Intellectual Property Rights (IPR) and Fundamental Rights often intersect, raising important legal and ethical questions. While IPR grants exclusive rights to creators and innovators, it must be balanced against fundamental rights such as freedom of speech (Article 19(1)(a)), the right to trade and profession (Article 19(1)(g)), and the right to life (Article 21). The conflict arises when IPR laws impose restrictions that may limit public access to essential goods, hinder free expression, or create monopolies.

Judicial interpretations have played a crucial role in resolving these conflicts, particularly in cases related to pharmaceutical patents, copyright limitations, and trademark monopolies. International treaties like TRIPS and the Doha Declaration also influence India's legal framework, ensuring a balance between protecting intellectual property and upholding fundamental rights.

This study highlights the need for a flexible approach in IPR laws, incorporating fair use provisions, compulsory licensing, and public interest exceptions. A well-structured legal system should foster innovation while safeguarding individual rights, ensuring that intellectual property protection aligns with constitutional values and societal welfare.

Introduction
Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

Intellectual Property Rights

Intellectual property rights are customarily divided into two main areas:

1. Copyright and rights related to copyright The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs, and films) are protected by copyright for a minimum period of 50 years after the death of the author. Also protected through copyright and related (sometimes referred to as "neighbouring") rights are the rights of:
   • Performers (e.g., actors, singers, and musicians)
   • Producers of phonograms (sound recordings)
   • Broadcasting organizations
   The main social purpose of protection of copyright and related rights is to encourage and reward creative work.
2. Industrial Property Industrial property can usefully be divided into two main areas:
   • One area can be characterized as the protection of distinctive signs, in particular:
     • Trademarks (which distinguish the goods or services of one undertaking from those of other undertakings)
     • Geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin)
     The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services. The protection may last indefinitely, provided the sign in question continues to be distinctive.
   • Other types of industrial property are protected primarily to stimulate innovation, design, and the creation of technology. In this category fall:
     • Inventions (protected by patents)
     • Industrial design
     • Trade secrets
     The social objective is to safeguard investments in new technology development, which encourages financing for research and development efforts. An effective intellectual property system should also promote technology transfer through foreign direct investment, joint ventures, and licensing agreements. Typically, this protection lasts for a limited duration, generally around 20 years for patents.
   While the basic social objectives of intellectual property protection are as outlined above, it should also be noted that the exclusive rights given are generally subject to a number of limitations and exceptions, aimed at fine-tuning the balance that has to be found between the legitimate interests of right holders and users.

Fundamental Rights

The Constitution offers all citizens, individually and collectively, some basic freedoms. These are guaranteed in the Constitution in the form of six broad categories of Fundamental Rights, which are justiciable. Articles 12 to 35 contained in Part III of the Constitution deal with Fundamental Rights. These are:

• Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth, and equality of opportunity in matters of employment.
• Right to freedom of speech and expression, assembly, association or union, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency, or morality).
• Right against exploitation, prohibiting all forms of forced labour, child labour, and traffic in human beings.
• Right to freedom of conscience and free profession, practice, and propagation of religion.
• Right of any section of citizens to conserve their culture, language, or script, and right of minorities to establish and administer educational institutions of their choice.
• Right to constitutional remedies for enforcement of Fundamental Rights.

Striking A Balance Between Intellectual Property Rights And Human Rights In The Era Of Technology And Innovation

Intellectual property (IP) constitutes the legal realm encompassing creations of mind such as artistic works, literary masterpieces and innovations etc. Intellectual property rights are a bundle of exclusive rights over these creations of mind which is vested with the creator to use his creations without fear of competition, at least for a specific period of time.

The Constitution of United States, written in 1787 was the first document to recognize such rights. Later on these rights were also granted in Article 27 of the UDHR, which safeguards the "moral and material interest" of creators in their "scientific, literary, or artistic productions," as an integral component of its foundational principles. IP rights are labeled as the negative rights because they prevent others from stepping against already created work. On the other hand, the term human rights arise from the concept that all human beings are born free and equal in dignity and rights.

These are those fundamental rights which are inalienable and essential for a human being. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. In modern era of rapid technological advancements, the delicate balance between fostering innovation and upholding ethical standards has become a critical concern.

The intersection between Intellectual property rights (IPR) and human rights takes center stage in contemporary discussions. Though the debates about the conflict of these rights with Human Rights were the matter of discourse from last two decades but this has been closely considered by the international community after the Corona virus pandemic and concerns access to vaccines and other medicines. IP rights are labeled as the negative rights because they prevent others from stepping against already created work.

The Ethical Dilemma
The dilemma that arises in the intersection of IPR and human rights lies in the potential restriction of access to knowledge and information. There is also a disparity in technological development, with some regions at the forefront of innovation while others are struggling to catch up. The problem arises when advanced technologies, protected by stringent IP laws, remain inaccessible to populations in less developed countries. Hence striking a balance between the two and ensuring access to knowledge, information and technological advancement poses a significant challenge.

