BASICS OF LAW
• The ownership is an important right in relation to property. It is a juristic concept in Roman law. Ownership has been taken as an absolute right over a thing.
• The term Ownership was used in English law for the first time in 1853.
Definitions of Ownership
• According to Marvi, ownership means the vesting of powers in the owner for the thing.
• According to Hibbert ownership includes within it four kinds of rights.
- Right to use of thing:
- Right to exclude others from using the thing
- Disposing of the thing
- Right to destroy it.
• Austin defines ownership as right which avails against everyone who is subject to the law conferring the right to put to user of indefinite nature He further says that ownership is a right indefinite in point of user unrestricted in point of disposition and unlimited in point of duration.
• According to Salmond, Ownership in its most comprehensive signification denotes the relation between a person & right is vested in him. Thus in generic sense ownership signifies relation between the person of inherence and the object of ownership.
• It consists of a complex of rights all of which are rights in rem in Salmond s view ownership exhibits the following incidents:
1. An owner shall have a right to possess the thing which he owns, he may however not be necessarily in actual possession of it.
2. He had normally the right to use and enjoy the thing owned.
3. The owner has a right to consume destroy or alienate the thing.
4. Ownership has the characteristic of being indeterminate in duration
5. Ownership has a residuary character. For instance if a land owner gives a lease of his property to A, an easement to B & a right of profit to C then his ownership shall consist of the residual rights.
Elements of Ownership
The following are the elements of ownership:
• Possendi: Power to possess a thing.
In the case of Ramsigh versus Central Bureau of Narcotics AIR 2011 SC 2490 it has been held by the supreme court that control over goods is one of tests to ascertain conscious possession so also title.
• Utendi: Capacity to use or utilize.
• Dispondendi: Power of disposition.
Characteristics of Ownership
1. Ownership contains a right of the owner to exclude others.
2. Ownership provides a power to alienate a thing or property intervivos or the charge security This power is limited by various laws specially by family laws to ensure the absolute power over such property.
3. Ownership gives power to a person owner to leave such property etc. by will.
4. The right of ownership can be exercised under certain conditions imposed by various laws. An insane minor cannot use his right of ownership. As such a right of ownership as in one sense an ultimate right or the collection of rights privileges & power which the state permits.
5. An owner can destroy property or can exercise power of ejectment as he pleases such power is subject to
- the law of nuisance,
- state control and
- agreement between owner& other.
6. On the basis of its classification, ownership can be divided into:
7. On the basis of the limitation, ownership can be
8. A right of ownership can be curtailed or restricted during war or emergency. If any land or property is required for the use of army during war it can be acquired by the Government
9. The right of ownership is protected by state
10. It can be exercised in such a way that the rights of other persons may not be disturbed or violated
11. The right of ownership is a permanent right In case the owner dies the ownership is passed on to his or her successors
12. The rights of ownership of the minors idiots and lunatics is protected by the state
13. Everything except natural air light and heat contains ownership.
• Possession is an important factor in the jurisprudence. Salmond has to say that possession on physical goods is essential for human life.
• A person can utilize a physical goods on the grounds of possession in absence of it human life is impossible. Actually possession is an expression of a fundamental relation between persons and goods.
Definitions of Possession
• It is being said that the understanding of the conversion of possession is easy but to define it is very hard. Various jurists have defined the possession as under:
• According to Salmond, possession is a continuing defects relation between a person and thing.
According to English law there are three conceptions regarding possession:
1. Any person can have both possession and physical control.
2. Any person can maintain possession over thing even without a physical control and
3. Any person can have physical control over a thing even without the possession over a thing.
• Thus the physical control of a person on thing and desire to retain such physical control is a possession. When a person has physical control over a thing and he desires to continue to retain such physical control then it is said that there is a possession of that person on that person on that thing.
Essential Elements of Possession
• First essential element of possession is corpus possessions. It is called the physical element of possession. This element is an indicator of real possession on a thing.
• It may also be said a physical contract. The word corpus means a single contract over the thing and having a capacity that others may not interfere with it under it.
• Second essential element of possession is Animus Possidendi. It is called mental element of possession. In real, it is an intention to appropriate oneself the executive use and enjoyment of the things possessed.
• It is the conscious intention of the possessor to exclude others from interfering with his right of possession In other words it may be said that apart from the physical power to deal with the thing the possessor must also have a will to exercise such control.
