Intellectual property rights are those that arises on the creation of a product
out of one’s intellectual work. The word ‘intellectual’ connotes only one idea,
which is, mental work, viz imagination. According to the World Intellectual
Property Organization (WIPO) intellectual property “refers to creations of the
mind: inventions; literary and artistic works; and symbols, names and images
used in commerce”.
Intellectual property is divided into two categories:
- Industrial property:
It is related to industry and commerce which includes patents for
inventions, registered trademarks, industrial designs and geographical
indications, semiconductor integrated circuits layout designs, new plant
- Literary property:
It is related to the text, information and
entertainment fields which includes literary works (such as novels, poems and
works), films, music, artistic works (drawings, painting, photographs and
sculptures), computer programs and architectural design.
Main forms of Intellectual Property
Patent is form of intellectual property rights granted to the inventions in
the industrial and scientific fields.
Copyrights protects works created in the literary, information and
entertainment fields. Copyright basically protects literary, dramatic,
artistic, musical, cinematograph films and sound recording.
All the signs, symbols, logos, names, slogans, titles etc.
which are used to promote industry, trade and commerce are protected under the
- Industrial Designs or Designs:
All the designs which have aesthetic or
eye appeal which are applied to any product are protected under the industrial
- Semiconductor Integrated Circuits Layout-Designs:
The layout designs of
the semiconductor integrated circuits chips is protected exclusively under the
law related to the semiconductor integrated circuits and layout-designs.
- Geographical Indications:
Geographical Indication means an indication
which identifies the goods as originating or manufactured in the territory,
region or locality of a country which possesses a specific quality, reputation
or any other characteristics to such goods which is basically related to its
- New Plant Varieties:
New plant varieties are the new varieties of genetic
or propagating material that are breaded by the breeders in their laboratories
in order to meet the changing climatic and soil conditions, demand in the market
and the conditions of life.
Copyright is an intellectual property right given to the creators for the
creations in the field of literacy, dramatic, artistic, musical, cinematography
works and sound recordings. It is an intellectual property right because, the
work, which is the subject giving rise to this right, is the result of the
creative skills of the author bringing about its existence. The right, in
respect of the work created is called ‘intellectual property right’ because the
work is the creation of the author’s mental capabilities.
If the work created satisfies the requirements of the Copyright Act, 1957 as to
originality etc., certain exclusive rights in dealing with that work are
provided under the Act, on the author. Those rights depend upon the nature of
the work. They include the right to make copies of the work, to distribute them,
perform the work in public or communicate to the public etc., which others are
not permitted to do, in relation to that work, without the author’s consent.
importance of stating that copyright inheres in the author is that on the
conditions of section 13 of the 1957 Act being satisfied, copyright in that work
will vest in the author of the work, without any further act by the author after
the creation of the work. Unlike in the case of a patent, there is no grant of
copyright by any public authority.
Registration of the copyright is not
compulsory for the purpose of exercising any of the rights under the 1957 Act.
But in actual practice, registration of the copyright according to the procedure
provided under the 1957 Act is obtained by the author, especially if the work is
of significant commercial value, so that infringers, actual and potential, would
be put on notice on the fact of copyright vesting in another and would not be in
position to advance the defence in infringement proceedings that they were not
aware of copyright having vested with the complaint.
The Historical Evolution of the Copyright Act, 1957
The Copyright Act, 1957 repealed, through section 79 of that Act, the previous
law on copyright in force in India, which was the Indian Copyright Act, 1914,
and the copyright Act of 1911 passed by the Parliament of the United Kingdom as
modified in its application to India by the Indian Copyright Act, 1914.
Changes were made to the 1957 Act by amendment Acts of 1983, 1984, 1992, 1994
and 1999 and 2012. Of these the amendments made in 1994 were comprehensive. The
1999 amendments were provisions made for the purpose of meeting the obligations
under TRIPS and relating to certain other matters. Some very major amendments
were made to the Copyright Act, 1957 by the Copyright (Amendment) Act, 2012. The
Act is still referred to as the 1957 Act, even though it was amended several
General principles of copyright
Copyright subsists only to expression of an idea, not a mere idea. Copyright
protection is available only to an expression of ideas. It is a basic
proposition in copyright law that copyright is available only to an expression
of an idea, which is the manner of expression, and not to a bare idea. For
example, the simple idea such as ‘Truth will triumph’ cannot be a subject of
copyright, but if an author builds a sequence of events, for example a story,
which express this idea, in an original manner, meaning thereby, in his own
manner, the story, which in turn means the expression of that idea, not the idea
on which the story is built, will be eligible to copyright, subject to the
requirements of the Act.
