IIT,IPR Seminar


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Capacity Building Programme on Geographical Indications & Design Registration for Textile Engineers organized by Rajiv Gandhi School of Intellectual Property Law IIT Kharagpur

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IIT,IPR Seminar

  1. 1. Capacity Building Programme onGeographical Indications & DesignRegistration for Textile Engineersorganized by Rajiv Gandhi School ofIntellectual Property Law IIT Kharagpur
  2. 2. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 2
  3. 3. 1. Reasons to Protect Copyright2. Characteristics of Copyright3. International Copyright Regime4. India and TRIPS5. Emerging Challenges6. Measure Taken by the Govt.7. Intellectual Property Exports8. Some Points to Remember to Avoid Common Problems9. Conclusion Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 3
  4. 4.  To give statutory expression to the moral and economic rights of creators in their creations and such rights of public in access to those creations To promote creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 4
  5. 5.  Statutory rights Limited in time Territorial In application Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 5
  6. 6.  Rights granted are essentially negative The right owner does not need the right in order to exploit a market for its goods or services The right gives no liberty to ignore the rights of other individuals ( including their intellectual property ) or to override public liabilities Does not confer on right owners products any privileged position in international trade Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 6
  7. 7.  Regulated by conventions/Treaties Principal Treaties  Berne Convention for the Protection of Literary and Artistic Works  Rome Convention  Universal Copyright Convention  WIPO- created in 1967 governs WCT and WPPT India is not yet party to these treaties TRIPS Agreement- outside the purview of the WIPO Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 7
  8. 8.  Ratified the WTO Agreement in December 1994 and thus became a party to the TRIPS Obliged to make its IP laws TRIPS compliant IP laws amended/new legislations enacted in certain areas Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 8
  9. 9.  Subsists in Expression Not in  Ideas  Procedure  Methods of operation  Mathematical concepts Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 9
  10. 10.  Writings, including scientific and technical texts and computer programmes Databases that are original due to the selection or arrangement of their contents Musical works Audiovisual works Works of fine arts, including drawings, paintings and photographs Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 10
  11. 11.  Contributionsof others who add value in the presentation of literary and artistic works to the public: performing artists, such as actors, dancers, singers and musicians; the producers of phonograms, including CDs; and broadcasting organizations Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 11
  12. 12.  TRIPS require compliance with the provisions of Berne Convention India is a party to the Berne Convention , (1885) since 1923 and also the Universal Copyright Convention, 1952 Law on copyright in India in accordance with the international standards as laid down in copyright conventions Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 12
  13. 13.  Copyright Act, 1957 is totally TRIPS compliant after the 1999 Amendment Accords protection to computer programs (since 1984) With the advancement of technology, Copyright laws in India have also been changing to keep pace with the times. The Copyright Act, 1957 was enacted and came into force on the 21st of January 1958. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 13
  14. 14.  In its Objects and Reasons the legislature recognized that "new and advanced means of communications like broadcasting, litho- photography, etc." call for certain amendments in the existing laws (Copyright Act, 1911). The legislature also commented that "adequate provisions have to be made for fulfillment of international obligations in the field of copyright which India must accept". It is in this year (1957) that cinematograph films derived separate copyrights apart from its various components, namely, story, music etc. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 14
  15. 15.  The Indian judiciary has also come forward to protect copyrights. The importance of copyright laws was aptly enunciated by Hon’ble Fazal Ali, J. of the Supreme Court of India in R.G.Anand Vs Delux Films. (1978) 4 SCC 118, The court held : “it seems to us that the fundamental idea of violation of copyright or imitation is the violation of the Eighth Commandment : "Thou shall not steal" which forms the moral basis of the protective provisions of The Copyright Act." Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 15
  16. 16.  The Supreme Court, recognised that copyrighted materials are prepared after expending a great deal of labour, energy, time and ability. If any other person is allowed to appropriate the labours of the copyrighted work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 16
  17. 17.  The laws have thereafter been subjected to certain changes. It was Amended in1984, which specifically addressed the issue of piracy. The Statement of Objects and Reasons to the amendment acknowledged piracy as a "global problem due to the rapid advances in technology". Besides addressing the loss in the form of royalties to the legitimate copyright owners, the legislature also realized the losses to the exchequer by way of tax evasion. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 17