IPR and Right to Health
Patent rights and access to life saving medicines has always been a contentious issue. As per the 2017 report of the WHO and World Bank, over half of the global population, exceeding 7.3 billion individuals, lacked access to essential medicines and fundamental health services. The right to life includes right to healthy life, which is a moral minimum and its denial with any sort of justification is deeply offensive to the idea of life itself. The persons who have invested their time and money in doing researches they must feel encouraged because if they will not feel encouraged then they are not going to do the same in the future.

On the other hand what good is the innovation if you can't protect human beings? It does not matter whether the democracies of the world make health a human right, or a constitutional right, but the truth of the matter is that this right is hostage to patent rights of innovators. During the period of 2000- 2001, a significant confrontation unfolded between the pharmaceutical industry giants and 12 million HIV patients had lost lives in Africa. In a remarkable turn of events, Cipla successfully appealed to the world for a patent waiver on a global scale to allow supplies of anti-HIV AIDS drugs to Africa under one dollar a day. It serves as a valuable lesson for the world, showcasing that successful initiatives can align economic interests with innovative solutions while simultaneously addressing broader global welfare concerns.

Case study of Gene Patenting
Till the 1980s, gene patenting was prohibited and considered a "product of nature," but in the case of Diamond vs. Chakrabarty, the court, by a majority of 5-4, held that a genetically modified strain of bacteria capable of degrading components of crude oil and use in cleaning oil spills was patentable. After the decision of the Supreme Court, the United States Patent and Trademark Office (USPTO) opened a pietara of biotechnological patents. There are two opinions among the scientific community about whether granting patents for gene sequencing will foster or deter research. One group believes that granting patents on genes will lead to an increase in the economy through inventive activity and assumes that the refusal to accord patent rights to genetically engineered organisms would slow down the pace of research in this field.

While the other group believes that commercialization and privatization of the patenting of partial and uncharacterized cDNA sequences will reward those who make routine discoveries but penalize those who determine biological function or application. Such an outcome would impede the development of diagnostics and therapeutics, which is clearly not in the public interest.

The patenting of genes is considered a violation of human dignity because genes are considered "products of nature," which is highly criticized by every religion. In a modern world, some scientists and human rights watchers compare biopatenting with piracy and biocolonialism. The commercialization of genetic science has clearly discouraged data sharing among scientists.

One specialist in biotechnology patenting describes the situation as follows: "You no longer have a clearly bounded territory of open, non commercial science... It's like a lottery of sorts, and no one wants to discover they've just parted with a winning lottery ticket. Advocates of public ownership point out that government funds have frequently played a major role in sponsoring the research that has led to these discoveries, and it is contrary to the public interest to then turn over the fruits to a single owner.

Striking Balance Between IPR and Human Rights
Adopting a flexible legal framework is crucial. Intellectual property laws should incorporate mechanisms such as compulsory licensing, allowing temporary overrides of patent rights in cases of public health emergencies. These provisions strike a balance by ensuring access to essential innovations while acknowledging the paramount importance of human rights, particularly the right to health. Additionally, fair use doctrines and public interest considerations in copyright laws create a nuanced legal environment where IPR coexists with the broader societal needs.

Responsible innovation practices play a pivotal role in achieving equilibrium. Integrating ethical impact assessments in the early stages of research and development ensures that innovators proactively consider the potential societal implications of their creations. This approach aligns intellectual property rights with ethical standards and human rights principles. Ongoing monitoring and adaptation further solidify responsible innovation, allowing for the identification and rectification of potential human rights concerns throughout an innovation's lifecycle.

Inclusive intellectual property strategies contribute significantly to balancing IPR and human rights. Encouraging open-source models in software development and promoting open access to research and educational resources fosters collaborative innovation and aligns with principles of inclusivity. Such strategies prioritize the dissemination of knowledge, ensuring that the benefits of technological advancements are widely accessible and supporting the right to education.

International collaboration and norms are essential components of a balanced approach. Harmonizing international standards in intellectual property and human rights reduces disparities and conflicts, fostering a cohesive global approach. Information sharing and the exchange of best practices on ethical innovation allow nations to learn from one another, contributing to a collective effort to balance IPR and human rights.

Public-private partnerships, particularly through corporate social responsibility (CSR), play a crucial role. Corporations adopting ethical business practices that prioritize societal well-being alongside profit contribute to a balanced intellectual property landscape. Transparency in intellectual property practices and public accountability mechanisms enhance trust, ensuring that corporate interests align with human rights principles.