• The main object of the law is to regulate the relationship between the individuals in the society. The concept of legal personality is an important subject matter of the law because rights and duties cannot be there without a person.
Many jurists have defined persons in many ways.
• According to Salmond, “A person is any being whom the law regards as capable of rights and bound by legal duties.”
• According to Patton- Legal personality is an artificial creation of law. It is a medium through which some such units are created in whom rights can be vested.
• According to Kelson, legal person is a fiction, because it is not more than rights and duties.
• According to Aanlytical School: A subject of rights and duties is called legal Person
• According to Hegal personality is the subjective possibility of a rightful will.
Types of Persons
There are two kinds of legal persons recognized by law:
• Natural person means a living human being, but all human beings are not recognized as natural persons in the eye of law.
• For example- a lunatic, an idiot, a minor is not a natural person because they cannot possess rights and duties.
• Legal Person may be anything which is considered by law as a legal person.
• Legal personality is the creation of law by conferring rights and duties.
• It is imaginary or artificial in nature.
• The legal persons perform their functions through natural persons only.
• There are different varieties of legal persons, viz. Corporations, Companies, Universities, President, Societies, Municipalities, Gram Panchayats, etc.
- The concept of legal personality is basically related to the fact of rights and duties attached to them and certain immunities and responsibilities attached to them.
- Hence there is a vast difference between a human and a legal person as human is the existence given by nature whereas legal person is a fiction created by act of law.
• In civilized societies, most of the relations between the individual and the state are governed by rules made or recognised by the state, that is, law. Law lays down the rights and duties of the individuals.
• In other words, it prescribes what one is to do and what one is not to do and what one is entitled to get it done. A breach of these rules is called wrong. When a person has committed a wrong, he is said to be liable.
• Thus, liability is the condition of the person who has committed a wrong. Salmond defines liability as the bond of necessity that exists between the wrongdoer and the remedy of the wrong’.
• The task of law is not finished only by laying down rights and duties; it ensures their protection, enforcement and redress also. Therefore, liability is a very important part of the study of law.
• The kinds of liability, when one becomes liable or in other words, when liability comes into existence and the measure of liability are the things that must be known in this connection.
Kinds of Liability
Liability is of two kinds:
Generally, four points of distinction between the two have been put forward:
- Crime is a wrong against the society but a civil wrong is a wrong against a private individual or individuals.
- The remedy against a crime is punishment but the remedy against the civil wrongs is damages.
- A third difference between the two is that of the procedure. The proceedings in case of crime are criminal proceedings, but the proceedings in case of a civil wrong are called civil proceedings and criminal and civil proceedings take place in two different sets of courts.
- The liability in a crime is measured by the intention of the wrongdoer, but in a civil wrong the liability is measured by the wrongful act and the liability depends upon the act and not upon the intention.
Remedial and Penal liability
• The liability can again be classified as penal and remedial. This distinction has been made on the basis of the legal consequences of the action against the wrong, if after a successful proceeding the defendant is ordered to pay damages or to pay a debt, or to make a specific performance etc., the liability is called remedial liability.
• When after a successful proceeding the wrongdoer is awarded punishment which may be the fine, imprisonment, etc., it is called penal liability.
• The civil liability is generally remedial and the criminal liability is penal. But this is not always true. But in some cases, the civil liability is also penal. Therefore, civil liability can be remedial and penal both. As far as criminal liability is concerned, with the very few exceptions, it is always penal.
• With the origin and development of human civilisation, rights have also been created in the society. Each person desires to live with peace and happiness, which is only possible when some fundamental rights are given to him/her.
• One does not bear any undesirable interference in his/her rights and expects for punishment for that person who interferes. Thus it is clear that there is an important place of rights in human society. Rights here mean legal rights.
Definitions of Rights
• According to Salmond “Right is as an interest, recognized and protected by a rule or justice
• In view of Dr Allen “Right means a guaranteed power by law to get an interest”.
It is clear that legal rights are a medium of protection of an interest or interest which are:
• Recognized by law and
Essential Elements of legal Rights
According to Salmond, every legal right has the following five elements or characteristics:
1. The Person of Inherence
2. The person of Incidence
3. Contents of the Right
4. Subject – matter of Right
5. Title of the Right
Different Types of Right
Perfect and Imperfect Rights
• A perfect right means a right which has a correlative duty that can be legally enforced. Generally, when law recognizes a right it prescribes a remedy also and when the right is violated it enforces it.
