IIT,IPR Seminar

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

Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 2

1. Reasons to Protect Copyright
2. Characteristics of Copyright
3. International Copyright Regime
4. India and TRIPS
5. Emerging Challenges
6. Measure Taken by the Govt.
7. Intellectual Property Exports
8. Some Points to Remember to
Avoid Common Problems
9. Conclusion



 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


 Statutory rights
 Limited in time
 Territorial In application


 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


 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


 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


 Subsists in Expression
 Not in
 Ideas
 Procedure
 Methods of operation
 Mathematical concepts


 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


 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


 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


 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.


 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.


 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."


 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.


 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.

 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.


 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."

 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.


 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"


 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.


 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


 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.


 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.


 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


 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.

 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).


 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.


 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.


 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


 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.


 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).


 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.


 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.


 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,


 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.


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


 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


 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


 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.


 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.


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.


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)


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


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


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.


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.


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*


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


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.


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”


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)


 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.


 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.


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