Introduction to Intellectual property Right

We encounter intellectual property at every step of our lives today. The design on the bed sheet and
the pillow covers, the bed and other items of furniture in the house, cereals for breakfast, pasteurised
milk in tetra-pack, soft drinks and their bottles, television, personal computer, gas stove, microwave,
refrigerator, vehicles, weighing machine, books, mobile phone, films, music cassettes, tiles, paints,
and practically everything we use is the product of human ingenuity, knowledge and skill, besides
labour and capital and falls under some kind of intellectual property that had to be respected before
the item could be lawfully manufactured.
IP is a dynamic area; as science & technology make rapid advances, and as competition for markets
becomes even fiercer, human ingenuity is throwing up ever new ideas and newer products. Newer
areas are emerging with claims for recognition as IP. They have to be accommodated as IP either in
one of the existing categories or in new categories that have to be created. Thus while copyright
originally was concerned with works of literature and artistic works gradually its scope expanded to
cover works of drama, music, photography, cinematography, audio-visual recordings, performances,
broadcasts and now computer programmes.
What is Intellectual Property?
Intellectual property Right (IPR) is a term used for various legal entitlements which attach to certain
types of information, ideas, or other intangibles in their expressed form. The holder of this legal
entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter
of the Intellectual Property. The term intellectual property reflects the idea that this subject matter is
the product of the mind or the intellect, and that Intellectual Property rights may be protected at law
in the same way as any other form of property. Intellectual property laws vary from jurisdiction to
jurisdiction, such that the acquisition, registration or enforcement of IP rights must be pursued or
obtained separately in each territory of interest.
Intellectual property rights (IPR) can be defined as the rights given to people over the creation of
their minds. They usually give the creator an exclusive right over the use of his/her creations for a
certain period of time. Intellectual property is an intangible creation of the human mind, usually
expressed or translated into a tangible form that is assigned certain rights of property. Examples of
intellectual property include an author's copyright on a book or article, a distinctive logo design
representing a soft drink company and its products, unique design elements of a web site, or a patent
on the process to manufacture chewing gum.
What is Intellectual Property Rights?
Intellectual property rights (IPR) can be defined as the rights given to people over the creation of
their minds. They usually give the creator an exclusive right over the use of his/her creations for a
certain period of time. Intellectual property (IP) refers to creations of the mind: inventions, literary
and artistic works, and symbols, names, images, and designs used in commerce.
Categories of Intellectual Property
One can broadly classify the various forms of IPRs into two categories:
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 IPRs that stimulate inventive and creative activities (patents, utility models, industrial designs,
copyright, plant breeders rights and layout designs for integrated circuits) and
IPRs that offer information to consumers (trademarks and geographical indications).
IPRs in both categories seek to address certain failures of private markets to provide for an efficient
allocation of resources.
IP is divided into two categories for ease of understanding:
1. Industrial Property
2. Copyright
Industrial property, which includes inventions (patents), trademarks, industrial designs, and
geographic indications of source; and
Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical
works, artistic works such as drawings, paintings, photographs and sculptures, and architectural
designs. Rights related to copyright include those of performing artists in their performances,
producers of phonograms in their recordings, and those of broadcasters in their radio and television
programs.
What is a property?
Property designates those things that are commonly recognized as being the possessions of an
individual or a group. A right of ownership is associated with property that establishes the good as
being "one's own thing" in relation to other individuals or groups, assuring the owner the right to
dispense with the property in a manner he or she deems fit, whether to use or not use, exclude others
from using, or to transfer ownership.
Properties are of two types - tangible property and intangible property i.e. one that is physically
present and the other which is not in any physical form. Building, land, house, cash, jewellery are
few examples of tangible properties which can be seen and felt physically. On the other hand there is
a kind of valuable property that cannot be felt physically as it does not have a physical form.
Intellectual property is one of the forms of intangible property which commands a material value
which can also be higher than the value of a tangible asset or property.