Public awareness and advocacy are instrumental in maintaining this delicate balance. Educating the public about the ethical implications of intellectual property decisions empowers individuals to advocate for a balanced approach. Civil society engagement ensures that diverse perspectives are considered in shaping intellectual property policies, strengthening the democratic process.

Achieving equilibrium between IPR and human rights involves a combination of legal frameworks, responsible innovation practices, inclusive strategies, international collaboration, public-private partnerships, and public awareness. A holistic and collaborative approach is essential to navigate the complexities of the intersection between intellectual property rights and human rights in the pursuit of a fair and ethical innovation landscape. 

Indian Constitution and Intellectual Property Rights
The Indian Constitution provides for fundamental rights but Intellectual Property rights neither expressly find place in any of the fundamental rights nor have been expressly excluded by any constitutional provision from the purview of the fundamental rights. At the commencement of the Constitution, right to property was a fundamental right under article 19 (1) (f) but it was degraded to a mere Constitutional right in 1978 by the 44th Constitutional Amendment by inserting article 300A.

 There is no specific provision in the Constitution regarding the Intellectual Property right. We get some clue about Intellectual Property right in Entry 49 of List 1 of 7th Schedule of Indian Constitution. Entry 49 specifically recognizes intellectual property rights as it mentions "Patents, inventions and designs; copyright; trade-marks and merchandise marks".

Entry 49 does not specifically recognize the concept of traditional knowledge, biodiversity, geographical indications. But it can be assumed that such IPRs would also include in Entry 49 as IPRs are not enumerated in List I and List III. Further Article 248 confers exclusive power to parliament to make law on any matter not listed in State List (List-II) and Concurrent List (List III).

The Indian constitution in its preamble permits mixed economy system and recognizes the economic liberty as one of the most important liberties. For this purpose, the Constitution has ensured property right to the citizens of India as "no person shall be deprived of his property save by authority of law" .The Supreme Courts said that the term 'property' under Articles 31 and 300A should be given a liberal interpretation and should be extended to all those well recognized interests which have characteristics of property rights. It should include both corporeal and incorporeal right. 

In K.T. Plantation Pvt. Ltd v. State of Karnataka the Supreme Court held that "the expression property in Article 300A is confined not only to land alone. It includes intangibles like copy rights and other intellectual property and embraces every possible interest recognized by law". So now it can be said that the intellectual property rights are included in the 'property' in Article 300A though not directly but through judicial interpretations.

Right to property in Article 300A is not a fundamental right so it does not have the protection as given to the fundamental rights. If intellectual property rights are violated, they have legal protection being a constitutional right but like fundamental right can be directly challenged in the Supreme Court under Article 32 of the Constitution. While this means that Intellectual Property does not have special Constitutional status, it also means that there are no Constitutional restrictions on the power to make laws on Intellectual Property. Article 300A of the Indian Constitution provides constitutional safeguards against unlawful deprivation of property.

Article 253 empowers the parliament to make law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions with any other countries or any decision made at any international conference, association, or other body. This article is very important of implementation of international treaties and conventions related to Intellectual Property rights. The parliament has implemented provisions of WIPO (World Intellectual Property Organization) and TRIP (Trade-Related Aspects of Intellectual Property Rights) exercising the powers under Article 253.

Further, certain provision in Article 372 also validates the pre-constitutional law subject to certain condition laid down in the provisions. Article 372 (1) states that: "Notwithstanding the repeal by this Constitution of the enactment, all the laws in force in the territory of India immediately before the commencement of this constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority".

Thus, the article 372 make it possible for the pre-constitutional intellectual property laws to be remain in force in India and Indian legislation can adopt the various international agreement or conventions on intellectual property rights. Article 372 (1) of the Indian Constitution, for example, authorized the legislature or any competent authority to repeal, alter, or amend pre-constitutional statutes, resulting in the repeal of the 1911 Patent Act and the introduction of the current Patent Act, 1970.

Intellectual Property Rights as Fundamental Rights 
The Constitution of India ensures fundamental rights to the citizens and non-citizens as well. The fundamental rights so guaranteed are also include and supplement the human rights recognized under international conventions on human rights. Intellectual Property Rights are not part of the any of the fundamental rights, but it can be covered under the fundamental right like right to life as some patented drugs and inventions became life saver.

Patent and Fundamental Rights 
Now the judiciary in India has widened the scope fundamental rights especially right to life in Article 21. The right to life also includes health, a healthy environment which impliedly ensures human rights. Violation of these rights is amount to violation of fundamental right and any individual can seek remedy under article 32 and 226 of the Constitution. If any person or company has invented a lifesaving drug or medicine and gets it patent and he is not making available the medicine to the public at affordable price, the Patent Act gives powers to the state to make available that lifesaving medicine to the public as the fundamental right of right to life include medical treatment at affordable cost . The state ensures this fundamental right to the public by granting compulsory license if the public requirement ate not satisfied.

