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Sakshi Sharda
| Updated: 23 May, 2020 | Category: IPR

A Complete Overview of International Rules in Indian IPR Law

International Rules in Indian IPR Law

The Intellectual Property has both international and national dimensions; hence it can be said that it has dual nature. For example, the Patents in a country is governed by its national laws as well the international conventions related to such Patents in the designated country. For the future development and growth of the economy, there is an urgent need for a powerful protection of the Intellectual Property Rights worldwide and for the introduction of International Rules in the Indian IPR Law. The introduction of International Rules in Indian IPR Law is very significant in maintaining a balance between the national and international rules governing the various IPRs in the country as well as worldwide. In this article, we will discuss the complete overview of International Rules in Indian IPR Law. 

What is Intellectual Property as per the International Rules in Indian IPR Law?

Intellectual Property as per the International Rules in Indian IPR Law[1] refers to creations of the mind of people related to literary and artistic works, inventions, literary, and symbols, images, and names used in trade and commerce.

As per the International Rules in Indian IPR Law the Intellectual Property is divided into the following categories:

  • Trade Marks protected under the Trademarks Act, 1999;
  • Patents protected under the Patent Act, 1970;
  • Copyrights and Related Rights protected under the Copyright Act, 1957;
  • Industrial Designs protected under the Design Act, 2000;
  • Geographical Indications protected under the Geographical Indications of Goods (Registration and Protection) Act, 1999;
  • Layout Designs of Integrated Circuits protected under the Semiconductor Integrated Circuits Layout Design Act, 2000;
  • Plant Varieties protected under the Protection of Plant Varieties and Farmers’ Right Act, 2001;
  • Information Technology and Cyber crimes protected under the Information Technology Act, 2000;
  • Data Protection protected under the Information Technology Act, 2000.

What are the various International Rules in Indian IPR Law?

The various International Rules in Indian IPR Law are as follows:

International Rules in Indian IPR Law

The Paris Convention for the Protection of Industrial Properties

When there was no international convention concerning industrial property, it was very difficult to obtain legal protection in different countries of the world for new creations or inventions due to the diversification of laws in different countries. Moreover, the filing of Patent applications at the same time in different countries to prevent a publication in any one country destroyed the novelty of the invention or creation in other countries. These practical problems established a sturdy objective to overcome such difficulties in the case of Intellectual Property Rights.

In the late 19th century, the expansion of international focused flow of technology and improved international trade increased the necessity for coordination of laws related to industrial property in both the Trademark and patent sectors. The administration of the Paris Convention is also done by the World Intellectual Property Organisation (WIPO). The Paris Convention came into being to offer some international harmony in laws related to intellectual property. The Paris Convention was adopted on 20 March, 1883, at Paris and was enforced on 7 July, 1884. The Convention provided some primary and essential guidelines for the legal protection of Intellectual Property such as utility models, Patents, industrial designs, service marks, trademarks, sources of information or signs of appeal, trade names, and certain provisions for national treatment and harassment of unfair competition. These International Rules in Indian IPR Law was introduced on 7 December, 1998.

Under the Paris Convention, in the principle of anti-discrimination, a member country is authorized to grant the nationals of other countries the equal legal protection and advantages associated with the inventions or creations as the member country grants to its own nationals. The anti-discrimination policy of the Paris Convention is also an important principle of several other Intellectual Property treaties and agreements. 

The fundamental principles of the Paris Convention are as follows:

  • National Treatment

The principle of National treatment can be defined concerning the legal protection of industrial property as each member country of the Paris Convention is required to grant equal legal protection for the inventions of nationals of the other member countries as it will grant protection to its own nationals of the country. The provisions related to this principle are included in Articles 2 and 3 of the Paris Convention. For Example, in case, an Indian national is filing an application for Patent Registration in the US, the Indian national will have the same Patent rights and standards of legal protection in the US as a US national. 