Rights in rem and rights in personam
• Classification of right in rem and right in personam is from Roman law.
• Right in rem is also called as Real right and right in personam as personal right.
• A right in rem is available against the whole world but a right in personam is available against a particular individual only (such as contract rights).
• The distinction between real and personal right is well illustrated by an example. A person’s right to the peaceable occupation and use of his land is a right in rem because all the world is under a duty towards him not to interfere with it. But if a person grants a lease of the land to a tenant, his right to receive rent from the tenant is a right in personam, for it is available exclusively against the tenant and no one else.
Proprietary and personal Rights
• The proprietary right is vested in estate of a person and it is related to property assets and estate of the person, whereas the personal right of a person is related to his reputation status and personality etc.
• Personal right is not transferable and extinguished with the death of a person.
Rights in re-propria and rights in re aliena
• Right over one’s own property is called Right in re propria whereas right over the property of someone else is called Right in re aliena. For example a person has right in re propria on his own land.
• The rights in re aliena arise when a person’s rights in his property becomes subject to another person’s right in the some property such as the right of way over the land of another.
• Rights in re aliena are called encumbrances also.
Positive and Negative Right
• A positive right is that tight which has a correlative positive duty. In case of positive right the person having the right can compel the person upon whom the correlative duty is imposed to imposed to do some positive act.
• Whereas in case of negative right others are restrained from doing sometime Thus, negative right has a correlative negative duty or in other words the right of ownership is a negative right for it imposes on others a negative duty of non-interference with one’s right ownership.
Public & Private Rights
• A right vested in the state is called a public right The state enforces such right as a representative of the subjects in public interest.
Vested & Contingent Rights
• A vested right accrues when all the facts have occurred which must by law occur in order that a person in question would have the right. In case of contingent right only some of the events necessary to vest the right in the contingent owner have happened.
• A vested right creates an immediate interest. It is transferable and heritable. A contingent right does not create an immediate interest and it can be defeated when the required facts have not occurred.
Legal and Equitable Rights
• Legal rights means such rights were recognized and enforced by the common law courts of England, whereas equitable rights means such rights which were recognized and enforced by the chancery courts.
• Equitable Rights are from the English law system. No difference has been between, legal and equitable rights in India.
• When the right is given to the person then it is assumed that certain duties are also imposed on the person. The right has its correlative duties.
• There are two kinds of duties when it is the obligation of the person to perform his duty when he has a legal duty but in case of moral duty he has no obligation. It is on the discretion of an individual.
• The duties are classified into absolute and relative duty, positive and negative duty and primary and secondary duty.
Classification Of Duties :
Legal And Moral Duties
• A Legal duty is adversary of a legal wrong and it is recognized by the law for administration of justice. Similarly, Moral duty is an opposite of moral wrong, but is not recognized by law but it is followed out of human conscience and social perception.
• So, a duty can be legal but not moral and vice versa. So, by the operation of law it is mandatory to perform a legal duty but not a moral duty.
• For example – not selling adulterated milk is a legal duty and not wasting paper is a moral duty. There is punishment for former and not for latter.
Positive And Negative Duties
• When a person is enforced to perform a duty, the duty is called positive duty.
• Whereas, when the law asks the person from refraining in involving or undertaking a particular act, such duty is called negative duty.
• For example – to pay debt is a positive duty whereas, not to trespass on third person’s land is a negative duty.
Primary And Secondary Duties
• Primary duty is one which doesn’t need to be stated, it exists on its own. Whereas secondary duty is one which exists only for giving the way to other duties thus, having no independent existence.
• For example – Not to cause injury to another person is the primary duty, but to pay damages as a result of injury caused is the secondary duty.
Absolute And Relative Duties
• Absolute duties are the one which are not followed by a right which means a right is not corollary of a duty in the case of an absolute duties, whereas relative duties are the duties which come with a bond and are followed by right.
• Thus, a relative duty cannot exist without a right.