Article 19 (1) (g) guarantees to the citizens of India the right to practice any profession, or trade or business. However, this right is subject to reasonable restrictions imposed by authority of law. If a citizen is granted patent after due procedure, the patentee has the right to be protected under the Patent Act. The patentee has the exclusive right to prevent the third parties from making, using, selling, or importing the patented product in India. 

Though the intellectual property rights are expressly given in Article 19 (1) (g), it can be assumed by judicial interpretation that the patentee also has the right to be protected under Article 19 (1) (g) if his rights are infringed as right of patentee under Patent Act is statutory right which cannot be violative of Constitutional provisions of Article 19 (1) (g). Further the person infringing the patentee right cannot claim the protection of Article 19 (1) (g) as there are reasonable restrictions on it.

Copyright and Fundamental Rights
One of the important fundamental rights granted by the Constitution is the right to freedom of speech and expression . Freedom of speech and expression is the right to express one's own ideas, opinion, and thoughts freely by words, writing, printing, representation, pictures, or any other mode like electronic media. This right is the foundation of a healthy and strong democracy.

The right to freedom of speech and expression includes expressing his opinion by writing and publishing a book. In State of Maharashtra v. Prabhakar Pandurang a person was arrested under preventive detention law. In jail he wrote a book and sought permission for its publication, but the government refused the permission. The Supreme Court held that it was the infringement of his personal liberty under Article 21 of the of the Constitution as he had the right to write and publish the book.

Thus, a person has right to copyright if he has written a book and he has the protection under the fundamental right as well as under the Copyright Act, but this right is subject to reasonable restrictions under Article 19 (2) of the Constitution. The Supreme court held that the fundamental right of speech and expression cannot be restricted to geographical boundaries. Where the owner of a copyright refuses to republish his work or refuses communication to public, the copyright board me grant compulsory license. The compulsory license is granted as a part of right to know or right to information under article 19 (1) (a)of the Constitution. 

Trademark and Fundamental Rights
Article 19 (1) (g) guarantees right to practice any profession or to carry on any occupation, trade, or business. The right is not absolute but subject to reasonable restrictions in Article 19(6). Now a days trademark is very important for business and public know about the business by its trademark and therefore, the trademark is the goodwill of the business. If a person's registered trademark is infringed, the trademark holder has the right to be protected under the fundamental right given in Article 19 (1) (g) as well as under the Trademark Act.

Similarly public has the right to know or get the information about a business's product or its trademark under Article 19 (1) (a). Citizen has the right to know about the products they intend to use. This right to know or information protects the public against the misleading information and unfair trade practices. Thus, the trademark not directly but by interpretation is a fundamental right.
 

Geographical Indications and Fundamental Rights

• Geographical Indications ensure that the product is from a particular geographical origin and has the quality and characteristics of that territory.
• Manufacturers claiming their products or goods are from a specific territory are protected under Article 19(1)(g).
• Consumers have the right to know whether goods or products have the qualities of a particular origin.
• Geographical Indications are protected under Fundamental Rights and the Geographical Indications of Goods (Registration and Protection) Act, 1999.

Traditional Knowledge and Constitution

• The Indian Constitution requires the state to assist Scheduled Tribes' economic interests and safeguard tribal people from social injustice and exploitation.
• The Biodiversity Act protects traditional knowledge by conserving biological resources, empowering indigenous communities economically.
• Indigenous people's traditional knowledge is protected under the Biodiversity Act and their interests are safeguarded under the Indian Constitution.

Judicial Interpretation and Case Laws

• In Novartis v. Union of India (AIR 2013 SC 1311), the Supreme Court emphasized the importance of lifesaving drugs over patent rights.
• Novartis challenged the constitutionality of Section 3(d) of the Patent Act, 1970, seeking a patent for a cancer drug involving imatinib mesylate.
• The Court ruled that imatinib mesylate did not meet the criteria under Section 3(d) and was not patentable.
• The judgment affirmed the constitutional validity of Section 3(d), shifting the approach toward patents and lifesaving drugs.
• The decision highlighted the global issue of pharmaceutical monopolies denying access to crucial medicines.

Conflict Between IPR and Fundamental Rights

Compulsory Licensing in India

• Compulsory licensing provisions in India derive from Article 31 of the TRIPS Agreement.
• Chapter XVI of the Patents Act, 1970, outlines the provisions and procedures for granting compulsory licenses.
• Under Section 84 of the Patents Act, 1970:
  • Any interested person, including an existing licensee, can apply for a compulsory license.
  • An application can be made anytime after three years from the grant of the patent.
• Section 84(1) lists the grounds for granting a compulsory license:
  • The reasonable requirements of the public regarding the patented invention have not been met.
  • The patented invention is not available at a reasonably affordable price.
  • The patented invention has not been worked in the territory of India.

