India has evolved as a robust financial market and there now exists a comprehensive IPR regime here. It may be credited for considerable economic development. For understanding, IP rights are a set of private rights through which corporations and individuals gain comprehensive control over intangible creations where certain limitations define rights. India, member of WTO, made sweeping changes in its IP law to meet standards of TRIPS within reasonable limits.

Under its patent regime, India has developed cost-effective processes for life-saving drugs. This not only benefits India, but numerous third-world countries. Research and innovation leads to technical prowess which in turn has improved the affordability. The industry has now transformed into a net foreign exchange earner. Author believes that Trademark has transformed the attitude of companies towards their “Brands”. Instead of a lackadaisical approach, anyone with trademark, now seeks to create a brand to capture imagination and draw consumers. The companies have now started investing heavily in protecting their Trademarks and prevent counterfeiting. In India, since sales of these goods occurs in informal markets, it often fails to generate income tax and corporate income. This not only negatively effects consumers but growth of the Indian economy too. Hence, it becomes all the more important to prevent illegal copying, counterfeiting and generate growth. With respect to Copyrights, publishing industry and media industry engage the most with this concept and contribute considerably towards the economic growth. Also, GI is one such type of IPR which has safeguarded the livelihoods of hundreds of indigenous and traditional communities in India. Since the ‘knowledge’ remains in community, there is no monopolistic control. Feni, an alcohol produced by locals in Goa has this tag and ensures their income which the author thinks is excellent.

It is now evident that IPR regime has been a blessing for start-ups and MSMEs as an IP creates excellent value, acts as a USP, rewards creativity and risk-taking among entrepreneurs. Companies like Flipkart, Oyo, Zomato etc. were once start-ups who successfully took advantage of regime. Furthermore, by strengthening the IPR regime, the country has attracted inflows of technology through channels like FDI within multinational enterprises, contractual licensing and trade in goods.

Tangible assets such as land, labour and capital were once considered the only yardsticks to showcase economic health. The author is of the opinion that this is no longer the unique case. Instead, knowledge-based assets part of IPR are now the front-runners that create wealth in almost all industries in India.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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Moral Right is the right of the author to protect the ownership and integrity of its creative work against any perpetrator who would try to modify, distort, mutilate, his or her work in such a way which would be prejudicial to the author’s honour or reputation.

Moral Rights have legal recognition under Article 6bis of the Berne Convention and Section 57 of The Copyright Act, 1957. As per Article 6bis “rights granted to the author …shall, after his death, be maintained, at least until the expiry of the economic rights…”. Many countries such as China provide an unlimited term for Moral Rights. The Copyright Act, 1957 does not shed light on the duration of validity of Moral Rights. None of the provisions make it clear if Moral Rights can exist independent of the copyright term itself. However, the general belief is that Moral Rights expire as soon as copyright in a creative work ceases to exist.

Many, including myself, consider Moral Rights as a Natural Right. The reason is that it has all the characteristics of Natural Rights. Moral Right of an author is as much a Natural Right as a Legal Right. One of the key features of Natural Rights is that these rights are inalienable by human society and government – they cannot be repealed by human laws, though such laws can have the consequence that one can be made to forfeit their enjoyment. The very idea of expiration of Moral Rights goes against this important feature of Natural Rights.

Unlimited term for Moral Rights does not prevent the creative work to come in the public domain for free use after the expiry of the copyright period. It only helps the legal representative of the author to take appropriate actions against any perpetrator whose action would be detrimental to the reputation of the author and its work. These rights are not dependent upon any legal validation, and clearly not dependent upon the copyright protection per se. Moral Rights, being a Natural Right, pertain to the integrity of the author. They should subsist beyond the copyright term to protect the legacy and natural rights of the author. 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The European Commission released a Report on the protection and enforcement of intellectual property rights in third countries in April 2021. The Report deals with the problem of enforcement of IPR in third world countries like India.

According to the  Report, there are various practical challenges before IP protection and enforcement in India, such as forced technology transfer, procedural deficiencies, etc. Out of all these problems, counterfeiting has emerged as the major one. India has been identified as one of the top five producers of counterfeit products. Another area of concern is the effectiveness of the system for protecting undisclosed test and data, continued large backlog of older trademark applications, and lack of a statute that would specifically address the protection of trade secrets, etc.

As per the classification, India has been listed as a priority 2 country because of its systemic problems in the area of IP protection and enforcement causing significant harm to EU businesses. The main problems with IPR enforcement are linked to the lack of political will or resources. This materializes in deficiencies in technical infrastructure, capacities, and expertise of the judicial and enforcement authorities. Non-deterrent sanctions against IPR infringements as well as insufficient awareness of IPR are also considered as the major problems in India. However, despite all these problems India is ranked better than its closest contender China due to its origin of a dominant share of counterfeit and pirated goods arriving in the EU, in terms of both value and volume.

