As we already know, a machine inventor, a music writer or a book author, etc.
own their work. And these works cannot be copied by other people without any
consideration of the owner's rights. Therefore, intellectual property rights are
issued to the creators/inventors/owners of the work that grant the protection to
Whenever the work of the owner in the form of an item is bought from the local
market, a portion of the paid amount goes to the owner of the item in the form
of compensation for the effort, money, thought and time invested by the creator
for the creation of his/her work.
As a consequence of the intellectual property rights, the new talent gets
influenced and encouraged and comes up with their new ideas and their original
works which eventually helps in the growth and the development of the different
There are different forms of work that are protected under the IP laws. It can
protect books, films, paintings, computer programs and databases. Not only this,
IP laws provide protection to logos and brands; products popular from their
place of origin; artistic works; inventions. These works have been protected by
the different rights issued by the IP laws such as copyrights, related rights,
trademarks, geographical indications, industrial designs and patents.
Intellectual property rights also include trade secrets and grant protection
against any unfair competition, patent varieties, different works identifying
rights such as protection to different traditional creativity, innovation of
indigenous people i.e. traditional knowledge and cultural expressions and
lastly, genetic resources.
The IP rights are invented and created for a limited time duration, out of
which, some of the rights are granted protection for a time duration that
depends on the maintenance of the right. And eventually, these works fall in the
public domain so that they can be utilised by the new talents and creative
The IP rights matter because they provide:
- A recognition of protection.
- Reward for intellectual creation/invention.
- Encouragement, growth and development.
The study done for this paper is descriptive and analytical in nature as it
includes the benefits arising from intellectual property, the IP systems, the
history of its development and evolution involving new and different needs.
This research paper includes:
- Different forms of intellectual property.
- Forms of protection and their time duration.
- Benefits of IP rights to the creators/owners/inventors and to society.
- International laws and its significance to each IP issue.
Intellectual property includes creative properties such as designs, arts, music,
machines, books, etc. the ownership of these properties is held by the
owners/inventors itself. In the absence of Intellectual Property rights ,The
works of the owners/inventors can be copied without any knowledge and
considerations to the inventor's rights. Therefore, in order to protect and
safeguard the works of the inventors, intellectual property laws are introduced.
IP laws protect arts, films, photographs, designs, databases, different computer
programs, books, etc. with the help of certain copyrights and related rights.
Not only this, the brands, logos, certain products representing their place of
origin, designs and artistic works, inventions are protected with the help of
trademarks, geographical indications, industrial designs and patents
These works need protection because, when they are bought by people in the form
of items, a certain part of the paid amount goes to the inventor/owner as credit
or reward of the efforts, thought and time invested for the invention by him.
As a consequence of IP rights, different industries such as the music industry
are flourishing and influencing the new talents to come up with their original
IP rights are important because it provides:
- Benefit for intellectual creation.
- Optimism, growth and development.
- Realization of protection for unwritten expressions of culture and
ancestral resources of different communities.
- Rewards for society by providing free usage of protected material or
work in case of education and legal system.
- Further usage of the copyrighted work by people in cases when IP rights
The literary works such as writings, artistic works, music, computer programs,
databases, fine arts work such as paintings, designs, etc. are protected with
the help of copyright law. This law includes the rights that are given to the
owner of the copyright.
The copyright law has two kinds of rights:
- Economic rights:
The right towards financial reward or benefit given to the owner when his
work is used by others.
- Moral rights:
The right which grants the owner to take any action to retain the
relationship between him and the work.
Copyright ownership solely does not provide any financial benefit to the owner,
but it can be gained when this right is being used properly such as transferring
the copyright for financial benefit. Also, the time period of protection is
stated by national law, but according to BERNE Conventions requirements, the
time duration for certain works is 50 years. For works such as photographic
works and art works, the minimum duration of protection according to Berne
convention is 25 years after the work is made. WCT AND TRIPS agreement also
states minimum copyright terms.
Two kinds of limitations are:
Some provisions regarding the enforcement of rights according to the Berne
convention and WCT are:
- Free uses:
the acts that use the misuse of works and are executed without authority and
without obligation to recompense the owner's right for the uses.
