Protect your Creativity
Introduction: Intellectual Property laws give an individual a right over his creative work and the authority to prevent its piracy, says Puja Goyal.
Source: Vijay Times, THEME -pg 2.)
Copyright © 2005 Puja Goyal
The importance of intellectual property has been well established at the statutory, administrative and judicial level in India, but recognition to the ownership and awareness was created only after 1990.
Intellectual Property includes, Copyrights and related rights, Trade Marks, Geographical Indications, Industrial Designs, Lay out Designs of Integrated Circuits, Protection of Undisclosed Information (Trade Secrets), Patents and Plant varieties. Recent violations and abuses (piracy) of one's creative property, has made everyone look into the issues relating to ownership and usage of creative ideas. Amongst these, laws relating to Copyright, Trademark, and Patent are more prominent.
Copyright: It provides exclusive rights for their works of authorship, including the rights to reproduce (copy), create derivative works, distribute, publicly perform, and publicly display. Works covered by copyright include: literary (novels, plays, poems), dramatic, choreographic and musical works; databases; photographs and other graphic images; and motion pictures, sound recordings, and other audiovisual works.
The author is the first owner of the work by virtue of being the one who has created it. Registration or copywriting of the work is not required because the one who creates; owns the right to it and by itself is copy written. More and more people prefer to register it due to problems that might occur later on. But, non-registration does not deprive the author to seek judicial remedies against the infringer. Therefore if an individual has violated the right of an author and has either copy written it under his own name or used the works without consent, the author can seek civil, criminal and administrative damages in the court.
Despite this provision, if the author is keen on copyrighting his work then he can fill in an application at the copyright office with the details of his work.
Patents: Inventors can obtain the patent for his invention if his invention satisfies the requirements of patentable subject matter; utility; novelty; non-obviousness/inventive step; and the written description. This confers a right to exclude others from manufacturing, selling etc of the patented product. The patent may be obtained for the product or for the process.
Trademarks: Any mark that is capable of distinguishing the product of one person from that of others and capable of being represented graphically can be registered as trademark. However, if the mark is not distinctive, is descriptive, or generic, it cannot be registered. It may be registered if o the date of application, it has acquired distinctiveness by USE. Similarly, the mark that causes confusion or is receptive, which is scandalous, opposed to religious susceptibilities, prohibited under the Emblems Act are not allowed to be registered. Shape of goods that result from the nature of goods [round shape of ball, hand gloves etc], that are necessary to obtain the technical result [three circular ringed shape of the Phillips Shaver] are also not registrable. Likewise, if the mark because of the similarity or identity with other marks is likely to cause confusion or likely to dilute the reputation of the earlier mark, it is not registered. The trademark rights can be obtained even without registration provided it is acquired by use.
The above laws are governed under, The Copyright Act 1957; The Patent Act 1970, The Trade Marks Act 1999 [in India] There are international conventions dealing with all these. One is TRIPs, which lay down the minimum standard that are to be followed by the member states.
Although the laws have been exercised and implemented by the government and Law Board, it has been difficult to enforce its usage amongst individuals. Prof. T. Ramakrishna of National Law School says, "Technically, enforcement of these laws in India, particularly trademark and copyright has not been difficult, considering the provisions of the legislations. However, there are rampant violations of these rights- we find pirated goods sold in gross violation of the copyright of the copyright holder, counterfeit goods marketed in violation of the trademark rights of the right holder and so on."
The official machinery that is required to enforce the law, he says, has not considered this a priority. "At the individual level, the rights holder needs to identify the violator press the machinery into action, which is not found to be effective. There are many more reasons as to why enforcement has not been effective."
There is a need to make the laws fool proof and recognize the hard work of a writer, inventor and creator. To create the awareness that piracy is stealing… which most people consider normal. Prof. T. Ramakrishna adds that, "This is where there is an urgent need to educate people about the rights of the creator and innovator. Most of the time, it is the economics that determines rather than the sense of acknowledging the rights of the creator."
