Saibal C. Pal
Intellectual property (IP) is the innovative creation by individuals out of his own ingenuity. IP pertains to literary, artistic performance of performing artistes, phonograms, and broadcasts, inventions in all fields of human endeavor, scientific discoveries, industrial design, and protection against unfair competition and all other activities in the industrial, scientific or artistic field. Owners of IP obtain rights to prevent others from using the property created by them in the referred fields . Rights arising from the assets are known as IPR. Second part of TRIPS state the manner of protection of IP and IPRs. Copyright, patent, Trade mark, Industrial Design, Geographical Indication, Integrated Circuits and confidential and undisclosed information are all IP and IPRs. Purpose is to ensure adequate standard of protection in member countries.
Copyright is an IPR and is the result of a work of art or any other work of originality and creativity. A patent for an invention is another form of IPR and is the result of an inventive skill. Design an IPR relates to the shape or configuration of a finished article. Trade mark (TM) an IPR is not always the result of an inventive skill or a product of imagination. TM may be a word or a mark used or proposed to be used on the goods to be manufactured and /or marketed.
IP embodies certain rights and limitations including right to use and issue licence. Copyright and patent have life span. Registered users of trade marks are eligible for using the mark in course of trade. The mark becomes symbol of a business on constant use. Ideas and knowledge are recognized to-day and form part of trade. Products that were traded as low-technology goods or commodities now contain higher proportion of invention and design in their value for example brand named clothing or new variety of plants. Through IP legislations creators enjoy right to prevent others using their inventions, designs or other creations.
Extent of protection and enforcement of rights varies widely around the world. IP confers on individuals, enterprises or entities right to exclude others from the use of specific intangible creations. Peculiar feature of such rights is that they relate to pieces of information that can be incorporated in tangible objects. Protection is given to ideas, technical solutions or information that has been expressed in a legally admissible form and in some cases become subject to registration procedures. IPRs are exercised – generally as exclusive rights – with respect to products that carry protected information. This explains why intellectual property rights may have a direct and substantial impact on industry and trade. Those who create IP may through enforcement of such rights regulate use of creation (e.g. musical work) and commercialization of product (e.g. compact disk) that contain it. Control over IP, therefore, connotes authority over use of products and markets.
The Companies Act, 1956 recognizes the contribution of IP to business and S 79A, in Explanation II of the Act defines “sweat equity “ shares . It means equity shares issued by a company to employees or directors at a discount or for consideration other than cash for providing know how or making available rights in the nature of intellectual property or value addition, by whatever name called. Schedule VI to the Act includes patents, trade marks and designs under fixed assets.
IP and IPRs have direct and substantial impact on industry and trade. Those who create such assets which are intangible may, through enforcement of such rights, regulate the use of the creation (e.g. musical work) and the commercialization of product (e.g. compact disk) that contains it.
`Right’ in respect of IP comprehends every right under law. It includes both corporeal and incorporeal rights including `a right of ownership’.( Jasjit Singh v Charanjit Kaur, AIR 1995 P&H 177,179). ”Right” in civil society is defined to mean man is entitled to have or to do or to receive within the limits prescribed by law. Right and interest in respect of copyright in a literary or artistic work means such legal rights as those of a Translator or Adapter. Interest has a much wider meaning and include se.g. the interest of the owner of a Trade-Mark to advertise , or of a publisher to sell his stock of the work or produce a second edition.
Property has been defined as the right and interest which a man has in lands and chattels to the exclusion of others. “Property” is a generic term and has wide application while strictly speaking means only right which a person has in relation to something or that domain or indefinite right of user and disposition which one may lawfully exercise over particular things or objects. It is frequently used to denote the subject of the property or thing itself which is owned or in relation to which the right of property exists. In the former sense it extends to every species of valuable right or interest, in either real or personal property or in easements, franchises, and incorporeal hereditaments and in the latter to everything which is the subject of ownership or to which the right of property may legally attach, or in other words every class of acquisitions which a man can own or have interest in. A trade mark is a species of property which may be sold or transmitted by death with the business in which it has been used. IPRs are considered the most valuable assets owned by corporates. Importance of IPRs is increasing in international trade and has thrown business empires to review business plans and strategies in this perspective.
With the advancement of society, new discoveries and inventions have emerged widening the list of items that fall under IP. Rapid change in technology during the last two decades have led to the latest concept of intellectual capitalism. Capital is no longer in banks but in minds. Brain and not bucks is the source of new enterprise. In the present era of technological revolution, it is brain power and not the money, which is scarce. Return on intellectual capital cannot be measurable by any standard. Major tool for intellectual enterprise is information and knowledge on which the entire business module is built.
