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Intellectual property law: Scope and challenges

N. Ramdas

THE various branches of intellectual property law _ patents, trademarks, designs, and copyright _ ensure legal exclusivity in the market. In the new world economy, these property rights are invaluable in the fight to achieve and retain market shares. The term intellectual property presupposes an exclusive right to perform some well-defined activity, mainly manufacturing or marketing. The increase in the number of patents granted and trademarks registered indicate that intellectual property rights provid e immense commercial returns. The importance of recognising intellectual property rights is understood worldwide, and almost all countries have framed statutes for their protection as these laws safeguard ideas and information of commercial value.

But intellectual property laws guarantee only limited protection against exploitation. The economic needs of the country always prevail over the commercial interest of an individual, and the legal protection is limited to giving the freedom to compete. The increasing awareness of intellectual property rights has brought a lot of pressure on the legal framework. The resources of the existing legal systems are feeling the strain.

Active campaigns are on to get many new rights established under these laws. Recognition of new rights creates problems that are sui generis. The challenges faced by intellectual property laws are both substantial and procedural. Many rights that have be en included under intellectual property could not be protected in the absence of comprehensive statutes. For example, the best method of protecting a computer program has not been yet found though it is recognised as copyright; there is a strong campaign to bring computer programs within the context of patent rights.

Intellectual property rights have brought to light the increasing advantages of proprietary rights in an age of economic liberalisation and cut-throat trade competition. Possession of a legally-recognised intellectual property helps one maintain an early lead in the business. They recognise the monopoly of the patent grantee or a trademark owner and monitor the activities of market competitors and licencees. But the degree of market power created by intellectual property varies from item to item. With substitute products flooding the market, it is difficult to determine the quantum of the product consumers want. Due to sociopolitical and economic reasons most intellectual property has little capacity to generate market power.

The development of these laws is strongly founded on political and economic history of the world. As a corollary to the economic development propelled by the Industrial Revolution, the first legislation that recognised the laws was the Statute of Monop olies of 1624, in England. This was followed by the Copyright Act of 1709, which provided a writer with the sole right of printing his book for 14 to 21 years. Over the centuries, statutes have been drafted with greater clarity of expression and organisa tion.

In India, most intellectual property rights are recognised by legislation and protected by statutes and a large number of judicial decisions in the realm of Law of Torts. The patent system in India has its legislative origins in the Act No. Six of 1856 which conferred certain privileges on inventors for 14 years. This was substituted by Act No. 15 of 1859 which recognised patent monopolies as ``exclusive privileges''. The provisions of this law were founded on the English Patent Act of 1852.

Intellectual property such as patents, trademarks and industrial designs are also known as industrial properties. In India, trademarks of goods were protected by the Trade and Merchandise Marks Act 1958, which was amended in 1999. The Trade Marks Act of 1999 also provides for registration and protection of trademarks for services and goods. This amendment Act recognises exclusive marketing rights: Chapter 9A grants patents for medicines, which was not possible under the 1970 Act. Designs are protected under the Designs Act, 1911. A Copyright, granted for artistic, literary and musical works (and lasting for 60 years after the author's death), protects the author and artist from unlawful reproduction, piracy and imitation. But the ideas and oral commun ication of the original contents are still unsafe. The Copyright (Amendment) Act, 1994 acknowledges performance right and computer program within the concept of copyright. But there is no comprehensive statute that addresses all problems that might arise in the field of intellectual property.

The greatest cause of concern for Indians is that many of the popular trademarks are not registered and most inventions or designs are not patented. Inadequate laws and their brittle and stagnant existence expose the Indian market to the exploitation by transnational corporate interests. Many well-known brand names owned for decades by large business houses in India, are under threat from new multinational entrants. A registration or patenting that normally takes six years or more in India, requires on ly six months in the US. The American system first grants a patent and then advertises for any opposition, while in India granting of patent is the last ritual of a long and cumbersome procedure. It is perhaps the vulnerability of the Indian laws that le d to the patenting of products such as basmati rice, turmeric and tamarind in the US.

But this complacency is slowly being replaced by the increasing awareness on intellectual property rights as the business community now recognises the danger it faces from foreign commercial interests. This is indicated by the spate of applications reach ing the Patent Office and the Registrar of Trademarks and the sudden increase in the number of cases filed in courts under intellectual property.

The acts of infringement in the area of intellectual property are treated as invasions of proprietary rights. In most cases, owners and licencees of intellectual property have the locus standi to initiate legal action against tortfeasors. The civil actio n remedies to this are injunction, delivery up (handing over the infringing articles or documents for destruction), damages, and account of profits and `franking'. Solutions can also be found in the Copyright Act, Patents Act, Trade and Merchandise Marks Act and the Designs Act. Remedy against groundless threat can be found in all branches of intellectual property law.

With the advent of WTO and other international bodies that regulate transnational commerce, intellectual property rights of the Third World are under siege. Transnational big-business interests commercially exploit traditional knowledge and bio-diversity of these countries. Inadequacy of legal coverage and the lethargy in the administration contribute to the crisis and make the Indian inventor, breeder and farmer vulnerable to the onslaught of transnational commercial bullies. But as a member of the WTO , India is bound to implement the TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights) in toto. It is in discharge of this obligation that trademark, patent and copyright laws were amended in 1999, conforming to the provisions of the T RIPS Agreement.

At any rate, the global scenario compels India to fight the pressures from within and outside the country; the future is not for the meek but the brave.

(The author is a lawyer and legal consultant specialising in intellectual property law and franchising).