Property Vis--Vis Intellectual Property
In the orthodox sense property included only the corporeal objects. However now in its widest
sense, the term property includes all the rights which a person has (a persons life, liberty,
reputation etc.)The shift can be seen thus: 1) the social contract theorys attempt to widen the
meaning of property. 2) Since the English equity jurisdiction protected only property the term
property was extended to extend the courts jurisdiction 3) the constitutional protection given to
property which widening meaning. 4) Economic significance of intangible concepts however,
intellectual property remained the least respected form of property In such a scenario of the constant
expanding horizons of the term property, its essential to understand the nature of intellectual
property and locate it in the scope of property.
Different Aspects of Property and the Relevant Position of Intellectual Property:
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i) Kinds of Property: Property may be divided into a. Corporeal right (ownership in material
things):-it can be further divided into- 1. Movable & 2. Immovable property (which in England is
termed as Real & Personal Property).b. incorporeal property (proprietary right in rem):- it can be
further divided into- 1. Jura in re alina or encumbrances, whether over material or immaterial things
(for e.g. Leases, Mortgages and Servitudes) & 2. jura in re propria over immaterial things (for e.g.
Patents, Copyrights and Trademarks).
ii) Intellectual Property as an Incorporeal Property
Hording defines property as bundle of rights by which one claimant is enabled to exclude others
(including incorporeal property). Similar right of complete control over a property, has been given
over intellectual properties in the form of quasi-proprietary rights (copyrights or patents) having
same legal protection as property in the Law of. This is an important shift considering the economic
significance of intellectual properties and its importance in the industry. Salmond says incorporeal
property is a proprietary right in rem, where physical ownership is invisible. Though intellectual
property exhibits itself in some material form, it is actually the creation of the mind and hence
intangible (Jura in re propria). The main aim of categorizing intellectual properties is to extend
adequate legal protection to such properties however the dilemma remains as to under which
definition would intellectual properties fit the most
iii) Theories of Property:
Theories are of two kinds theories about the origin of property & theories about tenability of
property (one class justifies institution of property & other argues for its abolition).
Basic Theory: The origin of property is by occupation, i.e. by taking control of res nullius.
a. Labour Theory: property is the result of individual labour.
b. The State Created Property theory (Theory given by Hegelians):- property is the creation
of the State and achieved only after a long struggle with the clan.
c. Metaphysical Theory: argues that some control of property is essential for the proper
development of personality
d. Historical Theory (Maine): The institution of property has developed through a process of
steady growth the idea of individual property developed out of group or collective
property
e. Psychological Theory (Bentham):- there is a natural instinct in man to acquire and control
objects brings the property into being
f. Functional Theory (common law origin):- Any theory of property should be built by an
analysis of the function and the social effects of the property. Property obtained through
labour or effort is justified, but if it is acquired otherwise, it is not justified.
iv) Theories of Property and Intellectual Property
The theory of intellectual property has not, until recently, attracted much philosophical interest or
been the subject of deep controversy. Utilitarian theorists generally endorsed the creation of
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intellectual property rights as an appropriate means to foster innovation, subject to the caveat that
such rights are limited in duration so as to balance the social welfare loss of monopoly exploitation.
Non-utilitarian theorists emphasized creators moral rights to control their work. With the increasing
importance of intellectual property in society and the development of particular new technologies,
most notably digital technology and the decoding of genetic structure, the theory of intellectual
property has attracted heightened interest. Economists and policy analysts have greatly enriched our
understanding of the complex relationship between intellectual property protection and innovation
and diffusion of technological advances.
However, following theories support intellectual property:
a. Utilitarian/Economic Theories of Intellectual Property: Utilitarian theories of intellectual
property developed and evolved in a symbiotic relationship with the evolution of the modern
state: from the formation and maturation of the mercantilist nation-states through the
Industrial Revolution to the rise of the modern capitalist economy. In addition, the utilitarian
perspective has relevance to other forms of intellectual property. Trade secret law often
protects utilitarian works. Trademark law is principally concerned with ensuring that
consumers are not misled in the marketplace and hence is particularly amenable to economic
analysis. Even copyright law, which implicates a broader array of personal interests of the
creator than patent law, may benefit from the application of the utilitarian framework to the
extent that society seeks the production and diffusion of literary and artistic works. The
utilitarian framework has been particularly central to the development of copyright law.