- Non-voluntary licenses:
the acts that include the ill- treatment of works and are executed without
authority but given the obligation to reimburse the owner's right.
Copyright protection benefits for the developing countries:
- Provisional measures
- Conservatory measures
- Civil remedies
- Criminal sanctions
- Border measures
Artistic communities and the artistic works are wide concepts and every
developing country comprises these communities. They also include computer
programming and information technology industries. Huge amount is invested while
making programs, databases and films, etc. Once it is made and brought to
market, it can be copied by anyone which affects the earnings that can be made
out of it. Not only this, it also discourages new talents to come up with their
creative ideas and works.
So, as a consequence, works should be protected that are local in nature and
foreign works should be avoided for protection. This is because of the ill-
treatment made by developing countries when money goes out of the deserving
Arguments in favour of international protections of works:
The main international agreements concerning copyrights are :
- When foreign work enters into the nation's local market, where already
the local-made products are sold at a certain price, they compete by cutting
their prices and selling them at an attractive price. This leads to consumers
turning their backs on locally made products and buying foreign made products,
due to which, the culture; music; industries suffer.
- Sometimes the revenues that are made by local market works/products is
less than the revenues made by the foreign works/products. This is because
foreign works use the local made products and reap more benefit out of it
when used in foreign nations. And this is unfair for the nation where the
local products were made. This has been often observed in works of music, TV
programs, books, films, etc.
Thus, it is very important to protect the creators and the owners by protecting
them in foreign markets.
- The Berne Convention 1886:
It deals with copyright protection. It is
based on the principles of national treatment which states, that there should be
discrimination against the works from other nations. The last version of Berne
Convention was adopted in 1971 in Paris.
- TRIPS Agreement 1994:
An international legal agreement on trade related
aspects of IP rights which is between all nation members of WTO. The members are
allowed to have extensive protection of intellectual property and have the right
to decide on the right method of implementing the provisions of agreement as per
the legal system.
- WIPO Copyright Treaty 1996:
This treaty protects the work of owners
when transferred digitally such as through the internet. The WCT protects
computer programs and databases that have intellectual creations.
- Marrakesh Treaty 2013:
Adopted in 2013, the treaty provides benefits to
people who are physically challenged such as visually impaired or print
disabled. This treaty helps these people by making the production and
international transfer of works/ books easier by creating certain exceptions and
limitations to copyright law.
Related rights are also basically copyrights. They are also called neighbouring
rights or rights neighbouring copyrights. The main objective of related rights
is to safeguard the legal interests of various people and institutions which
grant in bringing their copyrighted works to the general public.
Related rights are granted to three classes:
Rome convention in 1961 identified that these three classes need legal
protection in order to create international regulations, where national laws
already exist. Related rights have two treaties, the WPPT and the BTAP. The
provisions of WPPT and BTAP were adopted in 1996 and 2012, respectively.
WPPT- it was made to provide further protection of copyrights to performers and
producers of phonograms by giving a right to have an equitable remuneration for
usage of works by the public.
BTAP- it focuses on providing intellectual property rights to performers in
audio-visual performances and the right to have an authorization of broadcasting
and transferring their performances to the public.
The time period, according to the Rome convention of protection of
related rights is 20 years from end of year when:
- Recording has been made.
- Performance executed
- Broadcast executed.
And the time period, according to WPPT and BTAP, of protection of related rights
is 50 years. In related rights, the measures for violation are the same as that
given to copyright owners such as provisional measures; criminal sanctions;
civil remedies; measures at borders; etc.
Eventually, the protection given under related rights sets a foundation for
national industries which circulates national cultural expressions in the nation
and outside markets.
A symbol or a logo that helps in distinguishing between the products and
services of one organization from other business organizations is termed as
trademark. It comprises signs, logos, colours, sounds, words and even a smell or
texture that helps to identify the products for which trademark is used.
The ownership of a trademark can be given to companies and individuals, but they
need to have a registration with the government agency or with the trademark's
office. A trademark when applied to a service is known as a service mark.
A trademark should be always specific in nature and should be able to
distinguish the goods and services from one enterprise to others. It cannot be
in a general or descriptive form. When a trademark is registered, the owner gets
the ultimate right and a right to prevent it from all other third parties from
using it without the consent of the owner. This is because if the trademark is
used by other parties, it would create chaos and confusion as to which
enterprise's goods or services are being used in trade.