The  Report along with highlighting hindrances also mentions measures for improvement that India and other third countries took in the field of IPR. The report discusses the recent accession of third countries in the Locarno Agreement on the classification of industrial designs and the Vienna Agreement concerning figurative elements of marks. It also applauded the efforts of governments to continue its focus on administrative improvements, awareness, and capacity building to improve the efficiency of its IPR system. The Report further examined the various initiatives taken by the government of third countries like modernized processes to grant patents, E-filing and online search facilities, voluntary registration of copyrights, etc.

Finally, the Report highlights the EU’s policy of IP enforcement and elucidates various initiatives like EU-India Dialogue on IPR, IPR SME Helpdesk that are collectively taken by EU and third countries to promote IP friendly environment. 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Office of the Registrar of Copyrights, in October 2020, invited industry inputs from the Federation of Indian Chambers of Commerce and Industry (FICCI) regarding proposed amendments to the Indian Copyright Act, 1957 (Act). On the 30th December 2020, FICCI released a document providing comments on certain provisions of the Act that need to be amended and recommendations on provisions that are required to be included in the existing Act.

FICCI pointed out that at present there is ambiguity surrounding ownership of the work developed with the help of Artificial Intelligence (AI) and the same should be addressed. Further, FICCI asked the government to come up with a clarificatory amendment to Section 2(d) of the Act [which defines ‘Author’] to resolve the ambiguity related to the concept of ‘authorship’ in terms of work generated with the assistance of an AI algorithm. It also suggested amending Section 13 of the Act [which discusses the concept of ‘originality’] to resolve ambiguities related to the interpretation of ‘originality’ in cases of AI-related works. Further, an amendment to section 17 of the Act was also suggested to clarify the concept of ‘First Ownership’ where AI is involved in the creation of some creative content. 

To protect the designers who don’t register their designs under the Designs Act, 2000, FICCI suggested amending Section 15 of the Act and adding of an exception to the rule that copyright in an unregistered design ceases as soon as the article to which the design has been applied, has been reproduced more than fifty times by an industrial process.

The Hon’ble Supreme Court’s decision in the case of Indian Performing Rights Society Ltd. v. Sanjay Dalia and Ors. [(2015) 10 SCC 161], where it was held that if the cause of action of the suit arises in the jurisdiction where the proprietor has their principal place of business, the proprietor must necessarily file a suit in such jurisdiction and not in the jurisdiction where the branch office is situated. In light of this decision of the court an amendment to section 62, clarifying that the term ‘carrying on business’ includes registered as well as the branch office, was suggested.  

FICCI also recommended enhancement of the damages especially for second time infringers. Additionally, incorporation of provisions related to establishment of a central authority to deal with Piracy and issue orders to ISPs and other intermediaries to block infringing Pirate websites and deal with Piracy more effectively, was also recommended. 

The document can be accessed at: https://ficci.in/Sedocument/20528/FICCI-Recommendation-Proposed-Copyright-Act.pdf  

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The delegations of the African Group, the Plurinational State of Bolivia, Egypt, Eswatini, Fiji, India, Indonesia, Kenya, the LDC Group, Maldives, Mozambique, Mongolia, Namibia, Pakistan, South Africa, Vanuatu, the Bolivarian Republic of Venezuela and Zimbabwe;      co-sponsors for the Joint Proposal made by India and South Africa to waive certain provisons of the TRIPS Agreement for the‘prevention, containment and treatment of covid-19’, on May 21^st 2021, submitted a revised decision text for consideration by the council of Trade Related aspects of Intellectual Property Rights [TRIPS].

The revised decision text has been made taking to account all the discussions and feedback received on the draft decision text by the member countries and the growing concerns of continuous mutations and unknown variations in the SARS-COV-2. To reflect these changes, the co-sponsors revised the preamble of the draft proposal to emphasize on the unpredictable nature of the virus mutations and highlight the uncertainties and complexities in controlling the same.

Further, addressing the concern of the member countries that the original text is too broad in its ambit and many intellectual property issues may arise, the revised text amends the operative paragraph (1) of the draft decision text, to stress that the waiver proposed in limited in scope to the prevention, containment or treatment of COVID-19. It makes the original draft narrow by focusing the text on health products and technologies like vaccines, diagnostics etc. and their methods and means of manufacture, which are necessary to counter the global pandemic situation.

The revised decision text also alters the time duration for which the waiver was proposed in the original text. It limits the duration of time for which the waiver would be in force i.e. from the waiver being in force for an indeterminate period with a provision for annual review by the General Council to 3 years from the date on which decision is taken with regards to the waiver of the TRIPS provisions. The revised decision text added that after 3 years of such waiver, the General Council shall review the situation and either justify the extension of the waiver, in case of exceptional circumstances or determine the date of termination of the waiver if any such circumstances ceases to exist. This amendment was made considering the opinion that the duration should be practical in order to make manufacturing of vaccines and technologies feasible and to address the uncertainties faced by the international community while dealing with a novel pathogen.

The text can be accessed here – https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669R1.pdf&Open=True

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP