INTRODUCTION

Intellectual property is the creations of the minds of an individual which has a

commercial and moral value. Intellectual property rights (IPR) grants exclusive rights
to an author for utilizing and benefiting from their creation. However, IPR is limited
in terms of duration, scope and geographical extent.
IPR encourages creativity and permits the creator to benefit from the advantage
arising out of their creation. These laws allow investors a fair return on their
investments in the research and development fields.

In present scenario of globalization, IPR is the focal point in global trade practices
and livelihood across the world. These rights boost the innovative environment by
giving recognition and economic benefits to creator or inventor whereas the lack of
IPR awareness and its ineffective implementation may hamper the economic,
technical and societal developments of nation. Hence dissemination of IPR
knowledge and its appropriate implementation is utmost requirement for any nation.
The present paper highlights various terms of IPR such as patents, trademarks,
industrial designs, geographic indications, copyright, etc. with their corresponding
rules, regulations, their need and role especially pertaining to Indian context. Further,
status of India’s participation in IPR related activities across the world has been
discussed in brief.

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HISTORY

The first performing rights society was established in France in 1851. In the United
Kingdom, the Copyright Act 1842 was the first to protect musical compositions with
the Performing Right Society, founded in 1914 encompassing live performances.

The rights for recorded or broadcast performance are administered by the Mechanical
Copyright Protection Society, founded in 1924. Italy introduced a performing rights
society in 1882 and Germany in 1915.

In the United States, The American Society of Composers, Authors and

Publishers (ASCAP) was founded in 1914; Society of European Stage Authors &
Composers (SESAC) in 1930 and Broadcast Music, Inc.(BMI) in 1939.

The origins of Intellectual Property

The history of intellectual property is complex and fascinating. It begins in 500 BCE
when Sybaris, a Greek state, made it possible for citizens to obtain a one year patent
for "any new refinement in luxury." Patent, trademark and copyright laws have
become more complicated in the ensuing centuries but the intent remains the same.
Countries establish intellectual property laws to foster creativity and to make it
possible for the inventor to reap the benefits of their ingenuity.

Mentions of copyrights, patents and other matters of intellectual property law are
sparse in early history. It is not until medieval Europe that some major and well-
known legislation was passed. The first of these was the Statute of Monopolies. This
British law was established in 1623. At the time, all major industries were controlled
by guilds. Each guild held considerable power, with the government endowing them
with the ability to dictate what products and raw materials could be imported as well
as how those items would be produced and sold. Moreover, the guilds were
responsible for bringing all new innovations to the marketplace, essentially giving

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them ownership and control over inventions even if they had nothing to do with their
creation.

Ownership Rights
The Statute of Monopolies changed that by allowing the author or inventor to retain
their ownership rights. Monopolies, in the form of government-sanctioned guilds,
were no longer granted. The law also guaranteed the inventor a 14 year period during
which he had the exclusive right to govern how his invention was used.

Other significant legislation came in 1710 with the Statute of Anne. This law
similarly provided a 14 year term of protection. It also gave inventor the option of
seeking a 14 year renewal term. Aimed largely at copyrights, this law granted authors
rights in the recreation and distribution of their work.

Intellectual Property in colonial US

Shortly after the U.S. broke away from Great Britain, most of the 13 colonies had
established its own system for intellectual property protection. The one exception to
this was Delaware. However, it was soon apparent that having each state operate its
own system of intellectual property protection was problematic, leading to the
establishment of federal laws that had precedence over any state laws.

Global Intellectual Property

In 1883, the Paris Convention came into being. It was an international agreement
through which inventors could protect their innovations even if they were being used
in other countries. Writers came together in 1886 for the Berne Convention which led
to protection on an international level for all forms of written expression as well as
songs, drawings, operas, sculptures, paintings and more. Trademarks began to gain
wider protection in 1891 with the Madrid Agreement while the offices created by the

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Paris and Berne Conventions eventually combined to become the United
International Bureaux for the Protection of Intellectual Property, the precursor of

today's World Intellectual Property Organization, which is an office of the United

Nations.
Through centuries of development and innovation, inventors and creators now have
dozens of options when it comes to protecting intellectual property. If you are in need
of any intellectual property services in Texas please contact the Law Office of Jeff
Williams PLLC for your free consultation.

