Intellectual Property - An Important Key To The Economic Prosperity Of A Country
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Category: Intellectual Property
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INTELLECTUAL PROPERTY: AN IMPORTANT KEY TO
THE ECONOMIC PROSPERITY OF A COUNTRY
Dr. Kirti Bajaj, Dr. Panjabrao Deshmukh College of Law Amravati
ABSTRACT
Intellectual property relates to new ideas of invention, creation, innovation of any artistic, literary, scientific creation, concept etc. by human mind. Intellectual property rights (IPR) refer to rights vested by the State to the person who has invented or created something new. IPR is a strong tool, to protect different aspects such as investment, time, effort invested by the inventor or creator of an Intellectual Property, as it grants exclusive right for a particular period of time for exploitation his invention or creation for commercial purpose. Thus, IPR promotes inventions which leads to the economic development of a country by protecting healthy competition and encouraging industrial development and economic growth. But for the economic development purpose fundamental rights cannot be vitiated.
The concept of public welfare with fundamental rights are of great importance for any democratic country. In India SC is the guardian of Indian Constitution. It has not only interpreted the existing law but also promises for its effective implementation by fulfilling the loopholes in it. The present article provides an overview of the various laws dealing with innovation and intellectual property rights in India and how they are important for the economic development of country.
Introduction Technology and knowledge are playing an important role in the economic growth of developed countries as well as under developed and developing countries. Intellectual Property (IP), despite being clearly recognised in most countries, has not yet been identified as an important economic asset by most of the developing and under developed countries. There have been drastic changes in the world of intellectual property laws and policies over the last
20 years, because of foreign trade, foreign direct investments and e-commerce.
The increase of trans boundary economic cooperation and integration, the exchanges of goods, services, capital and knowledge are the main reasons for the major changes in all economies, together with the emergence of intellectual property as a transferable economic asset. By providing security to IPR, it has been seen as a policy instrument with wide-ranging implications on economic activity. Meaning of IP Creations of the mind, such as inventions, designs, and artistic works are known as Intellectual property (IP) in law. IP rights are legal protections that gives the creator exclusive rights to use and exploit their work for a particular period of time. IPR are the bundle of rights.
Intellectual property are basically divides in Industrial Property includes Patents, trademarks, industrial designs and geographical indications; and Copyright includes literary work such as films, novels and artistic works. IPRs allow creator, or owner of patent, trademark or copyrighted works to earn benefit from their creation, allowing their holder to exercise a monopoly on them for a specified period. Expanding international economic transactions raised the need to have specialized organizations and treaties to meet national requirements and international standards for a better IPRs protection and enforcement. These rights which were officially recognized in the Paris Convention for the Protection of Industrial Property (1883), Berne Convention for the Protection of Literary and Artistic Works (1886).
The World Intellectual Property Rights Organization (WIPO) established in 1967 to encourage creative activity and promote the protection of intellectual property. WIPO is one of the specialized agencies of the UN and now has 189 member states, and its headquarters lies in Geneva. Trade Related Intellectual Property (TRIPs) agreement signed under World Trade Organisation (WTO)in 1995 is one of the major
agreements with binding global character, to provide minimum standards of protection for wide range of IPRs and aimed to facilitate and promote global trade in goods and services. Categories of IP Any innovation of a person or group of persons which is useful for the society having economical importance for the creator called IP and the rights given to any such inventor to protect this property are called IPRs. These rights are available by legislation within any country with a fixed period of time with certain conditions. As per the World Intellectual Property Rights Organization, IP is divided into two categories:
A. Industrial Property
1. Patents
A patent is a right granted on an industrially significant invention. It is given in any
country with fixed time limit and conditions. A patent is a monopoly right granted to a person who has invented a new and useful article or an improvement in existing article or a new process of making an article. The person having patent right is called as patentee. No other person may use the invention for the duration of the patent without the permission of the patentee. In India patent rights are governed by The Patent Act, 1970. The right of patent in India is 20 years. After expiry of this period the invention passes in public domain. To qualify for patent protection, inventions must have three attributes i.e. novel, non-obvious, and industrial application. The patent system is one of the oldest forms of IPRs. The object of patent laws is to encourage scientific research, new technology and industrial progress. It stimulates new inventions of commercial utility.
