate on the national stage and it has been enhanced with the suggestion of the draft National IPR policy where in focus has been laid in balancing both IPR rights and human public interests. This balance is to be sought in multiple levels, primarily with regards to trade secrets and in the area of medicine. Trade secrets with no formal protection from any legislations surely called for some legislative intervention in order to solve that impasse. In the case of pharmaceuticals and the manufacturing of drugs, the granting of IP rights to one player in the industry goes against public interests as the accessibility of the drug might be an issue. This was to be addressed and a balance had to be worked out so as to carry both IP Rights and public interests hand-in-hand.

In these respects, the Government of Karnataka in 2014 made a notable expansion in the Karnataka Goondas Act so as to include ‘digital offenders’ who would violate key copyright laws for commercial purposes and this was considered in opposition to public order. However, India has surely been on the back foot for a very long time in terms of how there are no laws protecting or safeguarding personality rights as opposed to other jurisdictions.

The efficiency of courts in protection of trademarks and copyrights in India is also commendable. The proficiency with which the courts function in order to give permanent or temporary relief to the innovators so as to safeguard their interests deserved applause and was reflected in the widespread improvement in industrialisation and the growth of the economy. Even though there are no specific legislations in India that deal with cyber-squatting, Indian courts have made an effort to broadly interpret domain names and give them the status of valuable corporate assets and not just a simple webpage name or address.

India and IPR: Keeping up with the International Scene

The Government of India had to issue numerous amendments in order to be in sync with its multiple commitments to the WTO under TRIPs. This played a huge role in enhancing International trade and in the liberalisation of the economy.

The trademark law was balanced with the international practices by replacing Trade and Merchandise Marks Act 1958 with the Trade Marks Act 1999 and this was done in order to broaden the scope and expand the definition as under the act. The meaning of ‘trademark infringement’ was also significantly expanded under this act in order to give a better course of action to the creators and the innovators providing them with motivation and protection for their works.

Amendments were made in the copyright laws in the year 2012 so that it would comply with the WIPO Copyright Treaty and go a long way in structuring and streamlining copyright related laws in the future. Indian Copyright Act was recommended to be further amended in order to tackle the continuing menace of piracy. Faster criminal proceedings coupled with severe punishment was recommended so that it would act as a deterrent for piracy crimes and preserve copyrights in India.

Indian Patent Acts and Legislations have been amended multiple times in order to keep with the pace of its commitments with the WTO in the form of the TRIPs. The enhancement of the procedural mechanisms in patent law have been deemed to be very beneficial to people across the country. The Indian Patent (Amendment) Rules, 2014 introduced a category called the ‘small entity’ in order to expand the scope as to who all can apply for patents and gave a broader definition. The fees for filing patent was based on slab rates with a provision being added for e-filing as well with e-filing costing lesser than the physical filing.

Hence, over the past few years, there have been multiple instances where various legislations in India relating to copyrights and patents have been amended and reissued in order to take into consideration the changing global dynamics in industrialisation and its multifarious aspects.

Recent developments in IPR: The Indian Scenario

Important Rulings in the past year

In July 2018, the Supreme Court of India gave the verdict to a long-drawn case of trademark infringement which stretched over almost 3 decades by declaring that similar trademarks instituted for different items did not amount to breach of law. This was considered to be a landmark judgment in terms of how it eased the laws on trademarks and its protection and in a way, was instrumental in providing freedom to the manufacturers to sell the products on the global or the indigenous markets.

Glenmark Pharmaceuticals v Curetech Skincare, the case in which the Bombay HC awarded a humongous total of Rs. 1.5 crore as damages for habitual infringement of trademarks and copyrights, provided exemplary costs which were later forwarded to the Kerala Chief Minister Distress Relief Fund as it was around that time that Kerala was reeling with widespread damage due to the floods that occurred then. The court cleared off all the confusion regarding companies being able to file cases for infringement of design and also in cases where a secondary company passes of another company’s goods as their own. The ruling in Carlsberg Breweries v Som Distilleries, allowed the filing of composite suits resulting in the effective disposal of such cases making it easier for the court to distinguish and lays down distinct boundaries.