Hence, the following may be considered as the conditions for the grant of Compulsory License in India as derived from the above-mentioned provision;

1. One of the requirements of a patent is to have an industrial application in the domestic market and be used in the public interest. So, if the innovation is not available in the public domain in a sufficient quantity as needed, one can apply for a grant of compulsory license.
2. When the innovation is not affordable, it is still not accessible to the public in general, which again is against the basic requirement of the grant of the patent.
3. If the patent is not worked in India on a commercial scale within a reasonable time, it becomes a ground for granting a Compulsory License to a third party so that the public can benefit from the invention to the maximum.
4. There are many other reasons implied from the provisions for the need for a grant of Compulsory License, such as public interest, licensing on dependent patents, and government use. In India, the government is authorized to use the patented invention by following certain procedures laid down in Chapter XVII of the Patents Act, 1970.
5. When it comes to Compulsory Licenses for Pharmaceutical Products, it is crucial as this industry is very critical in terms of public health and access to medicines. Under Article 31 of TRIPS, World Trade Organization members were allowed to grant special Compulsory Licenses exclusively for producing and exporting affordable generic pharmaceutical products to other member states that cannot domestically produce the needed medicines in sufficient quantities for their patients.
6. In India, a similar provision was inserted in the Patents Act, 1970 by way of an amendment in the year 2005 through Section 92A, which authorizes the controller to grant a special Compulsory License for the above purposes to the eligible third party for the sake of public health.

When a Compulsory License was granted in India

Despite having an elaborate Compulsory License procedure, it is pertinent to note that in India, only one Compulsory License has been granted to date, and also the first Compulsory License ever granted in the world post-TRIPS agreement. This was granted to a Hyderabad-based generic drug manufacturing company, Natco Pharma, in the famously known Nexavar case for the generic production of Bayer Corporation's Nexavar. It is a life-saving medicine related to the treatment of cancer, specifically liver and kidney cancer. The Compulsory License was granted to Natco Pharma (applicant) for using the patented cancer drug 'Sorafenib Tosylate' (compound of Carboxyary Substituted Diphenyl Ureas) (invented drug), sold under the brand name 'Nexavar,' which was patented by Bayer Corporation (Patentee). The patent for the invented drug was granted in India on 03-03-2008 to the patentee. After applying for the Compulsory License under Section 84 of the Patents Act, 1970, the controller, by Order dated 9th March 2012, granted a Compulsory License to the applicant on certain terms, including a 6% royalty to the patentee and the cost of 120 tablets not exceeding Rs. 8,880 for one month's treatment.

Industries under the scope of Compulsory Licensing

Six industries fall under the category of Compulsory Licensing in India:

• Distillation and brewing of alcoholic drinks
• Cigars and cigarettes of tobacco and manufactured tobacco substitutes
• Electronic aerospace and defense equipment (all types)
• Industrial explosives, including detonating fuses, safety fuses, gunpowder, nitrocellulose, and matches
• Hazardous chemicals
• Drugs and pharmaceuticals (as per the modified drug policy issued in September 1994)

The need for a grant of Compulsory License may arise in the following scenarios:

• Distillation and brewing of alcoholic drinks: When concerns about monopolistic practices or market dominance by a single entity arise, leading to inflated prices or restricted access to alcoholic beverages. It might also be considered in situations where there is a need to ensure the availability of certain types of alcohol for medical or industrial purposes.
• Cigars and cigarettes of tobacco and manufactured tobacco substitutes: Compulsory licensing could be pursued to regulate the tobacco industry more tightly, perhaps to restrict the marketing of harmful products and address public health issues related to smoking, such as ensuring access to smoking cessation aids.
• Electronic aerospace and defense equipment: Compulsory Licenses might be sought to ensure national security or to promote competition within the defense industry, facilitate technology transfer, and support domestic manufacturing capabilities.
• Industrial explosives: Compulsory Licensing might be considered to regulate the production and distribution of explosives to ensure that safety standards are met and to prevent illicit trafficking.
• Hazardous chemicals: Compulsory Licensing could be pursued to regulate the production, distribution, and use of these chemicals to protect public health and the environment.
• Drugs and pharmaceuticals: This is the most important industry for Compulsory Licensing, as seen in the Nexavar case. Compulsory Licensing ensures access to essential medicines, particularly in developing countries, during emergencies, and promotes competition by allowing generic production of patented drugs. It also helps manage intellectual property rights and facilitates technology transfer for local manufacturing, ultimately benefiting public health.

India's Fair Dealings doctrine under Copyright

The Indian Copyright Act of 1957 (ICA) allows certain copyrighted material to be reproduced without the permission of the original copyright holder. The provisions for fair dealings have been mentioned in Section 52 (1a) of the ICA, while the rest of Section 52 provides a list of exemptions to infringement. This provision carves out exceptions for certain activities, such as personal research, education (Section 52 1I), and news reporting among other activities. The intention of this provision was to help inculcate scientific growth, by helping the spread of information for research.

