In this essay we will discuss about:- 1. Introduction to Intellectual Property Rights 2. Need for Intellectual Property Rights 3. Types 4. Advantages 5. Infringement.
Essay on Intellectual Property Rights
Essay Contents:
- Essay on the Introduction to Intellectual Property Rights
- Essay on the Need for Intellectual Property Rights
- Essay on the Types of Intellectual Property Rights (IPRs)
- Essay on the Advantages of Intellectual Property Rights
- Essay on the Infringement of Intellectual Property Rights
Essay # 1. Introduction to Intellectual Property Rights:
It is important that one should understand the IP rights which may exist in the context of his/her business and are vigilant in their protection. Each type of IP has different threshold protection requirements, which give, rise to different rights and different terms of protection. The requirements and processes for protecting each type of IP in other countries may differ and specialist advice should be sought.
There are various forms of IP that require registration for protection, including:
a. Patents:
Patents to protect inventions of new or improved technology.
b. Trade Marks:
Trade Marks to protect a sign or marking used to distinguish the identity or source of goods or services.
c. Industrial Designs:
Industrial Designs to protect the design and/or appearance of articles or produced goods.
d. Plant Breeder’s Rights:
Plant Breeder’s Rights to protect new plant varieties.
Other IP rights that occur automatically upon creation and do not require registration for protection, include:
a. Copyright:
Copyright To protect works of art, music, literature, broadcasts, films, sound recordings and computer programs; and
b. Circuit Layout Rights:
Circuit Layout Rights to protect integrated circuit designs.
Essay # 2. Need for Intellectual Property Rights:
a. To provide incentive towards various creative endeavors of the mind by offering protections;
b. To give such creators official recognition;
c. To create repositories of vital information;
d. To facilitate the growth of both domestic industry or culture, and international trade, through the treaties offering multi-lateral protection.
Essay # 3. Types of Intellectual Property Rights (IPRs):
The different types of Intellectual Property Rights (IPRs) are:
1. Copyright.
2. Patents.
3. Trademarks.
4. Trade secrets.
5. Geographical Indications.
6. Industrial Designs.
Copyright is the right to stop the copying and distribution of certain categories of work. Copyright protects the following categories of published and unpublished works for specified periods of time.
The categories of works protected by copyright and relevant examples include:
a. Literary Works:
Literary Works (for example, emails and newspaper articles).
b. Dramatic Works:
Dramatic Works (for example, plays).
c. Musical Works:
Musical Works (for example, songs, musical scores and soundtracks).
d. Artistic Works:
Artistic Works (for example, paintings, photographs and images).
e. Films:
Films (for example, videos and cinematic performances).
f. Sound Recordings:
Sound Recordings (for example, oral history tapes and recorded lectures).
g. Broadcasts:
Broadcasts (for example, TV and radio).
h. Typographic Works:
Sound Recordings (for example, the arrangement of websites and translations).
A copyright protects the expression of an idea, but not the idea itself.
The copyright holder has the exclusive right to the following with his/her work:
a. To reproduce the work.
b. To prepare derivative works.
c. To sell, lend, distribute copies or transfer ownership.
d. To perform the work publicly.
e. To display the copyrighted work publicly.
To qualify for protection, the work must be original (meaning ‘not copied’), be recorded in a permanent form, and the author must be a qualifying person. Copyright protection does not depend on registration but arises automatically once the work is created. Copyright protection lasts for a long time, generally speaking for the lifetime of the author plus 70 years. Copyright does not protect ideas; it will protect them once they are fixed in material or tangible form.
For example, an idea for a story will not be protected by copyright, once the idea is transferred into writing, and then it will be protected by copyright. Another example: many authors write textbooks on physics covering various aspects like mechanics, heat, optics etc. Even though these topics are covered in several books by different authors, each author will have a copyright on the book written by him/her, provided the book is not a copy of some other book published earlier.
A patent is an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusive right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder.
The protection secured by the registration of a patent is commonly limited in time, usually 20 years. At the end of the period of protection, the patented invention is said to be within the public domain (i.e., available for anyone to exploit).
The applicant for the protection of an invention is usually the inventor or his successor in title. Inventions have to be registered with the government. A patent registration process can take more than one year, and if it is granted, the inventor gains the legal right to exclude anyone else from manufacturing or marketing it.
Conditions for Granting a Patent:
For an invention to be protected by a patent, it must:
a. Meet the criteria of novelty.
b. Involve an inventive step and;
c. Be capable of industrial application.
An invention is conventionally considered to be novel if it is unknown or unavailable to others prior to the date of application for the patent. That is, the invention must not be anticipated by prior art. Prior art is usually taken to comprise everything disclosed to the public, anywhere in the world by prior publication in a tangible form or in the subject country by oral disclosure, or by use in any way prior to the filing of the patent application.
An invention is said to involve an inventive step if, having regard to the prior art, it would not have been obvious to a person having an ordinary skill in the art. In other words, the invention must involve a creative advance on existing knowledge.
An invention shall be considered as industrially applicable where it can be made or used in any kind of industry. In other words a patent will not be granted if it is not useful.
3. Trademark:
Trademarks provide exclusive rights to use distinctive signs, such as symbols, colours, letters, shapes or names to identify the producer of a product, and protect its associated reputation. A trademark can be a combination of words, phrases, symbols, logos, designs, images or devices, used by an individual, legal entity or business organization to distinguish their products from that of others. For example, one can identify the products of Nike, Reebok etc. through their logo, which is embossed on their products.
Trademarks can be registered, which gives the holder the exclusive right to use them. Once registered, trademarks are protected legally and the owners can sue persons who use their trademarks. Trademark protection lasts for 10 years after registration and, like patents, can be renewed.
If a company creates a symbol or name it wishes to use exclusively, it can simply attach the trademark symbol. This effectively marks the territory and gives the company room to prosecute if other companies attempt to use the same symbol for their own purposes.
Trade secrets are the designs, practice, formulas, instrument, processes, recipes, patterns or ideas, which are used by a company to gain economic advantage over its competitors. The owner of a trade secret does not possess any right over anyone who gains access to that secret independently, but he can prevent the use of trade secret by anyone who has learned it through the owner.
It differs from other types of intellectual property, because it is the responsibility of the owner to keep the secret and it is not protected through government policies. Once the trade secret is leaked, any person can use it.
Examples of trade secrets can be formulas for products, such as the formula for Coca-Cola; compilations of information that provide a business with a competitive advantage, such as a database listing customers; and even advertising strategies and distribution processes. Unlike patents, trade secrets are protected for unlimited period of time, and without any procedural formalities.
5. Geographical Indications:
A Geographical Indication (GI) is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that is solely due to the place of origin. A geographical indication merely tells that a product is produced in a certain place and has certain characteristics, which are due to the place of production.
All producers who make their products in a place designated by the geographical indications and share the same qualities can use it. For example, food products sometimes have qualities that derive from their place of production and local environmental factors. Some countries separately protect, geographical indication for goods such as French cognac or Scotch whiskey.
There are two terms used in the context of geographical indication: appellation of origin and indication of source. Indication of source on a product merely indicates that the product originates in the place indicated. Appellation of origin indicates not only the place of origin but also the essential quality link between the product and the area of its origin; e.g., Kolhapuri chappals from Kolhapur, India. Geographical indications can have indefinite life provided these are renewed after a stipulated time specified in the law by paying official fees.
An industrial design is the ornamental or aesthetic aspect of an article; it may consist of three-dimensional features such as shape or surface, or of two- dimensional features such as patterns, lines or colour. The design serves as a tool for product differentiation and lures customers by enhanced visual appeal.
It becomes a kind of intellectual property to be protected. Industrial designs are applied to a wide variety of products of industry or handicraft: watches, jewellery, fashion and other luxury items, industrial and medical implements, house ware, furniture, electrical appliances, vehicles and architectural structures, textile designs, toys etc.