  • Framework of Priority

The other fundamental principle of the Paris Convention is the ‘framework of priority’. As per the ruled laid down in the Paris Convention, an invention of the inventor can be protected in various countries at the same time. This also means an allowance of access to the foreign applicants of the National Patent Systems. An inventor of the invention is given the authority to claim the date of filing of his/her first application of Patent in respective member countries as an effective date of filing for further subsequent applications, concerning the same invention, in any other Convention country. Furthermore, the applicant is required to file the applications within 12 months time period of the earlier application filed in a matter to claim the date of priority for the invention. 

The Berne Convention for the Protection of Literary and Artistic Works

On the international level the first step with regard to Copyright protection was taken in the middle of the nineteenth century.

There were primarily three basic principles of the Berne Convention which are as follows:

  • Any work that is originated in one of the contracting states (works of the author, who is a national of such state, or works that are published at first in such a state) should be given same legal protection in every other contracting states as the latter contracting state will grant the works that are of its own national. This was basically the principle of ‘National Treatment.’
  • The legal protection should not be conditional upon compliance with any kind of formality. This was the principle of ‘Automatic’ protection.
  • The legal protection should be independent of the existence of the protection of the country where the origin of work happened. This was the principle of the ‘Independence’ of protection.

There was an urgent need to have a uniform system for the preservation of the Literary and Artistic Works which led to the formation of the Berne Convention. The Berne Convention was adopted on 9 September, 1886 and came into force on 4 December, 1887. The Berne Convention was originally signed in 1886 at Berne in Switzerland. The Berne Convention was later on revised in the years 1896 by the Paris Additional Act, 1908 by the Berlin Act, 1914 by the Additional Protocol Berne, 1928 by the Rome Act, 1948 by the Brussels Act, 1967 by the Stockholm Act, 1971 by the Paris Act, and 1979. 

The Universal Copyright Convention (UCC)

As an alternative to the Berne Convention, the Universal Copyright Convention was created in Geneva in the year 1952. The Berne Convention suffered from two prime weaknesses which were:

  • There was a lack of universality in the Convention as the two superpowers were not the member of the Convention. The superpowers were the United States and USSR.
  • The Convention provided for very high-level legal protection which prevented certain countries from joining the Union of the Convention.

Later on, UCC was amended according to the aims of operations of the United Nations (UN). The amendment was made as such to include the US in the list of the countries of the member nation of the Convention and also have a very less impact on the standards of other countries who are already a member of the Convention.

World Intellectual Property Organisation (WIPO)

The origin of the World Intellectual Property Organisation goes back to the year 1883 and 1886. In these years the Paris Convention for the protection of Industrial Property and the Berne Convention for the protection of Literary and Artistic Works was concluded and provided for the formation of the International Bureau. The two bureaus by the virtue of the WIPO Convention were united and were replaced by the World Intellectual Property Organisation.

The WIPO Convention, the main instrument of the World Intellectual Property Organisation was signed on 14 July, 1967, in Stockholm, that entered into force in 1970, and was later on amended in the year 1979. In the year 1974, the WIPO became one of the specialized agencies of the United Nations (UN) system of organizations.

There were two main objectives of the WIPO. The objectives were:

  • To promote the legal protection of Intellectual Property all over the world.
  • To ensure administrative cooperation between the Intellectual Property Unions which are established by the treaties that are administered by the WIPO.

In order to achieve the above-mentioned objectives, World Intellectual Property Organisation, in addition to performing the administrative tasks of the different Unions, also undertakes various activities.

The various activities of WIPO include the following:

  • The Normative Activities, that involves the setting of the standards and norms for the enforcement and protection of the Intellectual Property Rights (IPR) through the conclusion of all the International Conventions and Treaties;
  • The Program Activities, that involves legal technical assistance to the member states in the area of Intellectual Property;
  • The International Classification and Standardization Activities, that involves cooperation between the Offices of Industrial Property concerning Trademarks, Patents and Industrial Design Documentation; and 
  • The Registration Activities, that involves services associated with the international applications for Patent for inventions and for the Registration of Designs and International Marks.

