The importance of intellectual property in India is well established at all levels- statutory, administrative and judicial. India ratified the agreement establishing the World Trade Organization (WTO).
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This Agreement, inter- alia, contains an Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which came into force from 1st January 1995.
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It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade.
The obligations under the TRIPS Agreement relate to provision of minimum standard of protection within the member countries legal systems and practices.
The Agreement provides for norms and standards in respect of following areas of intellectual property:
1. Copyrights and related rights
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2. Trade Marks
3. Geographical Indications
4. Industrial Designs
5. Lay out Designs of Integrated Circuits
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6. Protection of Undisclosed Information (Trade Secrets)
7. Patents
8. Plant varieties
Copyrights:
India’s copyright law, laid down in the Indian Copyright Act, 1957 as amended by Copyright (Amendment) Act, 1999, fully reflects the Berne Convention on Copyrights, to which India is a party.
Additionally, India is party to the Geneva Convention for the Protection of rights of Producers of Phonograms and to the Universal Copyright Convention. India is also an active member of the World Intellectual Property Organization (WIPO), Geneva and UNESCO.
The copyright law has been amended periodically to keep pace with changing requirements. The recent amendment to the copyright law, which came into force in May 1995, has ushered in comprehensive changes and brought the copyright law in line with the developments in satellite broadcasting, computer software and digital technology.
The amended law has made provisions for the first time, to protect performer’s rights as envisaged in the Rome Convention
Several measures have been adopted to strengthen and streamline the enforcement of copyrights. These include the setting up of a Copyright Enforcement Advisory Council, training programs for enforcement officers and setting up special policy cells to deal with cases relating to infringement of copyrights.
Infringement of copyright:
Illegal use or Violation by way of exploitation within authorization of the author of the copyright amounts to infringement. The governing principles for deciding the infringement of copyright are as under:
There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
Where the same idea is being developed in a different manner it manifests that the source being common, similarities are bound to occur. In such cases, the Courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyright work.
If the defendant’s work is nothing literal limitation of the copyright variations of the copyrights in other words, in order to be actionable, the copy must be a substantial and material one, which at once leads to the conclusion that the defendant is guilty of an act of piracy.
One of the surest and safest tests to determine whether or not there has been a violation of copyright ht is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
Where, however, apart from the similarities appearing in the two works, there are also material and broad dissimilarities which negate the intention to copy the original and the co-incidences appearing in the two works are clearly incidental, no infringement of the copyright comes into existence.
Piracy must be proved by clear and cogent evidence after applying the various tests laid down.
Fair dealing with any work has been kept out of the mischief of the Copyright Act.
Court may take the assistance of an expert in complicated and technical aspects of the violation of copyright(s).
The test to detect piracy is to see whether mistakes and deviations occurring in the original have also been reproduced.
Law restraining human enterprise should be liberally construed and therefore Copyright Act should not be interpreted so as to shut out research and scholarship.
The burden lies on the plaintiff to satisfy the court that the defendant has infringed his copyright innocence is no defense to a charge of infringement.
An infringement is in the nature of an invasion of a right of property and therefore intention of the infringer is immaterial provided there is infringement.
For determination of the question of infringement, the result and not the intention are relevant.
The owner of the literary work could bring action for infringement of copyright even though the literary work was not registered. Non-registration of work does not prevent an action for infringement.
Exceptions to infringement of copyright :
The following acts, amongst others, do not constitute infringement:
Fair dealing with a literary, dramatic, musical or artistic work not being computer programmes for the purposes of private use including research, criticism or review, making copies of computer programmes for certain purposes, reporting current events in newspaper magazines or by broadcasting or in a cinematography film or by means of photographs.
Reproduction of judicial proceedings and reports thereof, reproduction exclusively for the use of Members of Legislature, reproduction (artistic work excluded) in a certified copy supplied in accordance with law.
Reading or recitation in public of extracts of literary or dramatic work;
Publication in a collection for the use in educational institutions in certain circumstances;
Reproduction by teacher or pupil in the course of instruction or in question papers or answers;
Performance in the course of the activities of educational institutions in certain circumstances;
The causing of a sound recording to be heard in public utilizing it in an enclosed room or in clubs in certain circumstances;
Performance in an amateur club given to a non-paying audience or religious institutions;
Reproduction in newspapers and magazine of an article or current, economic, political, social or religious topics in certain circumstances
The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign the copyright to am person either wholly or partially, generally or subject to any limitation and for the whole term of the copyright or any part thereof.
The owner of the copyright in any existing work or the prospective owner in any future work may grant any interest in the right by license in writing signed by him or by his duly authorized agent.