India is in the midst of knowledge-based revolution. It is strange particularly when we observe that even less than a century ago India referred to as a land of snake charmers, elephants and tigers. To-day, India is internationally hailed as a land of IT and pharma companies with the best of minds in the field. Corporates originating in India are shaping into MNCs with acquisitions and establishment of business enterprises in Europe and USA and host of other countries. Inroads of Indian corporates in the UK and world-wide are well known. Mittals for Arceler, Tatas for Tetly and Corus, Ranbaxy, Sun Pharma, Dr Reddy’s for pharma have all have drawn international acclaim.
WTO was established with the successful conclusion of the Uruguay Round GATT Multilateral Trade Negotiations on April 15, 1994. The negotiated agreement introduced a new era in the protection and enforcement of IPRs. On January 1, 1996 agreement between WIPO and the WTO provides for co-operation concerning implementation of TRIPS Agreement being notification of laws and regulations and legal technical assistance and technical co-operation in favour of developing countries. TRIPS agreement states that member countries have to ensure IPR violations attract penalties. Procedures must be fair and equitable and not cumbersome or costly. People involved should be able to ask a court to review an administrative decision or appeal against a lower court ruling. The agreement describes in some detail manner of handling enforcement including rules or obtaining evidence, provisional measures, injunctions, damages and other penalties.
IP has taken the world ahead at a very short time but it has thrown open certain new risks. There is the threat of cyber crime which is threatening the world over. The world was quick in introducing cyber law which law encompasses wide variety of legal issues related to the use of communication technology. Acts attracting criminal liability are common and there are currently two main statutes which govern online criminal liability – the Indian Penal Code, 1860 and the Information Technology Act, 2000 (IT ACT) which came into force on the 17th October, 2000 and has been amended in 2009 to include provisions to punish those involved in cyber crime.
IT based crimes involve a criminal act in which computer and/or network is used as a tool, target or place of such activity. It also includes traditional crimes involving computers or networks. Marc M Goodman classifies cyber crime under three categories : (i) where computer is the target; (ii) where computer is the tool of the crime and (iii) where computer is incidental. Some opine that crime committed through computer is a computer crime and that committed with the aid of internet falls in the category of cyber crime. The Act of 2000 was enacted to recognize commerce with the aid of electronic mode and at the same time check cyber crime.
Cyber crimes are a threat to security everywhere and there is concern to check such activity. Such crimes are classified on various basis : (a) subject of the crime; (b) against whom crime is committed; and (c) basis of temporal nature of nature of criminal activities carried out on computers and internet. Cyber crimes can be classified from the point of groups, (i) Individuals (ii) Individual property; (iii) Organization; and (iv) Society at large. Cyber crimes include harassment by e-mail, spreading of obscene material, cheating and fraud, transmitting virus, distribution of pirated software, trafficking, hacking, malice crime(including use of virus) e-mail bombing, online gambling and a host of others. The list is illustrative and not exhaustive and also includes traditional acts like theft, forgery and fraud wherever internet is involved. With increase in use of internet new criminal acts are emerging posing problem to authorities. The acts include Salami attacks, Data didling, Web jacking, Cyber Pornography and host of others. Other acts which fall under crime in cyberspace include: (i) cyber theft; (ii) cyber trespass; (iii) cyber violence; (iv) cyber obscenity; (v) cyber forgery and fraud and (vi) intellectual property crimes. New crimes that have emerged can be classified into the following: (i) cyber stalking; (ii) cyber pornography; and (iii) unauthorized access.
Common techniques used for unauthorized access include packet sniffing, tempest attack, password cracking, hacking, denial of service access, virus and worms attacks, email spoofing, logic bombs ,salami attacks, data diddling, e-mail bombing, trojan attacks, web jacking, cyber terrorism and cyber vandalism.
It is alleged that IPRs create monopoly and aid in concentration of power and wealth in the hands of a few. A section is crusading to high light the dark sides of IPR. Further there are constant reports on cyber crimes. In spite of the dark sides benefits of IPR cannot be ignored.
IPR has helped the world to come closer only to be separated by political boundaries. Through the internet two people can be connected from any part of the world. Communication is easy and gradually we are moving towards oneness.
Author email: saibal2004@rediffmail.com