Read our article:Law of Passing Off of Trademark in India

Trade-Related Aspects of Intellectual Property Rights (TRIPS)

The Berne Convention’s rules and regulations were incorporated in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the World Trade Organisation (WTO). This incorporation of the Berne Convention’s regulations in the TRIPS agreement made the Berne Convention practical world-wide.

The three main features of the TRIPS agreement were:

  • Standard

The TRIPS agreement sets out certain minimum standards of legal protection which should be provided by each member.

  • Enforcement

Certain general principles were laid down by the TRIPS agreement to all the IPR enforcement procedures. Remedies associated with enforcement were also introduced.

  • Dispute Settlement

In the TRIPS agreement the disputes between the WTO members were made subject to the procedures of dispute settlement of the WTO.

The TRIPS agreement was enforced on 1 January 1995, the countries were given a certain time period to implement the provisions of the TRIPS agreement in their respective countries. The developed countries were given a time period of 12 months to implement the provisions in their country. Under certain conditions the transition economies and developing countries were given a time period of five years to implement the provisions of the TRIPS agreement. As of in the year 2006, the least developed countries or LDC’s were given around 11 years to comply with the provisions of the TRIPS agreement. 

What is the need for International Rules in Indian IPR Law?

The need for International Rules in Indian IPR Law is due to the following reasons:

  • Encouragement for new Innovation

The legal protection given to the new innovations or creations led to encouragement in the commitment of the people to create some additional resources for creating or developing some new creations or innovation.

  • Economic growth

There is a strong shoot in the economic growth of a country when proper legal protection and promotion of Intellectual Property is done in a country. The economic growth and development of a country increases the job opportunity and creates new industries as well, and hence, it helps in enhancing the enjoyment and quality of life.

  • Safeguarding the rights of the creators

Intellectual Property Rights are required in a country to safeguard the interest of the creators and all other producers in their intellectual goods, commodity, and services by granting the creators and other producers with a certain time-bounded rights to have a control on the usage of the goods, commodities and services made by them.

  • Ensuring Ease in Doing Business

The IPR law promotes creativity and innovation. It also guarantees ease of doing business.

  • Facilitates the Transfer of Technology

The IPR Law of a country enables or eases the transfer of technology in the form of joint ventures, foreign direct investment, and licensing.

Conclusion

The primary purpose of the International Rules in Indian IPR Laws was not only to provide a certain minimum standard for the legal protection of Intellectual Property Rights, but also to provide a standard for the purpose. The International Rules in Indian IPR Law provide a minimum standard for the enforcement of Intellectual Property Rights that allows holders of the Intellectual Property Right to protect their authentic interests through administrative proceedings or civil courts. The member nations of all International Rules in Indian IPR Law are required to provide certain safeguards regarding the enforcement procedures. The member nations should provide “fair and equitable” enforcement procedures of the IPR.

The enforcement procedures should not be unnecessarily costly or complex or prevent unreasonable delays or unreasonable deadlines. A person applying for legal protection of his/her Intellectual Property should have a wide knowledge about the different International Rules in the Indian IPR Law. The process of registering any Intellectual Property is complex and time-consuming. We at Corpbiz have experienced professionals to help you in the process of Registration of Intellectual Property in India. Our trained professional will assist and guide you throughout the process of Registration of Intellectual Property. Our professional will ensure the effective and timely completion of your work.  

Read our article:Different Types of Patent Applications in India

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Sakshi Sharda

Sakshi Sharda has done BBALLB(HONS) and holds a strong knowledge on the matters pertaining to finance and law. From the past one year she is working as a legal advisor and in her leisure time she works on improvising her knowledge. Sakshi is spreading her knowledge by writing for Corpbiz.

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