Duties enriched under Indian Constitution
• Article 51-A of the constitution of India guarantees certain duties to every citizen of India. Article 51-A of the Indian constitution states that it shall be the duty of every citizen of India:
- To respect the provisions of Constitution and respect the National Flag and National Anthem
- To safeguard the sovereignty and integrity of India
- To follow the noble ideals of national struggle
- To defend the country and contribute to national service when called
- To preserve the national heritage of the country
- To promote and maintain the harmony of brotherhood amongst people of India.
- To protect the dignity of women
- To protect the natural habitat and including forests, lakes, rivers, and wildlife
- To protect public property and to avoid violence
- To contribute to the development of the nation in all spheres
THE RIGHT TO INFORMATION
• The right to information is a fundamental right under Article 19 (1) of the Indian Constitution.
• In 1976, in the Raj Narain vs the State of Uttar Pradesh case, the Supreme Court ruled that Right to information will be treated as a fundamental right under article 19.
• The Supreme Court held that in Indian democracy, people are the masters and they have the right to know about the working of the government.
• Thus the government enacted the Right to Information act in 2005 which provides machinery for exercising this fundamental right.
The Right to Information Act of 2005
• The act is one of the most important acts which empowers ordinary citizens to question the government and its working. This has been widely used by citizens and media to uncover corruption, progress in government work, expenses related information, etc.
• All constitutional authorities, agencies, owned and controlled, also those organisations which are substantially financed by the government comes under the purview of the act. The act also mandates public authorities of union government or state government, to provide timely response to the citizens’ request for information.
• The act also imposes penalties if the authorities delay in responding to the citizen in the stipulated time.
What type of information can be requested through RTI?
• The citizens can seek any information from the government authorities that the government can disclose to the parliament.
• Some information that can affect the sovereignty and the integrity of India is exempted from the purview of RTI.
• Information relating to internal security, relations with foreign countries, intellectual property rights (IPR), cabinet discussions are exempted from RTI.
Objectives of the RTI Act
- Empower citizens to question the government.
- The act promotes transparency and accountability in the working of the government.
- The act also helps in containing corruption in the government and work for the people in a better way.
- The act envisages building better-informed citizens who would keep necessary vigil about the functioning of the government machinery.
Important provisions under the Right to Information Act, 2005
• Section 2(h): Public authorities mean all authorities and bodies under the union government, state government or local bodies. The civil societies that are substantially funded, directly or indirectly, by the public funds also fall within the ambit of RTI.
• Section 4 1(b): Government has to maintain and proactively disclose information.
• Section 6: Prescribes a simple procedure for securing information.
• Section 7: Prescribes a time frame for providing information(s) by PIOs.
• Section 8: Only minimum information exempted from disclosure.
• Section 8 (1) mentions exemptions against furnishing information under the RTI Act.
• Section 8 (2) provides for disclosure of information exempted under the Official Secrets Act, 1923 if the larger public interest is served.
• Section 19: Two-tier mechanism for appeal.
• Section 20: Provides penalties in case of failure to provide information on time, incorrect, incomplete or misleading or distorted information.
• Section 23: Lower courts are barred from entertaining suits or applications. However, the writ jurisdiction of the Supreme Court of India and high courts under Articles 32 and 225 of the Constitution remains unaffected.
Significance of the RTI Act
• The RTI Act, 2005 empowers the citizen to question the secrecy and abuse of power practised in governance.
• It is through the information commissions at the central and state levels that access to such information is provided.
• RTI information can be regarded as a public good, for it is relevant to the interests of citizens and is a crucial pillar for the functioning of a transparent and vibrant democracy.
• The information obtained not only helps in making government accountable but also useful for other purposes which would serve the overall interests of the society.
• Every year, around six million applications are filed under the RTI Act, making it the most extensively used sunshine legislation globally.
• These applications seek information on a range of issues, from holding the government accountable for the delivery of basic rights and entitlements to questioning the highest offices of the country.
• Using the RTI Act, people have sought information that governments would not like to reveal as it may expose corruption, human rights violations, and wrongdoings by the state.
• The access to information about policies, decisions and actions of the government that affect the lives of citizens is an instrument to ensure accountability.
• The Supreme Court has, in several judgments, held that the RTI is a fundamental right flowing from Articles 19 and 21 of the Constitution, which guarantee to citizens the freedom of speech and expression and the right to life, respectively.
