Unveiling Intellectual Property Rights

Unveiling…
Intellectual Property Rights
Dr. Sabuj Kumar Chaudhuri
Department of Library & Information Science
University of Calcutta
sabujkchaudhuri@caluniv.ac.in
October 14, 2017 1

Disclaimer
I am not lawyer. I can not give
you any legal advice
October 14, 2017 2

Discovery Vs Invention
October 14, 2017 3

Creation of New Idea (Invention)
Conceptualization of New Idea (Decision to
innovate)
Commercialization of New Idea (Innovation) (many
stages)
Diffusion in the Society
October 14, 2017 5

Valley of Death
October 14, 2017 6

Primary Players in Global innovation
7India’s Position in GII, 2016 is 66th. It was 81st in 2015October 14, 2017

Creativity protected by IP:
From Morning to Night
October 14, 2017 8

IPR as an Umbrella Protecting your
Creativity
October 14, 2017 9

What is IPR ?
• What is property?
• What is Intellectual property (IP)?
• What is Intellectual Property Rights(IPR)?
October 14, 2017 10

Property
• The primary definition in the Oxford English Dictionary states
that ‘proper’ means ‘belonging to oneself or itself.
• Generally it has 3 understandings :
• Scientific Understandings:
• Properties are attributes, characteristics or qualities
that can be applied generally to a group of objects.
• Legal Understandings:
• Property is the inclusion of rights of exclusive use and
alienability
• Economic Understandings:
• Property includes all rights of individuals to valuable
resources.
11October 14, 2017

Rights of A Property Owner
• Right to own
• Right to exclusive use
• Right to disallow
others from its use
• Right to sell
• Right to transfer
• Right to donate
• Right to rent
• Right to lend
• Right to derive profit
out of it
• Property involves a
bundle of rights
• The entire bundle can
be held by one person
or divided among
multiple parties.
• Property rights confer
power.
October 14, 2017 12

Types of Property
• The tangible property
includes physical
objects such as land,
household goods, car
etc.
• The intangible property
includes a list of
products of human
intellect such as
patents, copyright,
trademarks and
industrial designs etc.
13October 14, 2017

IP IPR
• Intellectual property (IP)
deals with the creations
of the human intellect and
protects the creations of
the human mind, the
human intellect. This is
why this kind of property
is called “intellectual
property”.
• Intellectual property rights
(IPR) are the rights awarded
by society to individuals or
organizations principally
over Intellectual Property
i.e., creative works:
inventions, literary and
artistic works, and symbols,
names, images, and
designs used in commerce.
They give the creator the
right to prevent others from
making unauthorized use of
their property for a limited
period.
14October 14, 2017

Why IP is required ?
• To protect your Creativity / Invention
• To get an economic return on funding
invested in R & D
• To get a reward or recognition as it is the
fruit of your hard labour, effort and time
• To own your invention/creative works
• To create of an intellectual asset for
licensing or selling
• To deter others from using your
inventionOctober 14, 2017 15

What happens if you do not protect
your inventions?
• Somebody else might patent
them
• Competitors will take advantage
of your invention
• Possibilities to license, sell or
transfer technology will be
severely hindered
• Time, effort, labour will be lost
• Funders will be discouraged
October 14, 2017 16

Creator has Two Options
October 14, 2017 17

IPR
Industrial Property
Patent
Industrial Design
Trademark
Geographical Indications (GI)
Lay-out Design of Integrated Circuits
Undisclosed information, including trade secrets and test data
Artistic & Literary Property
Copyright
Sui generis System (“Latin Word means “of its own kind”)
Database
Integrated Circuit
Plant Breeders’ Right (PBR)
CLASSIFICATION OF IPR
October 14, 2017 18

Each type of protection and what it
protects
• Patents (utility/design) . . . protect . . . Inventions
• Trademarks . . . protect . . . Identifying Signs & Symbols
• Designs . . . protect . . . Ornamental Design of Product
• GIs . . . protect . . . Identifying place names with product
• Trade Secrets . . . protect . . . Confidential Information
• Copyrights . . . protect . . . Creative Expressions of Creators
• PBRs . . . protect . . . DUS plant variety
• IC layout designs . . . protect . . . Original design of IC
• Databases . . . protect . . . Uniqueness of database
October 14, 2017 19