Unlike fair use, only if such a dealing is permitted by the terms of the applicable (jurisdictional) copyright laws is fair dealing of a copyrighted work not deemed infringement. Essentially, this means that in jurisdictions with fair dealing doctrines, if the material that has been copyrighted is being used, and an exemption for the reasoning of its use is not in the copyright laws of said jurisdiction, irrespective of why or where the material is used.

The concept of fair dealings would be explained by the Kerala High Court in Civic Chandran v. Ammini Amma, where the Court held that: "it may be reasonable to hold that the re-production of the whole or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as fair dealing". The Court, in the same case, would bring forth certain factors to consider if the reproduction constituted infringement.

These were:

Fair Dealing in India

When attempting to identify if a work falls under fair dealings, Indian courts consider the following factors:

• The quantum and value of the matter taken in relation to the comments or criticism;
• The purpose for which it is taken;
• The likelihood of competition between the two works.

The question of fair dealings has come up in discourse more recently, with the three publishing giants—American Chemical Society, Elsevier, and Wiley—attempting to prevent Sci-Hub, a website that helps access academic and scientific papers, from publishing them, claiming Sci-Hub violates their copyright. Sci-Hub claims it is protected under fair dealings and Section 52(1)(i) of the Indian Copyright Act (ICA), arguing that it aids education and scientific progress. While the outcome of that case is yet to be seen, Indian courts have generally held that the use of protected material for educational purposes is not a violation of copyright. In the DU photocopy case (Masters & Scholars of University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court ruled that the reproduction of copyrighted coursebooks for academia does not require a license from publishers. Additionally, in Wiley Eastern Ltd. v. Indian Institute of Management, the Delhi High Court opined:

"The basic purpose of Section 52 is to protect the freedom of expression under Article 19(1) of the Constitution of India—so that research, private study, criticism or review, or reporting of current events could be protected."

Thus, in India, a liberal reading of fair dealings provisions is generally used in cases involving research and education to prevent the stifling of scientific progress. However, courts have taken a stricter approach in other cases. For instance, using copyrighted music in small parts during an entertainment television show was not considered fair dealings under the provision of reporting current events in India TV Independent News Services Pvt. Ltd. v. Yash Raj Films Pvt. Ltd.

The Fair Use Doctrine of the United States

Fair use is a doctrine in the United States that allows the reproduction of copyrighted work to a certain degree to protect public interest while balancing the rights of copyright holders. Examples of fair use include:

• Commentaries
• Search engines
• Critique and satire
• News broadcasting
• Research and education
• Scholarly works

The concept of fair use traces its roots to the 19th century, with the case of Folsom v. Marsh. Justice Joseph Story laid down the foundation of the fair use doctrine in this case. The defendant had reproduced 353 pages from the complainant's biography of George Washington, leading to a copyright infringement suit. The court ruled in favor of Folsom, setting the groundwork for the four-factor test still used today. The four factors to determine fair use are:

1. Purpose and Character of the Use
2. Nature of the Copyrighted Work
3. Amount of Copyrighted Work Used
4. Effect of the Use on the Potential Market for the Work

While each of the four factors plays an important role in determining if the work comes under fair use or not, it is the first and fourth factors that are especially important. This is because the primary focus of the first fair use criterion is the purpose for which the reproduced content is being used. A judge is more likely to find that the if defendant's use is non-commercial, academic, scientific, or historical, then it is indeed fair use, because copyright law supports promoting scholarship, research, teaching, and commentary.

Similarly, for the fourth criterion, the impact of use on the prospective market for the duplicated work is considered while judging if a work falls under fair use or not. This factor should be taken into account in order to find a balance between the public benefit of allowing the use and the copyright owner's potential financial advantage from denying it.

The four factors would be codified into law in the Copyright Act of 1976, under Section 107.

In the landmark case of Sony Corp. of America v. Universal City Studios, Inc. , the US Supreme Court would rule that making personal recordings of entire television programmes for time-shifting purposes is not an infringement of copyright, but rather qualifies as fair usage. The Court further opined that the makers of home movie recording equipment, such as Betamax and other VCRs are not accountable for violating copyright.

In another landmark case of Campbell v. Acuff-Rose Music, Inc ., the Supreme Court would rule that the first criteria is much more likely to allow the fair usage of material when the use's intent is transformative.

Transformative use is a form of fair use that grows on a work protected by copyright in a different way or for a different goal from the original and doesn't violate the copyright of the work's owner.

Finally, in eBay Inc. v. MercExchange, L.L.C , the Court would define the conditions that a plaintiff would have to prove in order to justify an injunction against the supposed infringed upon material, laying forth a test which must be satisfied for an injunction to be granted.

