In this chapter, copyright law, patent law, trademarks (British and American), and modern intellectual property law in India are explained briefly to give reader an historical perspective of the intellectual property laws in the world and India and to emphasize the importance of the intellectual property in the world market today.
4) Intellectual Property in India
Copyrights in the US can be traced to Anglo-American common law that developed over the course of centuries in the courts. In 1557, Queen Mary I established the Stationers Company of London, a trade association of printers and booksellers. The Stationers’ Company held one of the royal patents that permitted it to print books for resale in England, and without its approval, no one could print books for sale.
Under Queen Anne’s reign, in 1709, legal protection of an author’s rights was granted for the first time in the history. The Statute of Anne is recognized as the first statute of modern copyright. The law gave protection to the authors by granting a 14-year period to own the sole rights of work, and a second 14-year renewal period was permissible on registering the title at the Stationers’ Hall and furnishing nine copies for deposit at various university and other official libraries.
Other European countries followed England’s example. In 1741 Denmark enacted its first copyright law. France enacted its first copyright laws in 1793, and under the influence of Napoleon, the laws were passed on to Belgium, Holland, Italy, and Switzerland. In 1847 Spain passed its original copyright law. Because Germany lacked central government, and was composed of many independent states, the country was slow to enact copyright laws. In 1838 Germany passed its first copyright law, which was ineffective. It was not until Germany’s first national copyright law was passed in 1870, that German authors had received real protection.
For the most part, the American colonies based their copyright laws on the English system. By 1786, 12 of the original 13 states (except Delaware) had passed copyright acts before the federal Constitution was adopted.
The first US Federal Copyright Act that protected books, maps, and had a 14-year period and a 14-year renewal period, was passed in 1790. Once copyright was established, if a publisher should infringe on the work by issuing a piratical edition, it forfeits all copies of on hand. In addition, the publisher would be liable for a fine in the amount of 50 cents per every sheet, half of which would go to the writer and the rest to the government.
While US federal laws protected the citizens and residents, they did not provide the same protection for foreigners. In fact, it has been said that the government gave its blessing to the pirating of foreign books in this country. With no provisions to protect the rights of foreigners, publishers and printers in US were able to pirate and reprint foreign publications of all books they desired. At the time, American books were only a small fraction of the total books that were published, and the demand for imported books far outnumbered the domestic supply. With no restrictions, US citizens were able to buy pirated books at considerably lower prices than if copyright laws had been in place to prohibit this practice.
The Chace Act finally extended copyright protection to foreigners in 1891, for the books manufactured with a US copyright. The passing of this act was begun in part because of the strenuous efforts by American writers as many good American books were being ignored in favor of royalty free British works, since many leading British writers were freely pirated by the US publishers. In 1905, foreigners were further protected by being given one year following the publication of a foreign language book to make a decision to reprint in the United States. The 1909 Act allowed a book of foreign language to secure a copyright in this country without having to be reprinted here. The copyright term was changed to start from the date of publication instead of the date of registration and the renewal term was extended to 28 years.
The United States adhered to the Berne Convention for the protection of Literary and Artistic Works, effective March 1, 1989. The Act’s most dramatic feature was to eliminate the requirement that copyright notice be affixed to publicly-distributed copies and phonorecords as a condition of copyright protection; after the Act’s effective date, copyright notice is optional rather than mandatory.
After the Berne Convention Act, it is not essential to register written works for formal copyright protection in order to have at least some degree of protection against the copying of one’s works by others. Unpublished writings are subject to common law rights that can be enforced in courts of equity. The copyright of a published work is created by committing the authored expression to a tangible form.
In the United States, the Copyright Office is a branch of the Library
of Congress, and the procedure for obtaining a copyright registration is
quite simple: An application is submitted with a modest fee and two copies
of the work. A general cursory examination is made, and the copyright
is immediately in force.
The fundamental goal of the Patent systems throughout the world is to give an incentive to the inventor for the disclosure of his findings for the benefit of the society. Usually the incentive is a short-term monopoly over the invention.
In the United States, an inventor will be granted a patent to his invention if it has the three basic elements of patentability: 1) Novelty, it should be a new discovery or development, 2) Non-obviousness, it should not be obvious from the previous known knowledge, called ‘the prior art,’ 3) Utility, the invention should be a useful one for the society. An inventor’s right to a patent is dependent on the fulfillment of ‘enabling disclosure,’ another important condition.
The word ‘patent’ refers to the grant held by the patentee or the inventor. The legal term is ‘Letters Patent,’ which means an instrument issued by government to the patentee, granting or confirming a right to the exclusive possession and enjoyment of land, or of a new invention or discovery. The official copy of a US Patent is a sealed legal document impressively wrapped with a colorful ribbon.
The US Patent and Trademarks Office has two main functions in examining a patent in the public interest, 1) protect known and obvious knowledge form being unfairly usurped by an applicant who has not really made any novel contribution, 2) encourage disclosure of inventions so to stimulate the development of technology. The technological preeminence of the United States of America is because of the success of the US PTO in achieving an effective balance between the competitiveness and the needs of a cooperative society.
With a few exceptions, patents are issued by countries to provide protection within the territorial limits of the issuing country. Many countries have patent systems similar to that of the United States. The same kind of subject matter is patentable in most countries, although some exclude pharmaceuticals, foodstuffs, and a few other things from patent protection. In most countries the procedure for obtaining a patent is similar to the procedure in the United States. In general the owner of an invention who is seeking a patent in one or more countries must file an application in each country in which a patent is sought, except in Europe, where European Patent Convention allows one to file one application in the European Patent Office (EPO), located in Munich, Germany, for one or more countries of 14 European countries that signed a treaty in 1973.
More than a century ago in 1883, few countries signed a treaty at the Paris Convention that provided that foreigners would be treated like citizens. This was modified several times thereafter. It allows an inventor who has filed a patent application in his or her home country to file patent applications in foreign countries and get special priority treatment. This priority applies only if the inventor files in the foreign countries within one year of the date the home country patent was filed. The special priority is that the filing date for a patent application in his home country will also be the legal, effective filing date under the law of a foreign country.
Patent Cooperation Treaty (PCT) is another international treaty, that
allows one to postpone the filing of national applications if one files
a single patent application under PCT within one year of filing of the
original application in his or her country. Most industrialized nations
are members of the PCT.
The US Congress enacted the first federal trademark statute in 1870, incorporating what Jefferson requested nearly 80 years ago. Three years later the law was struck down by Supreme Court as unconstitutional. A limited act replaced it in 1881, which continued till 1905 Act was enacted. The 1905 Act was supplemented in 1920 and later replaced by the currently existing Trademark Act of 1946, the Lanham Act, which was amended since then several times.
Today, a trademark represents to customers that all goods bearing the
mark will be uniform in quality because the same company controls their
quality. The widespread use of trademarks became an essential part of business.
Under the first federal act in 1870, 121 trademarks were registered. A
century later, there were 23,447 federal registrations granted and 33,326
applications filed. By the end of 1989, over 1,560,000 federal registrations
had been issued.
The law relating to copyright and related rights has been under comprehensive review of the Government for some time. Finally, the government of India in 1994 amended the intellectual property law conforming to the international intellectual property law by taking into account the difficulties expressed by different groups of copyright owners and others, the experience gained from the administration of the existing law and the situation created by various technological developments that have taken place. But, this transformation of a closed Indian economy into an open market economy under the umbrella of WTO (World Trade Organization) is not yet complete and has been a very slow process as explained in the following section on the Indian computer industry as an example.
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