b. Functional Theory: It suggests that the function and the social effect determine the nature
of property, without going into the intricacies of the theories of property. Thus, treating
intellectual property in pursuance of its economic, social (and even political) effect a sui
generis property.
c. Labour Theory: - John Locke offered a strong natural rights justification for private property
which remains a central pillar of property theory today. Beginning with the proposition that
all humans possess property in their own person, Locke argued that the labour of his body
and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out
of the stat that Nature hath provided and left it in, he hath mixed his labour with it and joined
to it something that is his own and thereby makes it his property. It being by him removed
from the common state Nature placed it in, it hath by this labour something annexed to it that
excludes the common right of other men. For this labour being the unquestionable property
of the labourer, no man but he can have a right to what that is once joined to, at least where
there is enough and as good left in common for others. It says property is the result of
individual labour. It states, any res that is created by the toil of a labourer belongs to him. The
wordings of the theory indicate more towards manual labour rather than mental labour. But,
by necessary extension of the definition intellectual properties can be embraced by the
theory so far as the intellectual property is the result of mental labour.
d. Distributive Justice: Theories of distributive justice seek to distribute societys resources on
the basis of just principles. Many philosophers endorse utilitarian theories of distributive
justice. Such theories often reflect Lockean and other philosophical perspectives as well. The
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process of determining such principles is the focus of considerable debate among political
philosophers. Rawls, for example, offers an ideal contractarian theory of distributive shares
in which a just allocation of benefits and burdens of social life is determined by what rational
persons would choose from behind a veil of ignorance, which prevents them from knowing
what abilities, desires, parentage, or social stratum they would occupy. The most concrete
manifestation of distributive justice principles in the intellectual property field are recent
international accords with regard to the protection, ownership and use of resources. Advances
in biotechnology have spurred the prospecting of biological resources throughout the world,
which has increasingly brought the traditional principles and values of the intellectual
property system (emphasizing scientific and technological advance through limited, exclusive
monopolies) in conflict with larger social justice, sovereignty and access concerns.
The Idea of Justice & IPR : The Indian Nobel laureate Amartya Sen and his work The Idea
of Justice, which is a major contribution to, but also a critique of, the enterprise of theorizing
justice with which the name of John Rawls is now inevitably associated. It is generally agreed
that Rawls was the most important political theorist within the Anglo-American world since
John Stuart Mill, and his masterwork, A Theory of Justice, is at the center of modern thinking
on its subject. His aim is to create "ideal theory,'' a standard against which actual policy
choices, when they arise, can be judged. He begins by defining justice as "fairness'' and then,
in A Theory of Justice, describes a procedure for cashing out this notion. Employing the well-
worn concept of a "social contract,'' but with some twists of his own, he generates the
principles for establishing just institutions in a society: equal liberty for all, fair equality of
opportunity, and material differences to be justified only on the basis that they benefit the
least advantaged. Still, Rawls's work has been much criticized (and Rawls himself has
acknowledged that his original formulations were, in certain respects, inadequate) Most of his
critics within the tradition have, in effect, attempted to save Rawls from himself, suggesting
ways in which his approach can be modified to cope with the problems it allegedly creates, or
fails to deal withmost notably the issue of the international dimension of justice, which for
Rawls cannot involve redistributive social justice, a conclusion his critics regard as perverse.
If inequalities within societies need to be justified, surely the far greater inequalities that exist
between societies cannot be ignored. Rawls responded to such criticisms in an important
partial revision to his theory, The Law of Peoples. His definition of a "people'' requires that it
have a moral nature and political institutions; he argues that there is no "global people'' and
therefore no basis for global redistributive justice. His critics have not been convinced.