Coca-Coal with Different IPR
John Pemberton, inventor
• Design
• Patent (Trade Secret)
• Trade Mark
• Copyright
October 14, 2017 20

Different IPR in iPhone7
Trade marks
Patent
Design
Copyright
Trade Secret ?
October 14, 2017 21

Basics of a Patent
What is a patent?
A patent is an exclusive right granted
by the State for an invention to the
inventor.
In return for the exclusive right
provided by a patent, the applicant
is required to disclose the
invention to the public by
providing a detailed, accurate
and complete written
description of the invention in
the patent application.
Protection + Disclosure
Patent is a bargain
between inventor &
the state
• Patent is a negative
right
• It gives its owner the
exclusive right
• Granted by the national
patent office Generally
for 20 years
• Territorial right
• There is no
international patent
• Both Product & Process
patent is allowed in India
• Unity of Invention (one
invention in one patent)
• First to File (FIF) System
October 14, 2017 23

Patent system
Patent Protection
to the inventor
Disclosure of the
invention to IPO
Patentee’s interest Public interest
October 14, 2017 24

Criteria to get a Patent
There are 3 criteria to get a patent
1. Invention has to be Novel
2. Invention has inventive steps
3. Invention must have industrial application
For patenting microorganisms , inventor
shall deposit biological materials to an
authorized depositary institution as notified
by the government.
October 14, 2017 25

Rights of a Patentee
To make, use, exercise, sell or distribute an
Invented Article or Process in India.
• Right can be shared , licensed or sold
• Right to initiate Legal Proceedings
against Infringement.
• The Invention can be commercially
exploited without fear of copying,imitation
or unauthorized use during Term of Patent.
October 14, 2017 26

Non-Patentable Inventions
• Frivolous inventions
• Inventions contrary to well established
natural laws
Contrary to
public order or
Morality
• Inventions related to atomic energy
Causes serious Prejudice to
 health or
 human, animal, plant life or
 to the environment
October 14, 2017 27

Contd...
• Mere Discovery of a Scientific
Principle or
• formulation of an Abstract Theory or
• discovery of any living thing or
• discovery of non–living substance
occurring in nature
• Patent on plant, animals & naturally
occurring microorganisms
• TK is not patentable
October 14, 2017 28

Contd...
• Any process for medicinal, surgical,
curative, prophylactic, diagnostic,
therapeutic or other treatment of
human beings or a similar treatment of
animals to render them free of disease
or to increase their economic value or
that of their products (notice plant is
omitted in recent amendment to comply
TRIPS)
October 14, 2017 29

Components of a Typical Patent Document
Bibliographic
Information
+
Text with Claims
+
Drawings
• Description of
Invention-Provisional
and Complete
Specification
• Claims have 2
perspectives
establishing-
Monopoly
+infringement
• Independent claim+
Dependent claims
October 14, 2017 30

Field of invention
Trespassers will be prosecuted
Alternative path
October 14, 2017 31

Field of invention
Trespassers will be prosecuted
Alternative path
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Royalty,
Licensing,
and
Agreements
IDEA
October 14, 2017 32

Stages - Filing To Grant of Patent
PUBLICATION OF APPLICATION
REQUEST FOR EXAMINATION
GRANT OF PATENT
3rd Party Representation
Revocation/Amendment
OPPOSITION
• PROMPTLY AFTER 18 MONTHS FROM P.D.
• WITHIN 48 MONTHS FROM F.D.
• ALL OBJECTIONS TO BE COMPLIED WITHIN 12
MONTHS
• IF P.S.IS FILED C.S. TO BE FILED WITHIN 12MONTHS
• WITHIN 12 MONTHS
FILING OF APPLICATION
PROVNL. / COMPLETE
Decision of
Controller
EXAMINATION-ISSUE OF FER
Appeal
Appellate Board 33October 14, 2017

