ARMY INSTITUTE OF LAW, MOHALI

PROJECT ON “Concept, Scope & Nature of IPR”

Project Submission in the Partial Fulfillment of Periodic Evaluation of

IPR.

Submission To: Submitted By:

Dr Bhupinder Kaur Ankit Yadav
Asst. Prof of law BA (LLB) 5th Yr
Roll No - 1513
 ACKNOWLEDGEMENT

I take this opportunity to express my humble gratitude and personal regards to Dr

Bhupinder Kaur for inspiring me and guiding me during the course of this project
work and also for her cooperation and guidance from time to time during the
course of this project work on the topic “Concept, Scope & Nature of IPR”.
Concept, Scope and Nature of Intellectual Property Rights
Introduction
The division of property as movable and immovable, if it is tangible, was known in Roman law
and has been adopted by modern Civil Codes. However, “as a result of the industrial revolution
and the rapid development made in the fields of science, technology and culture, new kinds of
property came into existence”. New rights and properties like patents, copyright and industrial
designs, which came to be known as intellectual property rights (IPRs) received attention due to
their unique characteristics.
Intellectual property is so broad that it has many aspects. It stands for groupings of rights which
individually constitute distinct rights. However, its conception differs from time and it to time. It
is subject to various influences. The change in information technology, market reality
(globalization) and generality have affected the contents of intellectual property. For instance, in
olden days-because of religion creation of life, say plants or animals were not protected. Thus,
defining IP is difficult as its conception changes. It is diverse, challenging and has application in
own day today life.
IP is a section of law which protects creations of the mind, and deals with intellectual creations.
Is it a workable definition? It is also commonly said that one cannot patent or copyright ideas.
Intellectual property, as a concept, “was originally designed to cover ownership of literary and
artistic works, inventions (patents) and trademarks”. What is protected in intellectual property is
the form of the work, the invention, the relationship between a symbol and a business. However,
the concept of intellectual property now covers patents, trademarks, literary and artistic works,
designs and models, trade names, neighboring rights, plant production rights, topographies of
semi-conductor products, databases, when protected by a sui generis right, unfair competition,
geographical indications, trade secrets, etc.
Those types of intellectual property have been characterized as “pieces of information which can
be incorporated in tangible objects at the same time in an unlimited number of copies at different
time and at different locations anywhere in the world”. In other words, intellectual property
rights are intangible in nature, different from the objects they are embodied in. The property right
is not in those copies but in the information which creates in them.
In today’s world, the international dimension of intellectual property is of ever increasing
importance for three compelling reasons. First, the composition of world trade is changing.
Currently, commerce in intellectual property has become an even greater component of trade    
between nations. The value of information products has been enhanced greatly by the new
technologies of the semi-conductor chip, computer   software and biotechnology. Second, the
world commerce has become even more interdependent, establishing a need for international
cooperation. No longer can a single country impose its economic will on the rest of the world.
Accordingly, countries have recognized this interdependence and have called for a broadening of
international agreements/arrangements involving intellectual property. Third, new reprographic
and information storage technologies permit unauthorized copying to take place faster and more
efficiently than  ever, undermining the creator’s work. There is a general feeling in the developed
countries that much of this sort of copying takes place in the third world due to the relaxation of
legal standards. All these factors have prompted the international community as a whole to
accord due recognition to intellectual property and intellectual property regime.
Thus, the above reasons widen the scope of intellectual property rights. Among the bundles of
intellectual property rights, copyright that deals with the protection of literary, artistic and
scientific works is one.