  18. 18.  Commenting specifically on motion pictures and sound recordings, K Ramaswamy & G.B.Patnaik JJ, of the Supreme Court in State of Andhra Pradesh v Nagoti Venkataramana, while commenting upon the 1984 amendments in The Copyright Act held : "The object of amending The Copyright Act by Act amendment 65 of 1984 was to prevent piracy which became a global problem due to rapid advances in technology. The legislature intended to prevent piracy and punish the pirates protecting copyrights. The law, therefore, came to be amended introducing Section 52-A. Thereafter, the piracy of cinematograph films and of sound recordings etc. could be satisfactorily prevented. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 18
  19. 19.  Moreover, the object of the pirate is to make quick money and avoid payment of legitimate taxes and royalties. The uncertified films are being exhibited on a large scale. Mushrooming growth of video parlours has sprung up all over the country exhibiting such films recorded on video tapes by charging admission fee from the visitors. Therefore, apart from increasing the penalty of punishment under law it also provides the declaration on the offence of infringement and video films to display certain information on the recorded video films and containers thereof." Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 19
  20. 20.  Certain relevant portions from the Object and Reasons for the amendment are reproduced below : "….recorded music and video cassettes of films and TV programmes are reproduced, distributed and sold on a massive scale in many parts of the world without any remuneration to the authors, artistes, publishers and producers concerned. The emergence of new techniques of recordings, fixation and reproduction of audio programmes, combined with the advent of video technology have greatly helped the pirates. It is estimated that the losses to the film producers and other owners of copyright amount to several crores of rupees. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 20
  21. 21.  The loss to Government in terms of tax evasion also amounts to crores of rupees. In addition, because of the recent video boom in the country, there are reports that uncertified video films are being exhibited on a large scale. A large number of video parlours have also sprung up all over the country and they exhibit such films recorded on video tapes by charging admission fees from their clients. In view of these circumstances, it is proposed to amend the Copyright Act, 1957, suitably to combat effectively the piracy that is prevalent in the country" Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 21
  22. 22.  In its effort to address the above issues, by way of the amendments, the following changes were incorporated in the Act, namely . :-- ◦ i. the punishment provided for the infringement of the copyright was enhanced to a maximum of three years, with a minimum punishment of imprisonment of six months, and a fine upto to Rs. 2 lakhs, with a minimum of Rs. 50,000/-.; An enhanced punishment in the case of second and subsequent convictions was also provided for; ◦ ii. The provisions of the Act were now specifically made applicable to video films and compute programes; ◦ iii. The producers of records and video films were now under a statutory obligation to display certain information in the records, video films and containers thereof, which included the name of the copyright owner, year of first publication etc. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 22
  23. 23.  Copyright law, amended in June 1994, became effective on May 10, 1995 and established an entirely new potential for reducing piracy in India. The legislature further recognized that copyright law promotes the creation of literary, artistic, dramatic and musical works, cinematograph films and sound recordings by providing certain exclusive rights to their authors and creators Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 23
  24. 24.  It was felt that the present Act needs revamping on the following grounds : ◦ to extend more effective protection to owners of copyright and related rights in the context of technological developments affecting the reproduction of words by, inter alia, bringing within the scope of copyright the subsequent hire or sale of copies of cinematograph films, computer programmes and sound recordings. ◦ to further clarify the law in respect of cable, satellite and other means of simultaneous communication of works to more than one household or private place of residence, including the residential rooms of a hotel or a hostel. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 24
  25. 25.  Tomake provisions for licenses whereby the reproduction of works by reprographic equipment or by means of devices such as tape recorders and video cassette recorders, where such reproduction would not under the existing law be infringement of copyright, shall be subject to payment or remuneration to copyright owners by means of a levy on such equipment. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 25
  26. 26.  The law protects cinematograph films as a distinct work, giving the producer of the film the exclusive rights ◦ i. to make a copy of the film, including a photograph of any image forming part thereof; ◦ ii. to sell or give on hire, or offer for sale or hire, any copy of the film regardless of whether such copy has been sold or given on hire on earlier occasions; ◦ iii. to communicate the film to the public Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 26