The 1957 Act does not explicitly state that it is only the expression of an idea
that would be eligible to copyright protection and not bare ideas, procedures
etc. But the TRIPS Agreement states the fundamental concept of eligibility to
copyright protection, which is that ideas, procedures, methods of operation and
mathematical concepts as such are not entitled to copyright protection. However
the specific provision under the 1957 Act that copyright shall subsist only in
the classes of ‘work’ stated therein which are:
- Original literary, dramatic, musical and artistic works;
- Cinematograph films; and
- Sound recordings
Clearly shows that copyright protection, under the Act will extend only to
expressions and not to ideas. However, to put the matter beyond doubt, it would
be appropriate to exclude expressly what are not eligible to copyright
Leading International Treaties, Convention and Agreements on CopyrightThe Berne Convention for the Protection of Literary and Artistic Works, 1886
The Berne Convention is the oldest international Convention in the field of
copyright providing the minimum standards of protection. While enacting the law
in respect of the literary and artistic this convention have to be compiled
which lays down fundamental principles that are capable of universal application
in a manner equitable to all interested in the right.
More than that, this
convention has been periodically been revised, the last revision being on
September 28, 1979, is a benchmark legislation, prescribing certain minimum
standards of protection relating to the rights of authors and the duration of
protection and hence mandated by the WTO agreement, ‘Agreement On Trade-Related
Aspect Of Intellectual Property Rights’ (“TRIPS”) for its signatories.
Some of the main provisions of the Berne Convention which are to be taken into
consideration are the definition of “Literary and artistic works”, the protected
works and the requirements for protection to them; criteria of eligibility for
protection; possible limitation of protection of certain works of national of
certain countries outside the union; right to enforce protected rights;
infringing copies; special provisions regarding the developing countries etc.
The most significant right out of the rights provided under this Convention is
the national treatment for the works covered by the convention is automatic and
is available in all the countries of union, other than the country of origin and
this is not governed by any procedural formality. But the extent of the
protection, as well as the means of the redress afforded to the author to
protect his rights, shall be governed exclusively by the laws of the country
where protection is claimed. This means that while protection is assured, the
procedural means of securing it is what prescribed by the law of the country
where protection is sought.
Inevitably, protection in the country of origin is
governed by domestic law. The protection extended by the Berne Convention is
independent of the existence of protection in the country of origin of the work.
Another provision that merits consideration by any government relates to the
right to enforce protected rights, particularly regarding ‘unpublished works
where identity of the author is unknown, but where there is every ground to
presume that he is a national of a country of the Union’.
It permits members of
the Union, in such a case, to designate a competent authority which shall
represent the author and shall be entitled to protect and enforce his rights in
the countries of the Union. The Copyright Act, 1957 does not contain a provision
availing of this right.
Compliance with some major provisions of the Berne Convention – TRIPS
TRIPS Agreement is not a stand-alone agreement. By reference it incorporates
appropriate provisions of previous treaties and Conventions. As far as the Berne
Convention is concerned, TRIPS requires that the members of WTO shall comply
with certain specific provisions of the Berne Conventions and the Appendix
thereto, expecting the provision dealing with the moral rights of the author or
of the rights deprived there from.
The appendix offers scope for developing
countries, by reason of their status as developing countries, to vary the forms
and duration of the rights, subject to the conditions stated therein. The
provision of the Berne Convention which TRIPS requires to be compiled are
relating to what are protected works, the rights, the classes of literary and
artistic work, cinematograph and dramatic works, eligibility for protection,
term of protection, fair use and related and matters.
The WTO Panel on the
Interpretation of TRIPS had invited the attention of the members of WTO that
through such incorporation, the substantive rules of the Berne Convention had
become part of the TRIPS Agreement and that they would have to be read as
applying to WTO Members.