The Concept of Intellectual Property

Intellectual property, very broadly, means the legal property which results from intellectual
activity in the industrial, scientific and artistic fields. Countries have laws to protect intellectual
property for two main reasons. One is to give statutory expression to the moral and economic
rights of creators in their creations and such rights of the public in access to those creations. The
second is to promote, as a deliberate act of government policy, creativity and the dissemination
and application of its results and to encourage fair trading which would contribute to economic
and social development.
Generally speaking, IP law aims at safeguarding creators and other producers of intellectual
goods and services by granting them certain time- limited rights to control the use made of those
productions. These rights do not apply to the physical object in which the creation may be
embodied but instead to the intellectual creation as such. IP is traditionally divided into two
branches: “industrial property and copyright”. The convention establishing the World Intellectual
Property Organization (WIPO), concluded in Stockholm on July 14, 1967 (Art. 2(viii) provides
that
“Intellectual property shall include rights relating to:
1) Literary, artistic and scientific works:
2) Performances of performing artists, phonograms and broadcasts;
3) Inventions in all fields of human behavior;
4) Scientific discoveries;
5) Industrial designs;
6) Trademarks, service marks, and commercial names and designations;
7) Protection against unfair competition and all other rights resulting from intellectual activity
in industrial scientific, literary or artistic fields”.
The areas mentioned under (1) belong to the copyright branch of intellectual property. The areas
mentioned in (2) are usually called “neighboring rights”, that is, rights neighboring on copyright.
The areas mentioned under 3, 5 and 6 constitute the industrial property branch of IP. The areas
mentioned may also be considered as belonging to that branch.
The expression industrial property covers inventions and industrial designs. Simply stated,
inventions are new solutions to technical problems, and industrial designs are aesthetic creations
determining the appearance of industrial products. In addition, industrial property includes
trademarks, service marks, commercial names and designations, including indications of source
and appellations of origin, and protection against unfair competition. Hence the aspect of
intellectual creations -although existent -is less prominent, but what counts here is that the object
of industrial property typically consists of signs transmitting information to consumers, in
particular, as regards products and services offered on the market, and that the protection is
directed against unauthorized use of such signs which is likely to mislead consumers and
misleading practices in general.
Scientific discoveries are not the same as inventions. The general treaty on the international
recording of scientific discoveries /1978/ defines a scientific discovery as ‘the recognition of
phenomena, properties or laws of the material universe not hitherto recognized and capable of
verification. “(Art. 1(1)(i)). Inventions are new solutions to specific technical problems. Such
solutions must, naturally rely on the properties or laws of the materials universe /otherwise they
could not be materially or ‘technically’ applied/, but those properties or laws need not be
properties or laws’ not hitherto recognized’. An invention puts to new use, to new technical use,
the said properties or laws, whether they are recognized (“discovered”) simultaneously with
making the invention or whether they were already recognized (“discovered”) before and
independently from the invention.
Industrial and cultural development may be favored by stimulating creative activity and
facilitating the transfer of technology and the dissemination of literary and artistic works. In the
Ethiopian legal system too the protection of intellectual property rights is afforded at
constitutional level. The FDRE Constitution recognizes that every Ethiopian citizen has the right
to ownership of private property with certain restrictions. Article 40(2) defines private property
as any tangible or intangible product which has value and is produced by the labor, creativity,
enterprise or capital of an individual citizen, associations which enjoy juridical personality under
the law. Thus, the constitution declares protection for every property whether it is tangible or
intangible. That means protection is afforded equally for intellectual property rights as any other
property since they are intangible products.
It is difficult to determine what types of ownership we should allow for non-corporeal,
intellectual objects, such as writings, inventions and secret business information. There are
intellectual properties which are not products of the mind. For instance, all trademarks are not
products of the mind. Trademarks creation does not necessarily require intellectual activity. The
same holds true for geographic indication. They don’t require the work of the mind like patent
and copyright.
IP is a bundle of legal rights resulting from intellectual creativity in industrial, scientific, artistic
and literary fields. This definition is from the point of view of rights. IP is legal protection
accorded to works of the mind in distinction from manual work (result of physical labour). It is a
legal protection accorded to incorporeal ownership.
Regarding protection of IP rights, there were historical, philosophical and epistemological
problems. Historically, reservation exists as to the protection of such rights as they don’t exhibit
essential characteristics of property, i.e. material existence. They consider corporeal chattels only
as propriety. For them property should be subject to appropriation/occupancy/.
The other problem is related to problems of philosophy. They believed that human beings cannot
be regarded as a creator of something. They say human beings cannot create something. Which
is also reflected in religions? The problems also relate with epistemology. What we reflect is
what we observe from the world (our experience, life experience). The then contemporary
writers wrote that IP lacks essential characters to be considered property.

