Human Resource Laws • Fair dealing with a literary, dramatic, musical or artistic work not being
computer programmes for the purposes of private use including research,
criticism or review, making copies of computer programmes for certain
purposes, reporting current events in newspaper magazines or by
broadcasting or in a cinematography film or by means of photographs.
• Reproduction of judicial proceedings and reports thereof, reproduction
exclusively for the use of Members of Legislature, reproduction (artistic
work excluded) in a certified copy supplied in accordance with law.
• Reading or recitation in public of extracts of literary or dramatic work.
• Publication in a collection for the use in educational institutions in certain
circumstances.
• Reproduction by teacher or pupil in the course of instruction or in question
papers or answers.
• Performance in the course of the activities of educational institutions in
certain circumstances.
• The causing of a sound recording to be heard in public utilising it in an
enclosed room or in clubs in certain circumstances.
• Performance in an amateur club given to a non-paying audience or for
religious institutions.
• Reproduction in newspapers and magazine of an article or current, economic,
political, social or religious topics in certain circumstances.
• The owner of the copyright in an existing work or the prospective owner of
the copyright in a future work may assign the copyright to any person either
wholly or partially, generally or subject to any limitation and for the whole
term of the copyright or any part thereof.
• The owner of the copyright in any existing work or the prospective owner
in any future work may grant any interest in the right by license in writing
signed by him or by his duly authorised agent.
Several measures have been adopted to strengthen and streamline the enforcement
of copyrights. These include the setting up of a Copyright Enforcement Advisory
Council, training programs for enforcement officers and setting up special policy
cells to deal with cases relating to infringement of copyrights.
Trade Marks
Trade marks have been defined as any sign, or any combination of signs capable
of distinguishing the goods or services of one undertaking from those of other
undertakings. Such distinguishing marks constitute protectable subject matter
under the provisions of the TRIPS Agreement. The Agreement provides that
initial registration and each renewal of registration shall be for a term of not less
than 7 years and the registration shall be renewable indefinitely. Compulsory
licensing of trade marks is not permitted.
Keeping in view the changes in trade and commercial practices, globalisation of
trade, need for simplification and harmonisation of trade marks registration
systems etc., a comprehensive review of the Trade and Merchandise Marks Act,
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1958 was made and a Bill to repeal and replace the 1958 Act has since been Intellectual Property Rights
passed by Parliament and notified in the Gazette on 30.12.1999. This Act not
only makes Trade Marks Law, TRIPS compatibility but also harmonises it with
international systems and practices. Work is underway to bring the law into force.
The Trade and Merchandise Marks Act, 1958
An Act to provide for the registration and better protection of Trade Marks and
for the prevention of the use of fraudulent marks on merchandise.
1.7 TYPES OF INTELLECTUAL PROPERTY
RIGHTS
Intellectual property refers to the right over the intellectual work and not the
work itself. Intellectual property rights can be categorised into various types as
per the nature of work. The most common types of intellectual property are
copyrights, trademarks, patents, industrial design rights and trade secrets which
can be explained as follows:
1) Copyright: It is a right that is provided to the owner of a literary or artistic
work. It is an exclusive right to control the publication, distribution and
adaptation of creative works. Copyright laws deal with the intellectual
property of creative works like articles, books, music, software, painting,
etc.
The right lies with the owner cum copyright holder for a certain period of
time. As time lapses, the work can be republished or reproduced by others.
Usually, the timespan of a copyright extends through the entire life of the
owner and lasts up to a period of about 50 to100 years after death.
In case of anonymous works, the right lasts for 95 years after publication or
120 years after the creation.
2) Trademarks: Companies, political parties, governmental bodies and several
running institutions can be identified or recognised on basis of certain
symbols assigned by them. These symbols are nothing but the trademark,
which is generally used to identify a particular product, which indicates its
source. A trademark can be a combination of words, phrases, symbols, logos,
designs, images or devices, used by an individual, legal entity or business
organisation to distinguish their products from that of others. For example,
one can identify the products of Reebok/LG/Whirlpool/Godrej through their
logo, which is embossed on their products. Another example can be the
logo of NGO’s like WHO, UNICEF and so on which differentiates these
institutions with each other.
The organisations get their trademarks registered and these trademarks are
protected legally. If these trademarks are ever misused, then the owners can
claim legal actions against those persons who use their trademarks. The
right of trade marks defend the products and services of the company
or institutions which helps in developing their brand, including
pharmaceuticals.
