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INTELLECTUAL PROPERTY RIGHTS IN A BIRD’S EYEVIEW
By:Shri Kaushal Singh
Total views:6094

INTELLECTUAL PROPERTY RIGHTS IN A BIRD’S EYEVIEW


Increasing global competition,Vanishing geographical barriers to trade,Emergence of rapidly changing technologies ,Shortening of product life cycle necessitating quick introduction of new products ,Need for human resources with a high level of skills.and need to make high investment on r&d, production, marketing etc. have compelled to realize the importance of intellectual property rights .

Indian academics, industries and policy makers have shown keen interest and taken pro-active steps in establishing a sound foundation of intellectual property rights (IPR). The changes have been visible in the country for the last 10 years. The recent interest started with curiosity, and an element of apprehension in 1995, but has now graduated to a need-based compulsion and a desire to understand the nuances of IPR so that, as a nation, we position ourselves in the competitive world that has emerged after the formation of the World Trade Organisation (WTO) and the introduction of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). With the opening up of trade in goods and services, IPRs have become more susceptible to infringement without adequate return to the creators of knowledge. There has been a quantum jump in R&D costs with an associated jump in investment required for putting a new technology in the market place. The stakes of the developers of technology have become very high and hence the need to protect the knowledge from unlawful use has become expedient, at least for a period that would ensure recovery of the R&D and other associated costs and yield adequate profits for continuous investments in R&D. Globalization, multilateral trade and the new economic order are continuously reducing the geographical barriers to trade rendering the global trade very complex. IPRs have become important parameters influencing trade, and the transfer and exploitation of technology. As generation of intellectual property is closely linked to innovations, there is now competition in innovation. In other words, each player in a given field would try to outpace and overtake its competitors by introducing new products through new innovations. Therefore, one expects that a large number of IP rights would be generated and protected all over the world including India.

 

Human beings, and even animals, have a tendency to protect and possess a physical thing they have. Thus, a child will not part with her toys, a person with his property and a dog with the dog-bone. Similarly, most people will not like the idea of some one copying their writings, designs or products made by them with out their permission or with out an acknowledgement By not having a system in place to formally protect the intellectually created work of an individual, a society would strike at the root of ingenuity and innovation of its own people. Society is always in need of new ideas, products, processes, designs, recipes and so on to improve the quality of life, have better health for its people, and have a trade advantage. Trade and commerce have emerged to be the major deterministic factor for achieving the above goals. Pressures of globalisation or internationalisation were not intense during 1950s to 1980s, and many countries, including India, were able to manage without practising a strong system of intellectual property rights. Globalisation, driven by chemical, pharmaceutical, electronic and IT industries has resulted into large investment in R&D. This process is characterized by shortening of product cycle time and high risk of reverse engineering by competitors. Industries came to realize that trade secrets were not adequate to guard a technology. It was difficult to reap the benefits of innovations unless uniform laws and rules of patents, trademarks, copyright etc. existed. That is how intellectual property rights became an important constituent of the World Trade Organization.

 

Patents began as instruments for attracting and introducing new products, technologies and techniques in European countries. If you look at the old patents granted by some of the countries you will find that they were just a replication of the technologies available elsewhere. Artisans were invited from one country to the other and given special rights, amongst them being the exclusive right to exploit the technology. The laws and administrative procedures relating to intellectual property rights have their roots in Europe. The trend of granting patents started in the fourteenth century. In comparison to other European countries, in some matters England was technologically advanced and used to attract artisans from elsewhere, on special terms. Once such persons decided to come and settle, they would need to employ the locals who would get trained over time in the relevant trade and craft; such trained locals were however, likely to become competitors to the knowledge holder and consequently a threat to the monopoly. Therefore, protection was given to the immigrant to have a monopoly for a few years, to enable him to exploit the economic returns of his art, special expertise, or technological innovation. It is interesting to note

 

that the original period of protection of 14 years for a patent was not without reason. Seven years was the term of service of an apprentice, so the protection for fourteen years meant protection for two generations of apprentices, and this period continued until recently, even when the concept of seven years apprenticeship was no longer valid. As early as 1332, the Venetian Grand Council had established a privilege fund for providing loans and other rewards to a foreign constructor of windmills who offered to bring knowledge of this art to the city. In 1416 the Council awarded to Fransciscus Petri, from the Island of Rhodes, a patent for a superior device for filling (shrinking and thickening) of fabrics; giving exclusive rights for 50 years to Petri and his heirs to build, alter and reconstruct the apparatus.

 

In this period of introducing new art and technologies, thought slowly started taking root, on the question of disclosing secrets of the art or craft or technologies. It really did not matter whether the inventor was from the same land or from a foreign country. When in 1421, the Florentine commune awarded a patent to Brunelleschi for a new design of ship, he claimed that the ship could haul loads more cheaply on the Arno River; the nature of bargain for disclosure was spelled out candidly in Bruelleschi’s petition “He refuses to make such machine available to the public in order that the fruit of his genius and skill may not be reaped by another with out his will and consent, and that, if he enjoyed some prerogative concerning this, he would open up what he is hiding and would disclose it to all.”