Trade Mark Monopoly

Anywhere in India or in the world, a trade mark faces limitations unless it has acquired distinctiveness through use. Examples of excluded terms include:

• Descriptive terms: These describe the qualities and characteristics of goods or services. For example, using "fast" for food services is descriptive of quick service, making it challenging to obtain trademark protection. However, brands like "Fast Food Nation" have managed to create a unique identity by incorporating the term into a distinctive brand.
• Generic terms: These refer to the common name of a product or its main composition. Examples include "computer" for computers, "medicines" for pharmaceuticals, "shoes" for footwear, or "restaurant" for dining establishments.
• Functional terms: These describe the functional purpose of a product, which cannot be monopolized. Examples include "foldable chairs," "non-stick cookware," "long-lasting batteries," and "noise-canceling" for headphones.
• Geographically descriptive terms: These indicate the origin and quality of a product, such as "Kashmir apples," "Kashmir textiles," and "Darjeeling" for tea.

Reasons Behind Exclusion or Limitation

• Promoting fair competition: Preventing monopolistic control over everyday language ensures that commonly understood terms to describe products or services remain available to consumers.
• Descriptiveness: Descriptive terms for goods and services are often common English words, making them ineligible for trademarks as they do not distinguish one brand from another.
• Genericness: Consumer choice and fair competition would be hindered if generic product names could be monopolized, so restrictions are imposed.
• Lack of distinctiveness: A trademark's purpose is to serve as a unique identifier, but without distinctiveness, it cannot effectively distinguish the source of goods and services, leading to potential consumer confusion.

Impact on Brand Differentiation

• Encourages creativity: To stand out in the market, businesses must develop unique brand names and identities, which is necessitated by limitations on common words.
• Promotes fair competition: Preventing monopolies over common language ensures a variety of choices for consumers, fostering fair competition in the marketplace.
• Builds brand loyalty: Companies that successfully navigate trademark limitations and establish distinct brand identities can build strong customer loyalty.

Exception And Special Cases

Descriptive Marks vs. Fanciful Marks

• Descriptive marks are not generally granted immediate trademark protection as they lack inherent distinctiveness.
• Fanciful marks are entirely invented or coined words with no intrinsic meaning, making them inherently distinctive and easier to protect as trademarks since they have no descriptive connotation.

Acquired Distinctiveness Through Use

• Through extensive use in commerce, a trademark that is initially descriptive may acquire distinctiveness and secondary meaning.
• Rather than the descriptive meaning, consumers come to associate the mark with a particular source of goods or services.
• To establish acquired distinctiveness, the trademark owner must demonstrate:
  • Extensive use of the mark in connection with the goods or services.
  • Consumer recognition of the mark as indicating a specific source.

Coined Terms

• Coined terms are known as arbitrary marks.
• They are used in a completely unrelated context, meaning they are existing words with no direct connection to the goods and services they represent.
• These marks are inherently distinctive, e.g., "Apple" and "Amazon," which are unrelated to their respective trademarks.

Implications for Businesses and Brands

• Brand Identity and Differentiation:
  • Choosing a distinctive and protected trademark is crucial for establishing a unique brand identity and standing out in the marketplace.
  • Fanciful marks and coined terms offer stronger protection.
• Intellectual Property Protection:
  • Understanding the nuances of trademark law helps businesses protect their intellectual property assets.
  • Trademark registration and acquired distinctiveness through extensive use provide legal recourse against infringement and unauthorized use.
• Market Expansion and Globalization:
  • Ensuring trademark protection is crucial for international operations and expansion into new markets.
  • Trademark registration provides exclusive rights to use the mark in connection with specific goods and services.
• Marketing and Branding Strategy:
  • A strong branding strategy aligns with a company's values and objectives.
  • Choosing a legally protected trademark that resonates with consumers strengthens brand identity.
• Competitive Advantage and Market Positioning:
  • Strong trademarks help businesses command premium pricing and maintain customer loyalty.
  • Brands can capitalize on reputation and goodwill by avoiding the use of similar marks.
• Risk Mitigation and Legal Compliance:
  • Monitoring for potential infringement and ensuring compliance with trademark laws mitigates legal risks.
  • Proactively protecting a brand helps prevent brand dilution.

Harmonization of IPR and Fundamental Rights:
Harmonization of laws is to achieve the utmost ease in trade and commerce. Harmonization lowers the transaction costs with easy to access of IP protection all over the world. It helps in promoting economic welfare, protection of the incentives the promote the creation of IP and advantages in international trade. It helps in the dissemination of knowledge, sharing of latest know- how, promotion of creativity and merger of cultural values. It also promotes patience towards other cultures.