Scope of Intellectual Property Rights

Intellectual property rights include copyright, patent, trademark, geographic indication of origin,
industrial design, trade secrets, database protection laws, publicity rights laws, laws for the
protection of plant varieties, laws for the protection of semi-conductor chips (which store
information for later retrieval), etc.
There is a conventional mode of classification of intellectual property as industrial property and
copyrights. Industrial properties include inventions (patent), property interest on minor invention
(Utility model certificate) and commercial interests (Trade Marks, trade names, geographical
indications, and industrial design), plant breeder rights, biodiversity, etc.
Patents
A patent is a type of intellectual property right which allows the holder of the right to exclusively
make use of and sale an invention when one develops an invention. Invention is a new process,
machine, manufacture, composition of matter. It is not an obvious derivation of the prior art (It
should involve an inventive step). A person who has got a patent right has an exclusive right.
The exclusive right is a true monopoly but its grant involves an administrative process.
Copyright
It is an intellectual property which does not essentially grant an exclusive right over an idea but
the expressions of ideas which makes if different from patent law. Patent is related with
invention - technical solution to technical problems. Copyright is a field which has gone with
artistic, literary creativity- creativity in scientific works, audio-visual works, musical works,
software and others. There are neighboring rights. These are different from copyright but related
with it – performers in a theatre, dancers, actors, broadcasters, producers of sound recorders, etc.
It protects not ideas but expressions of ideas as opposed to patent.
Copyright protects original expression of ideas, the ways the works are done; the language used,
etc. It applies for all copyrightable works. Copyright lasts for a longer period of time. The
practice is life of author plus 50 years after his/her life. Administrative procedures are not
required, unlike patent laws, in most laws but in America depositing the work was necessary and
was certified thereon but now it is abolished.
Industrial Design Law
Some call this design right (European) and some call it patentable design, industrial design
(WIPO and other international organization). A design is a kind of intellectual property which
gives an exclusive right to a person who has created a novel appearance of a product. It deals
with appearance: how they look like. Appearance is important because consumers are interested
in the outer appearance of a product. It is exclusively concerned with appearance, not quality.
The principles which have been utilized in developing industrial design law are from experiences
of patent and copyright laws. It shares copyright laws because the design is artistic. It shares
patent law because there are scientific considerations. Design law subsists in a work upon
registration and communication. It makes them close to patent law since they are also founded in
patent law. Duration is most of the time 20 years like the patent law trademark Rights law.
Trademarks Rights Law
It is a regime of the law giving protection to graphic representation to words or logos or
depending on the jurisdiction question such as sound or smells which are distinctive in nature
and serve as source identification. There is also a recent phenomenon which is representing
goods in their smell and sound. It is to be found on the goods associated with them. It enables the
customer to identify the goods from others. They serve as a source identifier. Trademarks
perform communication function. Once there is a valid representation, it gives the mark owner
an exclusive right. It begins with registration and publication of the mark. But there are
exceptions which serve what trademarks registered serve which are not registered. It means they
deserve protection even though they are not registered. They exist forever so long as the good
with which they are associated continue to be sold. But they require renewal.
Right of Publicity
It protects the right to use one’s own name or likeness for commercial purposes.
Geographic Indication
It is indications on products of the geographic origin of the goods. It indicates the general source.
The indication relates to the quality or reputation or other characteristics of the good. For
example, “made in Ethiopia” is not influenced by the geographical Indication. Geographical
indications are sometimes called appellations of origin. For example, “Sheno lega”,
“Shampagne” (name of a region in France) are geographical indications.

Trade Secrets
It gives the owner of commercial information that provides a competitive edge the right to keep
others from using such information if the information was improperly disclosed to or acquired by
a competitor and the owner of the information took reasonable precautions to keep it secret. It
protects confidential secrets of some commercial value. The holder of the secret wants this
information to be protected; some protect the holder from an unauthorized disclosure of the
information. A tort law, unfair competition or contract law can protect such information which is
secret /confidential information/. The holder (owner) has to do his/her best to keep the
information secret. Trade secrets exist without registration as it is to make the information
public, for example, the formula of Coca Cola.  Information that are protected in trade secrets
can be patentable if they are novel and non obvious. But it is, most of the time, not to make the
secret public. However, their full-fledged IP rights are contestable.