2. Trademark
Trademark is a competitive trade practice where every trader wants to sell his goods or services under his name or with distinct logo. The trademark is a symbol in the form of word, device or label applied to the article with a view to create distinction in the same category of article. It is related by goodwill and reputation of a business. Registered trademark cannot be used by any other person or organization. In India trademark is governed by Trademark Act, 1999. Other than trademark there
are certain other specific forms of mark which are related with trademark such as service mark, collective mark, certification mark, well-known trademark, internet domain name, modern marks and trade dress. Unique trademarks is designed in such a way to help consumers identify and purchase a product or service as per its special characteristics and quality. The period of protection of trademark, in India, is for 10 years which can be renewed infinitely.
3. Industrial Design
It can be defined as feature of shape, pattern, the ornament or composition of lines and colors applied to an article by which a consumer selects his useful article. Industrial designs make goods attractive and appealing, thus added in its commercial value and enhance marketability. In India, The Design Act, 2000 not only promotes the creation of new and original designs for products but also aims to balance the competing interests by providing monopoly rights to use registered design for the period of 10 years plus 5 years. For this period of 15 years an owner of design can claim copyright protection on registered design.
4. Geographical Indication (GI)
Geographical indication is significant which shows that certain goods have a specific geographical origin. It usually consists of the name of the place of the origin of the product. Any natural or manmade product which earns significance due to a particular geographical place or some traditional process, it is sale with such geographical indication tag. Due to this tag, the economic importance of a product increases and protects the public property because GI is available to group of people who are authorised user. GI cannot be registered as trademark. In India, GI is governed by the Indian geographical indications and commodities Act 1999. Some famous GI tags in India are given to the Darjeeling tea, black rice from Manipur, Kashmiri saffron Banaras Silk, oranges of Nagpur etc. Validity of registration of GI tag is for 10 years in India.
B. Copyrights
Laws that grant authors, artists, painter, photographers and other creators a sort of protection for their works. The creators of such works are protected by copyright; they and their heirs have certain rights under copyright laws. In India this right lasts for entire life span
of the creator and up to 60 years after his death. For this period copyrighted work cannot be used by any person without the permission of an author. These rights become public after expiry of this protected period. Copyright solely protects the expression of an intellectual creation i. e. actual work, and not ideas. It is applicable to literary, artistic, dramatic and scientific works. Development of IPR in India The history of intellectual property rights, although not clearly recognised, but can be traced back to ancient India, where we found respect for knowledge, art and invention. Ancient scriptures like Arthashastra, written by Kautilya, reflect the importance of protecting the rights of creators and inventors. The formalization of IPR in India began during the British colonial period.
With the establishment of dominance of British East India Company in India, it feels strong need to protect trade secrets, inventions and literary works. The British tried to introduce laws that mirrored those in England which led to the establishment of the first formal IPR regulations in India. The first patent law in India was enacted by Britishers in 1856 under the title “The Act VI of 1856 on Protection of Inventions” which was granting 14 years protection period to
invention and the exclusive rights to their inventors. Developing Economy of India and IPR India has been among of the fastest growing and largest economies in the world in the recent years. The growth achieved in India has come mainly from the service and manufacturing sectors, and due to the high domestic consumer demand, especially from the middle-class population. The long-term growth prospective of the Indian economy is positive due to its young population, potentials to attract Foreign Direct Investments, high consumption rates and big market. Creativity and innovation have played a significant role in growth and development of the Indian Economy.
Many features of that can be observed through the evolution of the Indian film and music industry, the contribution of the Indian pharmaceutical sector in enabling access to affordable medicines globally, the presence of a strong competitive software industry as well
as the Indian popular practices such as Ayurveda and Yoga. While India has always been a rich society with innovative and creative works, much of the IP created remains unprotected both on account of lack of awareness and complexity of the IPR system. India has robust IP laws and enforcement that it has inherited from its colonial times, and it has recently joined the countries that have adopted stronger IPR protection after joining the WTO and signing the TRIPS agreement for reasons mainly as of boosting economic growth and bilateral and international trade relations with developed economies as well as its local financial institutions. According to the statistical data provided by the Indian government for the period 2000-2015, there seems to be a rise in the total number of IPR measures filed domestically and abroad.