Criticism of RTI Act
• One of the major set-back to the act is that poor record-keeping within the bureaucracy results in missing files.
• There is a lack of staffing to run the information commissions.
• The supplementary laws like the Whistle Blower’s Act are diluted, this reduces the effect of RTI law.
• Since the government does not proactively publish information in the public domain as envisaged in the act and this leads to an increase in the number of RTI applications.
• There have been reports of frivolous RTI applications and also the information obtained have been used to blackmail the government authorities.
CYBER SECURITY AND CYBER LAWS
• The term, ‘Cyber’ is used in relation to the culture of computers, information technology, and virtual reality.
• The connection between internet ecosystems forms cyberspace. The threat to cyberspace leads to an issue and gives rise to the need for cybersecurity.
Threats to Cyberspace:
- Interconnectedness of Sectors
- Increase in the number of exposure points
- Concentration of assets
• As per the NITI Aayog report, the threats to cyberspace have increased dramatically over the last 10 years.
• The cyber attacks lead to the exposure of:
- Sensitive information
- Personal information and
- Business information
The need for Cyber Security
• Cyber Security protects the cyberspace from the following:
- Cyber Attacks
- Damage to Cyberspace
- Misuse of Cyberspace
- Economic Espionage
INFORMATION TECHNOLOGY ACT
• The Information Technology Act, 2000 aims to provide for the legal framework so that legal sanctity is accorded to all electronic records and other activities carried out by electronic means.
• The Act states that unless otherwise agreed, an acceptance of contract may be expressed by electronic means of communication and the same shall have legal validity and enforceability. Some highlights of the Act are listed below:
• Chapter II deals with Use of Digital Signature to authenticate an electronic record.
• Chapter-III of the Act details about Electronic Governance and provides inter alia amongst others that where any law provides that information or any other matter shall be made available in an electronic form; and accessible so as to be usable for a subsequent reference.
• Chapter-IV of the said Act gives a scheme for Regulation of Certifying Authorities. The Act recognizes the need for recognizing foreign Certifying Authorities and it further details the various provisions for the issue of license to issue Digital Signature Certificates.
• Chapter-IX of the said Act talks about penalties and adjudication for various offences. The penalties compensation not exceeding Rs.1,00,00,000 to affected persons. The Act talks of appointment of any officers not below the rank of a Director to the Government of India or an equivalent officer of state government as an Adjudicating Officer who shall adjudicate whether any person has made a contravention of any of the provisions of the said Act or rules framed there under. The said Adjudicating Officer has been given the powers of a Civil Court.
• Chapter-X of the Act talks of the establishment of the Cyber Regulations Appellate Tribunal, which shall be an appellate body where appeals against the orders passed by the Adjudicating Officers, shall be preferred.
• Chapter-XI of the Act talks about various offences and the said offences shall be investigated only by a Police Officer not below the rank of the Deputy Superintendent of Police. These offences include tampering with computer source documents, publishing of information, which is obscene in electronic form, and hacking.
• The Act also provides for the constitution of the Cyber Regulations Advisory Committee, which shall advice the government as regards any rules, or for any other purpose connected with the said act. The said Act also proposes to amend the Indian Penal Code, 1860, the Indian Evidence Act, 1872, The Bankers’ Books Evidence Act, 1891, The Reserve Bank of India Act, 1934 to make them in tune with the provision of IT Act.
The Information Technology (Amendment) Act 2008:
• The Information Technology (Amendment) Act, 2008 an act to amend the IT Act 2000 received the assent of the President on 5th February 2009. It dealt with various changes as summarized below-
• With no specific reference to Data Protection in 2000 Act, the ITA 2008 introduced two sections addressing Data Protection, Section 43A (Compensation for failure to protect data), and Section 72A (Punishment for disclosure of information in breach of lawful contract.
• Section 67C refers to the Preservation and Retention of Information by Intermediaries. According to Central Government, any intermediary who intentionally or knowingly contravenes the provisions shall be punished with an imprisonment for a term which may extend to 3 years and shall not be liable to fine.
• Section 69 gives power to issue directions for interception or monitoring or decryption of any information through any computer source.
• Section 69B authorizes to monitor and collect traffic data or information through any computer resource for Cyber security.
Cyber Threats and Cyber Security
• There are types of cyber attacks that have evolved over a period of time:
- Virus – It is a malware that self-replicates and spreads by inserting copies of itself into other executable code or documents.