Hence, the trademark can only be used by its owner. And if others want to use
it, then the consent of the owner is necessary. In cases, where one party wants
to use the trademark for payment to be returned, consent is required.
two kinds of trademarks used by some countries and they are:
- Collective marks:
These marks apply to a group or corporation and is used by the members of
that group /corporation. This mark helps in distinguishing the goods and
services between the members of corporations and members of undertakings.
- Certification marks:
This mark is used by the proprietor to distinguish the goods and services by
certifying them in relation to origin, quality, manufacturing method,
accuracy, etc. and separating them from goods that are used by end users,
only when the defined standards are met.
Collective certification and well-known marks are given protection by the
national legislation. The main thing about well-known marks is that it is given
protection even when it is not registered in relation to identical and reputed
goods and services.
The trademark can also be used on internet and domain names. But the use of
trademarks on the internet creates concern and confusion as they can only be
used within the territory of the nation where the rights are granted. This is
because the internet can be accessed from anywhere and by anyone, and the
trademark rights can be identical in nature in different nations which may
create tensions and conflicts of the rights; infringement of trademark; unfair
competition and much more.
So, in order to avoid these issues:
System and treaties that help in facilitating trademark formalities
- WIPO is sincerely focusing on solving these issues by providing
suggestions of working groups.
- Also, many enterprises are registering their trademarks used by them in
other nations with the help of international treaties and systems that
provide trademark registration.
- WIPO's Madrid system:
This system helps in registering and managing the
trademark internationally by providing an easy and profitable solution. Just by
registering one application and by paying a small amount of fees, protection can
be applied in more than 100 nations. One thing before registering an application
to the system is that you should be registered in your nation's IP office.
- Trademark law treaty:
This treaty was adopted in 1994 and it enacted to make the application and
the registering procedures simple. It also helped in integration and
coordination of trademark procedures in other countries by making it less
complicated and more certain.
- The Singapore treaty law of trademark:
It was adopted in 2006. This treaty is the first international instrument
that deals with the trademark law and identifies non- traditional marks such
as 3D marks, holograms, colours,
sounds, taste, etc. It has a broad outlook of application and focuses on new
developments in communication technology.
Geographical indications or GI's are symbols that help in identification of
goods which have a particular geographical origin and have a certain quality,
reputation and other attributes required for that origin. The GI's applies to
agricultural and industrial products.
Often people get confused between GI's and trademarks because both are kinds of
symbols or signs. But they both are actually different from each other. GI's are
symbols that distinguish goods originating from a particular region and are of
specific quality. On the other hand, trademarks help in identification of
goods that originate from a specific enterprise.
Appellations of origin: these are basically the subdivision of GI's. It creates
a strong link or relationship between the product quality and its geographical
environment involving human and natural factors.
The protection given to GI's of a specific country is given through the sui
generis system, trademark law, laws on unfair competition or consumer
protection. In foreign, the GI's are given protection through different
systems and treaties and agreements. They are:
- Paris convention 1883:
The first treaty internationally that included provisions regarding the
appellations of origin for industrial property and states that state members
to make sure that their intellectual works were given proper protection in
- Madrid agreement and protocol 1891 and 1989:
This system aims to protect
the mark in other nations with the help of gaining an international registration
and by making this system more convenient with domestic legislation of other
- The Lisbon agreement 1958:
It stated that an international system is
needed for protection of GI's category i.e. appellations of origin in other
nations other than nations of origin through registration at international
bureau of WIPO.
- TRIPS agreement 1994:
It stated that members of WTO have to protect GI'S
if they are misused. In cases where wines and spirits are produced, the GI's of
these products should be given protection even if confusion or unfair
Industrial design or ID is basically the presentation of an article which can be
ornamental or aesthetic in nature. ID involves 3D features such as shapes and 2D
features such as designs, colours, lines, etc.
It is not necessary that the ID's distinguish the article from one organization
to another, but it can be protected. The creator of the ID is given the right to
protect his designs from third parties, if they make unauthorized access to the
creator's work by copying. The time period of protection given to the
creator's work is given according to the national law which is at least 10
years. The registration of the ID is a must to gain protection under ID law.