Trademarks
October 14, 2017 35

What is a Trademark?
• A trademark is a sign capable of
distinguishing the goods or services of one
enterprise from those of other enterprises.
• Once acquired, a trade mark can last
indefinitely as long as you renew it every
10 years. Because a registered trade mark
is a form of IP, you can license or assign it
to others.
October 14, 2017 36

What TM can be registered ?
• A word or a combination of words, letters,
and numerals can perfectly constitute a
trademark. But trademarks may also
consist of drawings, symbols, three-
dimensional features such as the shape
and packaging of goods, non-visible signs
such as sounds or fragrances, or color
shades used as distinguishing features –
the possibilities are almost limitless.
October 14, 2017 37

Types of Trademark
TrademarkWord Mark
Collective
Mark
Certification
Mark
Service
Mark
Sound
Mark
Logo
3D Mark
Smell Mark
October 14, 2017 38

Functions of a Trade Mark
• Identify the source of Goods or Services
• Assures Consumers of Uniform Quality of
Goods /services
• Creates Goodwill and brand recall
• Differentiate your brand in the market
• It advertises the product
• It ensures genuineness of the product
October 14, 2017 39

• If your brand name is already in use,you
can apply for Trade Mark registration
indicating the earliest use date of your mark
in business
• The longer the period of use of trademark,
the stronger it is.
• Trademark Rights are Territorial
• You can obtain registration of your trademark in
India or in multiple countries through the system
of Madrid Protocol
October 14, 2017 41

What to avoid when selecting a TM
• Must not be Generic terms: CHAIR to sell chairs
• Must not be Descriptive terms: SWEET to sell
chocolates
 Must be graphically represented
 Must be distinctive / distinguishable
 Must not be deceptively similar to known /well-known
marks /Generics
• Marks Contrary To Public Order and Morality
• Avoid Using Flags, Official Hallmarks, Emblems Without Legal
Authorization
• Geographical Indications / Deities
• National Leaders / Heroes / Symbols / Laudatory wordsOctober 14, 2017 42

Trademark Registration Process in India
1. Classification of Product or Service – Total 45 Classes
2. Trademark Clearance Search
3. Trademark application preparation and filing
4. Examination report by Office
5. Respond to objections raised by office and filing of affidavit
6. Hearing before the Registrar of Trademarks
7. Order of Registrar refusing / allowing the trademark
8. Advertisement of the trademark in the trademark journal
9. 4 month window for anyone to file Trademark Opposition
10.If no opposition is filed – Trademark registered
11.Renewal of registered trademark to be done every 10
years.
October 14, 2017 43

What is an Industrial Design?
• An industrial design is that aspect of a
useful article which is ornamental or
aesthetic.
• It may consist of three-dimensional
features such as the shape or surface of
the article, or two- dimensional features
such as patterns, lines or color
October 14, 2017 45

• Industrial designs are applied to a wide variety of
products of industry or handicraft: from watches,
jewelry, fashion and other luxury items, to industrial
and medical implements;
• from house ware, furniture and electrical appliances
to vehicles and architectural structures; from practical
goods and textile designs to leisure items, such as
toys and pet accessories.
• Examples: shapes or forms of chairs, telephones,
cars, computers, airplanes, TV, watches, cameras,
etc
• Machines of different shapes and size can also
qualify for Industrial design Registration.
October 14, 2017 46

Look & Feel Appeal
•Does not protect any technical features of
the article to which it is applied to.
•Appeal to and judged by the Eye
•Shape or Configuration, Pattern,
•Ornament of
•composition of lines
•composition of colors
•2D or 3D
•Applied to any Article
October 14, 2017 47

PHARMA DESIGN
October 14, 2017 48

Contd…
• While Patents deal with how the Article
“works” (Functional Aspect)
• Designs deal with how the Article “looks”
(Aesthetic Aspect/Appealing to Eye)
• The Designs Act calls the right “copyright in
the Design” though copyright deals with the
“artistic work” in 2 –dimension; the Designs
act deals with such work in 3-dimension.
October 14, 2017 49

