Discuss the rationale behind the concept of intellectual property. What are the underlying premises of the global IP regime?
Introduction :
The concept of intellectual
property (IP) will be understood better if we understand what is meant by the
term property. To a lay mind, property means some material object belonging to
a particular person. The concept of ownership is critical to the concept of
property. Ownership means the right to possess, use and dispose of the property
and at the desire of the owner, to exclude the others.
The rationale
behind the concept of intellectual property.
Discuss the rationale behind the
concept of intellectual property. What are the underlying premises of the
global IP regime?. However, a material
object under one’s possession may not amount to much as property if it does not
become a resource to satisfy some human want or need. By exertion of his
intellect, either in the form of ideas or technology, man converts a natural
resource into something of utility, making it an item of property. Two factors
significantly influence the value of an object as property.
The first is scarcity, which refers
to its availability in relation to the need. The scarcer is a thing in relation
to the demand for it, the higher is its value. The second important factor
influencing the value of an object is the knowledge of its use or uses. The
higher the value of an object, the more zealously it is guarded as a property.
The property can relate to a
tangible thing e.g. land or buildings, or to an intangible thing e.g. a
copyright. In the former case they are referred to as corporeal property, in
the latter case they are known as incorporeal property.
IP is a dynamic area. As science
and technology make rapid advances, and as competition for markets becomes ever
more fierce, human ingenuity is throwing up ever new ideas and newer products.
Different types of IP rights like patent, copyright, trade mark, design etc can
protect these ideas and products.
Discuss the rationale
behind the concept of intellectual property. What are the underlying premises
of the global IP regime?.
The global IP regime
IP has been generally divided into
two main categories viz., (a) Industrial Property, (b) Copyright. Industrial
property consists of rights relating to inventions, trade marks, industrial
designs and appellation of origin. Copyright protects rights related to
creation of human mind in the fields of literature, music, art and audio-visual
works.
The owner of copyright has rights
not only in the original work, but also in creative work that is derived from
the original work, e.g. its translation or adaptation or the enactment or
production of a film based on the original work. Such rights relating to a
copyright are called related rights. There are neighbouring rights on
copyright, which protect performances of performing artists, phonograms and
broadcasts. Related rights and neighbouring rights are terms used
interchangeably.
The TRIPS Agreement of the WTO
recognises seven types of intellectual property rights (IPRs):
i) Copyright and Related Rights;
ii) Trade marks, Trade names and
Service marks;
iii) Geographical Indications;
iv) Industrial Designs;
v) Patents;
vi) Layout Designs of Integrated
Circuits; and
vii) Undisclosed Information
Discuss the rationale
behind the concept of intellectual property. What are the underlying premises
of the global IP regime?.
Copyright is granted in respect of original
literary, musical, artistic or audio-visual works – the creations of authors,
playwrights, composers, artists and filmmakers. The rights under copyright
include: rights of reproduction, communication to the public, adaptation and
translation of work. Copyright is now spoken together with the related or
neighbouring rights as one category.
Any other person can come up with a differently written story
on the same idea and have a valid claim for a copyright over it. If a painter
has a copyright in a painting, which depicts sunrise, no one else can legally
copy that painting without his permission. However, there is no copyright in
the idea of sunrise and anybody is free to paint sunrise as per his or her own
imagination, and everyone will be entitled to copyright in one’s own creation.
Trade marks and service marks are distinctive symbols that
help the consumer to distinguish between competing goods or services and are a
major part of the goodwill a company enjoys in the trade. A trade name is the
name of an enterprise, which also individualises the enterprise in the minds of
the customers. They are therefore protected as IP.
Thus a trade mark is a
sign that individualises the goods of a given enterprise and distinguishes them
from the goods of its competitors. You may be quite familiar with the
distinctive marks of Pepsi-Cola and Coca-Cola Companies. Similarly in passenger
cars a characteristic star enclosed in a circle, or a characteristic treelike
T, enclosed in an ellipse, displayed in the front and the rear of a vehicle
immediately proclaims that the first vehicle is from the Mercedes and the
second one is from the Tatas stable.
A trade mark is required to be distinctive and not deceptive.
If you market goods of fake leather under the trade mark ‘Realeather’ you will
be taken in by a deceptive trademark.
Conclusion :
The IPRs, as their exercise has evolved in practice, can
secure for the owner a broad range of advantages depending on the national law.
For example, IPRs can effectively block imports or exports of relevant goods,
or they can be used to divide markets, or restrict movement of goods produced
by an enterprise from one territory to another.
To fully comprehend the consequences of a national
legislation in matters of IPR, it is important to grasp the rationale behind
the law. The chain of production to distribution of goods involves the
following major steps: manufacture; first sale by the manufacturer; subsequent
sales; exports/imports; use; and other dealings. The State has to decide where
it should intervene to grant exclusive rights to the owner to ensure just
reward for creative activity and best techno-economic returns for the state and
the society.
Discuss the rationale behind the concept of intellectual
property. What are the underlying premises of the global IP regime?
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