Some ID's are given protection under patent law as design patents. ID's can also
be given protection as art works under copyright law and unfair competition law.
The ID's has to be original and new in nature so as to gain protection. The ID
protection is territorial according to the Paris convention i.e. the rights are
limited in nature to the country that grants protection. And to gain protection
in other nations, an application has to be made according to the national law.
But to avoid these application submissions, WIPO helps in enabling the creators
to gain protection in their works in other parts of nations with the help of one
application filed with the international bureau of WIPO.
A patent is basically the granting of protection to an invention, which is a
means of doing something new or providing a new technical solution to a problem.
However, there are some inventions which might not get patents such as
discoveries, mathematical methods, commercial methods, plants and animal
varieties, scientific theories, etc. Also, methods, surgeries and treatments
that are done on humans and animals, do not get patented in some nations.
The two basic approaches once an application for patent is filed:
- Reviewing formalities that are required through the examination process.
- Examining the patent application by a technical expert in order to match
the patentability criteria. Furthermore, the criteria are:
- Invention has to be new.
- Invention should involve a new step.
- Invention should be useful for industrial application.
In other words, a deal between inventor and public is a patent. A patent is
given protection for a duration of 20 years from filing of application till the
maintenance is paid. Also, the state provides protection to the owner of the
patent and binds the patent owner to return to publicize its invention. But when
the time duration of the patent ends or when it gets expired, lapsed, or
revoked; the invention becomes accessible to the public domain and can be
exploited without infringement by anyone. It is the responsibility of the patent
holder to take action against the infringers.
If the patent holder wants protection in other countries, then he must have to
separately file an application regarding patents in the country he/she wants to.
And where the patent holder wishes to seek protection in a number of countries,
then an international application has to be filed with the PCT.
Rights of the patent holder are:
- Right to transfer his rights to another person by licensing patent.
- Patent holder can enjoy his rights only in countries he is granted for.
- A patent holder has the right to eliminate others in territory from
making, selling, importing the invention.
In 1900, the Brussels revision of the Paris convention came up with an idea that
mentioned a way in which the protection of intellectual property was highlighted
and was termed as unfair competition. It is also known as consumer protection as
consumers are eventually the recipient of transparent practices.
The unfair competition comprises competition acts that contain dishonest
practices in commercial cases.
Some examples of unfair competitions are :
- Causing confusion:
Acts creating confusion and chaos with the means of good or activities of
- Discrediting competitors:
Defaming the goods, establishment or commercial activities with the help of
- Misleading- Allegations that are used in trade are liable in misleading
the people as to characteristics, quantity, manufacturing methods, nature,
- Violation of trade secrets:
Protection of information of undisclosed nature against unfair competition
under TRIPS agreement.
- Taking advantage of others' achievement (free riding):
Free riding involves confusion and misleading by way of imitation or by
using another person's achievement through unfair means.
- Comparative advertising:
It used to be an unfair practice but today its nature has changed and turned
positive in a way where, some countries such as the US, favours comparative advertising because it benefits consumers by
providing true and honest comparisons regarding information. But, Europe on
other hand, establishes particular criteria to consider comparative advertising
It has two parts:
PART 1 – It comprises of systems and they are:
PART 2- Patent Cooperation Treaty (PCT)
- Madrid system 1891:
This system provides protection to trademark owners in multiple markets. But
the core decision of granting protection to a mark in a territory still
remains in the hands of the national system. Well, the protection granted
can be extended endlessly. An advantage given to trademark owners under this
system is that he just has to file a single international application in a
single language by paying a single set of fees in single currency. Similar
advantages apply when IR has to be renewed.
- Hague system:
This system is for the registration of industrial designs.
It works in a similar manner as that in the Madrid system. But one difference in
Hague agreement is, that the registration is not required to start from the
origin country. For example- if a designer is in France and he wants protection
there, he can just make an international payment and secure protection . Another
difference between Madrid and Hague systems in protecting industrial design is
that registration or national application is not required before filing
international application. For example- if a designer is in Switzerland and
wants protection, he/she can file international application and secure
protection there and also in European union, Japan, Russian federation and the
- Lisbon system:
This system provides protection of appellations of origin
with the help of international registrations. It works similarly to Madrid and
Hague system. When you apply internationally, it gets entered into an
international register which is published by WIPO and is then given or revealed
to other parties which grant or reject protection. One difference between the
Hague system of protecting industrial designs and the Lisbon agreement of
protecting appellations of origin is that the protection and identification has
to be initiated from the country of appellation of origin.
