Copyright is an Intellectual Property Right granted to creators of original literary, dramatic, musical, and artistic work, sound recordings and cinematograph films. Copyright is a bundle of rights granted exclusively to the creator of an original work. This includes economic rights, inter alia, right of reproduction, right of adaptation, right to publish, and right to communicate to the public or do translations. Copyright also includes the right of paternity, which is the right to claim ownership over one’s work and prevent others from doing so, and the right of integrity, which is the right to prevent distortion or mutilation of one’s work. These rights are exclusively vested in the creator and such a creator can prevent others from exploiting any of the above-mentioned rights unless a license is granted to make use of an economic right. A copyright vests in the creator for a period of her lifetime and 60 years from the death of the creator, after which it becomes public property which can be used freely by anyone. The Copyright Act, 1957[1] deals with copyrights in India. The copyright law does not provide protection to a mere original idea but an expression of such an idea into something substantial. Scroll down to check more about Copyright for Medical Devices.
The registration of Copyright for Medical Devices is not compulsory but is advisable as it is formal proof to the ownership of the creator in her work. Registration does not create Copyright, as Copyright in an original work becomes vested in the creator the moment the original idea is expressed in tangible form. Moreover, it helps in providing better protection to work like bringing action against infringement of one’s Copyright and enforcing civil and criminal liabilities for such infringement.
Intellectual Property Rights Protection Available for Medical Devices
There are many intellectual property rights available to protect the interests vested in a medical device. Some of the main rights available to creators of medical devices are:
- Trademark for Medical Devices:
Trademark is, as defined under the Trademark Act, 1999, “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from that of others and may include the shape of goods, their packaging and combination of colours”. In other words, a Trademark refers to any word, sign, design, phrase, logo, or symbol which helps distinguish and differentiate the goods/services and the brand name of one person or organization from another. It gives the owner of the trademark exclusive rights to use and exploit such trademark. A trademark for a medical device can be registered at the Trademark Registry under Class 10 in accordance with the provisions of the Trademark Act, 1999.
- Patents for Medical Devices:
A patent is a legal document granted by the government, which confers an exclusive statutory right in favour of the inventor in exchange for disclosure of the invention to the public for general usage. A Patent provides for a monopoly over an invention. According to the Patent Act, 1970, the invention should be such that it is new and useful and presents a new manner of doing something or must be non-obvious in a way that it is an improvement to existing technology. Patent rights are granted for inventive products and processes which meet the criteria of novelty, non-obviousness, and usefulness. A patent can be obtained for a newly invented medical device is such a medical device is novel, non-obvious and useful.
- Copyright for Medical Devices:
Copyright protection can also be extended to medical devices as Copyright is granted to the original creation of, inter alia, literary and artistic work, which is present in a tangible form.
A medical device has many aspects which can be protected under copyright law, like the software code used in medical device technologies, the look and feel of the user interface, and the artistic design employed in the medical device. The design of a medical device can only be copyrighted if its artistic features can be identified independently and exist separately from the useful aspect of the device.
Documents Required for Copyright for Medical Devices
Mentioned below are some essential requirements for Copyright Registration
- If the application is being filed through an advocate, then a vakalatnama is signed by the advocate and the party or a special power of attorney.
- Information regarding the name, identity, address and contact details of the applicant
- Authorization with respect to the work if the work is not that of the applicant
- If the applicant is not the creator, then the name, address, contact details, nationality of the author and if the creator is deceased, the date of death of the creator. A non-objection certificate from the author.
- In case the Copyright is for software, the source code and object code are required
Procedure to Apply for Copyright for Medical Devices
Copyright in medical devices is created and vested in the creator of such a medical device or the software code used in a such medical device the moment the original idea is expressed or manifested. Registration of Copyright with the Registrar of Copyrights does not lead to the creation of any new right but ensures stronger protection as the same acts as a valid legal proof of ownership, creates a public record, enables one to take legal action against a person infringing the Copyright, enables ne to sell or transfer otherwise the right in work, enables one to change the form of work and provides a plethora of economic benefits.
The creator of the medical device, an authorized agent of such creator, a copyright claimant can apply to get copyright registered. To get one’s Copyright for medical devices registered, the following steps are to be followed:
- Registration on the official government website
To file an application, the applicant needs to first register on the official website. One can also get a physical application form at the copyright office.
- Application Filing
Each separate original work needs to be registered separately and a separate application has to be filed for each in accordance with Form XIV along with the requisite fee as provided under Schedule 1 and Schedule 2. The application must be signed along with the requisite documents, power of attorney if needed and a valid Vakalatnama signed by an advocate. After the application is submitted, a diary number shall be issued to the applicant.
- Examination
Once the application is submitted, the same shall be examined by the copyright examiner within 30 days of issuance of the diary number. If no objections are raised, the application and documents are scrutinized and checked for discrepancies. If there are any discrepancies, the applicant is made aware of it and allowed to resolve the same. If objections are raised against the applicant, both parties are given the opportunity to be heard and only if the objections are cleared does the application proceed forward or shall it be rejected.
- Grant of Certificate
Once the Examiner is satisfied with the sufficiency of the application, the Copyright is registered, and a Certificate of Copyright for Medical Devices is granted to the applicant. The details of the Copyright are entered into the register of Copyright by the Registrar of Copyrights.
Conclusion
Copyright is a bundle of rights granted exclusively to the creator or author of an original work. This includes economic rights, inter alia, right of reproduction, right of adaptation, right to publish, and right to communicate to the public or do translations. A medical device has many aspects which can be protected under copyright law, like the software code used in medical device technologies, the look and feel of the user interface, and artistic design employed in the medical device. As a creator of a medical device, it is prudent to get the Copyright registered to provide added protection to one’s creation and prevent anyone from exploiting rights exclusively vested in the creator and bringing legal actions person infringing one’s Copyright.
Read Our Article: How to Get a Trademark for Medical Devices?