The design right owner has the exclusive right to stop anyone else from reproducing the design (that is, copying it) by making articles to it for commercial purposes, and the right to stop anyone else dealing in infringing copies of the design by way of trade.
The person who has an industrial design right has the exclusive right to make or sell any objects in which the design is applicable. The right is conferred for a period of 10 to 25 years. For registration, a design needs to be new and original, though the notion of these qualities may vary from country to country.
Essay # 4. Advantages of Intellectual Property Rights:
Intellectual Property (IP) is an umbrella term that covers copyright, patents, trademarks, designs, circuit layout rights, and trade secrets. Each of these terms covers a different type of property that is made up of knowledge.
Some of the advantages of IPRs are:
a. Intellectual property rights help in providing exclusive rights to creator or inventor, thereby induces them to distribute and share information and data instead of keeping it confidential.
b. It provides legal protection and offers them incentive of their work.
c. Rights granted under the intellectual property act helps in socio and economic development.
Essay # 5. Infringement of Intellectual Property Rights:
An intellectual property infringement is the infringement or violation of an intellectual property right. Generally speaking, the use of a patented invention, copyrighted work, or trademark without the authorization of the IP owner constitutes infringement.
The IP owner may initiate a civil action against an alleged infringer for a violation of any of the exclusive rights conferred by a patent, copyright, or trademark. Depending on the type of intellectual property involved, one may have a variety of ways to respond to violations.
Intellectual Property Rights (IPRs) are dealt with by administrative procedures and legal proceedings. In terms of civil liabilities, the infringer may be ordered to stop the infringing act, eradicate the damage done, make public apologies or compensate for damages. In terms of administrative measures and criminal liabilities, they include warnings, orders to stop the infringing act, confiscation of unlawful gains, fines, and compensation for damages.
In all cases of intellectual property violation, negotiation is the simplest and cheapest possible remedy. Sometimes, intellectual property violations occur as the result of innocent mistakes. A simple phone call or friendly letter notifying the perpetrator might be enough to resolve the problem. Litigation is also an option.
As previously mentioned, copyright, patent, and trademark violations are actionable in the federal court system. Alternative Dispute Resolution (ADR) is another means of resolving these issues. There are two general types of ADR, mediation and arbitration. Mediation is a process where the parties mutually reach an agreement with the help of a facilitator. Arbitration involves a third party determining the outcome of a dispute.
Intellectual property infringement can be:
1. Copyright Infringement.
2. Patent Infringement.
3. Trademark Infringement.
1. Copyright Infringement:
Copyright gives the creator of the work the right to reproduce the work, make copies, translate, adapt, sell or give on hire and communicate the work to public. Any of these activities done without the consent of the author or his assignee is considered infringement of the copyright.
There is a provision of ‘fair use’ in the law, which allows copyrighted work to be used for teaching and research and development. In other words making one photocopy of a book for teaching students may not be considered an infringement, but making many photocopies for commercial purposes would be considered an infringement.
The copyright act provides several civil remedies for infringement, including the possibility of obtaining injunctive relief, actual damages suffered by the copyright owner due to the infringement, statutory damages, and costs.
2. Patent Infringement:
Patents play an important role in economic development by encouraging technology transfer and investment, research and development, and the discovery of new technologies. Violations of patent laws are known as patent infringement. Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder.
If a defendant is found guilty of patent infringement in a lawsuit brought by the patent holder, the remedies available to the patent holder includes an injunction to cease and prohibit the offending activity by the defendant, damages to compensate for the infringement, and even attorney fees. The law only provides civil remedies in the event of patent infringement; there are no criminal sanctions.
3. Trade Marks Infringement:
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license).
Infringement may occur when one party, the ‘infringer’, uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers.
An owner of a trademark may commence legal proceedings against a party which infringes its registration. Trademark infringements carry civil penalties such as injunctions prohibiting continued violations and/or monetary damages.