  27. 27.  India, being a member of two of the major copyright conventions of the world (The Berne Convention and The Universal Copyright Convention), Indian works and works of Indian authors are accorded copyright protection in all major countries of the world. Likewise, foreign works and works of foreign authors are accorded the same protection as Indian works. In addition to the law bringing India newly into compliance with its substantive TRIPS obligations in the copyright area, the law provides for new minimum criminal penalties including a mandatory minimum jail term which, if implemented, will go far to controlling piracy. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 27
  28. 28.  The Cable Televisions Networks (Regulation) Act was enacted in 1995 to control the "cultural invasion" by transmittal of signals of foreign televisions. The statement of Objects and Reasons of the Act proceeds on the presumption that subscribers and cable operators are not aware of their rights, responsibilities and obligations in respect of exhibition of uncertified films and the protection of subscribers from anti-national broadcasts (It says so in so many words). Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 28
  29. 29.  Use of material protected by copyright also finds a mention. Under the Act, a procedure for registration of cable operators was provided for the first time. Running a cable network without registration now invites imprisonment and penalties. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 29
  30. 30.  The Act amended in the year 2000 to strengthen enforcement against piracy on cable networks. Additional “authorized officers” were empowered to supervise these networks. The 2000 Amendment for the first time recognized the fact that cable operators also require copyright licenses for exhibiting software on their networks and exhibition of any program without the express license of the copyright owner was for the first time made an offence under this legislation. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 30
  31. 31.  Copyright Act does not contain provisions to face the challenges posed by the Internet. In 1996, WIPO adopted Internet Treaties: WCT and WPPT India is not party to these treaties Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 31
  32. 32.  Copyright in Blogs Music Piracy- Napster, KAZA, Gnutella, to Grokster Copyright and open source license Software Piracy File sharing- Bulletin board system, orkut, face book etc. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 32
  33. 33.  The government has initiated some measures for better enforcement of copyright laws. A summary of some of these measures is given below : The Department of Education, Ministry of Human resource Development, Government of India has constituted a Copyright Enforcement Advisory Council (CEAC). Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 33
  34. 34.  TheCEAC is reconstituted from time to time to review periodically the progress of enforcement of the Copyright Act and to advise the government on measures for improving the enforcement. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 34
  35. 35.  Creation of separate cells in state police headquarters. States have also been advised to designate a nodal officer for copyright enforcement to facilitate easy interaction by copyright industry organizations and copyright owners. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 35
  36. 36.  Encouraging setting up of collective administration societies and organization of seminars and workshops to create greater awareness about copyright law among the enforcement personnel and the general public. For collective administration of copyright, copyright societies are set up for different classes of works. At present there are three registered copyright societies. These are the Society for Copyright Regulations of Indian Producers of Films & Television (SCRIPT) for cinematographic films, Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 36
  37. 37.  Indian Performing Rights Society Limited (IPRS) for musical works and Phonographic Performance Limited (PPL) for sound recordings. There is now an urgent need for all the constituent parts, i.e. the rights owners, the government, the enforcement agencies and the judiciary, to work jointly in eradicating the menace of piracy. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 37
  38. 38. Firstly, IP is an important consideration in some of the above points:  Pricing of the product will partly depend on the extent to which the trademark is recognized and valued by consumers, and the extent to which product will face competition from rival products  Adaptation of product / brand / design / packaging, will involve creative or inventive work that may be protected through the IP system Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 38
  39. 39.  In raising funds, patents, but also trademarks may be important for convincing investors, venture capitalists, etc. In agreements with local partners it will be important to clarify issues of ownership of IP rights, particularly if the product will be manufactured, packaged or modified abroad Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 39
  40. 40.  Marketing and advertising campaigns will rely strongly on the brand/trademark which if unprotected would be much more difficult to enforce The timing of participation in fairs may be affected by the timing of your applications for IP protection Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 40
  41. 41.  protecting IP in export markets may help a company to prevent others from imitating or copying the product (or parts of it) without authorization. IPprotection may enable a company to access new markets through licensing, franchising, joint ventures or other contractual agreements with other companies. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 41
