Intellectual Property; sounds like a very complex and complicated idea, but is something that we come across a lot of times in our daily life. Intellectual property means creation/innovation by men and the thought to protect them was since medieval period. In the 19th century, various IP laws were enacted to protect the rights of the people.
This article talks about Intellectual Property Rights, its history, origin and evolution.
Introduction:
Tangible properties, be, movable or immovable, have a physical structure and presence. They have been recognized as goods since time immemorial. Conversely, intangible properties have only been recognized as properties in the recent past, let alone affording protection to them under IP Rights.
A brand has a plethora of Intellectual Property Rights (IPR) built around it. Let’s take an example of the most common necessity nowadays- a smartphone. It is protected by layers and layers of IP rights. The brand name, the logo of a brand, words associated with the logo, color combination used or the shape and size of the logo, these are all protected as Trademarks. Similarly, the technologies inside a phone are protected by patents.
The case of a phone, its water proof materials, its networking and data storage technologies, the sensors, and the electromagnetic applications are all protected as Patents. Further, the source codes underlying programs in a phone are protected by Copyrights.
Thus, Intellectual Property is something that always surrounds us, something which is internal and external to us, something that we live on.
What Is An Intellectual Property:
Intellectual Property refers to:
- Inventions,
- Innovative designs,
- Products of human creativity,
- Identifiers of organizations or their products and services or
- Unique products that have a geographical attribute.
As per Oxford Dictionary: An Intellectual Property is an intangible property that is the result of creativity.
According to World Intellectual Property Organization (WIPO), the global forum for intellectual property, ‘Intellectual Property (IP) refers to the creations of mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce’. [1]
What Are Intellectual Property Rights:
As per World Trade Organisation (WTO):
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. [2]
However, an IPR is not just a right to exclude others from using, selling or producing the protected asset. It is also designated to provide the holder with the right to assign or license the rights for commercial or other bonafide uses. This includes the right to reproduce, distribute and sell the asset.
Intellectual Property Rights are of various types, but the three most important ones are as follows:
- Patent: A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. [3]
- Copyright: Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.[4]
- Trademark: Trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.[5]
History Of IPR:
Intellectual Property law dates at least as far back as medieval Europe. The first known use of the term Intellectual Property dates back to the time, when an article published in the Monthly Review in 1769 used it as a phrase.[6]
The history and origin of patents, copyrights, trademark and its emergence at global level have been explained further:
- Origin And History Of Patents:
The origin of patents can be dated back to the year 1331. On 16th July, 1331, King Edward III of England created history by providing King’s protection through a letter’s patent. It was given to a Flemish weaver of woolen clothes by the name John Kemp. Kemp was allowed by the monarch to exploit his invention and conduct trade on woolen clothes made by his craft in England.
Besides, he also got the right to teach his weaving technique to people he chose to. Thus, the protection gave Kemp exclusive rights to work and disseminate his knowledge and skills. In many ways, this case lies at the root of the present day patents.
Patents evolved from letters patent which were given by the monarchs that granted monopoly over particular industries with new techniques. This power was used mostly for raising money for the crown and was abused most of the times. Elizabeth I used this system on a large scale, issuing patents even for common commodities like salt, starch, etc. These odious monopolies led to a conflict between the Parliament and the Crown, which was finally settled in 1601. It was decided that the power to administer patents would be turned over to the common law courts. [7]
At the same time, Elizabeth I revoked many other restrictive and damaging monopolies. However, James I, Elizabeth’s first successor continued using patents to create monopolies. But, after public outcry, James I of England was forced to revoke all existing monopolies. This was incorporated into the Statute of Monopolies in which the Parliament restricted the power of the Crown explicitly so that letter patents could be introduced to the inventors of original inventions for a fixed number of years.
Origin In India:
The 1st legislation in India relating to patents was the Act VI of 1856. The objective was to encourage inventions and to induce inventors to disclose secret of their inventions. Later, to grant exclusive privilege, a fresh legislation was introduced as Act XV of 1859. However, in 1872, the act was renamed as The Patterns and Designs Protection Act. The act remained in force for 30 years with only 1 amendment in the year 1883.
The Indian Patents and Design Act replaced all the previous laws in India. In this act, provisions relating to grant of secret patents, patent of addition, and increase of term of patent from 14 years to 16 years were made. Later, after independence, various committees were made to examine the revisions in the law and thus a bill was introduced in the Lok Sabha in 1965 which however lapsed. Though it lapsed in 1965, in 1967, an amended bill was introduced and then on the final recommendation of the committee, the Patents Act, 1970 was passed which is presently used in India.
- Origin And History Of Copyright:
Copyright developed quite similarly as the patents, by which certain authors and printers were given exclusive rights to publish books and other materials. The motive behind this was not to protect the author’s right but to raise the revenues of the government and to give control to the government for controlling publications.