- Hacking Websites – An unauthorized access to any website belonging in a personal or professional space
- Malicious Codes – It is a kind of security threat where any code present in software tends to bring harmful effects, breach the security of the system, or bring damage to the system.
- Advanced Worm and Trojan – This is again a malware that camouflages as a regular software however once accessed, brings damage to the hard drive, background systems and corrupts allocation systems
- Identity Theft and Phishing – It is a cyber attack involving fraudulent emails posing as authorized entities in order to induce people to reveal their information (personal and professional.)
- DOS, DDOS – DOS stands for Denial-of-Service attack, and DDOS stands for Distributed Denial-of-Service attack. The attackers make the machine or network unavailable by disrupting services of the host network through the flood of superfluous requests to overload systems. And when such flooding of requests comes from various ends, it is termed as DDOS.
- Cyber Espionage – Usually when a government’s or important organization’s privacy is posed at risk due to illegal use of computer networks to seek confidential information.
- Cyber Warfare – Deliberately attacking the information systems through the use of computer technology to disrupt the state’s activities, especially for military purposes.
Cyber Swachhta Kendra
• It is the Botnet Cleaning and Malware Analysis Centre under the Indian Computer Emergency Response Team (CERT-In) under the Ministry of Electronics and Information Technology (MeitY).
• The aim of Cyber Swachhta Kendra is to promote awareness among Indian citizens to secure their data in computers, mobile phones, and other electronic devices.
INTELLECTUAL PROPERTY RIGHTS
• Intellectual property rights (IPR) are the rights given to persons over the creations of their minds: inventions, literary and artistic works, and symbols, names and images used in commerce. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
• These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
• The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886).
• Both treaties are administered by the World Intellectual Property Organization (WIPO).
Intellectual property rights are customarily divided into two main areas:
(i) Copyright and rights related to copyright:
• The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author.
(ii) Industrial property: Industrial property can be divided into two main areas:
Protection of distinctive signs, in particular trademarks and geographical indications
- Trademarks distinguish the goods or services of one undertaking from those of other undertakings.
- Geographical Indications (GIs) identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin.
- The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services.
- The protection may last indefinitely, provided the sign in question continues to be distinctive.
Industrial designs and trade secrets: Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.
What is the need of IPR?
- The progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture.
- Encourages innovation: The legal protection of new creations encourages the commitment of additional resources for further innovation.
- Economic growth: The promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life.
- Safeguard the rights of creators: IPR is required to safeguard creators and other producers of their intellectual commodity, goods and services by granting them certain time-limited rights to control the use made of the manufactured goods.
- It promotes innovation and creativity and ensures ease of doing business.
- It facilitates the transfer of technology in the form of foreign direct investment, joint ventures and licensing.
India and IPR
• India is a member of the World Trade Organisation and committed to the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement).
• India is also a member of World Intellectual Property Organization, a body responsible for the promotion of the protection of intellectual property rights throughout the world.
• India is also a member of the following important WIPO-administered International Treaties and Conventions relating to IPRs.
- Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure
- Paris Convention for the Protection of Industrial Property
- Convention Establishing the World Intellectual Property Organization
- Berne Convention for the Protection of Literary and Artistic Works
- Patent Cooperation Treaty
- Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks- Madrid Protocol
- Washington Treaty on Intellectual Property in respect of Integrated Circuits
- Nairobi Treaty on the Protection of the Olympic Symbol
- Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms
- Marrakesh Treaty to facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities.
National IPR Policy
• The National Intellectual Property Rights (IPR) Policy was adopted in May 2016 as a vision document to guide future development of IPRs in the country.
• Its clarion call is “Creative India; Innovative India”.
• It encompasses and brings to a single platform all IPRs, taking into account all inter-linkages and thus aims to create and exploit synergies between all forms of intellectual property (IP), concerned statutes and agencies.
• It sets in place an institutional mechanism for implementation, monitoring and review. It aims to incorporate and adapt global best practices to the Indian scenario.
• Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been appointed as the nodal department to coordinate, guide and oversee the implementation and future development of IPRs in India.
• The ‘Cell for IPR Promotion & Management (CIPAM)’, setup under the aegis of DIPP, is to be the single point of reference for implementation of the objectives of the National IPR Policy.