May Qualify for Design
October 14, 2017 50

May Not Qualify for Design
October 14, 2017 51

Glass staircases in Apple’s Shop-may
Qualify for both Patent & Design
October 14, 2017 52

TRAX-Airport Seating- may
Qualify for both Patent & Design
October 14, 2017 53

• Term – 10 Years+5 Years extension on
Renewal
• After 15 years it goes to public domain
• Any person/designer or of his assignee
can apply design
• Foreign application must file through an
agent residing in India
• Basic criteria to get a design:-
• New, original, not previously disclosed
and substantial novelty
Least Expensive & Fastest Grantable IP
In Design Registration Process no Opposition
Only Granting or CancellationOctober 14, 2017 54

Design Registration Process
• Priority Application (Form1)
• Application Filed (within 6 months)
• Examination (Formality check + Substantive Exam)
• Response to the objection raised
• Acceptance
• Certificate of Registration Issued (Total 6-9 months)
October 14, 2017 55

• E-filing of Patent,
Trademark and Design
October 14, 2017 56

58October 14, 2017
Hard Facts in Academia

5 Publishers Formed Coalition
October 14, 2017 59

Case Study: University of Delhi

Copyright & Monkey Selfie
Female Celebes crested
macaque
David Slater
October 14, 2017 69

Harry Potter & Saga of Cases
October 14, 2017 70

Harry Potter Vs Hari Puttar
October 14, 2017 71

Roger V. Koons (1992)
October 14, 2017 72

Ecce Homo Case
October 14, 2017 73

The Idea of Copyright
• Let’s go to 500 yrs
back……
-Johann Gutenberg in
Germany around 1440
Invented movable
printing press
-Introduced to England by
William Caxton in the
last quarter of the 15th
century
74October 14, 2017

Contd…
• 1550s, the
Stationers’
Company was
chartered by royal
decree, and
effectively controlled
the printing and
dissemination of
books throughout
England.
75October 14, 2017

Deposit Requirement
• Stationers agreed to
deposit a copy every
new book in Oxford
University Library
-Agreement signed with
Thomas Bodley in
1610
76October 14, 2017

Donaldson v. Beckett (1774) (98 Eng. Rep. 257) – Lord Camden:
“Knowledge has no value or use for the solitary owner; to be
enjoyed it must be communicated”
• Charter Lapsed in 1695
• England's Statute of
Anne (1710) is widely
regarded as the first
modern copyright law that
for the first time protected
the rights of authors
rather than publishers of
books.
• Term of copyright was
28 years [14 years + 14
years if the author was still
alive]
77October 14, 2017

Other Parts of the World
• In Germany author’s rights were
recognized by a Saxon Order dated Feb
27, 1686.
• In USA the first federal law on copyright,
the Copyright Law 1790 provided
protection to books, maps and charts.
• In France a copyright decree was adopted in
1791.
78October 14, 2017

History of Copyright in India
3 distinct phases>>>>
Phase I: 1847 Copyright Law East India Company
Phase II: 1914 Indian Copyright Act ( UK Copyright Act
,1911 as template)
Phase III: 1957 Indian Copyright Act (repealed Indian
Copyright Act of 1914)
Amended 6 times> 1983, 84, 92, 94, 99 & 2012
http://www.copyright.gov.in/
79October 14, 2017

October 14, 2017 80
3 Options before Creators of Literary and
Artistic Works

81October 14, 2017
Philosophical
• Philosophical
Legal
• Legal
Functional
• Functional
3 Aspects of Copyright

Philosophical Aspects
• Creativity
• Originality
• Idea/Expression Dichotomy
• Fixation
All copyright related cases, conflicts , disputes,
dilemma and litigations are resolved based on
its philosophical mission
October 14, 2017 82

Legal Aspects
• Indian Copyright Act, 1957
• Various International Copyright Agreements
 The Berne convention
 Rome convention
 The TRIPS agreement.
 Universal copyright convention.
 WIPO copyright treaty
 WIPO performances and phonogram treaty
 Digital Millennium Copyright Act (DMCA)
• Various case studies and its interpretations
• Copyright compliance and infringement
October 14, 2017 83