There is also a noticeable steady growth in the economy, which results in an improvement in income among Indians; thus, it might be seen as offering encouraging incentives to individuals and companies to invest more in creating innovative products. Need of IPR IPRs played significant role in the overall growth of a country. Intellectual property laws are different in all countries according to the need of their economy. In many developed countries, successful planning and strict enforcement of IPR have significant contribution in their economic growth. Now a days creation of innovation, new ideas for business development is the primary activity of each and every economy in the world. The countries by providing importance to IPR laws promotes their businesses and results in financial growth of a nation.
It is very important to protect the interest and rights of people who are involve in innovation and creation which is directly linked to the development and growth of the country. The most developing economies like India must focus on raising productivity in the market. Innovation requires a great amount of investment but have an important role in investment. We have examples of developed countries like USA, Japan and China in which the rate of development increased by 5 times after the implementation of Intellectual property laws. Benefits of IPR In the current time, it has been suggested to every business owner, whether they have
new small business or well set up business, to take IPRs protection under different intellectual property laws as it provides various advantages to the business as well as business owner. Some of the advantages are,
1. Business Protection
Protection of business means separate recognition in the market so that anybody can easily recognise the business. patents for new inventions like software or medical equipment; copyrights for original works like books, movies; trademarks for brand names and logos like "Google" or "Nike"; and industrial designs for the ornamental features of products like a "Dyson bladeless fan", etc.. Additionally, geographical indications protect products associated with a specific region, like "Darjeeling tea". Trade secrets, like the "Coca-Cola formula," also fall under IPR protection.
2. Promote Innovativeness
For getting protection under intellectual property laws on any kind of property, it is very important that it must have innovativeness, uniqueness and usefulness. If it is similar to the things that are already in existence or already protected under certain IP laws then protection is not provided. Hence it can be said that intellectual property promotes the new ideas and inventions as it gives exclusive rights over the property you invented.
3. Increase in Profit
IPR gives exclusive control over the commercial use of the product invented to the owner of the property. Hence without his confirmation no one can use his product for sell or manufacturing purpose. It creates monopoly in market which makes you profit. For example, there are many types of mobile phone industry. There are different types of companies that produce mobile phones, like Nokia, Samsung, MI, Vivo, etc. Even after so many competitors, manufacturer of ‘Apple’ electronic gadgets is making good profits and also increasing its sales every year.
4. Great Export Opportunities
When owner claims IPR under IP laws, your business gets recognised in the market, and the owner get the chances of great export opportunities. Exclusive control over the
manufacturing and commercial use ensures that nobody can create the same goods and services in the market that are already served by someone after getting the IP protection. And open the global market platform for owner.
5. Preference in the Market
We see that the market is full of goods and services that are kind of similar in nature. But, we purchase or avail the goods or services which are well recognised and is protected under IPRs. The customers will give preference to such product in the market which maintains standard, quality and originality among the competitors. Let us understand the same thing with the help of an example. There are lots of Pizza shop in the market, but consumer prefers to choose a well-recognised brand such as Dominos, Pizza Hut etc. Drawbacks of IPR Some of disadvantages of the intellectual property laws are given below:
1. Complicated Process
The procedure provided under IP laws for getting protected intellectual property rights is very complicated. The process is lengthy and complexed. A layman cannot complete that procedure on its own and has to approach the person having knowledge of IP laws.
2. High Cost
Without paying the registration fees as mentioned in the law, one cannot IP laws protection. Also, hiring an attorney is an extra cost with the registration fees. Because of this sometimes, small business owners ignore taking the same because of the higher cost it involves.
3. Time-Consuming
The registration process for IPRs is a multi-stage procedure. First, the applicant or one who wants to take IP protection needs to file an application along with all the formalities and documentation. Then, the examiner/registrar will examine the application and verifies it. If he is not satisfied, then he may call for further submission of details or may cancel the application.
