Kavin Prasath

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• Intellectual property is a property that protects our own creations of human mind and hence it has many varieties include copyrights, patents, trade secrets and trademarks etc.

INTRODUCTION ON INTELLECTUAL PROPERTY RIGHTS (IPR)

• The intellectual property rights allow the holder to exercise a monopoly on the use of the invention for a specified period of time.
• In 1970,The patents act was ammended.

Patent is the legal protection especially the sole right to exclude others from making, using, or selling an invention.

• Invention terms should be a non obviousness, novelty and processed informations are filled in secret for 7 years,after that it will be published in open network and can be used for free.
• Trademarks is the registered one and used for many other purpose. eg: Reliance network (Jio).
• Trade secrets are the formula can be registered for life long time. eg: CocaCola company.
• Copyright is the assignable legal right, given to creator for the period of time to publish.
• Related rights such as plant protection right, traditional rights, etc.
• Through IPR, the creator can earn money by selling or leasing it.
• If the property is copied by other person ,the creator can file a case on that particular person.

INDIAN THEORY

CONSTITUTIONAL ASPECTS OF INTELLECTUAL PROPERTY

• The constitution serves as a backbone for courts, legislature and it helps in maintaining the balance between conflicting rights. US constitution protects the intellectual property by providing the specific rules "Allotting a specific time period for author's writing and inventions,to promote arts and science studies". Even though there is no intellectual property rights like US in India,it has no restrictions to alter the intellectual property rights.In 1978,the legal rights for property was given by authority of law for no one should theft the author's writing and inventions.

CONSTITUTIONAL PROTECTION OF INTELLECTUAL PROPERTY

• Intellectual property law was came into existence with the help of British empire. British Patent Act 1852 was introduced by the applicant George. A. De pennings who gives the application for patent. In India patent act was amended in the year 1856.Under Article 19,was substituted by the amendment 44.Another Article 300 A which changed the fundamental right into a constitutional right under the amendment 44. Challenges violating the” Right to Property”, should be dealt only in the high court and it can’t be directly dealt with the supreme court.
• Legislations for the rights and estate acquisition are protected by the Article 31 A. The property rights and agricultural rights are protected by the Constitution of India.
• The Constitution of India has framed a law to encourage and promote interests among farmers and to increase and protect the plant varieties, “Protection of Plant Varieties and Farmers Right Act 2001”. They also framed the act to protect the plants, animals, endangered species and the microorganisms called “Biodiversity Act 2002”. This law also protects the value added products by using genetic materials. A Bio-Piracy case was occurred in the Government of US. It deals with the patenting of TURMERIC. But it was strictly opposed by the Indian Council For Scientific and Industrial Research (CSIR). As turmeric was considered as the traditional crop in India, so that it can’t be patented. This is said to be the “Protection of Intellectual Property Rights”.

INTERLECTUAL PROPERTY LAW IN INDIA

• In India, some rules and laws governing the intellectual property rights are been followed. Rules and laws of IP are as follows,

1. In 1957,copyright right act was implemented and copyright rules are followed in the year 1958 .
2. The patent act was implemented on 1970 and patent rules are followed in the year 2003.
3. In 1999, trade mark act was accomplished and trade mark rules are implemented in the year 2002.
4. The registration and protection are geographical indications of goods act are started in the year 1999 and rules are followed in the year 2002
5. Design act was implemented in the year 2000 and rules are comes under the year 2001.
6. In 2002,biological diversity act was started and rules are followed in the year 2004
7. Imported goods of intellectual property rights rules are started in the year 2007
8. Copyright act was amended in the year 1983, 1984, 1992 and 1999.
9. Copyright act consists of 15 chapters which come under 79 sections.
10. In copyright rules 28 rules are been followed, under these rules 9 chapters and 2 schedules are followed.
11. Hence these are the some laws which are following in India.

UTILITY THEORY (UTILITARIAN)

• Utility means getting satisfied when consuming commodity from a different community. There are about two types of utility approaches. They are cardinal approach and ordinal approach.

CARDINAL UTILITY

• When utility is measurable and the number of alternative is available , utility can be added ,then it is called as cardinal utility. In this approach, utility index is measured by utilis.