Critics of Rawls are generally much less concerned with the second feature of A Theory of
Justice that exercises Sennamely, Rawls's emphasis on the importance of "ideal theory,'' or
what Sen calls a "transcendental'' approach to justice, the desire to create an account of justice
that is universal and necessary, that applies everywhere, and at all times. Sen doubts that a
single account of this kind is either possible or necessary. There are many possible theories of
justice. In the beginning of his book Idea of Justice he tells the engaging story of three
children, Ann, Bob, and Carla, who are quarreling over the fate of a flute. Ann claims the
flute on the basis that she is the only one who can play it, Bob claims it because he has no
other toys to play with whereas the others do have, and Carla's claim is based on the fact that
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 she made the flute in the first place. All of these statements are taken to be true, and Sen's
point is that one can produce intuitively plausible reasons for giving the flute to any one of the
children. Utilitarians would favour Ann, supporters of distributive justice would favour Bob,
libertarians or supporters of labour theory would favour Carla, but the real point here is that
there is no reason to assume, as Rawls and most of his followers do, that we have to decide
which of these answers the right answer is. Sometimes there is simply a plurality of "right''
answers. The idea that there is only one kind of just society a liberal society defined by
principles set out in Rawls's model and that all others represent a falling off from this ideal
does not seem a plausible response to the pluralism that undoubtedly exists in the modern
world. The point Sen raises against Rawls and the Rawlsians concerns the importance they
place on establishing just institutions. The basic idea here is that if you can get the institutions
right you do not need to worry about actual human behavior; essentially, the assumption is
that, as Kant put it, even a "race of devils'' could, if intelligent, produce just institutions and a
just society. This position is, of course, particularly problematic at the international level,
where the institutional structure is weak by comparison with the sovereign state.
Nature of the Right:
i) Negative Character-
The rights are generally negative in nature they grant the holder the ability to stop others doing but
not necessarily a right to do it themselves (i.e. a positive right). For example, the holder of a patent
on a pharmaceutical product may be able to prevent others selling it, but (in most countries) cannot
sell it themselves without a separate license from a regulatory authority.
ii) Transferability-
The rights Like other forms of property, can generally be transferred (with or without consideration),
licensed (or rented), or mortgaged to third parties. In some jurisdictions it may also be possible to
use intellectual property as security for a loan.
iii) Exclusive Nature-
Although intended to regulate unauthorized reproduction or commercial exploitation some rights go
beyond this to grant a full suite of exclusive rights on a particular idea or product. Exclusive rights
can be of two types: those that grant exclusive rights only on copying/reproduction of the item or act
protected (e.g. copyright) and those that grant a right to prevent others from doing something. There
are also more specialized varieties of sui generis exclusive rights, such as circuit design.
iv) Right as a Property-
In IP laws it is the right which is the subject matter- the property and not the thing itself. For instance
a patent can be bought and sold, but the invention that it covers is not owned at all
v) Limited Right-
The rights are in some ways more limited than the legal rights associated with property interests in
physical goods chattels or land real property. For example, most nations regulates copyright for
only limited terms; all limit the terms of patents.
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Rationale of Intellectual Property
The rationale behind IP is two pronged. Firstly Public Benefit and secondly Right Holders Benefit
and its purpose is of balance striking
i) Public Benefit-
IP laws facilitates and encourage the pursuit and disclosure of innovation into the public domain for
the common good, by granting authors and inventors temporary exclusive rights to exploit their
works and invention for a limited period.
ii) Right Holders Benefit-
From the perspective right holder it is a temporary monopoly on the use or exploitation of that good,
enabling him to recover the cost and energy pooled into the invention.
iii) Private Benefit Overtaking Public Benefit-
In later years, the public benefit idea has been downplayed in favour of the idea that the primary
purpose of exclusive rights is to benefit the rights holder, even to the detriment of society at large.
Also there is a danger that the exploitation will reach unacceptable levels.
Rights of the Owner of the IP, Other Individuals and the Society Striking a Balance
It will be well to remember here that whatever be the justification for the protection of intellectual
property, there can be no absolute rights in IP because all individual rights are subject to the
recognition of, and respect for, the rights of other individuals and the rights of the society. It is the
role of the State and the purpose of the law to harmonise conflicting claims and achieve a balance.
Besides, the State, through the instrumentality of law, strives to reach definite goals in keeping with
the aspirations of the society. The property rights are therefore generally tempered with
considerations of distributive justice. Protection of individual property is important but it is equally
important in a democratic polity that the State create conditions and necessary structures for people
to have wide-spread access to opportunities. It is this balancing responsibility of the State which is
reflected in the Indian Law: while private property is strongly respected and legally protected, it is
no more a fundamental right.