  42. 42.  failure to consider IP issues may result in fatal losses if your products are considered to be infringing the rights of others Exporters often realize the importance of protecting their IP once it is too late: e.g. once they have missed the deadlines for application or once their product or brand has been copied. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 42
  43. 43. IP protection is territorial Example: if you have applied for and obtained patent protection for your innovative product in your own country, you will NOT benefit from similar protection in other countries unless you have also obtained protection in those countries. Exceptions:  Copyright and related rights: automatic protection in over 150 countries  Trade secrets: no formal registration. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 43
  44. 44. IP laws and procedures are not identical world- wide Example 1: trademark protection use vs. registration Example 2: first-to-file system for patents vs. first-to- invent system Example 3: software protection (copyright vs. patents) Example 4: designs or works of applied art (copyright vs. industrial design protection) Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 44
  45. 45. Ensure that your product does not infringe IP rights of others: analyze your “freedom to operate” Example 1: the same trademark may already exist in the export market Example 2: it is possible that a given technology is not patented in your country but is patented elsewhere Example 3: you may have a license to use a given technology in your own country, but you do not have the right to use it in an export market Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 45
  46. 46. There are regional and international protection systems that may be useful for saving time and money and simplifying procedures for applying for protection in various countries. International Systems: - Industrial Designs: The Hague System - Trademarks: The Madrid System - Patents: The Patent Cooperation Treaty or PCT Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 46
  47. 47. Clearly define issues pertaining to IP ownership with partners Example: If you are developing a new product with another enterprise, establishing a joint venture, or modifying the design, package or trademark of a product, ensure that it is clear (preferably in the written contract) who will be the owner of any IP generated. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 47
  48. 48. Early disclosure of your product without protection is risky Example: if you disclose your product to trade partners (e.g., export sales representatives) without a non-disclosure agreement or you publish your new product in a catalogue, brochure, etc. prior to applying for protection you may lose your invention or design to others or find you may no longer protect it. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 48
  49. 49. There are deadlines for applying for IP protection abroad Once you have applied for patent or design protection in your home country you have a limited period of time (called the “priority period”) to apply for the protection abroad. Once the priority period has lapsed, if you have not filed an application, it will be too late. Patents: 12 months Designs: 6 months Trademarks: 6 months* Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 49
  50. 50. Regional Systems (may also be used by applicants from outside the regions) - African Regional Industrial Property Office - Benelux Designs and Benelux Trademarks Offices - Eurasian Patent Office - European Patent Office - Office for the Harmonization of the Internal Market (TMs and IDs in EU) - Organisation Africaine de la Propriété Intellectuelle - Patent Office of the Cooperation Council for the Arab States of the Gulf Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 50
  51. 51. A country’s policy on parallel importing may affect a company’s export and pricing strategy Parallel importing relates to whether a product bought by another company may be introduced into a different country (where its IP is protected) without the authorization of the right holder. This may, for example, affect a company’s pricing strategy in foreign markets. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 51
  52. 52. Prior to launching a product under a given trademark, it is important to check whether the trademark has undesirable connotations and/or whether an application for its registration as a trademark may be rejected in that country. Examples: Ford NOVA, in Spanish means “does not go or work”; PAJERO literally means “straw dealer” Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 52
  53. 53. To license IP in a foreign market, the IP needs to be first protected in that market Companies seeking to license the manufacturing of their product in a number of markets, should ensure that their IP is protected and is not in the public domain in those markets (e.g. protection has been obtained and has not expired) Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 53
  54. 54.  Balancing of interest of various stake holders  Right holders and fair use India’s greatest potential lies in its copyright related industries. India is the largest film-producing nation in the world. It has given the world the largest number of computer software engineers and its music is enjoyed all over, in particular in South and South East Asia. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 54
  55. 55.  It has a considerable level of production and export of textiles It has a potential to export the Intellectual Properties It has a vibrant publishing industry with publications in over 26 official languages. All these industries crave protection of the laws. If these laws and their enforcement are strengthened, it is only India which will benefit. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 55
  56. 56. Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 57