Intellectual Property : Nature, Scope and Type

Intellectual Property: Introduction

Intellectual Property is defined as a set of intangible assets owned and legally protected. Intangible assets are inventions of the mind, innovations, literary and artistic work, symbols, names, and images used in commerce. The goal of intellectual property protection is to encourage human mind creativity for the benefit of all, as well as to ensure that the benefits derived benefit the creator.

According to Article 2 of the WIPO (World Intellectual Property Organization) – Central Organization for the protection of Intellectual Property Laws and the expert organization of the UN, “”Intellectual Property shall include the rights relating to literary, artistic and scientific works, inventions in all fields of human endeavor, scientific discoveries, industrial designs, trademarks, service marks and commercial names and designations, protection against unfair competition, and all the other rights resulting from intellectual activity in the industrial, scientific, literary or scientific fields.”

The main significance of Intellectual Property right is that it will encourage creative activities while providing investors a reasonable return on their investment in research and development. Individuals, businesses, and other entities can use intellectual property to bar others from using their creations. Individuals, businesses, and other entities can use intellectual property to prevent others from using their creations without their permission.

Nature of Intellectual Property

Intangible Rights vs. Tangible Property

The main property that distinguishes intellectual property from other types of property is its intangibility. While different types of IP have many important differences, one thing they all have in common is that they establish property protection over intangible things like ideas, inventions, signs, and information. IR enables creators or owners to profit from their works when they are commercially used.

Right to sue

In legal parlance, intellectual property is an asset that can be owned and dealt with. Most forms of intellectual property are contested in rights of action that can only be enforced through legal process and by those who have the rights. As intellectual property is a property right, it can be inherited, bought, gifted, sold, licensed, entrusted, or pledged. The holder of an IPR owns property that one can use however s/he wants subject to certain conditions, and one can take legal action if used the invention without the owners’ consent and can claim compensation against real property.

Rights and Duties

Along with IP rights, IP creates responsibilities and duties. The owner of the intellectual property has the right to perform specific functions in relation to his work/product. The owner has the sole right to create the work, make copies of it, market it, and so on. A negative right exists to prevent third parties from exercising their statutory rights.

Meanwhile, it is the duty of the IP owner to utilize the intangible assets for the welfare of humankind. Illegal distribution, inappropriate use of assets by the owner creates obligation and demands legal actions.

Coexistence of different rights

In relation to a specific function, different types of IPRs can coexist. For example, an invention is a patent, and the photograph of the invention can be a copyright. The Design Act protects designs, and the design can also be incorporated into a trademark. There are numerous similarities and differences between the various IP rights that can coexist.

There are various common grounds among IP assets such as between a patent and an industrial design, a copyright and a neighboring rights, trademarks and geographical indications, and so on. Some intellectual property rights are positive, while others  may be negative.

Scope of Intellectual Property

The scope of intellectual property rights is broad. There are two modes of classification used to determine whether an IP is a copyright or an industrial patent. Patents for inventions, trademarks, trade names, biodiversity, plant breeding rights, and other commercial interests are examples of industrial patents. A patent grants its holder the sole right to use the Intellectual Property for the purpose of profiting from the invention.

An invention is a new creation, process, machine, or manufacture in and of itself. Copyright does not grant you the exclusive right to an idea but it does protect the expression of ideas that are not covered by a patent. It applies to a wide range of fields, from art and literature to scientific works and software.

Copyright laws also protect music and audio-visual works . The duration of copyright protection is 60 years after the creator’s death i.e. copyright covers the protection duration from the copyright registration to 60 years after the death of creator. Unlike patent laws, copyright laws do not require an administrative process.

Types of intellectual Property

The term “intellectual property” refers to a wide range of concepts. Intellectual property consists of many different types of rights. IP is broadly classified into two types: industrial property and intellectual property.

Before, patents, trademarks, and designs, were the Intellectual Property. Industrial property protection now includes utility models, service marks, trade names, passes, signs of origin, including geographical indications, and the suppression of unfair competition. It is possible to argue that the term “industrial property” predates the term “intellectual property.”

1. Copyright

Copyright law is concerned with the protection and exploitation of tangible expressions of ideas. It has evolved over centuries in response to changing ideas about creativity as well as new modes of communication and media. In the modern world, copyright law provides not only a legal framework for the protection of the traditional beneficiaries of copyright, the individual writer, composer, or artist, but also the publication required for the creation of work by major cultural industries, film; broadcast and recording industries; and computer and software industries.

One can copyright the literary, dramatic, musical, and artistic works, as well as in “original” cinematic films and sound recordings set in a physical medium and copyright protects the idea only when expressed in its original form.

Copyright recognizes the owner’s economic and moral rights. The right to copyright is a privilege to use without the permission of the copyright owner, according to the principle of fair use. The law of copyright balances private and public interests through the application of the doctrine of fair use.

Copyright Sample from Pixar website

2. Patent

Patent law recognizes a patent holder’s exclusive right to profit commercially from his invention. The owner of the invention has a special right to manufacture, use and market the invention when patented the invention.

The term “exclusive right” refers to the fact that no one can manufacture, use, or market an invention without the permission of the patent holder. This exclusive patent right is only valid for a limited time.

An invention must fall within the scope of the patentable subject and meet the three statutory requirements of innovation, inventive step, and industrial application to qualify for patent protection. The novelty and necessity requirements are generally met if the patent applicant is the first to invent the claimed invention. Prior publication or prior use can indicate novelty. A simple discovery cannot be considered an invention similarly, any random concept or principle cannot be permitted for patent.

Patent law exists to promote scientific research, new technology, and industrial progress. Patent information has economic value because it provides technical information to the industry that can be used for commercial purposes. If there is no protection, there may be enough incentive to take advantage of someone else’s investment. This ability to free-ride reduces the incentive to create something new because the inventor may not feel motivated to create due to a lack of incentives.

3. Trademark

A trademark is a designation of origin. It is a specific sign to publicize the source of goods and services in relation to goods and services and to differentiate goods and services from other entities. This creates a connection between the proprietor and the product. It depicts a product’s nature and quality.

Its primary function is to identify the origin of the goods to which it is attached. It identifies the product, ensures quality, and aids in product advertising. A trademark is also an objective symbol of the goodwill that a company has created.

A trademark is any sign or combination of signs used to distinguish the goods or services of another company. It can be a name, a word, a phrase, a logo, a symbol, a design, an image, a shape, a color, a personal name, a letter, a number, a figurative element, and a color, or any other combination that represents a graph. Trademark registration can be renewed indefinitely.

Trademark of some famous companies

4. Geographic Indication

It is a name or sign used on certain products that corresponds to the product’s geographic location or origin. The use of geographical location may act as a certification that the product possesses certain qualities according to the traditional method. Darjeeling tea and basmati rice are two common examples of geographical indication. The relationship between objects and place becomes so well known that any mention of that location conjures up images of goods produced there, and vice versa.

It is essential that the product derives its qualities and reputation from that location. Because those properties are dependent on the geographical location of production, there is a specific link between the products and the place of origin. Geographical Indication of Goods (Registration and Protection) Act of 1999 protects Geographical Indication.

5. Industrial Design

Industrial Design protects the visual design of an object. It is the application of features of shape, configuration, pattern, ornamentation, or composition of lines or colors to any two-dimensional or three-dimensional article, or the combination of one or more features. Design protection is concerned with an article’s outer appearance, which includes decoration, lines, colors, shape, texture, and materials. It may include three-dimensional elements such as colors, shapes, and the shape of an article, as well as two-dimensional elements such as shapes, surface textures, or other combinations.

Article By: Saurav Giri


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