What is Copyright?
Copyright is a kind of Intellectual Property Rights (IPR).
Copyright is a right given by the law to creators (or his Assignee) of literary, dramatic, musical
and artistic works and producers of cinematograph films and sound recordings for a limited
period of time after that it goes into the public domain.
For copyright protection:
1. The work must be original.
2. The work must be fixed, or presented in a tangible form such as writing, film, or
photography.
3. Minimal Creativity ,creativity need only be extremely slight for the work to be eligible for
protection.
LET US DISCUSS THE FUNCTIONAL
ASPECTS… OF COPYRIGHT
84October 14, 2017

Copyright as Economic or Moral Right
Copyright
Economic Right Moral Right
licensed, assigned, Can not be transferred
or reserved
October 14, 2017 86

Contd...
Economic Right
1. Rights for reproduction,
2. Rights to publish
3. Rights for rental and lending
4. Rights for
modification/adaptation,
5. Right to translate,
6. Rights for distribution
7. Rights for public performance,
8. Rights for public display,
9. Rights of communication to the
public,
Moral Rights
• The Right of Paternity
• The Right of Integrity
• The Right of False
attribution
• The Right of Disclosure
• The Right of Publication
October 14, 2017 87

Few Facts of Copyright
• “It is the product of the labour, skill and capital of one
man which must not be appropriated by another.” (- per
Lord Atkinson, Macmillan v Cooper AIR 1924 PC 75)
• Copyright in form or expression, not in idea: “There is
nothing in the notion of copyright to prevent a second person
from producing an identical result...” (Gregory Committee
Report, 1952, para 9
• Copyrights are considered "territorial rights"
October 14, 2017 88

Few Important Terms
• Adaptation or
Derivative works
• Transformativeness
• Compilations
• Translations
• Assign
• simply means selling
out one’s copyrighted
work
• License
• A license simply
means renting one’s
copyrighted work
• Reserving the rights
October 14, 2017 89

Who is Author?
• In the case of a literary or dramatic work the
author, i.e., the person who creates the work.
• In the case of a musical work, the composer.
• In the case of a cinematograph film, the
producer.
• In the case of a sound recording, the producer.
• In the case of a photograph, the photographer.
• In the case of a computer generated work, the
person who causes the work to be created.
90October 14, 2017

Copyright for Sound Recordings
• Ordinarily the author is the
first owner of copyright in a
work.
• There are many right
holders in a musical sound
recording. For example, the
lyricist who wrote the
lyrics, the composer who
set the music, the singer
who sang the song, the
musician (s) who
performed the background
music, and the person or
company who produced the
sound recording.
October 14, 2017 91

Copyright for Movie
• The cine artiste who acts in
the film is not protected by
copyright law for his acting.
• A film is essentially a
collection of copyrights, i.e. a
screenplay, possibly based on
a book, music, directing
talent, actors’ performances,
as well as the contributions of
creative technical crew such
as costumers and set
designers.
October 14, 2017 92

Cinema in New Technology
• The growth of local film industries (in
volume and quality) around the
world and the new technologies that
allow films to reach global
audiences have made it more
important than ever that film
producers adhere to internationally
recognized standards for
copyright ownership and transfer.
Video-On-Demand (VOD)/Pay Per
View (PPV)/Download to Own
Ad-Supported, where the viewer
must watch advertisements as
“payment” for the film
Subscription, where a flat monthly
fee is paid for unlimited viewing of a
set of films
October 14, 2017 93

Core Copyright Industries( include newspapers, books and
periodicals, motion pictures, recorded music, music publishing, radio
and television broadcasting, and business and entertainment
software)
Partial Copyright Industries (include from fabric to jewelry to
furniture to toys and games. )
Distribution Copyright Industries (non-dedicated support
industries, includes industries that distribute both copyright and non-
copyright protected materials )
Copyright Related Industries (include manufacturers,
wholesalers and retailers of CD players, TV sets, VCRs, personal
computers and usage dependent products including blank recording
material and certain categories of storage mediums.
94October 14, 2017
Copyright Industries/Cultural Industries/Content
Industries