This treaty provides simple and easy methods for creators to apply for and at
the end seek patents in many other countries. It also helps in promoting and
easing the swapping of technical information enclosed in patents documents to
workers of industries.
The benefit of using this treaty is that when an applicant files one application
in one patent office, in single language, he seeks a filing date and this date
has further effect in every other PCT contracting states. It also provides a
time duration where applicants can think about the proceedings in different
Main function of WIPO in process of PCT is:
New Variety Plant Protection
- Accepting and accumulating all applications documents.
- Operating a formality examination.
- Producing international applications on PATENTSCOPE.
- Producing information about PCT application as per treaty.
- Translations of PCT applications fields and other documents in English
- Conveying documents to national/ regional offices.
New variety plant protection is basically a form of intellectual property right
which grants the breeder of new plant variety, the protection regarding his
The creator of the new plant variety can apply for PBR (plant breeder's rights).
The breeders usually require the protection because when a new variety is
discovered, it can be reproduced by others which causes disadvantage to the
breeder. Therefore, it is important that plant variety protection should be
given to breeders to encourage them for new developments of plant variety.
There is a system called UPOV, which supplies the protective procedure for the
plant breeders in public and private sectors and helps in easing partnerships
between two sectors. This system can be used by individuals, large breeding
institutes and SMEs. Many organizations and countries have adopted this system
with the UPOV convention and by becoming a member of UPOV. Long- term
investments have been supported by granting plant variety protection and
eventually helped in establishing the strong foundation for the investment of
To obtain protection, new variety should be:
- New- It has to be new at the time of filing of application for the
rights of the breeders and the variety should also be unsold.
- In contacting party territory or area where application is filed before
one year or before date and,
- In areas other than the contracting party area, where application is
filed before four years; in case of vines and trees, before six years or
- Distinct- It has to be different from other varieties whose existence is
common in nature and already known to others.
- Uniform- Variety has to be uniform in nature with suitable
- Stable- Variety should have stability if its suitable characteristics do
not change even after continuous propagation at the end of every cycle.
- Have a suitable denomination- The new variety has tobe fixed by a
variety denomination and should be in generic position according to article 20
of UPOV convention.
The duration of protection granted to breeder's rights according to article 19
of 1991 act of UPOV convention is 20 years for other plants and 25 years for
vines and trees.
UPOV convention also states exceptions to breeder's rights. They are:
Traditional Knowledge (TK) Traditional Cultural Expression (TCE) Genetic
- Compulsory exceptions:
It was developed in article 15 (1). The acts that
are done solely and are of non- commercial nature, the acts conducted for
experiments, acts done for breeding of varieties are not secured by
- Optional exception:
It was developed in article 15 (2) of UPOV
convention. It allowed exceptions to UPOV members such as farm saving seeds from
breeder's rights with relation to some conditions.
It has three aspects:
- Farmer's holding
- The harvested product
- Certain limits and protection of the legitimate interest of breeders.
The IP protection for traditional kinds of innovations and creations is being
demanded by certain people, communities and governments. And these kinds are
usually according to the IP systems, in the public domain and can be used freely
by others. And because of this, people and communities do not accept the public
domain nature of TK and TCE as it leads to misuse and chaos.
TK is basically:
TCE's are basically:
- knowledge, skills, innovations and practices.
- which can be transferred between generations.
- is of traditional nature and
- includes itself in the traditional lifestyle of indigenous people and
communities, acting as guardians.
- important and necessary to cultural and social identities and beliefs or
traditions of local communities and indigenous people.
- it is passed on from generations to generations.
- used by TCE's holders.
- continuously developing and recreated.
- tangible or intangible or both.
Many TKs and TCEs are of dynamic nature and not old. And they form a part of
Genetic resources- According to the definition of convention on biological
diversity (CBD), GRs are basically the genetic package/gene material of any
plant, animal and microbial or any other creation carrying operational units of
genetic having potential value. Example- medicinal plants, crops, animal breeds.
