International Intellectual property law is a combination of multilateral and bilateral agreements. These laws are important for the protection of trademark, copyright, and patent. Since, past few years there has been a revolutionary appeal towards technology, domain name, databases, software, and traditional knowledge. Protecting intellectual property is an important task which aims to provide legal security. International laws have been spread in all over the world for the promotion of assets and IP rights. All over the world, each country is having its own legislations according to which different countries have different IPR protection.
IP law basically deals with the rules for the security of legal rights, inventions, designs, and artistic works. Intangible assets are under full control. Purposely this law gives an incentive to people to develop creative works that benefit society. The Law has given many protection measures by ensuring that they can profit from their works without fear of misappropriation by others.
Protection against infringement
Unauthorized use of any intellectual property is known as infringement. Owners should take some steps to protect against infringement. These steps are taken to put the world on notice that their rights exist. Notice helps to determine infringement by making visible to those who might inadvertently violate. Legal benefits are triggered which puts the owner in a position.
Patent numbers are assigned by the owners to protect their invention. Patent pending is a status which also provides the copyright before the patent has been awarded. Addition in government database takes place by placing the appropriate symbol.
What is WIPO?
World Intellectual Property Organization (WIPO) is an organization to protect and promote intellectual property throughout the world. United Nations is the parent organization of WIPO. The main responsibility of WIPO is to promote Intellectual property law and facilitate the transfer of technology. This is related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence.
Copyright and Patent seems to be similar but they are different. Both of them have its different importance in business. People sometimes get confused by the term used by some intellectual property. We can say that both of them are from the same family of intellectual property.
There are some points which can help to differentiate between Copyright registration and Patent.
Point of View
Ideas coming in mind cannot be copyrighted. A person owns an asset with legal evidence and public notice of ownership. An individual can take this matter to court for infringement of copyright provided one has the papers in place. Whereas Patent is a right, granted by the government, to exclude others from making, using, or selling your invention.
Copyright is an idea which means a form of protection conferred to the creator of original work, which excludes others from using the work. Whereas Patent defines proprietary rights endowed to the inventor in which making, utilizing or trading of the invention is excluded.
Copyright contains moral values or expression of right and economy. Economic rights include the right to copy or publication a work or any substantial part of asset. Moral rights include the right to the integrity of the work and the right to be listed as its author (though this is subject to certain limitations).The patent is a moral idea for Inventors and designers for filing patents. A patent protects inventions with a new or improved function.
Sometimes a product can come into one or more of these categories. The code of the software will be protected by a copyright, whereas the functional expression of the idea will be protected by a patent.
Copyrights reserve the creative work of the artist. It also protects the ornamental design of products which can overlap whereas Patents are closely associated with things and processes that are useful in the real world. These two legal protections overlap when functional objects of distinct objects embody a distinctive or pleasing visual appearance.
Protecting an intellectual property is a very complex process that evolves with each step of the life cycle. During its innovation, research, or development. A single product can have a patentable feature, whereas a creative angle protected by copyright and a source of the product that is trademarked.
Mostly probably patents are closely associated with things and processes that are useful in the real world. But copyrights protect expressive arts such as novels, fine and graphic arts, music, phonorecords, photography, software, video, cinema, and choreography.It is possible to get a patent on technologies used in the arts.
A copyright is automatically registered does not require any formality. But in the patent, there are some formalities which are needed to be fulfilled.
Copyright excludes others from copying or trading the product and patent excludes others from manufacturing or using the product.
Copyright follow Indian Copyright Act, 1957 and patent follow Indian Patent Act, 2005
Copyright is valid for the lifetime whereas Patent is provided for the limited period of time.
Any musical note, with or sans words can be trademarked in India. The practice of trademarking sound is popular in the West, particularly in the United States and with each passing day, the practice is picking up in India as well. Trademark Act in India provides for protection of graphical representation of sound and also those sounds which are in the form of musical notes. Once the sound as acquired distinctive sign, it is eligible to be trademarked. For a common consumer, the sound should be distinctive enough for him to relate that to a particular good service. There is no particular law which states that sound marks be excluded from registration but instances of registering a sound mark is rare, particularly in India.
There are certain clauses which how one can apply for sound mark registration.
First and foremost, the applicant must mention that the application is for sound mark registration. Otherwise in all likelihood, it will be considered a word or at best a device mark.
There must be a graphical representation of sound mark divided by measures and showing, clef, musical notes and rest all other nuances. The registration of a sound mark very well depends on whether it has become distinctive or not. The application must prove it with substantial evidence that the consumer will be able to perceive the sound as something exclusively related with a particular service.