The Delhi HC in the case of Anand Bhushan v Union of India, checked the constitutionality of various sections in the Copyright Rules (2013) and examined whether the implementation of these sections would exceed the power given to the Government under Section 33 of its parent act. The constitutionality was however upheld in this crucial decision. The right to receive royalty, under Section 14 of the Copyrights Act was considered not to be an exclusive right but a terms laid out at the time of contract formation. This was laid down by the Calcutta HC in the case of The Indian Performing Society v Vodafone Idea Ltd.

There was a debate regarding the exclusive nature of the customer list and its commercial implications. The issue was raised before the court in the case of Navigator Logistics v Kashif Qureshi where it was concluded that the it was almost impossible for the list to be confidential since a major chunk of the information was available on public domains. Guidelines were hence stated which said that the originality of the list had to be shown and the economic and commercial value of the customer list also had to be established.

Patent Prosecution Highway

This was an idea brought about in order to give speedy access to patent filing and the multiple processes associated with it. This has come about in the form of many bilateral and trilateral agreements. There is one such ongoing agreement between the European Patent Office, the Japan Patent Office and the United States Patent and Trademark Office which exists trilaterally and the benefits are commendable.  It initiates and brings about a fast examination and analysis of patent application filed before the patent offices. This motivated India also to engage in such agreements and that was brought about by the initiation of the Japan-India patent prosecution highway in October 2018.

The benefits and the pros of these agreements when weighed on a balanced scale, significantly outweigh the cons as this now goes a long way in speedy redressal and examination of patent applications. This helps in the tremendous increase in filing of patents under the patents act thereby enabling and amplifying the purpose and efficiency of the legislation.

Technology in Patent Implementation

With the advent of AI, Block chain, Internet of things and multiple other technological extravaganzas, there has been a constant cry for its implementation in all levels possible. The Indian Patent Office raised one such cry and advocated for allowing such technologies to be introduced in all levels possible, making the filing of patents easier and also to step up the pace and efficiency of the same.

By the  end of 2018, based on the tender floated by the Indian Patent Office, a group of bidders were shortlisted in order to bring about this change. This has been identified and noted to be one of the landmark achievements in the field of patent processing, if the final implementation comes through fine.

Conclusion

It is known to all of us that each of tools of the Intellectual Property Regime has its own purpose, particular and specific in its own way. While the Patents Act grants exclusivity to a grant invention or a product, the Trademarks Act distinguishes two similar products and enables the customers or the purchasers to make calculated choice. However, in addition to all these primary functions that these legislations serve, the secondary and the hidden objective behind this is the money involved with it. The financial gain and the monetary benefits that come along cannot and is not overlooked most of the times.

The commercial implications that patents and copyrights bring to the table are unparalleled and is often beneficial to the manufacturers and the producers and the distributors in multiple ways, primarily being the maximisation of profit by creating a monopoly, of sorts. These tools related to Intellectual Property helps every creator, inventor and innovator to attach a tag to the creation and then bargain a price for that creation giving full due credit to the person concerned. Even though, this might seem like a noble idea which it is in most of the cases, it often tends to go against public interest.

There has been a constant problem lurking due to the enabling of a monopoly regime under the guise of preserving Intellectual Property Rights. For instance, with the introduction of patents, the accessibility of medicinal drugs has been difficult mainly due to the increase in costs of the drug as there is only one sole player in the industry who has been allowed the permit to manufacture that drug. As much as this helps in preserving Intellectual Property, this goes massively against public interest.

Hence, just like the two sides of a coin, presenting a flipside of the concept of Intellectual Property Rights regime helps us to understand there are pros as well as cons that need to be balanced efficiently with the scale favouring public interest to be slightly lower than the other so that these statutes can also fit the descriptions of welfare legislations. 

For more information on IPR and its Challenges, Click Here.

-Philip Ashok Alex


Posted On: 07 Sep 2019 Home / Legal / Different IPR Legislations and their implementation tools