ORDINAL UTILITY

• When a utility can be compared but not measured it is called as ordinal utility .This approach uses the ranking method for alternatives as first ,second and third.

PERSONALITY THEORY

• The principle of intellectual property is the personality theory which gives importance to individual inventor, author etc. Intellectual Property Rights are important to create personal expression in the form of self assertion or self actualization. Personality theory derives from the Hegel’s property According to Hegel’s theory, when an individual owns the property; the individual should have more self actualization. It is to have confidence in the assertion that the work is done by the author or inventor or by individual. And also the inventor has the rights to decide when his work may used by public or by industries and have the rights to intercept , stay or prevent changes Intellectual property rights protects the personality of the inventor and safeguard the inventors freedom of expression . Controlling and manipulating objects are the two ways important for property rights for both tangible and non tangible asserts. These property rights are based on moral rights. Hegel’s theory differs from Lockean theory. The author gets the profit. The author can enjoy his own privacy. This promotes monopolies.

INCENTIVE THEORY

• Incentive theory which are directly connected to intellectual property law.

• The other type of utilitarian theory is called incentive theory (bargain).

• The authority given to intellectual property is an incentive to any individuals not only to generate our own works of our mind but also to spread and circulate them into the public

• It is to encourage our people for more innovative and publicity.

• A people will work for the investment by time,effort and to earn money so without safeguarding our property they will not invest on them.

• In addition creativity by our self is not sufficient if the work our mind is released in public that is not useful and if security was added publicity will be promote there by prevent their publicity and can be served our property.

• Even if the people are prepared to pay the amount charged to the owner of the property , latter may not be meet the demands of the public in sufficient quantities. Thus this will lead to the compulsory licensed property.

SOCIAL PLANNING THEORY

• It comes under the theories of intellectual property rights. This theory helps to describe which is morally right and for the good culture. We can also try to promote the copyright, patent and trade mark law through some of the changes. To the field of intellectual property, this theory prompt us to select the rules for the benefit of the consumer. A good culture would be the one in which the people use a broad way of informations and ideas. It helps the life of the people to make active and more interesting. The intellectual product leads to the concepts of good life like self - determination and self – expression. It also allow and force the people to shape themselves. The language of culture provides more opportunities for the people to improve their creativity, communication and thoughts . In a good society, all the people should take part in making the culture. The consumers can also help to shape the world by their ideas and their own identifications where they live in. A good society makes the people rich in constructing the life and their communication among the people. It also extends to the self – expression and self – creativity which helps the people to respect the others work. Social planning helps the people to explore the ideas and makes them united. This theory helps the people to involve themselves in social activities. It also gives a good outcome for the future generation people. By this system, we can solve the major problems which we are facing in our country. By this theory, we can achieve unity among the people when compared to other nations. We can also understand the importance of our culture by this theory. By moral rights and culture people can face their problems by their own. This type of system makes our nation stronger. By this theory, we can fight against our own rights. We can also improve the economy of our country. We can also avoid many political issues. It is also used to improve the quality of life of every individual. It is also used to develop one's personality .Social Planning Theory involves each and every individual to make our country a well developed nation. The way of living can be learned through this theory. It makes the society more powerful and work efficiently. It maintains a good unity among the people. It also makes the people to improve their communication and their knowledge towards the country development. By this theory, we can be one of the developed country in the world.

WESTERN THEORY

LABOR THEORY (LOCKE’S LABOR)

• This theory was proposed by the great philosopher John Locke
• The Lockean labor theory was the reasonable of private property that is based on the natural right of one’s holding of one’s own labor.
• The labor theory which does not only register to land itself, but to any application of labor to the nature environment.
• The phrase “lockean proviso” was termed by the great philosopher Robert Nozick and based on his ideas are complicated by John Locke
• The labor theory of possession is a natural law which originally came from effort of labor atop natural resources.
• The theory has been used to uphold the homestead principle, which encloses that one may procure whole everlasting ownership of an relinquished natural resources by performing an original preemption
• The labor theory of possession has its history which has been interlaced with and often wholly perplexed with the labor theory of value.