 

The rights of literary works involving published works were not protected until the advent of printing machines, which made copying of literary works much easier. Otherwise some one would have to write the complete manuscript for making a copy which, from the commercial angle, was not profitable. From the beginning, copyright laws have been driven more by the economics of publication than by the economics of authorship. The first known copyrights appeared in Italy. The craft of printing was introduced in Rome and Venice by the end of 1460s. A number of privileges were allowed by Venice in terms of import of franchise, exclusive licenses to print or sell an entire class of books, prohibition of import of books printed abroad and patents for the improvement of printing and typography. As the focus was on printing books in public domain (such as the Bible), the rights of authorship were not considered important. The first franchise for printing was taken from a German printer Johann von Speyer. In 1493 the Venetian Cabinet gave Daniele Barbaro an exclusive 10-year grant of proprietary rights for the publication of a book authored by his deceased

 

brother. Such cases were very few and copyrights were by and large issued to the publishers for works written by others. This is an interesting aspect of copyrights. In the last few centuries, the emphasis of ownership has shifted from that of publisher to creator / author of the work. With the advent of digital technologies and new forms of works being created, especially for internet purposes, publishers’ stakes seem to be increasing each day as the quality of replication and ease of replication have become extremely simple. The publisher lobby is therefore seeking new treaties such as the Data Protection Treaty, for protecting their investments. The interest of publishers may get overriding priority as technological inputs required in the publishing business have become expensive, and it has become easier to copy and reproduce literary works with as almost the same quality as the original works and that too at a much lower cost. Venice can be considered the cradle of intellectual property system as most legal thinking in this area was done here; laws and systems were made here for the first time in the world, and other countries followed. Scholars feel that the first general copyright law in the world came in the form of a decree issued by the Venice Council around 1545, which prohibited the printing of any work with out the permission of the author. No steps were apparently taken to maintain a register for the copyrighted works. Similar laws also came into being in other European countries. Each country introduced an element of censorship to exclude from publication, material that was considered unacceptable by the society. It is also important to realize that the laws were applicable to printing and publishing of material generated within the country. There were practically no laws which prohibited publishing and printing of books, pamphlets etc. which were imported into the country. Obviously, the element of international obligation seen now, was missing. The character of IP management in countries has undergone a metamorphosis ever since borders and barriers to global trade and commerce started becoming less rigid. The spirit of fair competition has really driven the IP management systems followed in different countries to minimize unlawful copying, counterfeiting and plagiarism and so on.

 

The Indian picture

 

Patent laws were first promulgated in India in 1856, a year before her first war of independence in 1857. These laws were modified from time to time, and more stable patent and design laws were enacted in 1911. At that time the patent laws were the same as followed in England, and therefore were at par with the laws of most advanced countries. These laws were

 

revisited after India got her independence in 1947 and it was decided that the laws required some changes in order to meet the social and economic needs of the country, with a large population of poor people who did not have easy access to medicines and other advancements of science. At the same time, the desire to be self-reliant in many areas of technology led to serious efforts towards nurturing science and technology in India. The patent laws were revised and the Patent Act, 1970 was enacted, which did not allow patenting of substances emanating as a result of chemical reactions. Product patents were allowed except in respect of drugs, chemicals and food items. However, process patents are granted for drugs, food items and chemicals. In the post independence period, laws on copyrights and trademarks were enacted. The Design Act of 1911 was allowed to continue. On the trade secret front, the Contract Act of 1872 was utilized to avoid unlawful use of secret information, this was modified in 1932; the same laws still continue.

 

In spite of the fact that such laws were in place, most of the scientific community and the Indian industry were not aware of, or were not conversant with, the fundamentals of intellectual property rights and their management. Several institutions of higher learning such as the Indian Institutes of Technology were set up in the late fifties and the early sixties, with the help of advanced countries like USA. Somehow, none of these institutions made the students at the under-graduate, graduate or the post-graduate levels, familiar with the principles for protecting intellectual property rights. With the signing of the WTO Agreement as also other agreements such as TRIPS, India has taken several steps towards bringing about a paradigm shift in the understanding about IPR, including the development of some new legislation in respect of different forms of IPR.

 

Almost eighty percent of the R&D spending in India is by the government. A large portion of this investment is utilized for dedicated needs of energy, defence and space research, which research is focused, and for an identified market. Emphasis on self reliance was perhaps over dominating, resulting into research moving away from the market needs, and consequently extra mural and in house R&D of research institutions and universities did not lead to marketable products and processes. Industry in any case was not too eager to spend on R&D except to the extent of cashing in on the benefits given by the government for promotion of R&D. As was the case in many other countries, it was the practice in India that in all government funded projects, the ownership of the developed products or process resided with the government, and the government also retained the

 

right to transfer such technologies. One of the arguments was that it was not fair for one institution or few individuals (inventors) to enjoy the fruits of R&D results as the taxpayers' money had been utilized to arrive at the results. If benefits came to the government, there would be more equitable distribution of the benefits. Further, the interpretation of government's financial rules did not find any special place for assets generated through R&D, namely the intellectual property - there was very little understanding about the fundamentals of IPR and their management with awareness on this subject being practically zero. With the coming on of WTO, it was soon understood that scientific inventions would play a very important role in a knowledge society, and environment and circumstances should be created, conducive for enhancing the number of scientific inventions leading to generation of IPR. Unless institutions capable of generating new knowledge and scientists are adequately motivated, no society could expect to lead in its IP portfolio.

 

In this back drop injecting a new paradigm is not an easy task, as most people to start with, get engaged in the debate on relative advantages and disadvantages of public good and private property with out realizing that a property duly owned can be used for public good if the owner so desires.



     
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