Nature of Intellectual Property

Intellectual properties have their own peculiar features. These features of intellectual properties
may serve to identify intellectual properties from other types of properties. Thus, we will discuss
them in brief.
1. Territorial
Any intellectual property issued should be resolved by national laws. Why is it an issue? Because
intellectual property rights have one characteristic which other national rights do not have. In
ownership of intellectual property of immovable properties, issues of cross borders are not
probable. But in intellectual properties, it is common. A film made in Hollywood can be seen in
other countries. The market is not only the local one but also international. If a design in China is
imitated by another person in France which law would be applicable?
2. Giving an exclusive right to the owner
It means others, who are not owners, are prohibited from using the right. Most intellectual
property rights cannot be implemented in practice as soon as the owner got exclusive rights.
Most of them need to be tested by some public laws. The creator or author of an intellectual
property enjoys rights inherent in his work to the exclusion of anybody else.
3. Assignable
Since they are rights, they can obviously be assigned (licensed). It is possible to put a dichotomy
between intellectual property rights and the material object in which the work is embodied.
Intellectual property can be bought, sold, or licensed or hired or attached.
4. Independence
Different intellectual property rights subsist in the same kind of object. Most intellectual property
rights are likely to be embodied in objects.
5. Subject to Public Policy
They are vulnerable to the deep embodiment of public policy. Intellectual property attempts to
preserve and find adequate reconciliation between two competing interests. On the one hand, the
intellectual property rights holders require adequate remuneration and on the other hand,
consumers try to consume works without much inconvenience. Is limitation unique for
intellectual property?
6. Divisible (Fragmentation)
Several persons may have legally protected interests evolved from a single original work without
affecting the interest of other right holders on that same item. Because of the nature of
indivisibility, intellectual property is an inexhaustible resource. This nature of intellectual
property derives from intellectual property’s territorial nature. For example, an inventor who
registered his invention in Ethiopia can use the patent himself in Ethiopia and License it in
Germany and assign it in France. Also, copyright is made up of different rights. Those rights
may be divided into different persons: publishers, adaptors, translators, etc.
The Patents Act, 1970 states that a computer program per se other than its technical application
to industry or a combination with hardware is not patentable. Thus, software can be registered as
a patent only if it is in combination with hardware and not otherwise. The issue of whether to
grant patents to software-related inventions was reignited as stakeholders, especially
multinational companies, considered the protection available under the Copyright Act to be
inadequate. While stronger protection is needed for software inventions in India, the patentability
of such inventions remains ambiguous. However it is hoped that the government will accelerate
its efforts to achieve a consensus within the software industry - and further, that the patent
regime will be reshaped for the benefit of the software industry as a whole.
The existence of IPRs is very old. The basic aim of conferring an IPR upon the person owning
the same is to give a social recognition to its holder. This social recognition can further bring
economic benefits to its holders. It is just and reasonable to award a person an IPR in the form of
"limited monopolistic rights" for his/her labor and efforts. At the same time, exceptions in the
form of various licenses are also made so that public interest cannot be compromised. The public
interest and personal interests are thus reconciled in the form of limited period duration of
these rights and their abuses can be tackled stringently, especially when public interest demands
so. Thus, the TRIPS Agreement was formulated to bring basic level harmonization in IPR laws
all over the world. The provisions of the TRIPS Agreement are the most extensive and rigorous
in nature. They protect all forms of IPRs collectively. The protective umbrella of TRIPS covers
the following IPRs:
(1) Copyright and Related Rights,
(2) Trademarks,
(3) Geographical Indications,
(4) Industrial Designs,
(5) Patents,
(6) Layout designs of Integrated Circuits, and
(7) Protection of Undisclosed Information.
It must be noted that by virtue of Article1(2) of the TRIPS Agreements 1, the Control of Anti-
Competitive Practices in Contractual Licences has been excluded from the definition of
"intellectual property". Thus, the TRIPS Agreement covers virtually the entire gamut of IPRs.