Now that we know about what requires to be done to register a sound mark, let us also know about what all sounds cannot be registered according to the Trademark Act of India
The author of a unique creation is provided a monopoly over his thought or product by a copyright law for the exclusive use or reproduction. Once the copyright is registered at the copyright office, the author enjoys the legal protection of his work. The moment an author produces a unique work in a tangible medium, he becomes the proprietor to have a copyright over the product but that has to be registered in the office before it is being used in the public medium, just so he can refute claims of others over his/her subject and continue to enjoy his hold over it.
As the copyright protection is done legally, it comes with certain benefits, some of which are
Once copyright is ensured on one form of the work, it stands true for any other form of work of the same art. For example, if the original form of the work was in written form and if a person wishes to reproduce it in audio-visual, he will have to sought the permission of the author of the work
With the arrival of printing, forgery was prevalent and hence copyright came into the scene. Modern day copyright laws provide us a safeguard against theft of our creative works. They protect our creative creations - works of literature, drama, music works, art, cinematography and even sound recordings - against defaulters and in turn give us exclusive rights to our own work - rights to reproduce, display, distribute or perform the work that has been protected.
Copyright infringement is the use of the copyright protected work without the permission of the owner who has the copyright. Even if the new work is a derivative of some copyright work, it is assumed to be an infringement.
Infringement can be classified as: primary infringement and secondary infringement.
While primary infringement means that the original piece of work has been copied, the secondary infringement means that the original piece of work has either been pirated (books, etc.) or has been imported - either without exclusive rights to do so or into a geography not permitted.
Common varieties of copyright infringement
Some of the following are the most prevalent copyright infringements in India
If any individual or an entity is guilty of any of the above infringements, they are liable to prosecution under the existing copyright laws in India.
Claiming owner rights to copyright
In fields such as literature, music, dramatics and for works of art, the name that appears on the work or on the copies of the original work is by default deemed to be the copyright owner, unless it is proved otherwise.
Remedy for copyright infringement in India
The Copyright Act, passed in 1957 and amended by the Copyright Amendment Act 2012, provides safeguards against copyright infringement in India. It incorporates three varieties of remedies: administrative remedies, criminal remedies and civil remedies.
Criminal and civil remedies are of real practical importance for us.
Administrative remedies include detention of infringing goods and it is done by the customs department. Civil remedies include damages, injunctions and account of profits.
If anyone uses your work against your wishes or in a manner not allowed by you, then you can move to the court and impose legal proceedings in the erring individual - the one who is involved in infringing the copyright you own. As a copyright owner, you can file civil remedies case in a court that has the necessary jurisdiction. You are then entitled to damages.
For your information, only a court chaired by a Metropolitan Magistrate or a Judicial Magistrate, or higher, can take up cases and try the offender for copyright infringement. That should tell you that copyright infringement is no mean deal.
In case the copyright is infringed by an entity - say a private limited company, or even a limited liability partnership - then the company and all of the people who were involved in committing the offence are held responsible and charges can be pushed against each one of them.
Criminal Prosecution for Copyright Infringement
One can be a criminal offender under Copyright Act if he or she deliberately infringes the copyright for personal gains. In such a case, the bare minimum punishment for knowingly infringing a copyright is jail for 6 months with a bare minimum fine of Rupees 50,000. In case an individual is convicted again, the punishment is increased to a minimum of one year jail accompanied by a fine of Rupees one lakh.
Copyright Infringement a Cognizable Offence
What does Cognizable Offence mean? If a police officer has the rights to make an arrest and start an investigation with or without the permission of the court, it is for a cognizable offence.
Copyright infringement is a cognizable offence and a police officer - who is not below the rank of a sub-inspector - can make arrests without a warrant. Later, the copies of the infringed copies and other proofs can be presented to the Magistrate who presides over the case.
Exceptions to copyright infringement in India
The Copyright Act 1957 exempts a few acts from copyright infringement. The term 'fair dealing had different connotations in India and abroad. Unlike the United States of America, India follows a combined approach that enables:
"Fair dealing" in India is limited to the purposes of
Thus, the Copyright Law gives us enough protection, in the process enabling us to be creative without limits and without the fear of being wronged. And in case we have been, there are propositions in place to settle us with finances.
Copyright is a sensitive issue. It safeguards your work by proofing it with legal protection, thereby lending a sense of trust to your endeavors. In more ways than one, it encourages development of culture, science and innovation, along with assisting audiences with access to the entertainment or knowledge they seek. And the financial benefit to the copyright holder is always there; it perhaps is the most important aspect you may say.
Copyright of people or entities who form a part of the countries which signed the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement have been safe guarded in India through the International Copyright Order.