No. Acquisition of copyright is automatic and
it does not require any formality. Copyright
comes into existence as soon as a work is
created and no formality is required to be
completed for acquiring copyright. However,
certificate of registration of copyright and the
entries made therein serve as prima facie
evidence in a court of law with reference to
dispute relating to ownership of copyright.
IS IT NECESSARY TO REGISTER A WORK
TO CLAIM COPYRIGHT ?
95October 14, 2017

Is copyright assignable?
• Yes. The owner of the copyright in an
existing work or the prospective owner of
the copyright in a future work may assign
to any person the copyright either wholly
or partially and either generally or subject
to limitations and either for the whole term
of the copyright or any part thereof.
October 14, 2017 96

Contd...
What will be the period of assignment if not specifically
stated in the assignments?
• If the period of assignment is not stated, it shall be deemed
to be five years from the date of assignment.
What will be the territorial extent of the assignment if not
specified in the assignment?
• If the territorial extent of assignment of the rights is not
specified, it shall be presumed to extend within the whole of
India.
Can an author relinquish copyright and, if so, how?
• The author of a work may relinquish all or any of the rights
comprising the copyright in the work by giving notice in the
prescribed form to the Registrar of Copyrights.October 14, 2017 97

Can I myself file an application for
registration of copyright of a work directly?
• Yes. Any individual who
is an author or rights
owner or assignee or legal
heir can file application for
copyright of a work either
at the copyright office or
by post or by e-filing
facility from the copyright
Office web-site
"www.copyright.gov.in"
• e-filing for Copyright
Registration
October 14, 2017 98

Types of Work Application Republish
Literary, Dramatic,
Musical or Artistic
work
Rs. 500/- per
work
Rs. 5000/- per
work
Cinematograph Film Rs. 5000/- per
work
Rs. 15,000/- per
work
Sound Recording Rs. 2,000/-
per work
Rs. 10,000/- per
work
99
Copyright Registration Fees in India
October 14, 2017

Yes. Both published and unpublished works
can be registered.
When a work has been registered as
unpublished and subsequently it is
published, the applicant may apply for
changes in particulars entered in the Register
of Copyright in Form V with prescribed fee.
The process of registration and fee for
registration of copyright is same.
WHETHER UNPUBLISHED WORKS CAN BE
REGISTERED?
100October 14, 2017

Yes. Computer Software or programme can
be registered as a ‘literary work’. As per
Section 2 (o) of the Copyright Act, 1957
“literary work” includes computer
programmes, tables and compilations,
including computer databases. ‘Source
Code’ has also to be supplied along with the
application for registration of copyright for
software products.
WHETHER COMPUTER SOFTWARE OR
COMPUTER PROGRAMME CAN BE REGISTERED?
101October 14, 2017

2/3 Months
Submission for Registration
30 days mandatory time for waiting for objection (if any)
Next 30 days for removing In the Second month work may be
if any discrepancy found registered if no objection is found
In the third month work may be registered for copyright
HOW LONG I HAVE TO WAIT TO GET MY WORK
TO GET REGISTERED BY THE COPYRIGHT OFFICE?
102October 14, 2017

Terms of Copyright
• Literary
• dramatic,
• musical and
• artistic works
• photographs
• Lifetime + 60 years from the
beginning of the calendar year next following
the year in which the author dies.
Example: if Author dies in say 2nd
Nov, 1979. So, duration of
protection of 60 years period will
be from 1st Jan, 1980 to 31st Dec,
2040.
Also, in case of joint author, year
count for this process will depend
upon the author who dies last.
Example: Author X and Y are co-
author of a work. Author X dies on
4th April 1988 and Y dies on 26th
August 1991. So duration of
protection of sixty years period will
start from 1st Jan, 1992. 103October 14, 2017

• Anonymous and
pseudonymous works
• Posthumous work
• Cinematograph films
• Computer Programs
• Sound records
• Government work
• Public undertakings
• International
Agencies
• 60 Years
period is counted from the
date of first publication
• Period starts from the
beginning of next year,
following the year in which
film was first published.
104October 14, 2017
Contd...

