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evolution of intellectual property, Exams of Law

Pondicherry University Law

evolution of iprevolution of iprevolution of iprevolution of iprevolution of iprevolution of iprevolution of iprevolution of iprevolution of iprevolution of ipr

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Intellectual Property

▲Intellectual property (IP) pertains to any original creation of the human intellect such as

artistic, literary, technical, or scientific creation.

▲Intellectual property rights (IPR) refers to the legal rights given to the inventor or creator

to protect his invention or creation for a certain period of time.

▲These legal rights confer an exclusive right to the inventor/creator or his assignee to fully

utilize his invention/creation for a given period of time.

▲IPR is a strong tool, to protect investments, time, money, effort invested by the inventor/

creator of an IP.

In India, the concept that one could have property rights over the products of one‘s intellectual

labour is yet to gain a firm footing because of the fact that traditionally India is a country where

people never believed in asserting rights over intellectual properties.

Factually, intellectuals were identified more with poverty than with property or prosperity.

People took pride in proclaiming that the Goddess of Wealth (Lakshmi) and Goddess of Learning

(Saraswathi) never co-existed.

According to Thiruvalluvar = ‘the greatest incentive for a learned person is to know that his

learning contributes to make the world happy’.

This is why most of the proud products of our culture and the contribution of our ancestors to

arts, literature, social and natural sciences and technology, remained in anonymity and remains

the reason for the loss of recognition on contribution of our ancestors towards intellectual labor

and culture.

Examples of vast traditional knowledge

•For instance, modern scientists have humbly admitted that the ecological management

practiced today by the tribes of India's Northeast is far superior to anything they could

teach them.

•The use of alder (Alnus nepalensis), which has been cultivated in the jhum (shifting

cultivation) fields by the Khonoma farmers in Nagaland for centuries.

•It has multiple usages for the farmers, since it is a nitrogen-fixing tree and helps to retain

the soil fertility.

•Its leaves are used as fodder and fertilizer, and it is also utilized as timber. One could cite

numerous such examples.

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Intellectual Property

▲ Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation.

▲ Intellectual property rights (IPR) refers to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time.

▲ These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time.

▲ IPR is a strong tool, to protect investments, time, money, effort invested by the inventor/ creator of an IP.

In India, the concept that one could have property rights over the products of one‘s intellectual labour is yet to gain a firm footing because of the fact that traditionally India is a country where people never believed in asserting rights over intellectual properties.

Factually, intellectuals were identified more with poverty than with property or prosperity.

People took pride in proclaiming that the Goddess of Wealth (Lakshmi) and Goddess of Learning (Saraswathi) never co-existed.

According to Thiruvalluvar = ‘the greatest incentive for a learned person is to know that his learning contributes to make the world happy’.

This is why most of the proud products of our culture and the contribution of our ancestors to arts, literature, social and natural sciences and technology, remained in anonymity and remains the reason for the loss of recognition on contribution of our ancestors towards intellectual labor and culture.

Examples of vast traditional knowledge

For instance, modern scientists have humbly admitted that the ecological management practiced today by the tribes of India's Northeast is far superior to anything they could teach them.
The use of alder (Alnus nepalensis), which has been cultivated in the jhum (shifting cultivation) fields by the Khonoma farmers in Nagaland for centuries.
(^) It has multiple usages for the farmers, since it is a nitrogen-fixing tree and helps to retain the soil fertility.
Its leaves are used as fodder and fertilizer, and it is also utilized as timber. One could cite numerous such examples.

Algebra, geometry, algorithm, higher branch of mathematics like numerical analysis, calculus, etc. and more importantly the concept of “zero” were translated by the Arab mathematicians to perfect the decimal system by giving the world its current system of enumeration which we call Arab or Arabic numerals, which are originally Indian numerals.
The calculation of eclipses, the earth‘s circumference and the heliocentric theory of gravitation which were propounded by Indian astronomers were a thousand years later articulated by Copernicus and Galileo.
All these knowledge were shared with the world without any recognition to the contributors.