Any inventor or creator has the option of protecting his work in any foreign country where he wishes to seek protection for his work. However, it is an expensive and nearly impossible for the creator or inventor to keep a track of the infringement in the international arena. Also, by the time the creator or artist finds out, he may already incur substantial economic losses and loss of reputation. It is due to these reasons that many experts have suggested creating a universal database for international Trademarks and Patents.

Even though this seems like a tempting point, the biggest drawback is that it will increase the cost of registration of IP. Two conflicting principles, territoriality and first-sale doctrine are the driving force behind the harmonization of IP laws in Europe. According to the 'principle of territoriality', the IP protection is given to national jurisdictions, which means a patent owner would only achieve international protection through a bundle of individual national patents limited to the states that have granted them. The principle of 'first- sale doctrine' means that when the first sale has occurred, the goods can be resold freely without the owner's permission.

1. The Paris Convention
   Harmonization of industrial property rights first became an issue with the World's Fair-type international exhibitions of the latter half of the nineteenth century. In 1851, the first World's Fair was held in London with twenty-five countries participating. In the run-up to the sixth World's Fair, held in Vienna in 1873, the need to ensure international legal protection for inventions was made apparent by the refusal of many participating countries to run the risk of having their ideas stolen by exhibiting their products.
   
   Furthermore, the Congress of Vienna for Patent Reform, convened the same year, 'elaborated a number of principles on which an effective and useful patent system should be based, and urged governments "to bring about an international understanding on patent protection as soon as possible." ' In 1878, an International Congress on Industrial Property was convened in Paris. In 1878, an International Congress on Industrial Property was convened in Paris. It was decided at this Paris Congress to convene an international conference 'with the task of determining the basis of uniform legislation' in the field of industrial property. Following up on this decision, France proposed establishment of an international union for the protection of industrial property.
   
   A diplomatic conference convened in Paris in 1880 approved a draft treaty the substantive provisions of which provided the main features of the Paris Convention for the Protection of Industrial Property of 1883. Under the Convention, member countries constitute a Union for the Protection of Industrial Property. The Paris Convention has been amended seven times.
   
   By this means, harmonization of both substantive and procedural provisions in the various fields of industrial property has been deepened and made more detailed. The Convention as amended is legally binding on contracting parties, who are obligated to revise their domestic laws when necessary to bring them into line with the Convention's provisions. However, contracting parties are allowed significant leeway to maintain distinctive domestic laws pertaining to industrial property. Article 20(1)(b) allows a country, in acceding to or ratifying the Convention in its most recent amended version, to 'declare…that its ratification or accession shall not apply' to the substantive provisions contained in Articles 1 through 12.
    
2. Berne Convention
   The first effort to conclude a multilateral treaty protecting copyright was the Congress on Literary and Artistic Property, held in Brussels in 1858 and attended by scholars and publishers from around Europe and the Americas. a Conference was convened in Berne in September 1883 of representatives from interested bodies (including writers, artists, publishers, and scholars) and a draft treaty for protection of copyright to artistic products composed. International diplomatic conferences of government representatives at which drafts of such a treaty were discussed were then held in 1884, 1885, and 1886. On 9 September 1886, a Convention was at last signed in Berne.9
   
   The content of the Berne Convention can be divided into three categories:
   
   1. Basic principles of substantive and procedural law pertaining to copyright protection
   2. Substantive legal rules concerning content, scope, and term of copyright
   3. Provisions concerning the organization and functions of the 'Union for the protection of the rights of authors in their literary and artistic works' established pursuant to the Convention

The signatories of Berne agreed that the basic substantive copyright laws set forth in the Berne Convention will be the law in those countries. Accordingly, a person who has obtained a copyright in one Berne Convention country possesses automatic copyright protection in all Berne Convention Countries. The Berne convention eliminates many of the various formal requirements which has helped in the ease of registration and harmonization of the laws with respect to copyright.

Conclusion
The intersection of Intellectual Property Rights (IPR) and Fundamental Rights highlights the need for a balanced legal framework that protects both innovation and public interest. While IPR grants creators exclusive rights to their work, it must not infringe upon fundamental rights such as freedom of speech, the right to trade, and the right to life. Judicial interpretations have played a crucial role in ensuring that IPR laws do not create unjust monopolies or restrict essential freedoms, particularly in areas like public health, free expression, and fair competition.

To achieve harmony, it is essential to adopt a flexible approach that allows for public interest exceptions, fair use provisions, and mechanisms like compulsory licensing. International agreements such as TRIPS and the Doha Declaration also guide India in maintaining this balance. Moving forward, legal reforms should focus on ensuring that IPR laws promote innovation while safeguarding fundamental rights, ensuring that intellectual property protection does not come at the cost of societal welfare. 

Reference:

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40. In 1900, 1911, 1925, 1934, 1958, 1967, and 1979
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