CRITICISM

PROs have been criticised for charging non-profit organisations for their use of
copyrighted music in situations where the non-profit organisation was not earning
money from the use. ASCAP, for example, was eventually forced in the face of
public opinion to abandon its attempts to charge the Girl Scouts of the USA for
singing campfire songs. ASCAP's and SESAC policy of charging non-commercial
educational (NCE) radio stations for playing copyrighted music has also been
criticised, especially by college radio stations across the U.S., which rely entirely on
student and listener support for funding and have difficulty affording the extra fees.

Community Orchestras, which mostly play classical works in the public domain, may
occasionally play a work within copyright, but are forced to pay licenses to rights
societies on all concert revenues including concerts where all music is in the public
domain, which is then distributed to songwriters of pop songs.

PROs are often criticised for stretching the definition of "public performance." Until
relatively recently[in the U.S, playing copyrighted music in restaurants did not
involve legal issues if the media was legally purchased. PROs now demand royalties
for such use.

"One exception to the rule allows businesses of a certain size (stores under 2,000
square feet, restaurants or bars under 3,750 square feet) to play music from a radio,
television, or similar household device without a license, provided there are fewer
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than six speakers (with limits on the placement of speakers), and customers aren't
charged to listen. Other exceptions include educational and charitable functions.

If your business falls into one of the categories listed above (size of business, number
and placement of speakers, etc.) radio/TV] you may want to check out section 110 of
the Copyright Act. As you likely won't need a license. But, before making a decision,
check with a lawyer."

By discouraging performances in limited public arenas, again using the restaurant

example, critics say PROs eliminate the free publicity such performances provide for
a work thereby depressing media sales. Incidentally, lower media sales conflict with
PROs, but disputes between the two parties are not known to occur since each type of
organisation represents the interests of the same parties - rights owners - and are
forced to work in common interest.

Rights owners – especially independents and newcomers not represented by

large publishing companies – criticise the PROs for what they deem to be "mystical"
formulas for deciding who gets what share of the total licensing revenue received.
They also criticise PROs for slow or non-existent payments and excessive
membership dues or service fees.

This inquiry is concerned with the right to perform the work – or cause a sound
recording to be heard – in public. The public performance right that arises in 'works'
is treated separately in the legislation from the copyright which arises in a 'sound
recording'.

INTELLECTUAL PROPERTY RIGHTS

Intellectual property rights are the rights given to persons over the creations of their
minds. They usually give the creator an exclusive right over the use of his/her
creation for a certain period of time.

(i) Copyright and rights related to copyright

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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.

Also protected through copyright and related (sometimes referred to as

“neighbouring”) rights are the rights of performers (e.g. actors, singers and
musicians), producers of phonograms (sound recordings) and broadcasting
organizations. The main social purpose of protection of copyright and related rights is
to encourage and reward creative work.

(ii) Industrial property

Industrial property can usefully be divided into two main areas:

 One area can be characterized as the protection of distinctive signs, in

particular trademarks (which distinguish the goods or services of one
undertaking from those of other undertakings) and geographical indications
(which 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.

 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.
 The social purpose is to provide protection for the results of investment in
the development of new technology, thus giving the incentive and means to

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 finance research and development activities.

The protection is usually given for a finite term (typically 20 years in the
case of patents).

While the basic social objectives of intellectual property protection are as outlined
above, it should also be noted that the exclusive rights given are generally subject to a
number of limitations and exceptions, aimed at fine-tuning the balance that has to be
found between the legitimate interests of right holders and of users.

