The protection of intellectual property rights is an essential component of financial policy for any country. India has been a World Trade Organisation (WTO) member since 1995. In national laws, WTO member must include some IP protection. That kind of protection can stimulate research, creativity and technological innovations by giving freedom to individual inventors and companies to gain the benefits of their creative efforts. It is an essential issue to plan to protect intellectual property rights. Intellectual Property Rights Law has created problems for emerging technologies such as computer programmers. The law adopts that something is either in writing protectable through copyright or a machine protectable by a patent but not by both concurrently.
Let’s look have through the definition of IPR. IPR is a general term covering patents, copyright, trademark, industrial designs, geographical indications, protection of layout design of integrated circuits and protection of undisclosed information (trade secrets). IPRs refers to the legal ownership by a person or business of an invention/discovery attached to a particular product or processes which protects the owner against unauthorized copying or imitation. (Source: Business Guide to Uruguay Round, WTO, 1995)
The Chronological development of IPR in India:
1947: Patents & Designs Act, 1911
1995: India joins WTO
1998: India joins Paris Convention/PCT
1999: Patent amendment provided EMR retrospectively from 1/1/95
2003: 2nd amendment in the Patents Act
Term of Patent – 20 years after 18 months publication
Patent Tribunal Set up at Chennai
2005: Patents (Amendment) Act 2005
1999 - 2005: Plant Varieties and Farmers’ Rights Act & Biodiversity Act. Designs, TM/Copyright Acts updated GI Registry set up at Chennai. IP Acts TRIPS Compliant
The following are the legislative measures to secure IPR:
It is good to register the copyright of creative work as doing so may help to prove ownership if there are criminal proceedings against infringer. In most cases though, registration is not needed to maintain a copyright violation claim in India. Registration is made, in person or via a representative, with the Copyright Office. Internet piracy of films, music, books, and software is an issue in India. Patents India’s Patents Act of 1970 and 2003 Patent Rules set out the law concerning patents.
The regulatory authority for patents is the Patent Registrar within the department of the Controller General of Patents, Designs and Trade Marks, which is part of India’s Ministry of Commerce and Industry. Patents are valid for 20 years from the date of filing an application, subject to an annual renewal fee. India’s patent law operates under the ‘first to file’ principle - that is, if two people apply for a patent on an identical invention, the first one to file the application will be awarded the patent. The laws governing designs are the Designs Act 2000 and the Designs Rules 2001. Designs are lawful for a maximum of ten years, renewable for a further five years. Trade marks India’s trademark laws consist of the 1999 Trade Marks Act and the Trade Marks Rules of 2002, which became effective in 2003. The regulatory authority for patents is the Controller General of Patents, Designs and Trade Marks under the Department of Industrial Policy and Promotion.
Trade names also constitute a form of a trademark in India, with protection, irrespective of existing trade names, for those wishing to trade under their own surname. Because of the common practice of ‘cybersquatting’ - the registration in bad faith of marks by third parties registering domain names for certain well-known marks in order to sell them to the original rights owners. Registration takes up to two years. A trademark in India is valid for ten years and can be renewed thereafter indefinitely for further ten-year periods. Registering and enforcing intellectual property rights in India.
Intellectual property rights can be imposed by bringing actions to the civil courts or through criminal prosecution by IPR lawyers in India. India’s laws governing all forms of IP set out procedures for both civil and criminal proceedings, as does the Competition Act. Some provisions of the Indian Penal Code, 1860 (IPC) may serve to provide for legal protection for technological measures. Section 23 of the IPC speaks of 'wrongful gain or wrongful loss'. A drawback of civil litigation is that persons are unlikely to recover large damages, and disciplinary damages against an infringer are rare. However, if persons have an identified infringer, it may be advisable to launch civil litigation, because if an interim injunction is granted the infringement can be halted pending the outcome of the case. Over the years, however, decisions in favour of foreign companies against local infringers have established the judiciary’s unbiased approach. It has been observed that the protection of intellectual property rights has debatable issues in international commerce.
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