HEGEL’S PERSONALITY THEORY

• The American industry used trademarks for its infancy and manufactures, to inform the consumers about the products. The Personality theory like the labor theory, it intuitive appeal to intellectual property when applied. The personality theory is known as Hegel’s theory of property. The heart of Hegel’s philosophy is difficult to human freedom and personality. Hegel is focused on immediate freedom of individual. Recognizing, classifying, explaining and remembering all are as mental processes. It can viewed as external world by mind.
• A radin point is connection between personality and property in open ended. Intellectual property no need to be justify the property such as, analogy and physical property. Hegel identify the instrumentalist.
• Example : atlases and maps. Lockean model of property also personality justification. Personality justification is one of the field of intellectual property.

MARXIAN CLASS THEORY

• Marxian class theory is that the building the capitalism. It is categorized into two main classes that is bourgeoisie and proletariat. The bourgeoisie means that who own its capitalism and the proletariat means that who sells their own labor work or power.. this theory determined by their roles in the process of production. a class who can share their experience ,interest, commercial fairs ,etc.its an entry of different ranges but alternate levels. scholar suggest class awareness within the release process come before in time the building of productive interrelated. Its often to show connection between the discussion over pre-existing class wars.

GENESIS OF MARX’S THEORY

• Its originate from a stages of philosophical schools of thinking including left Hegelianism , Scottish empiricism , and Anglo French political economics.its was categorized into 3 division rentail , capitalist, and worker.
• Its is also known as class of fixed into fertile connected.

SYSTEM OF ORDERING STRUCTURE

• Its owns the retail capitalist and buys the work powers.
• Labors do not own anything retail of work power.
• A small conversion class know as petite own its capitalist.

CONVENTIONS

UNIVERSAL COPYRIGHT CONVENTIONS

• It is first adopted in Geneva in 1952 of September and came into force in 1955.It is administrated by UNESCO.100 countries are in membership with UCC. It is revised in 1971 in Paris. Russia ,China ,The United states and Canada including 100 countries are signatories of 1952 version.
• United kingdom including 62 countries are the signatories of revised version of 1971.Berne convention is drafted to effectively protect the literary works of author and their works in arts. UCC is developed alternate to Berne convention in order to protect the countries which are not the members of Berne convention.
• UCC states as per the article of 17 that they does not affect the Berne convention and they added a point that the state which withdraws from 1st January of 1951 of the Berne convention will not be protected and get penalized by UCC .This automatically gave the priority to the Berne convention.

TERMS AND CONDITIONS

1. Signatory states should provide the same protection to the foreign author as like their own author.
2. A formal copyright notice should appear in all copies with the symbol of ,author name,name of signatory nation , year of publication.
3. Copyright protection duration is 25 years from its first publication and the photographic and artistic works have duration for 10 years.

ECONOMIC RIGHTS

• It has the right to reproduce, public performance, broadcasting ,translations (period of 10 years)etc.

PARIS CONVENTIONS

• An inventor who wants his/her invention protected in foreign countries can apply to this treaty.
• The Paris Convention for the Protection of Industrial Property, governs almost all international reciprocal patent filing rights.
• It is an international treaty which are govern and comes under the world intellectual property organization(WIPO)
• This convention was emerged in the year 1883 and it was the first successful international intellectual property treaty. The treaty was signed into effect on March 20, 1883 in Paris and France
• There are over 170 countries under this treaty.
• The contracting parties which are belonging to the Paris Convention also have a chance to join in the Patent Cooperation Treaty (PCT), which allows those parties to file in the international patent applications.
• An applicant has the option to file an international application with the International Bureau of WIPO in Geneva or in the national patent office of the applicant's residency or nationality. For example, a resident or citizen of the United States can able to file the application form with the U.S. Patent and Trademark Office (USPTO).
• The PCT law benefit the patent offices and the general public.