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Human Resource Laws They can be registered nationally or internationally, enabling the use of the
symbol ®. An unregistered trade mark is followed by the letters ™. This
can also be enforced in court if a competitor or any one else uses the same
or similar name to trade in the same or a similar field.
3) Patents: Patents are rights related to new discoveries. Patents are used to
protect new product, process, apparatus. The right to patent says that the
invention is not obvious in light of what has been done before or has not
been duplicated and has not been disclosed anywhere in the world at the
time of the application. But of course the patent can only be given to those
inventions which have a practical purpose. This right is conferred on persons
who invent any new machine, process, article of manufacture or composition
of matter, biological discoveries, etc.
There are certain set criteria of patent which may differ from country to
country and ones’ invention should meet the set criteria in order to get their
rights protected. In general, the invention must be new, inventive and should
be useful or can be applied in industries.
The person needs to get registered in order to receive the patent for his/her
invention. Once the individual has been granted the patent for the invention
then he or she has an exclusive right to control others from making, using,
selling, or distributing the patented invention without permission. Generally,
the time limit of a patent is 20 years from the date of filing the application
(for the patent).
4) Industrial design rights: These rights also come under intellectual property
and protect the visual design of objects. These rights are assigned to the
products distinguished by their novel shape or pattern. The design may be
in form of a shape, colour, pattern or a combination of all these things. It
can be an industrial commodity or a handicraft. The design can be either
two-dimensional (based on pattern, colours and lines) or three-dimensional
(as per shape and surface).
The right is assigned on basis of several factors like, novelty, originality
and visual appeal. The person who has an industrial design right has the
exclusive right to make or sell any objects in which the design is applicable.
The right is conferred for a period of 10 to 25 years. The design is required
to be registered either nationally or under an EU (European)-wide single
right.
5) Trade secrets: Trade secrets are the rights assigned to the designs, practice,
formulas, instrument, processes, recipes, patterns or ideas being used or
owned by a company to gain economic advantage over its competitors.
The owner of a trade secret does not possess any right over anyone who gains
access to that secret independently, but he can prevent the use of trade secret by
anyone who has learned it through the owner. For example, an employer can
protect trade secrets through contracts with his employees. It differs from other
types of intellectual property, because it is the responsibility of the owner to
keep the secret and it is not protected through government policies. Once the
trade secret is disclosed, it can be applied as well as exploited by any other
person.
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Intellectual Property Rights
Self Assessment Questions
State whether the following are true or false-
i) The owner of a trade secret does not possess any right over anyone who
gains access to that secret independently ( )
ii) Copyrights are assigned to the products distinguished by their novel
shape or pattern. ( )
iii) Intellectual property rights helps in protecting the ownership and
originality of the individuals’ creation. ( )
iv) Trademark is a right that is provided to the owner of a literary or artistic
work. ( )
1.8 EMERGING ISSUES OF INTELLECTUAL
PROPERTY RIGHTS
Having a copy right over one’s intellectual contribution, no doubt is a significant
matter not only for the individual or the organisation, it is a significant contribution
as well as a matter of repute to the concerned nation. Yet there are certain
unresolved issues or agenda which question the process as well as concept of
intellectual property rights. Some of them can be pointed out as follows:
1) Issue of resource piracy: In order to build up global economies, the countries
adopt as well as take up the biological as well as natural resources of other
countries. These resources which may have an origin some where else might
be reconised as well as patented somewhere else, just because of negligence
or ignorance of the home country. For example, the transfer of basmati
varieties of rice from India to build up the rice economy of the US; the free
flow of neem seeds from the farms, fields and commons to corporations
like W. R. Grace for export. There exist no laws or legal actions against
such piracies/ ignorance.
2) Intellectual and cultural piracy: With an objective to compete and gain
recognition as well as better financial conditions, the unique activities,
cultural and intellectual heritage of communities and the country is freely
taken. Many a times the nations and communities claim for such intellectual
property rights which does not originally belong to them and neither have
been taken with prior recognition or permission from the actual place. For
instance, the use by US corporations of the trade name ‘basmati’ for their
aromatic rice, or Pepsi’s use of the trade name ‘Bikaneri Bhujia’. Such
activities are debatable and questionable.
3) Economic piracy: At several circumstances the domestic and international
markets are seized or taken over by using the trade names, thereby
demolishing the local economies and national economies where the original
innovation took place. This also adversely affects the livelihoods and
economic survival of millions. For example, US rice traders usurping
European markets; Grace usurping the US market from small scale Indian
producers of neem based biopesticides.
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