Intangible Property in India: Concept and Emerging Trends

This article deals with Concept of Intangible Property, Concept of Intangible Property, it’s human rights and economic aspects, and intangible property’s emerging trends in India.

Introduction to Intangible Property

John Locke believed that a person has a natural right to hold his property, especially the one which he got through his own labor[1]. “Property” brings the concept of ownership in mind which is a relation that a person shares with an object. Ownership is bunched with a lot of complex rights, duties as well as obligations. This concept has been intervened in our life and we cannot imagine our world without it. Our society has been deeply influenced by the concept of ownership. Now this ownership is not only of tangible objects but it also revolves around intangible objects. It holds no physical presence .It helps a person to hold ownership on the basis of their creativity like brands, identity, copyright, trademark or patent etc.

Let us consider an example a pharmaceutical company invents a medicine which is very effective to cure cancer. Now he can use his right that no other scientist may copy the medicine without the permission of original creator[2].This is right is known as intellectual property right. Due to industrial revolution and rapid development there is an increased demand or knowledge of intellectual property rights regimes across countries. They deal with the artistic or scientific work which can be protected by providing us with 20 years patent or 10 year trade mark, 60 year copyright etc.

Is Intangible Property Also Human Rights?

At the end of 19th century, the desirability of intellectual property right was not considered important but today in contrast they have created their own value in the market which comes with a lot of obligations .Thus various new acts and bodies were formed such as “TRIPS”(trade related intellectual property ,1995) or “WIPO”(world intellectual property organization ). Now with the growing technology awareness, human rights have also grown. Widespread recognition between human rights and IPR has gained a lot of importance.

After World War – II there has been a great upsurge for human rights treaties. These have brought a new age “age of rights”[3] and “an era of humanitarians”[4], through UN intervention which play a significant role through” universal declaration of human rights”. This has given birth to international covenant on civil and political rights and international covenant on economics, social and cultural rights (article 17, UDHR). Thus both human rights and IPR regimes have grown significantly and the intersection between them have expanded.

An example can be of an Australian man, where a manufacturer copied aboriginal designs of a carpet, without the permission of artist. The art work copied was very sacred and something that could only be witnessed during a special occasion and thus the court considered it as a violation of rights and thus asked the manufacture to compensate the artist and the court also stated that copying a design was something that could be compensated with money but copying a sacred design that has also hurt the religious sentiments of the community and thus should be viewed from frame work of human rights because it is something very important for the survival of individual community.

How Does Intangible Property Affect the Economic Aspect?

Intellectual property such as patent has always been a topic of controversy. There have been may doubts regarding it’s growth in country. But the only difference that prevails is it’s immobility and that even does not affect its management for development and this can be the reason it is called “the currency of knowledge economy”. When we try to analyze innovations through economic point of view it’s then we can justify the primary creation of IPR laws[5]. IPR deals with the innovation, which allows people to explore more with the available resources, thus making innovation an important component through which economy can flourish.

During 1970, there was the creation of patent act which lead to the promotion of industrial sector .The main aim behind this act was just not availability of rights to the inventors but also for the speedy development of technology in the country which could enhance the economic condition of the country. Before the TRIPS, Indian market was not able to flourish much due to lack of availability of such rights on various products like medicine. In India the major drug development was basically started by central drug research institute. They were suppose to get recognized by R&D but were not provided with the same because Indian markets lacked in reserving engineers and invent new drugs but when the TRIPS came into existence there came number of opportunities which enhanced the Indian economy by providing new market opportunities to invent. A survey was organized which proved Indian markets were flourishing by promoting IPR. In order to analyze IPR system that how the economy has been effected by it’s intervention,

Let us look at one of the company “Ranbaxy”. Ranbaxy is an Indian company that started in 1961 in gurgaon, after IPR came into existence it has total sale of $1.03 billion[6] and it has become the largest market in U.S., Brazil, Russia as well as China .Thus the harmonization of IPR laws has opened new windows for innovation in developing countries like India.

How Is It Emerging in India?

It is a limitation as well as an exception in fair dealing to the authors who create new things .This fair dealing helps to copy the available material but also leads to the infringement of rights .That is why fair dealing has been kept out of this intellectual property rights concept .Now this defense was made available through the doctrine of equity which has allowed people to copy new creations and one of the main reason to follow this copyright was just because of the promotion of new work created by any inventor so that his work does not remain stagnant. It was just because of this doctrine that people could differentiate between moral intention of copying a work and dishonest intention of copying a work. That is the reason that this doctrine was added in TRIPS and all the member countries have to follow it.

The Indian and UK laws regarding copyright are considered to be limited and very strict because they do not allow much interruption where as the laws in US are very open as they do allow easy additions in any work. Although India has developed a lot but it has still not been able to progress in the field of fair dealings. India as said has always been very strict towards the rules and thus even a single step of violation of law leads to infringement.

The best example of this is “Independent News Services Pvt. Ltd. v. Yashraj Filmsprivate Limited and Supercassetes Ltd.[7] This whole case was about the defendant, “INDIA TV” which has shown a documentary regarding the life of a singer, his performance, his songs and clipping of his movies. As a result the prosecutor filed a case of copyright infringement. However the defendant party claimed that it was the fair use of their rights as they worked according to the fair dealings. So the judges gave the judgment in the favor of plaintiff and defendant was restrained from using any music or any song or any movie clips as it would lead to infringement of law. This judgment signifies that there is a lot of need to look upon this concept of fair dealing to improve our system and loosen it up a little bit and understand the difference between good and wrong use of stuff to avoid let our country develop.

Conclusion

Intellectual property rights have gained a lot of importance in the growing technology due to increased awareness. People are becoming aware by its benefits for the society as well as new ways of earning .This 21st century has brought with itself new technologies as well as new challenges. Each coin has two sides of story so with the increasing benefits of technology; the increase in burden to match the technology has also started peeping. This modern way of possessing any intangible property is a boon for new inventors to invent more by learning more and thus earning more. This not only helps the artistic world to grow but also give a great push to the imaginary world to prove its existence and shine in this world.

[1] Child, J. (1990). THE MORAL FOUNDATIONS OF INTANGIBLE PROPERTY. The Monist, 73(4), 578-600. Retrieved May 20, 2020, from http://www.jstor.org/stable/27903211 [2] Verma, SK & Rao NV Muralidhar,IMPACT OF THE INTELLECTUAL PROPERTY SYSTEM ON ECONOMIC GROWTH, WIPO-UNO Joint Research Project. Retrieved May 26, 2020

Click to access wipo_unu_07_india.pdf

[3] Sencer, Stephen D. Michigan Law Review, vol. 90, no. 6, 1992, pp. 1308–1314. JSTOR, http://www.jstor.org/stable/1289415. Accessed 26 May 2020. [4] Fihn, B. (2015). A New Humanitarian Era: Prohibiting the Unacceptable. Arms Control Today, 45(6), 19-22. Retrieved May 26, 2020, from http://www.jstor.org/stable/24573745 [5] Helfer, R. Laurence & Austin, W. Graeme. Human rights and Intellectual property: Mapping the global inference, (2011). [6] Case study on companies using intellectual property system for the development of business [7] FAO(OS)583/2011

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Author Details: Rupinder Kaur is a student at Symbiosis Law School, NOIDA.

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