Universal Copyright Convention, 1952
Universal Copyright Convention originally adopted in the year 1952 and later on
protocols to the Convention are done at Paris July 24, 1971. This Convention is
intended to ‘facilitate a wider dissemination of works of the human mind and
increase international understanding’.
The preamble of this Convention states that the Convention it was concluded on
the contracting states being convinced that “a system of copyright protection
appropriate to all nations of the world and expressed in a universal convention,
additional to, and without impairing international systems already in force,
will ensure respect for the rights of the individual and encourage the
development of literature, sciences and arts”.
This convention provides for the effective protection in each of the contracting
states of the rights of authors and other copyright proprietors in literary,
scientific and artistic works, including writings, musical, dramatic,
cinematographic works, paintings engravings and sculpture; national treatment of
nationals of other contracting states in respect of their work published in
their own states and unpublished work; term of protection.
extend to works protected under the convention either in their original form or
in any form recognizably derived from the original. Any dispute between two or
more contrasting states concerning the interpretation or application of this
convention, not settled by negotiation, shall unless the States concerned agree
on some other method of settlement, be brought before the International Court of
Justice of determination by it.
The WIPO Internet Treaties:The WIPO Performances and Phonograms Treaty (WPPT),
1996 and The WIPO Copyright Treaty (WCT), 1996.
The WIPO Performances and Phonograms Treaty (WPPT), 1996 and the WIPO Copyright
Treaty (WCT), 1996 also known as the Internet Treaties, make it an offence to
circumvent technological measures employed by authors to protect their works.
The WIPO Copyright Treaty (WCT), 1996 is a ‘special agreement’ that contracting
parties of the Berne Convention may enter into without prejudice to the Berne
Convention. WCT, in addition to stipulating that contracting parties
apply mutatis mutandis the provisions of the Berne Convention, in respect of the
protection provided by WCT, requires that the following shall be protected by
copyright in the countries of the contracting parties:
- Computer programs, whatever may be the mode or form of their expression,
- Compilations of data or other material (“database”), in any form, which
by reason of the selection or arrangement of their contents constitute
Article 11 and 12 of the WCT are important advances made towards more effective
copyright protection. They impose the obligation on the contracting parties to
provide legal remedies against the circumvention of technological measure used
by authors in connection with the exercise of their rights and against the
removal or altering of information, such as certain data that identify the work
or their authors, necessary for the management of their rights.
Article 18 and 19 of WPPT deal with obligations concerning technological
measures and rights management information in relation to the rights of
performers and producers of phonograms.
These two treaties strengthen the basis towards:
- The prohibition of infringements and attempts at infringement by
circumventing technological measures controlling access to a copyrighted
- The preservation of the integrity of copyright management information.
Copyright management information covers the title of work, the name of the
author, the name and identifying information about the copyright owner,
information set out in the notice of copyright , terms and conditions for use of
the work etc. Infringers, to conceal infringement give copyright management
information that is false.
Conformity of Indian law, the Copyright Act, 1957 to the WIPO Treaties (Internet
Treaties) – Insertion of new sections
The government of India recently has published a press note stating the cabinet
approval on the accession to the WIPO Copyright Treaty, 1996 and WIPO
Performance and Phonograms Treaty, 1996. India has amended the Copyright Act,
1957 to adopt these treaties through introduction of two sections viz, section
65A and 65B by the 2012 Amendment Act.
The expression of an idea may be through any medium, a book, a handwritten
manuscript, a picture, a drawing, a photograph, a speech or any performance,
which may be a visual pr acoustic presentation made live by one or more
performers or a cinematograph film or a video film. There are several components
to the concept of copyright in a work.
First, it is the work, which should be covered by one or more of the specific
classes recognized by the 1957 Act, such as literary work, musical work,
dramatic work etc. then comes the author or the maker of the work or one who
performs the work and originality in expression of ideas. Of these ‘originality’
is the most important qualification for claiming copyright protection.
Originality, for this purpose, only means that the work is that of the author
himself i.e. is his or her own and not copied from the work of another.
- What are intellectual property rights?, Universidad de Ios Andes, (Apr.
20, 2021 9:56 PM), https://innovacion.uandes.cl/en/intellectual-property/
- License, Trademark and Copyright, vskills (Apr. 21, 2021, 12:00
- V K Ahuja, Law relating to Intellectual Property Rights, (3rd ed.,