EVOLUTION OF INTELLECTUAL PROPERTY

Modern usage of the term intellectual property gained momentum after the establishment of the World Intellectual Property Organization (WIPO) in 1967.
But IPR did not enter popular usage until passage of the Bayh-Dole Act in 1980.
(^) The earliest use of the term intellectual property appears to have occurred in the ruling of Massachusetts Circuit Court in October 1845 in the patent case Davoll et al. v. Brown.

History and evolution of Patents

Privileges (15th to 18th centuries)
National Patent Laws (1790 to 1883)
Internationalization (1883 to the present)

Privileges (15th to 18th centuries)

Sovereign of a country granted monopolistic rights sometimes as a concept of utility and otherwise as an act of favoritism through privileges.
Privileges were instruments by which the sovereign afforded special rights to individuals.
These privileges could contain rights of very differing kinds for the beneficiary, in particular exemption from the guild rules, exemption from taxation, allocation of land, interest-free loans, naturalization or even titles of nobility.

The Republic of Venice was the first to adopt a Statute for this form of privilege ―Parte Veneziana of 1474 that laid down the principles for the grant of privileges which formed the basis for modern patent system such as the usefulness of new inventions for the State, the exclusive rights of the first inventor for a limited period and the penalties for infringement.

OF NEW MANUFACTURERS FOR A PERIOD OF 14 YEARS.

1859 THE ACT MODIFIED AS ACT XV; PATENT MONOPOLIES CALLED EXCLUSIVE

PRIVILEGES (MAKING. SELLING AND USING INVENTIONS IN INDIA AND

AUTHORIZING OTHERS TO DO SO FOR 14 YEARS FROM DATE OF FILING

SPECIFICATION).

1872 THE PATENTS & DESIGNS PROTECTION ACT.

1883 THE PROTECTION OF INVENTIONS ACT.

1888 CONSOLIDATED AS THE INVENTIONS & DESIGNS ACT.

1911 THE INDIAN PATENTS & DESIGNS ACT.

1972 THE PATENTS ACT (ACT 39 OF 1970) CAME INTO FORCE ON 20 TH^ APRIL 1972.

1999 ON MARCH 26, 1999 PATENTS (AMENDMENT) ACT, (1999) CAME INTO FORCE FROM

2002 THE PATENTS (AMENDMENT) ACT 2002 CAME INTO FORCE FROM 2OTH MAY 2003

2005 THE PATENTS (AMENDMENT) ACT 2005 EFFECTIVE FROM Ist JANUARY 2005

TRADEMARKS

Trade marks = marks of origin
were affixed by makers of bricks, leather, books, weapons, etc. even in ancient cultures.
These marks were used to signify the makers of the product, which even till today is an important element in trade mark law.
The English word "brand" reflects the usage, as the marking was placed on cattle by farmers with hot irons.

Paris Convention is the basic international convention in the field of industrial property including trademarks.

It is supplemented by the Madrid Agreement on the International Registration of Marks, signed in 1891, a special union for members of the Paris Convention. The ratification of these international treaties and their transformation into national legislation has contributed substantially to transformed trademark laws.

THE HISTORY OF COPY RIGHTS

The First Copy Right Statute in England was the Statute of Anne, 1709.
German Philosophers like Immanuel Kant saw copyright, not merely as a form of property right.
They regarded the author's creative work as an extension of or the reflection of the author's personality in respect of which he was entitled by natural justice to be protected as a part of his personality.
(^) This concept led to the development of droit moral or moral rights (non economic rights of authors). The international period of copy right protection began with the signing of the Berne Convention for the Protection of Literary and Artistic Works in 1886.

EVIDENCES FOR IPR SYSTEM NEEDS

The debate on whether the IPR system is a blight on free trade principles or the best method of stimulating inventions is more than a century old and it is neither new nor peculiar to India.
Europe, John Stuart Mill said: “…an exclusive privilege, of temporary duration is preferable [as a means of stimulating invention]; …
Contra view expressed in the Economist way back in 1851, as: “The privileges granted to inventors by patent laws are prohibitions on other men, and the history of inventions accordingly teems with accounts of trifling improvements patented,……. it is an impediment to the gener To an American, the concept of a patent as a human right is particularly hard to grasp.
Patent rights are not, like rights in real property, anterior to the constitutional scheme.
(^) Rather, it is given to Congress to create them.
That Congress has no obligation to do so, furnishes some evidence that the Framers of the Constitution did not consider a patent as a fundamental rightal advancement”.
To an American, the concept of a patent as a human right is particularly hard to grasp.
Patent rights are not, like rights in real property, anterior to the constitutional scheme.
Rather, it is given to Congress to create them.
That Congress has no obligation to do so, furnishes some evidence that the Framers of the Constitution did not consider a patent as a fundamental right