• India’s IPR regime is in compliance with the WTO’s agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
• IPR Awareness: Outreach and Promotion – To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
• Generation of IPRs – To stimulate the generation of IPRs.
• Legal and Legislative Framework – To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
• Administration and Management – To modernize and strengthen service-oriented IPR administration.
• Commercialization of IPRs – Get value for IPRs through commercialization.
• Enforcement and Adjudication – To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
• Human Capital Development – To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
Achievements under new IPR policy
• Improvement in GII Ranking: India’s rank in the Global Innovation Index (GII) issued by WIPO has improved from 81st in 2015 to 52nd place in 2019.
• Strengthening of institutional mechanism regarding IP protection and promotion.
• Clearing Backlog/ Reducing Pendency in IP applications: Augmentation of technical manpower by the government, has resulted in drastic reduction in pendency in IP applications.
• Automatic issuance of electronically generated patent and trademark certificates has also been introduced.
• Increase in Patent and trademark Filings: Patent filings have increased by nearly 7% in the first 8 months of 2018-19 vis-à-vis the corresponding period of 2017-18. Trademark filings have increased by nearly 28% in this duration.
• IP Process Re-engineering Patent Rules, 2003 have been amended to streamline processes and make them more user friendly. Revamped Trade Marks Rules have been notified in 2017.
• Creating IPR Awareness: IPR Awareness programs have been conducted in academic institutions, including rural schools through satellite communication, and for industry, police, customs and judiciary.
• Technology and Innovation Support Centres (TISCs): In conjunction with WIPO, TISCs have been established in various institutions across different states.
Issues in India’s IPR regime
i) Section 3(d) of the Indian Patent Act 1970 (as amended in 2005) does not allow patent to be granted to inventions involving new forms of a known substance unless it differs significantly in properties with regard to efficacy.
This means that the Indian Patent Act does not allow evergreening of patents.
This has been a cause of concern to the pharma companies. Section 3(d) was instrumental in the Indian Patent Office (IPO) rejecting the patent for Novartis’ drug Glivec (imatinib mesylate).
ii) Issue of Compulsory licencing (CL): CL is problematic for foreign investors who bring technology as they are concerned about the misuse of CL to replicate their products. It has been impacting India-EU FTA negotiations.
CL is the grant of permission by the government to entities to use, manufacture, import or sell a patented invention without the patent-owner’s consent. Patents Act in India deals with CL.
CL is permitted under the WTO’s TRIPS (IPR) Agreement provided conditions such as ‘national emergencies, other circumstances of extreme urgency and anti-competitive practices’ are fulfilled.
iii) India continues to remain on the United States Trade Representative‘s (USTR’s) ‘Priority Watch List’ for alleged violations of intellectual property rights (IPR).
In its latest Special 301 report released by the United States Trade Representative (USTR), the US termed India as “one of the world’s most challenging major economies” with respect to protection and enforcement of IP.
iv) Data Exclusivity: Foreign investors and MNCs allege that Indian law does not protect against unfair commercial use of test data or other data submitted to the government during the application for market approval of pharmaceutical or agro-chemical products. For this they demand a Data Exclusivity law.
Enforcement of the Copyright act is weak, and piracy of copyrighted materials is widespread.
• Promoting an environment of innovations in schools. The academic curricula need to be rebooted.
• A proper resolution mechanism for resolving IPR related issues is needed.
• India will be unable to take full advantage of the transformative benefits of a strong IP system unless and until it addresses gaps in its IP laws and regulations.
• Success of India’s flagship programmes – Make in India and Start up India – depends on the boost of innovation ecosystem with better IPR safeguardings.
• More awareness is needed about the creation, protection and enforcement of IPRs to encourage the Indian industry not only to innovate but also to protect and enforce their innovations.
• India has made a number of changes in its IPR regime to increase efficiency and has cut down the time required to issue patents. The culture of innovation is taking centre stage in the country. India is well poised to focus on R&D. This has been reflected in its improved ranking in Global Innovation Index over the years.
• Government’s effort to strengthen National IPR policy, IP appellate tribunal, e-governance and commitment to abide by the TRIPS agreement of WTO in letter and spirit will help in improving perception of India globally.
• An efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a catalyst for economic development and social & cultural well-being.