Few important points related to Intellectual Property are:
- The concept of Intellectual Property follows the concept of Physical Property, which is inalienably linked to the concept of ownership of an article and means the right to possess, use and dispose of the article (property).
- Intellectual Property is the creation of human intellect and is intangible (incorporeal) whereas the Physical Property is tangible (corporeal).
- Property means a bundle of rights in relation to the object owned. They concern ownership and possession; use and enjoyment of the fruits of application of the property; and the exclusion of others from such use and enjoyment, and the transfer of rights in property.
- The TRIPS agreement under the WTO, recognises seven kinds if IP viz. (i) copyright and related rights, (ii) trademarks and service marks, (iii) geographical indication (iv) industrial designs, (v) patents, (vi) layout designs of integrated circuits and (vii) undisclosed information. However, the domain of IP is expanding and soon new claimants may arise due to rapid advances in science and technology.
- The rationale behind IP flows from the labour angle or the personality angle. The former sees labour as belonging to the person who creates new goods by mixing his labour with the common resources or adds value to the goods with investment of labour. Either way he is to be encouraged and rewarded.
- The personality view regards the creation of intellect as an expression of the creator’s persona, and thus a very personal thing that needs to be regarded and protected as property. Neither of the two angles can satisfactorily serve as justification for all kinds of IP.
While inventions may have little that will qualify them as expression of the inventor’s persona, a literary or artistic or musical composition is likely to bear the stamp of the author in a substantial measure. Thus the rationale for IP has to be sought both in the labour angle and the personality angle together, rather than in any of them separetely.
The State and the global IP regime, seeks to strike a balance between interests of the creator of the IP, the interests of the other entrepreneurs and society as a whole. The devices that ensure this balance are: grant of monopoly/exclusive rights generally for a limited period, after which the intellectual creation comes into the public domain; provision for compulsory licensing and even revocation of licence under certain conditions, and making preservation of life, environment, peace, morality as of paramount consideration while granting IPRs.
- The TRIPS agreement of the WTO prescribes civil procedure to be incorporated in national laws for ensuring effective, speedy and cheap remedies against violation of IPRs. The process has to be fair and equitable and conscious of time and the cost. While ensuring justice, it should create no barriers for world trade nor should it lead to abuse of enforcement. The remedies can be injunctive and compensatory; the courts can also order infringing material to be delivered up for destruction, if deemed necessary, to meet the ends of justice.
- The Constitution of India makes no specific mention of IP. However, there is nothing in the constitution that would prohibit treatment of IP under property clauses. A possible area of conflict may arise between copyright and the freedom of speech and expression which is a right constitutionally guaranteed and zealously upheld by the court.