In a competitive world while creativity and continuous innovation is absolutely necessary to remain
on the scene, it is also equally important to ensure that ones ideas, products and designs are not
copied without authorisation. Similarly one must learn how to acquire lawfully another persons
ideas, products and designs for further reproduction and use in ones own business. Essentially IPRs
are defined in the negative and meant to stop others from copying or counterfeiting of the protected
application, or expression of an idea without due permission. In the case of patents even a person
who arrives at the same invention independently of the owner of the right is prohibited to exploit it
without a licence from the owner of the right. In other forms of the IP e.g. for copyright or trade
mark, absolute monopoly of the owner of the right may be suitably diluted. However, it should be
clear that the grant of IPRs is to be seen in the context of rights of others, which are not to be
ignored, and the public interest which remains paramount. The Intellectual Property Rights also
confer no privilege on the products of the person owning the right in trade.

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In the field of intellectual property, the rights of the individual owner are sought to be balanced with
the rights of others, including the wider public interest, by several means like limiting the period
during which exclusive IPRs are available to a reasonable degree; making preservation of life,
environment, peace, morality as paramount conditions in granting IPRs if the IPR would have an
adverse impact on any of these, it is not granted; providing for compulsory licensing, or even
revocation of patent, under certain circumstances e.g. if the owner abuses the right simply to block
others with the result that the benefits of the IP do not flow to the public at reasonable cost, etc.

Rights protected under Intellectual Property

The different types of Intellectual Property Rights are:
i. Patents
ii. Copyrights
iii. Trademarks
iv. Industrial designs
v. Geographical indications of goods
vi. Protection of Integrated Circuits layout design
vii. Undisclosed information
viii. Plant varieties and farmers rights
A patent is a statutory right granted for a limited period to an inventor in respect of an invention to
exclude any other person from manufacturing, using or selling the patented product or from using the
patented process, without due permission. Under the TRIPS Agreement of the WTO, inventions in
all fields of technology, whether products or processes are patentable if they meet the three criteria
of novelty, involving an inventive step and being capable of industrial application. Patents are one of
the oldest forms of IP protection.
Copyright is granted in respect of original literary, musical, artistic or audio-visual works the
creations of authors, playwrights, composers, artists, film makers. The rights under copyright
include: rights of reproduction, communication to the public, adaptation and translation of work.
Copyright is now spoken together with the related or neighbouring rights as one category. We may
also remember that unlike patents or registered designs, copyright confers no monopoly rights. In
fact if two persons can produce precisely similar work demonstrably working independently of each
other, each one will have the legal right to his / her own creation. It should be reiterated that
registration is not required for a work to be protected. A copyright work is protected from its
creation.
Trademarks and service marks are distinctive symbols, signs, logos that help the consumer to
distinguish between competing goods or services and are a major part of the goodwill a company
enjoys in the trade. A trade name is the name of an enterprise, which also individualises the
enterprise in the minds of the customers. They are therefore protected as IP. Thus a trade mark is a
sign that individualises the goods of a given enterprise and distinguishes them from the goods of its
competitors. You may be quite familiar with the distinctive marks of Pepsi-Cola and Coca-Cola
Companies. Trade marks invariably come to symbolise quality of goods or services in the customers
mind. However, there is no requirement in law that trade mark has to meet any quality standards. If

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quality is not maintained, customers will shift to another brand. A trade mark is required to be
distinctive and not deceptive.
An industrial design is the ornamental or aesthetic aspect of an article; it may consist of three
dimensional features such as shape or surface, or of two-dimensional features such as patterns, lines
or colour. The design serves as a tool for product differentiation and lures customers by enhanced
visual appeal. Industrial designs are applied to a wide variety of products of industry or handicraft:
from watches, jewellery, fashion and other luxury items to industrial and medical implements; from
housewares, furniture, electrical appliances to vehicles and architectural structures; from practical
goods and textile designs to leisure items such as toys. Designs must relate to the appearance of the
object which is not determined by technical or functional necessity. Designs enhance the visual
appeal and add to the commercial value of the product; they also facilitate the marketing and
commercialisation of the product. For registration a design needs to be new and original, though the
notion of these qualities may vary from country to country. In certain conditions, an industrial design
can be protected under copyright law or the law against unfair competition.