For example, in the year 1556, the establishment of the Stationers’ Company’s monopoly in England was intended solely to help limit the Protestant Reformation movement’s power. The entire printing industry was put in the control of the company and thus the government and the church could prevent the dissemination of ideas.
The Statute of Anne which was passed in 1710 was a milestone in the history of copyright law. It recognized that it is the authors who should be primary beneficiaries of the copyright law and also recognized that such copyright ideas should have limited duration (then set at 28 years), after which the work would pass into public domain. Similar laws were enacted in United States in 1790 and in France in 1793.
Origin In India:
Copyright law entered in the year 1847 in India through an enactment during the regime of the East India Company. At that time, the term of the copyright was for 42 years plus 7 years post-mortem. The government could grant a compulsory license for publishing a book if the owner of the copyright, upon the death of the author, denied its publication. Registration of Copyright was mandatory to enforce rights under this act.
In 1914, the then Indian legislature enacted a new Copyright Law under the British Raj which was quite similar to United Kingdom Copyright Act, 1911. However, there were few major differences. The most important one being- it introduced criminal sanctions for copyright infringement under sections 7 to 12. The 1911 Act was amended many times until 1957 and thus, in the year 1957 the Copyright Act was enacted by independent India in order to suit to the provisions of the Berne Convention. This 1957 Act has been amended many times, the latest being in the year 2012.
- Origin And History Of Trademark:
Trademarks have been used since the 13th century in England. Bakers were the first ones to take advantage of trademark. In the year 1266, under the reign of King Henry III, Trademark legislation was passed in England. Bakers in England used a distinctive mark of their own to distinguish their products.
However, the origin of the first modern trademark legislation is dated by in the year 1857 in France, followed by the Merchandise Act in England in 1862. The oldest registered trademark in UK was in the year 1876- The Bass Brewery’s label which had three triangles logo for ale.
The dictum nobody has any right to represent his goods as the goods of somebody else and nobody has the right to pass off his goods as the goods of somebody else were established where a clothier who had gained great reputation by putting his marks on clothes made by him was used by another to deceive and make profits. The Courts thereafter followed these principles as the law. They recognized such disputes and gave remedies as ‘passing off’.[8]
Origin In India:
India prepared the first act related to trademarks as Trademark Act, 1940 which was borrowed from British Trademark Act, 1938. Further, post independence the Trade and Merchandise Act, 1958 was enacted. Various amendments were made until 30th December 1999, when the Trade Mark Act, 1999 was enacted which is presently used in India.
The two key needs fulfilled under this act are- a) protect the owner from disorder and duplicity of marks by competitors. b) secure trademark owner’s business and trade and also goodwill which is added to the trademark.
Need Of Universal Law For International Protection:
In the year 1873, there was an event called ‘The World Exposition’ in Vienna. The idea behind it was to promote exchange of education, knowledge and culture. However, the American inventors announced their boycott of this event. During the 18th and the 19th century, technology in its modern form did not exist and rights of an inventor were confined to his/her country. Many budding inventors who desired to participate in the event felt that their novel inventions would be copied by onlookers, who would commercialize them without any regard to their interest.
Thus, there was a need to have an international legal regime that would provide protection for an invention across countries. The incident associated with the exposition led to the passage of a special law to provide provisional protection to the objects that were being exhibited in the exposition. This also led to the idea of creating a universal law for the international protection of inventions.
The origin of international IP regime was the Paris Convention for the protection of industrial property and inventions in 1883.
Further, following a campaign by French writer Victor Hugo and his Association Littéraire et Artistique Internationale, the Berne Convention for the Protection of Literary and Artistic Works was agreed in the year 1886. The aim was to give creators the right to control and receive payment for their creative works on an international level.[9]
With the adoption of the Madrid Agreement, the first international IP filing service was launched in 1891: the Madrid System for the international registration of marks.[10]
Eventually, in 1893, the United International Bureau for the Protection of Intellectual Property was constituted. Their organization was a common platform to administer both the Paris and the Berne Conventions. It was popularly known by its French acronym BIPRI.
In 1970, BIPRI turned into the World Intellectual Property Organization, which is referred as WIPO. The World Intellectual Property Organization was established through a convention which was signed in the year 1967. In 1974, The WIPO became part of the United Nations as a specialized agency to promote intellectual activities, stimulate creativity, and facilitate technology transfer for accelerating economic development all over the world. Presently, the WIPO has 193 member states. It administers 26 treaties including the WIPO convention.
Conclusion:
Intellectual property means the creation of mind: logos, symbols, writings, machines, etc. This creation of mind is worthy as it contributes enormously to the nation’s economy. These creations encourage innovations and reward entrepreneurs in many ways.
The concept of Intellectual Property emerged way back in time and is considered one of the most important rights by industries. Many industries have relied on these rights since centuries for the protection of their work, whereas, consumers use IP to ensure that they purchase safe, genuine and guaranteed products.