To define intellectual property we have to define ‘property and ‘intellectual’ separately the word ‘intellectual’ as an adjective means ‘involving or appealing to the intellect’, ‘having a highly developed ability to think reason and understand’.
As a noun the word ‘intellectual’ means ‘a person with a highly developed intellect and great mental ability’. The term ‘property’ is synonymous with the right of ownership.
Ownership and property are inter-dependent. Property includes all a person’s legal rights, of whatever description. A man’s property is all that is his in law.
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According to the theory of Bentham; ‘property is nothing more than the basis of a certain expectation of deriving hereafter certain advantages by a thing the reason of the relation in which we stand towards it.
There is no image, no visible lineament which can property the relation that constitutes property. It belongs not to physics, but to meta-physics.
It is altogether conception of mind. To it all or any of these physical circumstance failed to assist in conveying the idea of property’. According to Salmon property includes all legal rights, of whatever description.
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A house, lane life, liberty, right to conjugal relation etc. all includes a man’s property. Ii narrower sense it means only proprietary rights and in narrowest sense includes only the corporeal property.
Hence the meaning of ‘intellectual property’ is’ a property creates by human brain’. It is not similar to that of a land or house.
The subject matter of intellectual property is very wide and includes literary and artistic works, films, computer programs, inventions, designs, trademarks etc Intellectual property law concerns the legal rights associated with creative effort or commercial reputation and goodwill.
Intellectual property creates rights and duties. The reason for the development of the law regarding intellectual property is that a person who creates a work or has a good idea which he develops has a right, based on morality and concept of reward, to control the use and exploitation of it, and to prevent other from taking unfair advantage of his efforts.
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Infringement of other’s rights making counterfeiting is equal to theft of goods. The intellectual property law protects the owner from the infringement and counterfeiting.
The term ‘intellectual property’ has come to be internationally recognized as covering patents, industrial designs, copy right, trademarks, know-how and confidential information. Patents, designs and trademarks used to be considered as different kinds of ‘industrial property’.
Although the creation of a trademark has very little to do with intellectual creativity, it cannot be doubted that patents, designs and copyright are the products of intellectual effort and creative activity in the field of applied arts or technology and fine arts.
The scope of intellectual property is expanding very fast and attempts are being made by persons who create new creative ideas to seek protection under the umbrella of intellectual property rights.
There are many similarities in the law relating to the different species of intellectual property in regard to the nature of the property, the mode of its acquisition, the nature of rights conferred, the commercial exploitation of those rights, the enforcement of those rights and the remedies available against infringement of those rights.
The statute law relation to intellectual property in India is undergoing changes so as to bring them to harmonize with the corresponding laws in the developed countries. This has become necessary after India signing the GATT and TRIPS and becoming a member of WTO.
Basic concept of intellectual property – the patent law centers round the concept of novelty or lack of anticipation and inventive step. Design law is based on novelty or originality of the design not previously published in India or any other country.
The substantive law of trademarks is based on the concepts of distinctiveness and similarity of marks and similarity of goods. Copyright is based on the concepts of originality and reproduction of the work in any material form.