There is a confusion regarding the protection of TKs and TCEs i.e. regarding the
owners' identity because they both are held and originated together. Also,
rights and interests in this matter must be authorized in communities instead of
The protections granted to TK/TCE and GRs is distinct from preservation and
safeguarding. The aim in preservation and safeguarding of TK/TCE is that they
should not disappear or degrade but should be maintained and promoted.
Two approaches regarding protection of TK/TCEs according to IP system are:
- Positive protection
- Defensive protection
Protection to TK/TCEs should not be considered an end in itself but should be
treated as wide policy goals and should revert their holder's needs.
There should be diversity in TK/TCEs as they are closely related with cultural
identities of different communities. And this diversity should be adaptable in
shaping international instruments. The following things considered before
creating IP systems of protection at national level are:
- Already existing IP laws and legal systems.
- Continued or adopted IP rights on TK/TCEs.
- Original, new sui generis systems made for TK/TCEs.
TK/TCEs can also be protected by other existing systems such as copyrights,
related rights, trademarks, etc. from misuse and exploitation. The protection
granted by GIs, industrial designs, unfair competition law to TCEs, aims to
protect the reputation, goodwill and uniqueness of the traditional community and
Sometimes, the old IP systems are not that capable and sufficient to feed the
uniqueness of TK/TCEs, so many countries are advised to make their own systems
for protecting TK/TCEs. Fortunately, the members of WIPO are creating an
intentional legal instrument that may provide fruitful protection and help in
regulating the interface amongst IP and benefit- sharing in GRs.
IP And Development
The granting of protection by the IP rights and systems has led to growth in the
economy and has encouraged the investments and trade. Not only this, it has also
helped cultural innovation to flourish; educating workforce and people; using
technology to enhance health and nutrition and other social benefits. The
different laws, practices and policies are developed to be used by nations to
help them decide as to which IP system is effective for growth and development.
WIPO takes care about the development seriously. In 2004, an initiative taken by
Argentina and Brazil leading to a new and specific development agenda. The state
members of WIPO in 2007, in general assembly, approved 45 suggestions in
relation to IP and development which was further formed into 6 clusters. These
suggestions are part of the WIPO development agenda. And the main objective is
to make sure that development is done in all parts of sections of organizations.
Mainstreaming has become the medium of all WIPO activities and these activities
are taken into consideration of many potential impacts of IP on social, economic
and cultural development.
The 6 clusters deal with the following:
- Cluster A - technical assistance and capacity building.
- Cluster B- public policy/domain, flexibilities and norm setting.
- Cluster C- transfer of technology, ICT and access to knowledge.
- Cluster D- assessment, evaluation and impact studies.
- Cluster E- mandate and governance.
- Cluster F- other related issues.
The development agenda is enforced by projects and the outcomes are mainstreamed
in organization and countries. There have been many documents related to WIPO DA
and they are used in reference as documents by the policy makers.
In the end, the researcher would like to conclude that the forms of intellectual
property and the IP rights issued to the creators are purely given to protect
the works of the creators and to provide the benefits of the IP rights to the
The main aim apart from granting protection to work, has been to reward the
creators for their work and efforts. The public also enjoys the benefits from
the creator's work. The IP protection has also covered the areas that
provide protection, to the new variety plant; to traditional creativity and
innovation of indigenous people i.e. traditional knowledge; genetic resources
with the equal intention of protection.
The basic idea behind the IP laws and rights and the protection of the work was
to create fairness, balance, growth and development, and suitability of the laws
in different situations.
And the motive behind all this was to erase and eliminate the copying of the
work of the creators by the general public and to avoid confusion and chaos so
as to create balance between the IP right and the public's good.
When we say development, it is not only the economic development we talk about,
but also the IP laws being used by the countries that help the countries to
bring whatever they want to bring out.
Written By: Nitish Shrestha
- rights https://www.itu.int/en/ITU-T/ipr/Pages/default.aspx
B.A.LL.B 4th Year
Maharaja Agrasen Institute of Management Studies.
(Affiliated to Guru Gobind Singh Indraprastha University, Delhi.)