eChapters

I. INTRODUCTION & OVERVIEW

Intellectual property rights may be defined as the legal relationships that arise out of an individual’s creative gifts and the communication to society of his or her intellectual creations. Intellectual property is challenging as well as rapidly widening horizon of law. The purpose of law is to encourage and reward creativity and intellectual effort. The prominence of this branch of law in India is partly due to India’s economic structure and its geographical position in the world. Many international companies operate in India either directly or through licensees or agents. Numerous goods, services, and technological developments have overseas origins. Foreign companies often control their interests through contract but they invariably do so by means of copyright law, obtaining of patents or by registration of trade-marks and designs. It follows that in particular circumstances intellectual property remedies are most convenient method of maintaining control, or at least a useful adjunct to other remedies based on contract. Another important factor is the upsurge in “piracy” that is occurring not only in India but also in almost every other part of the world. Piracy may originate outside India, or, it may also originate in lndia. While devising legal apparatus for the welfare and protection of creative people, we must not lose sight of the public interest in the greatest measure of access to information and culture. Intellectual property rights are significant wealth- creating assets and their protection and commercialization are of increasing economic significance. In past the value of such rights was often overlooked and it is only in recent years that the economic potential of intellectual property has started receiving greater recognition. The dawn of the third millennium which has led to the emergence of knowledge capitalism with emphasis on intangible assets such as knowledge, competencies and intellectual property is a defining movement in the history of mankind. It is a defining moment in the history of mankind because the historical forces set in motion by the digital revolution has spawned a new civilization characterized by path breaking inventions and technological innovations and the opening up of the electronic frontier. It is an age of digital renaissance which combines the marvels of the Age of Discovery and the excellence of medieval Renaissance rolled into one. As a result of the information technology revolution there is a transition from industrial society to information society. Convergence of computer networks and communication technologies facilitated by the digital revolution has given birth to Cyberspace which in turn has ushered in knowledge economy. Hence, the intellectual property law faces challenges. In this background the concept, nature and development of intellectual property rights are proposed to be examined. The paper will be divided into V more parts. Part II of the paper will outline the meaning concept of intellectual property and range of subject matter protected by law, part III will examine the jurisprudential justifications of intellectual property protection, part-IV will explore the evolution and development of intellectual property rights under international law, part-V will demonstrate the evolution and development of intellectual property rights under Indian law. And part-VI will conclude the subject.

I. ROLE OF INTELLECTUAL PROPERTY

The international community has set itself the target of reducing the proportion of people below poverty line to half by 2015, along with associated specific targets for improving health and education and environmental sustainability. The Millennium Development Goals, adopted at various international fora, recognize the crucial importance of reducing poverty and hunger, improving health and education, and ensuring environmental sustainability. It is important to know whether and how intellectual property rights (IPRs) could play a role in helping the world meet these targets — in particular by reducing poverty, helping to combat diseases, enhancing access to education and contributing to sustainable development, protecting our cultural heritage, safeguarding the food security for the country. It is also necessary to deliberate whether and how they create obstacles to meeting those targets and, if so, how those obstacles can be removed.

There are strong views from both sides on the protection and enforcement of IPRs though there is no data to check these views objectively. Some argue strongly that IPRs are necessary to stimulate economic growth, which in turn, helps in poverty reduction. By stimulating invention and new technologies, IPRs help to increase agricultural or industrial production, promote domestic and foreign investment, facilitate technology transfer and improve the availability of medicines necessary to combat diseases. They are also of the view that there is no reason why a system that has worked for developed countries would not work for developing countries. Others argue equally vehemently the opposite. IPRs do little to stimulate invention in developing countries, because the necessary human and technical capacity may be absent there. In assessing these opposing arguments, it is important to remember the technological disparity between developed and developing countries as a group. What role the intellectual property can play to plug this gap is a serious subject for every developing nation? For this, it is also pertinent to know about the IPRs, the challenges they pose to the legal system in general and to the Indian legal system in particular, and their basic rationale to take a considered approach in their implementation.

I. PUBLIC POLICY CONCERNS

The working of the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) Agreement, 1995 along with World Intellectual Property Organization (WIPO) and the jurisprudence developed for the last twenty years is a testimony to the fact that although TRIPS is geared to promote the protection of intellectual property rights internationally, yet some controversial public policy issues need to be addressed and solutions devised for addressing these public policy issues otherwise there is a possibility of seeing the demise of TRIPS Agreement or sidetracking it by some other methods which may not be conducive for maximizing the welfare of the international trading community. As all of us know that intellectual property and international trade are mutually inclusive and the minimum standards set forth in the TRIPS Agreement are economically value oriented. The trade offs among and between the members of the WTO need to be balanced on an even keel, otherwise the possibility of camaflouging the TRIPS Agreement and the attendant jurisprudence becomes real. The TRIPS Agreement addresses seven categories of IP rights such as; Copyright and related rights; Patents; Trademarks and Service marks; Geographical Indications; Undisclosed Information or Trade Secrets; Industrial Designs ; and Layout Designs of Integrated Circuits and read with other WIPO Treaties obligates the members of the World Trade Organization (WTO) to reduce distortions and impediments to international trade by taking into account the effective and adequate protection of intellectual property rights as well as the procedures for the enforcement should not become barriers to international trade. The TRIPS Agreement also recognizes the need to cater to the special needs of the developing and least developed countries.