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A BRIEF ANALYSIS ON INTELLECTUAL PROPERTY LAW IN INDIA.

 

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Shajeeda Tajdeen, LL.B, Mumbai University

India being a developing nation, has taken big steps to be at par with Trade Related Intellectual Property Rights (TRIPS) agreement and also to comply with the norms laid down internationally. Being a member nation of World Trade Organisation (WTO) it became mandatory for India to implement the WTO’s provision to its intellectual property, thus providing it an opportunity to be recognised globally in terms of Intellectual Property. The 21st century has seen tremendous rise in the field of technology, research and development, it could also be termed as a systematic way of expanding the intellect of its pupils by giving them an opportunity to show their talent.  In today’s world Intellectual Property Rights (IPR) have played a pivotal role in changing the trade environment and global trade relations worldwide by bringing within its purview global competition by adapting to the rapid changes in the field of science and technology, high risks and high investments in research and development, it has also enhanced the need of skilled human resources. Intellectual property has influenced the country’s economy to great extent. Regardless of what product an organisation produces or what service it provides, it is likely that it is regularly utilizing and creating a great deal of intellectual property.

Intellectual property (IP) deals with any original creation of the human intellect such as artistic, literary, technical, or scientific in nature. Intellectual Property refers to intangible property which is the result of creativity.  IP includes brand names, discoveries, software, artistic or literary work, designs, inventions etc. Thus there was a need to protect the intellectual property rights in the same manner as any other form of property may be protected. Even tough Intellectual property rights are recognised and protected globally they are territorial in nature, except copyright, which is global in nature and is available immediately to all the members of the Berne Convention. The laws regulating IP differ from jurisdiction to jurisdiction and hence their acquisition, registration or enforcement requirements shall be governed by the territory of interest. Intellectual Property Rights (IPR) are the legal rights granted to the creator or inventor for his creation/invention. It is bundle of exclusive rights given to the owner of the creation/invention or to his legal assignees to use, reap commercial advantage and also to exploit it for a particular duration.  Rights dealing with IP are granted by the State and are monopoly rights i.e. a privilege bestowed by an authority to an entity which excludes third parties from using, selling or producing any invention, product or service without the owner’s lawful consent. The rights conferred under IPR require renewal from time to time for keeping them active, except in the case of copyright and trade secrets. IPRs have a fixed tenure, except trademark and geographical indications, which can have an indefinite life span subject to renewal at regular intervals. Trade secrets on the other are also granted infinite life but they are not liable for renewal. Like other moveable and immoveable properties IPR can also be assigned, gifted, sold and licensed. Thus IPR, in this way boosts the economic development of a nation by promoting healthy competition and it also encourages industrial development.

There are several types of intellectual property like patent, copyright, trademark, designs etc. It has also been completely established that the intellectual labour connected with the innovation should be given due importance so that public good proceeds from it. IPR not only includes independent IP rights, but also collective rights which can be collectively used for protecting different characteristics of an inventive work.

 

IPR Scenario: From Indian Perspective

Initially when IPR was in its preliminary stage, lot of barriers arose relating to its policies implementation, Rules/Acts, financial and governmental support etc.  In the beginning due to lack of unawareness of IPR amongst companies and inventors the risk of infringement grew at an alarming level without a full proof system, the Research & Development process in India was also not fully developed to meet the demand of the then prevailing situation. This created a hindrance in the growth of the IP industry leading to decline of an intellectual era in the country.

After considering all the above problems, India took strong steps in strengthening IP Policies in the country. For instance, the first Indian Patent Law came in 1856, which was regularly amended from time to time to meet the need of the fast changing trade environment. The country’s very own Patent Law was formulated after Independence in the form of the “Indian Patent Act 1970” which was later modified to comply with the TRIPS provision.

In order to be avail global recognition, protection and benefits India signed various treaties to become a member of the Paris Convention, Patent Cooperation Treaty, Budapest Treaty and finally signed the TRIPS agreement to comply with the International and Indian standards. Recently, India signed the “Madrid Protocol” which further strengthens the applicability of Trademarks in 89 countries. These steps taken by the Government has boosted the IP industry in the country by more number of foreign companies establishing their in-house R&D centres in the country.

Apart, from this, a milestone was achieved when a landmark decision was given by the Supreme Court in the country’s first case of Compulsory Licensing (CL) i.e. Bayer vs Natco. This case brought the Indian IPR regime on the global window. The verdict of this case gave a ray of hope to Indian Pharmaceutical sector who were incapable of manufacturing lifesaving drugs and are now able to produce such drugs at a very low cost, which can be made available to the patients at a very considerable rate.

 

Challenges in IPR: From Indian Perspective

In Today’s world, IPR plays a pivotal role in almost every sector and has become an integral aspect of research for Pharmaceuticals and research oriented organisations. The continuous efforts of the Government in policy framing, providing protection, developing infrastructure, and financing the IP sector has made this Industry take a step ahead in the global competition. Even after achieving major milestones, our industry is still facing troublesome challenges both domestically and internationally. Even after receiving global exposure Indian IPR lacks to spread its roots in remote areas. As per the records of GIPC Index which was released by the US Chamber of Commerce in the year 2015, India’s performance in the last two years in case of has marginally improved but there is still a lot to achieve – India currently stands at second last position worldwide. The infringement of intellectual property rights (IPR) has become a curse and is a major hindrance for India’s economic growth. For instance, every year the film industry has to bear huge losses due to unchecked copyright infringement. Further, lot of foreign companies are allowed to freely sell duplicate or counterfeited goods in the Indian market as the fear of prosecution and consequent damages is comparatively low as compared to other developed nations. Thus it is of great importance to have strong enforcement mechanism in the country. Only having a strong IP law will not serve the purpose unless there is an equally strong enforcement machinery. The judicial system of the country has always tried to ensure that intellectual property rights in India are properly administered. Damages and injunctions are awarded wherever and whenever deemed necessary by the Courts. For instance, in a patent infringement suit filed by Ericsson against the Chinese Manufacturer Xiaomi, alleging infringement of eight of its SEP’s (standard essential patents) in the mobile handsets being sold in India. The Delhi High Court granted an ex-parte injunction to bar the import, advertisement, manufacture and sale of Xiaomi devices in India. Later on an appeal from Xiaomi, the Company was permitted to sell one of its products in the country, after depositing a royalty amount of Rs.100 behind every handset it sold. Thus, there is immediate need to create awareness amongst the huge number of population (educated & uneducated) who are still ignorant about IPR and its benefits. It is the need of the hour to promote the awareness of IPR in all the untouched areas of the society. In order to cater to the legal issues a skilled team of professionals (Judges, advocates) are required. As mentioned before, India’s IPR regime stands fully in accordance with the rules and standards of TRIPS Agreements. Integration of the different departments and ministries that deal with various matters of IPR is prerequisite for formulating an integral IPR policy. The continuous efforts of Indian Government gave pace to the intellectual regime but more efforts are to be taken in overcoming challenges which restrict IPR to reach the international standards. Lastly, a proper and stricter implementation plays a key role in achieving the goals related to Intellectual Property.

 

 

 

 

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