Source: Vijay Times, THEME -pg 2.)
Copyright © 2005 Puja Goyal
The importance of intellectual property has been well established at the statutory, administrative and judicial level in India, but recognition to the ownership and awareness was created only after 1990.
Intellectual Property includes, Copyrights and related rights, Trade Marks, Geographical Indications, Industrial Designs, Lay out Designs of Integrated Circuits, Protection of Undisclosed Information (Trade Secrets), Patents and Plant varieties. Recent violations and abuses (piracy) of one's creative property, has made everyone look into the issues relating to ownership and usage of creative ideas. Amongst these, laws relating to Copyright, Trademark, and Patent are more prominent.
Copyright: It provides exclusive rights for their works of authorship, including the rights to reproduce (copy), create derivative works, distribute, publicly perform, and publicly display. Works covered by copyright include: literary (novels, plays, poems), dramatic, choreographic and musical works; databases; photographs and other graphic images; and motion pictures, sound recordings, and other audiovisual works.
The author is the first owner of the work by virtue of being the one who has created it. Registration or copywriting of the work is not required because the one who creates; owns the right to it and by itself is copy written. More and more people prefer to register it due to problems that might occur later on. But, non-registration does not deprive the author to seek judicial remedies against the infringer. Therefore if an individual has violated the right of an author and has either copy written it under his own name or used the works without consent, the author can seek civil, criminal and administrative damages in the court.
Despite this provision, if the author is keen on copyrighting his work then he can fill in an application at the copyright office with the details of his work.
Patents: Inventors can obtain the patent for his invention if his invention satisfies the requirements of patentable subject matter; utility; novelty; non-obviousness/inventive step; and the written description. This confers a right to exclude others from manufacturing, selling etc of the patented product. The patent may be obtained for the product or for the process.
Trademarks: Any mark that is capable of distinguishing the product of one person from that of others and capable of being represented graphically can be registered as trademark. However, if the mark is not distinctive, is descriptive, or generic, it cannot be registered. It may be registered if o the date of application, it has acquired distinctiveness by USE. Similarly, the mark that causes confusion or is receptive, which is scandalous, opposed to religious susceptibilities, prohibited under the Emblems Act are not allowed to be registered. Shape of goods that result from the nature of goods [round shape of ball, hand gloves etc], that are necessary to obtain the technical result [three circular ringed shape of the Phillips Shaver] are also not registrable. Likewise, if the mark because of the similarity or identity with other marks is likely to cause confusion or likely to dilute the reputation of the earlier mark, it is not registered. The trademark rights can be obtained even without registration provided it is acquired by use.
The above laws are governed under, The Copyright Act 1957; The Patent Act 1970, The Trade Marks Act 1999 [in India] There are international conventions dealing with all these. One is TRIPs, which lay down the minimum standard that are to be followed by the member states.
Although the laws have been exercised and implemented by the government and Law Board, it has been difficult to enforce its usage amongst individuals. Prof. T. Ramakrishna of National Law School says, "Technically, enforcement of these laws in India, particularly trademark and copyright has not been difficult, considering the provisions of the legislations. However, there are rampant violations of these rights- we find pirated goods sold in gross violation of the copyright of the copyright holder, counterfeit goods marketed in violation of the trademark rights of the right holder and so on."
The official machinery that is required to enforce the law, he says, has not considered this a priority. "At the individual level, the rights holder needs to identify the violator press the machinery into action, which is not found to be effective. There are many more reasons as to why enforcement has not been effective."
There is a need to make the laws fool proof and recognize the hard work of a writer, inventor and creator. To create the awareness that piracy is stealing… which most people consider normal. Prof. T. Ramakrishna adds that, "This is where there is an urgent need to educate people about the rights of the creator and innovator. Most of the time, it is the economics that determines rather than the sense of acknowledging the rights of the creator."
Comments