PROTECTION OF INTELLECTUAL PROPERTY

There is not enough protection in intellectual property law for innovation and creativity.
As the world grows smaller and becomes more interconnected, there is a cry for expanding the scope of existing Intellectual Property Rights ("IPRs").
To add new forms to protect new technologies undreamt of by those who created the existing forms of Intellectual Property.

Eg for mutual sharing could form the basis for patenting indigenous or traditional knowledge.
In 1987, a medicine by name "JEEVANI" was developed from a plant found in the tropical forests of Southwestern India.
(^) The Kani tribe of Thiruvananthapuram, Kerala, possessed traditional knowledge of making Jeevani from Arogyapaacha plant
The medicine is believed to improve athletic performance, mental alertness and work output.
The scientists at the Tropical Botanic Garden and Research Institute (TBGRI) undertook research and filed a patent application in India.
Then they negotiated technology transfer agreement with Ayurvedic drug companies.
TBGRI also created a trust called "Kani Samudaya Kshema Trust" to promote the welfare of the tribe and to ensure sustainable use and conservation of biological resources.
The Trust is funded by TBGRI from out of the royalties received from the licensees.

Competition Law

The most famous application of competition law to IPRs was in the Magill case in 1995.
The subject matter of the case was TV guides in the UK and Ireland. Before the case, in the UK, for example, the British Broadcasting Corporation (BBC) and ITV exercised copyright in their program schedules so that while daily listings appeared in newspapers, the only weekly guides were their own Radio Times and TV Times; and each publication gave only the programs of the BBC and ITV respectively.
The European Court of Justice (ECJ) held that under Article 82 EC, copyright owners could be required, against their will, to license others to reproduce their copyright material in different forms.
The remarkable decision of the ECJ was heavily and widely criticized at the time, for equating a property right what a monopoly - for saying, in effect, that if I shut you out of my house, you can challenge me for abusing a dominant position with regard to that building. At the root of the decision, it seemed, was not so much the principles of competition law as a dislike of the IP regime which permitted copyright to exist in such ephemeral material as lists of TV and radio programmes

Human Rights perspective of IPR

With the advent of the Universal Declaration of Human Rights (UDHR) , Intellectual Property Rights assumed greater significance on the one hand and a period of conflict also started on the other hand.

Art. 27(2) of the declaration said: "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".
The International Covenant on Economic, Social and Cultural Rights, states that "The States Parties to the present Covenant recognize the right of everyone ... To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".

IMPACT OF IPR REGIMES

In UK, in pursuance of the white paper on International Development titled "Eliminating World Poverty: Making Globalization work for the Poor",
(^) A Commission on Intellectual Property Rights was set up.
The Commission undertook fact finding missions to Brazil, China, India, Kenya and South Africa.
They also consulted key stake holders in developed countries such as UK, USA, EU and international organizations such as WTO, WIPO, World Bank and United Nations.
One of the key study areas identified by the Commission was the impact of IPR regimes on health, agriculture and genetic resources, traditional knowledge, software and internet.
The Commission submitted its final report in September 2002.
Some of its recommendations for developed, least developed and developing countries are of interest.

BALANCED IP REGIME

The fundamentals of the Intellectual Property Laws are based on the need to protect the economic rights of the owners of the intellectual properties and also to safeguard the common man from falling a victim to those who exploit the intellectual property rights.
Historical studies divulge that patents, trademarks and copyrights are recognizable intellectual properties familiar in western countries for centuries.
Instituting a uniform international regime of IPR protection could bring in conflict and controversy and therefore, imposition of such regime should be adapted to the national legal and social contexts of the countries where there are indifferences, inequalities and huge disparities.