A geographical indication (GI) is a sign used on goods that have a specific geographical origin and
possess qualities or a reputation that are due solely to the place of origin e.g. its specific climate, soil
or method of production. Such goods enjoy an advantage over competing goods solely because of
their geographical origin, which thus becomes a kind of IP and is protected. A GI is different from a
trade mark. A trade mark is a sign that distinguishes the product and services of an enterprise from
those of another. The owner of a trade mark is entitled to exclude others from using the trade mark.
A GI merely tells that a product is produced in a certain place and has certain characteristics which
are due to the place of production like specific soil, or climate or method of production. It can be
used by all producers who make their products in a place designated by the GI and share the same
qualities. Some best known examples of GI are: Champagne (special kind of sparkling wine
originating in the French region of that name; Kolhapuri chappals from Kolhapur, India). Indication
of source on a product merely indicates that the product originates in the place indicated. Appellation
of origin indicates not only the place of origin but also the essential quality link between the product
and the area of its origin. Protection of GI can be done in many ways: through a sui generis
legislation or through decrees, or through registration or through reliance on tort of passing off
(which basically says that unfair trade practices should not be used). GI can also be protected by
collective marks belonging to a group of traders or producers or a certification trade mark that does
not belong to any one; the understanding for its registration is that anyone who meets the specified
conditions can use it.
Layout design (topography) of integrated circuits is a relatively new area in IP which has
appeared with computer technology and has acquired importance as the technology makes rapid
advances. The programming instructions on a computer chip are implemented through a circuitry
printed on semiconductor layers. The design of circuitry on the chip requires great investment of
knowledge, skills and capital and this needs to be protected as IP. The right in topography aims to
prevent copying of the layout design but reverse engineering to come up with improved design is
regarded as fair. It may also be noted that while for claiming a patent an invention is required to meet
the criteria both of novelty and inventive step, a layout design is only required to be original.

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Protection of layout design confers no monopoly right; independent development of a design,
identical with a protected design is permitted.
Undisclosed information gets recognition as a kind of IP that needs to be protected under the
TRIPS Agreement. Earlier to it, the WIPO treaty (1967) and the Paris Convention recognised unfair
competition as a part of IP. Unfair competition includes all acts contrary to honest practices in
industrial or commercial matters; undisclosed information restricts honest practices to protection of
trade secrets. The TRIPs Agreement (Article 40) does refer to the control of Anti-Competitive
Practices in Contractual Licences; the Agreement also empowers member-States to make in their
national legislation suitable provisions to prevent abuse of IPRs.
The intellectual property thus vests in a creation of human mind involving knowledge, labour and
skill. It is the result of sustained intellectual application and efforts of inventors, authors and other
creative persons, including first adapters and is a powerful factor of production and wealth
generation in a modern economy. The IP is a significant factor in gaining competitive advantage
over rivals in the trade and industry as the entire idea of IP is to protect the owner against its
unlawful use by any person or party offering same or similar products or services.
IPRs, as their exercise has evolved in practice, can secure for the owner a broad range of advantages
depending on the national law; for example, IPRs can effectively block imports or exports of
relevant goods, or they can be used to divide markets, or restrict movement of goods produced by an
enterprise from one territory to another. To fully comprehend the consequences of a national
legislation in matters of IPR, it is important to grasp the purpose the law seeks to serve by creating
these private rights in property. The chain of production to distribution of goods involves the
following major steps: manufacture; first sale by the manufacturer; subsequent sales;
exports/imports; use, other dealings. It is for the state to decide in which steps it should intervene to
grant exclusive rights to the owner to ensure just reward for creative activity and best techno-
economic returns for the State and the society.
A point to appreciate here is that IP is concerned with the human capacity to produce something new
and offer it for public use. The property does not lie in the thing so produced and offered but in the
owners rights over the creation of his/her intellect. This intellectual property is intangible, and
though in each case it is associated with a tangible object, it is independent of the object itself.
Again, what IP protects is the use or value of ideas and not the abstract ideas themselves; there are
no rights, hence no property, over the idea per se.

It is suggested to go through class notes also.

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