According to Berne Convention for the Protection of Literary and Artistic Works - which was adopted globally in 1886 - caters to safeguarding the rights of creative individuals with regards to the work they produce. So, creators such as painters, poets and authors have primary control over how their works can be produced, by whom, and on what conditions. It guarantees minimum protection to these individuals, with special clauses to accommodate the developing countries.
The Universal Copyright Convention, or UCC, was adopted in 1952 in Geneva and serves as an alternative to the Berne Convention for the states which did not sign it but were invested in participating in the multilateral copyright protection. So, together with Berne Convention, Universal Copyright Convention forms the two major international conventions that protects our copyright.
Trade-Related Aspects of Intellectual Property Rights, or TRIPS, is global agreement overseen by the World Trade Organization (WTO). It lays down the bare minimum standards for many forms of intellectual property (IP) regulation that is applicable to the citizens belonging to the other WTO Members.
What that means is that the copyrights of the works belonging to other nations which are a part of International Copyright Order are safeguarded in India as if they were India's own works. And it is not a one way traffic. It works both ways: India's work is protected with similar intensity in other countries too, thereby encouraging an environment where originality of creative works are not limited by man-made geographical boundaries.
We have Indian Copyright Laws in place too but they only provide copyright protection within the geographical and political borders of India. Republic of India thus had to sign the above mentioned conventions in order to stay ahead of time. Apart from the three conventions mentioned above, the two other major conventions that India is a part of are: Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms, and, Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms.
For your ease, we list the countries that are a part of various conventions. More importantly, your work is protected in these countries much like they will be protected in India.
Countries that are a part of Berne Convention
Albania, Argentina, Australia, Austria, Bahamas, Bahrain, Barbados, Belarus, Benin, Bolivia, Bosnia & Herzogovina, Botswana, Brazil, Bulgaria, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chile, China, Colombia, Congo, Costa Rica , Cote d’Ivoire, Croatia , Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Holy See, Honduras ,Hungary, Iceland, Indonesia, Italy, Jamaica, Japan, Kenya, Latvia, Lesotho, Liberia, Libya, Lithuania , Luxembourg, Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Monaco, Mongolia, Morocco, Namibia, Netherlands, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Russian Federation, Rwanda, Saint Kitts & Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname ,Sweden, Switzerland, Thailand, The Former Yugoslavia Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, United Republic of Tanzania, United States of America, Uruguay, Venezuela, Yugoslavia, Zambia, Zimbabwe
Countries part of the Universal Copyright Convention
Algeria, Australia, Austria, Bahamas, Bangladesh, Barbados, Bolivia, Bosnia &Herzegovina, Brazil, Bulgaria, Cameroon, China, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Germany, Guinea, Holy see , Hungary, Italy, Japan, Kenya, Mexico, Monaco, Morocco, Netherlands, Niger, Norway, Panama, Peru, Poland, Portugal, Republic of Korea, Russian Federation, Rwanda, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Slovakia, Slovenia, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Tunisia, United Kingdom, United States of America, Uruguay, Yugoslavia
Countries part of the Phonograms Convention
Argentina, Australia, Austria, Barbados, Brazil, Bulgaria, Burkina Faso, Chile, China, Colombia, Costa Rica, Cyprus, Czech Republic, Democratic Republic of Congo, Denmark, Ecuado, Egypt, El Salvador, Fiji, Finland, France, Germany, Greece, Guatemala, Holy See , Honduras, Hungary, Israel, Italy, Jamaica, Japan, Kenya, Latvia, Luxembourg, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Republic of Korea, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Trinidad and Tobago, United Kingdom,
United States of America, Uruguay, Venezuela
Countries part of the World Trade Organization
Angola, Antigua and Barbuda, Argentina, Australia, Austria, Bahrain,Bangladesh, Barbados,Belgium, Belize,Benin,Bolivia, Botswana, Brazil, Brunei, Darussalam, Bulgaria, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Cote d’Ivoire, Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland, France, Gabon, Gambia, Germany, Ghana, Greece, Grenada, Guatemala , Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, Indonesia, Ireland, Israel, Italy, Jamaica, Japan, Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Mongolia, Morocco, Mozambique, Myanmar, Namibia, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Pakistan, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts & Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Tanzania, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Emirates, United Kingdom, United States of America, Uruguay, Venezuela, Zambia, Zimbabwe
So, all in all, the convention covers a large part of the globe and you can rest assured that you have a major control over your creative outputs. In case you find that someone is using your work without due credit or not like how you allowed, you can always use the copyright laws to challenge him or her and get your fair share of gain, financial or not.
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