Contd...
• Performer’s Right
• Broadcaster’s Right
• 25 Years
105October 14, 2017

Academia & Copyright
October 14, 2017 106

Stakeholders in Academia
• Authors
– Faculty
• Publishers
– Commercial, for-profit
– Academic or not-for-profit
• Universities
– Administrators
• Librarians
• Public
October 14, 2017 107

Concerns of Academia
Access to Information
Availability
Quality
Privacy
Simplicity & Clarity in Legal Regime
Impact of Technology on Knowledge Creation,
distribution & Consumption
Ease of reproduction
Ease of distribution
Ease of compression
Web specific issues like file sharing, cloud computing etc.
October 14, 2017 108

Inception of ICT has made the copyright
issues more complex and intricate
• Identifying the ownership
• Establishing the copyright
• Enforcing the copyrights
>>>>>>> has become too complex
October 14, 2017 109

Fair Dealings(Section 52 of Indian Copyright Act)
– for the purpose of research or private study,
– for criticism or review,
– for reporting current events,
– in connection with judicial proceeding,
– performance by an amateur club or society if the performance is
given to a non-paying audience,
– Any reproduction of copyrighted works in teaching –learning
process, making questions by teachers and answers by pupils
– Publication in newspapers or magazines a report of a lecture
delivered in public
– Making a maximum of 3 copies for the use of a public library
– Reproduction of unpublished work kept in a museum or library
for the purpose of study or research
October 14, 2017 110

What is Fair Use ?
111October 14, 2017

Determination of Fair Use
• Four Factor Analysis>>>
• P (Purpose)
• N (Nature)
• A (Amount)
• M (Marketing)
112October 14, 2017

Copying-Qualitative or Quantitative ?
Copying
113October 14, 2017

Can we upload our papers in any
site wherefrom any body can download?
• It depends on the publishing agreement
you signed, that specify the rights of the
authors and the rights of publishers.
• One should keep copies of the publishing
agreements for future reference.
• -Editor’s Version /Post-print Version---X
• -Author’s Version---X / √
• -Pre-Print-√
October 14, 2017 115

Plagiarism
• Plagiarism is the "wrongful appropriation"
and "stealing and publication" of
another author's "language, thoughts, ideas,
or expressions" and the representation of
them as one's own original work
• publication: the presentation of another
person's material, work, or idea.
• content: the presentation of another
person's material, work, or idea.
• appropriation: the presentation of another
person's material, work, or idea as one's
own.
• lack of credit given: the presentation of
another person's material, work, or idea as
his or her own
116October 14, 2017

Plagiarism Vs Copyright
Infringement
117October 14, 2017

Creative Commons (CC)
• It’s free, easy-to-use
copyright licenses provide a
simple, standardized way to
give the public permission
to share and use your
creative work — on
conditions of your choice.
CC licenses let one easily
change the copyright terms
from the default of “all
rights reserved” to “some
rights reserved.”
• Choose License
October 14, 2017 118

CC Licenses
119October 14, 2017
By Attribution CC BY Copy, distribute, display,
perform & derivative works-
commercial & non-commercial
Non-Commercial CC BY NC Same term but only for non-
commercial
No Derivative Works CC BY ND Only verbatim no derivative works
Share Alike CC BY SA Any derivative works must share
with similar terms i.e., Share Alike
Non-commercial -
Share Alike
CC BY NC SA Any derivative works must share
with similar terms for non-
commercial only
Non-commercial- No
derivatives
CC BY NC ND No commercial or derivative works
allowed

Public Domain
• Works in the public domain are
those whose intellectual property
rights have expired, have been
forfeited, or are inapplicable.
• Examples include the works of
Gurudev Rabindranath Tagore,
Shakespeare and Beethoven, most of
the early silent films, the formulae of
Newtonian physics, and the patents
on powered flight.
• In informal usage, the public
domain consists of works that are
publicly available
120October 14, 2017