BERNE CONVENTIONS

• Berne convention means that literacy will be secured and creativity work. It is also known as International convention governing copyright, which was signed by Berne Switzerland, on 9 September 1886. Its is followed on 5 December 1887.this copyright was signed in French and English officially converted into Arabic, German, Italian, Portuguese and Spanish. Stored by director General of the world Intellectual property organization. The moment of work is permanent locked, rather than requiring particular varieties.it also impose a needs that’s countries analyses copyrights held by the citizens of all other parties to the agreement.it requires its parties to react the copyright of works of authors from other parties to the agreement. In order to start a system of equal treatment that coordinate copyright amongst parties, the convention also needed contracting states to give strong at least standards for the copyright law.it must be auto started . it is forbidden to require formal registration. When the united states joined the agreement on 1 march 1989, it is continued to make statutory breakages and attorney’s fees only available for registered works.

COPYRIGHT TERMINOLOGY

• Berne convention states that all the works except photographic and cinematographic shall be copyright atleast 50 years after the decline of the author which is governed the copyright for longer terms.
• For the photograph minimum years is 25 and the cinematography the minimum years is 50 after the started.if the author is unknown the author was work under guidance.

RIGHTS

1. Rights to convert the language.
2. Rights to make adapt and conventions.
3. Rights to perform to outsider audience.
4. Rights to write and speak about literary works.
5. Rights to elaborate to the public about the works.
6. Rights to reproduce the making of the format about the works.
7. Rights to transmit.

BUDAPEST TREATY

• Budapest treaty was started in the year April 28,1977 and amended in the year January 20, 1981 and October 1, 2002.
• This treaty was handled by the World Intellectual Property Organization (WIPO) and at present 80 countries are under this Budapest treaty
• According to this treaty, a particular microorganisms are to be transmitted to the concerned international depository authority for patent procedure.
• An international depository authority (IDA) can collect and store any type of biological material and has an established procedure that can assure submission with the Budapest treaty.
• Once deposit in the international depository authority will fulfill the national disclosure requirements of any contracting states,thus the patent cost will become lower.
• It is required not only to fill the written statement but also to deposit a sample of microorganisms to IDA
• Collection of microorganisms are stored in the Microbial Culture Collection and Gene Bank (MTCC)in which it is a national facility which are organized in the year 1986, financially joined by the Department of Biotechnology and Council of Scientific and Industrial Research(CSIR),which are governed by the government of India.
• Hence MTCC has consists of five sections namely Bacteria , Fungi , Yeasts Actinomycetes and Plasmids and overall they are holding nearly nine thousand cultures.
• Many countries are patenting of Genetically Modified Microorganisms but few only allowing of patenting naturally occurring microorganisms.

DRAWBACKS OF THE EXISTING IPR

• Patenting an idea is not possible, So it can be used by anyone. The product developed from that idea protected potentially.
• Patenting a design is not used in Intellectual Property Rights.
• Even the copyrights are given to work, which is legally don't need protection for the IPR and patenting for things which is not having any serious purpose or value is possible.
• Patenting a product which is high demanding for the public sector is difficult (E.g. patenting the drugs for virally spreading diseases is not possible).
• Intellectual property can be owned by any number of people limitation is no needed.
• Patent can be owned by an owner only for limited period of time, after the completion of that period it comes to the public domain.
• Patenting can be easily done by varying slightly in the process or in the product.
• It is very expensive for protecting and patenting; and also takes much time.

BIOTECHNOLOGY IN IPR

• Scientists can manipulate and improve the research tools in genetic engineering in plants which are mostly used in agriculture like crops improvement, disease resistant etc.,
• Unadaptable plants can be grown with more production
• By avoiding toxic products, use genetic modified products for better environment and human health.
• Now a days Transgenic crops are produced mostly and peoples are willingness to buy those foods.
• On 17th January 2003 biosafety protocol was accepted and GMO’s are regulated under environmental protection act (1986).
• In biotechnology, IPR was admitted for not for discoveries and only for inventions.
• In biotechnology, R&D are mostly used for consumption of time and more investment.
• Hence there are six authorities are governing in biotechnology field. They are,

1. Institutional Biosafety Committee (IBSC)
2. State Biotechnology Coordination Committee (SBCC)
3. Genetic Engineering Approval Committee (GEAC)
4. Recombinant DNA Advisory Committee (RDAC)
5. Review Committee on Genetic Manipulation (RCGM)
6. The District Level Committee (DLC)