Objections from the opposition is called and accordingly heard. The applicant has to wait for several months for getting registered his invention. Role of Judiciary in Protecting IPR The IP laws unlike other laws are not lacuna free. The SC being protector of fundamental right, it also protects the IPRs of owner of intellectual property. By suing power of judicial review, the Court reviewed lower courts' judgments and enlarged the boundaries of IP laws, and tried to fill up the lacuna in the existing laws. In this way SC is also play vital role in boosting the confidence of inventors, authors and owner of other IP in protecting and inventing new inventions. Some of the cases are discussed below.
1. Novartis Ag vs. Union of India (2013)
A civil appeal arose out of a special leave petition filed by the Novartis Ag against the
order of Intellectual Property Authority Board (IPAB). The SC held that the application filed by Novartis Ag is barred by Sec. 3(d) and further held that the foregoing provision is neither unconstitutional nor against the TRIP'S Agreement. Concerning the field of medicine, especially in cases of life-saving drugs, a great acre and caution needs to be taken to protect the right to life of the masses. The court confirms the constitutionality of the Patent act and is in compliance with the TRIPS agreement.
2. Bayer Corporation vs. Union of India (2013)
In this case, SC straightway dismissed the special leave petition filed by the applicant against Bombay HC’s decision. This was one of the landmark cases where the SC upheld the HC’s decision providing compulsory licensing for a life-saving drug named 'Nexavar.' The High Court upholds the decision of IPAB and observed that - "Medicine has to be made available to every patient and, this cannot be deprived/scarified at the altar of rights of patent holder". SC enlarged the scope of copyright law holding that although judgment per se is not capable of Copyright as per the statute but the work done to make the judgement understandable by way of footnotes and headnotes are capable of copyright protection.
3. Yahoo!, Inc vs. Akash Arora & ors (1999)
In the current case, the respondent has apply for the registration of the domain name
of 'yahoo India', which was similar to the already existing domain name of the plaintiff, i.e. 'Yahoo.com' and having a trademark on Yahoo!. Moreover, the trade in which the respondent was indulged was similar to that of the plaintiff. The HC took the cognizance of the case on the application of the plaintiff and held that using the trade name by the respondents were an infringement of trademark and termed it as "Passing off" of the trademark, as the plaintiff has made image and reputation in the market and the people may get mislead due to it.
4. Bajaj Auto Limited vs. TVS Motor Company Limited, (2009)
The SC has held that the suits related to IP are pending in the tribunals and courts for years and years. The Court is directed to hold daily hearings for the proceedings related to IPRs and shall be disposed of normally in four months. The Court observed that disposal of cases of IP requires special attention because if the courts will take years in such an advanced era where technology is changing every day. It will seriously affect the rights of owner of IP and also paralyzed the importance of IP laws in India. And discourage the inventors too. If years will be taken, then at the time of disposal of suit that invention is certain to be obsolete and useless and thereby demotivate the inventors to do further invention.
• Conclusion IPR play a significant role in economic development by fostering an environment which is favorable for creators and innovators to bring their ideas in the market. IPR protection, including patents, trademarks, copyrights, and trade secrets, encourages investment in research and development which leads to the economic growth by the introducing new technologies, products, and services. IPR laws can boost innovation and productivity opportunities in the developing country like India. IPR laws which provide adequate protection to the owner. Effective enforcement mechanisms are crucial to maintaining the integrity of the IPR system and to prevent the abuse of exclusive rights by owner that may lead to monopolies and maintain fair competition and access to essential goods and services.
IPR stands as a pillar supporting creativity, entrepreneurship, benefiting societies and economies alike. Undoubtedly, in the last few years, higher judiciary has played a major role in interpreting the law what it is and making law through various directions issued by it. Judiciary has to harmonize both sides as on one side there are the interest of the inventors and investors,
and on the other hand, there is society at large, so the judiciary has to counterbalance the rights for development and effective implementation of intellectual property law. A well-designed and effectively enforced IPR system can contribute significantly to
economic growth and development, but it also requires ongoing attention to address potential challenges and ensure that it serves the broader public interest.
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