Counterfeiting & Piracy
121October 14, 2017

Contd...
• ‘Counterfeiting’
(selling works made
to resemble a
genuine copy, as by
replicating the label,
the packaging, or the
recording itself
• ‘Piracy' refers to the
activity of
manufacturing
unauthorized copies
(‘pirate copies’) of
protected material
and dealing with such
copies by way of
distribution and sale.
122October 14, 2017

Technologically Protected
Digital Content
123October 14, 2017

Various Components of DRM
Content Provider Distributor
Consumer
Clearing House
Royalty
124October 14, 2017

Adobe Digital: a DRM System
October 14, 2017 125

Contd...
• Adobe Digital Editions (ADE) uses the
proprietary ADEPT (Adobe Digital
Experience Protection Technology) Digital
Rights Management scheme, which is also
implemented on some e-book readers,
including iPads and many Android devices
October 14, 2017 129

Digital Object Identifier (DOI)
• A digital object identifier is a unique number
that can be used to identify any type or
portion of content. DOI numbers perform for
long term (persistent) and locatable
(actionable) identification information for
specific content or elements of content. The
DOI system is managed by the International
DOI foundation (IDF) that was established in
1998.
131October 14, 2017

DOI Components
132October 14, 2017

Future of Digital Content
October 14, 2017 134

BitTorrent & Copyright
• BitTorrent is a
communication protocol for the
practice of peer-to-peer file
sharing that is used to distribute large
amounts of data over the Internet.
• Use of BitTorrent to procure
illegal materials could
potentially create liability for
end users as an accomplice.
• BitTorrent to upload your homemade
movie that you want to share with the
world, your use of BitTorrent is likely
legal. 135October 14, 2017

Ontogeny Recapitulates Phylogeny
October 14, 2017 136

Before you post in Facebook
October 14, 2017 137

File Sharing & Copyright
October 14, 2017 138

Before using YouTube
• YouTube strictly
maintains ‘fair use ‘
principle
• It also adheres to CC
licences
• Check Copyright
Protection in YouTube
139October 14, 2017

Copyright in Cloud
October 14, 2017 141

Who is owning the copyright ?
>Cloud operator or Copyright
Owner ?
The Same is applicable
for all Social media.
October 14, 2017 142

How to Determine Copyright Infringement
• There are 3 requirements:
That there was copying
Direct evidence
Access + probative similarity
Striking similarity
Common errors
The defendant created a copy
tangible
fixed
The copying was improper
Comprehensive copying
Fragmented Literal similarity
Substantial similarity
October 14, 2017 143

General Principles
(1) No copyright in an idea. Violation of
copyright confined to form, manner and
arrangement, as well as expression of
idea by the author
(2) Where same idea developed in different
manner, similarities happen. Court to
rule on whether similarities are merely
substantial or fundamental

General Principles (2)
(3)Safest Test: Does the reader/
spectator/viewer have the
opinion/get the unshakeable
impression that the second work is a
copy of the original? (“the viewer test”)
(4)Same theme, different presentation
→Completely new work, no infringement

General Principles (3)
(5) Where there are only incidental similarities,
there is no copyright infringement
(6) Copyright infringement = piracy
it must be clearly proven
(7) Very difficult to prove
violation of copyright of
stage play by a film
producer: the “viewer test” is applicable

Remedies
Remedies for
Copyright
Infringement
Civil Criminal

Civil Remedies
Civil
Remedies
Injunction Damages Accounts Costs

Criminal Remedies
Criminal
Remedies
Cognizable
Offences
Imprisonment
up to 3 years
Fine up to
200,000 INR

Criminal Remedies
• Copyright Act 1957, s.64 empowers the
Police (any officer not below the rank of
sub-inspector) to seize infringing copies
without warrant
• Police Raids (Power of search, seizure &
arrest without a warrant)
• Fines (min. 50,000-200,000 INR)
• Imprisonment (6 months to 3 years)

Thank you for your Patience
“Don't copy,
get inspired”
― The Great Pearl of Wisdom
October 14, 2017 151

Unveiling Intellectual Property Rights

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