OBJECTIVES OF INTELLECTUAL PROPERTY RIGHTS

The primary purpose of intellectual property rights is to stimulate creativity by
providing an exclusive right to creative inventions and works. These protection rights
inspire artists, authors or inventors to share their work for the benefit of the society.

Inventors did not have enough incentive to reveal their intellectual property. IPRs
were therefore formed to reassure the creator’s full social and monetary value of their
work. According to IPR, ownership of intellectual property is treated as ownership of
real property.

IPRs not only benefit the individual but also the overall economy, let us know how.

FINANCIAL IMPACT OF INTELLECTUAL PROPERTY RIGHTS

IPR gives an incentive to entities and individuals to invest in the development of new
ideas as they are reassured of a fair return on their investment. Investment into such
research and development and later implementation and production supports the
economy. This, in turn, leads to employment opportunities for the economy.

TYPES OF INTELLECTUAL PROPERTY RIGHTS

IPR is a form of protection provided to inventors to help them reap benefit out of
their creative efforts. Owners holding IPR can prevent the use of their intellectual
property. They hold the right to either license, sell or retain their property.
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Following are the types of IPRs:

PATENT
A patent is issued to protect an invention. It gives the holder the right to prevent
anyone from making, using or selling the patented invention for a fixed time period
(usually 20 years from filing date).
COPYRIGHT
A copyright protects artistic and literary work. The holder has complete rights and
control over adaptation or reproduction of the work. Copyrights last for up to 70
years after the innovator’s death.

TRADEMARK
Trademarks are distinctive phrases, words, symbols or signs. They distinguish
services or products of one company from the others. Brands usually associate with
distinctive trademarks.

DESIGN
A design protects the outward appearance or the visual style of an object. It does not
protect unseen design elements of the product.

DATABASE
Database right is similar to copyright. It prevents copying of significant sections of a
database. The database right protects the information itself and not the form of
information.

TRADE SECRET
A trade secret is a practice, design, formula, process or a compilation of information.
This information is utilized by a company to gain competitive advantage over the
others. Trade secrets are not disclosed to the world. An example of intellectual
property rights is the trade secrets obtained by Coca-Cola for its formula.

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 PERFORMANCE RIGHTS

Once you have obtained your ‘mechanical licence’ you may also need to get
performance rights. Performance right is built into copyright and provides the owner
of the copyright the right to decide how they wish their piece to be performed
publicly. A performance of a piece of music includes if it is played on a TV show, on
radio or in any other public way.

A performance rights organisation (PRO), also known as a performing rights

society, provides intermediary functions, particularly collection of royalties, between
copyright holders and parties who wish to use copyrighted works publicly in
locations such as shopping and dining venues. Legal consumer purchase of works,
such as buying CDs from a music store, confer private performance rights. PROs
usually only collect royalties when use of a work is incidental to an organisation's
purpose. Royalties for works essential to an organisation's purpose, such as theaters
and radio, are usually negotiated directly with the rights holder.

In some countries PROs are called copyright collectives or copyright collecting

agencies. A copyright collective is more general than a PRO as it is not limited to
performances and includes reproduction rights organisations (RROs). RROs represent
works distributed via mediums such as CD, audiocassette, or computer file rather
than use of works in public settings.

As a result:

 A musician who records a sound-only CD may be paid whenever that CD is sold or

broadcast in a country that is party to the WIPO phonograms treaty, but the same
performance on a music video does not carry the same entitlement to payment.
 An actor in a film or TV series sold abroad has no legal right to payment for
foreign broadcasts or DVD sales. Any payment for use of the film or TV series that
may be made under national laws often goes in its entirety to the producer.
 Once authorization has been given for filming a performance, actors in most
countries have no control over how that performance is used. In particular, they

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 may not be able to assert “moral rights” that ensure attribution and respect for the
integrity of their performance. Digital technologies make it easy to manipulate
video images and may do so in ways that can harm an actor’s reputation. Actors
who provide “movements” for computer-generated characters using motion-capture
technology (as used, for example, in The Adventures of Tintin movie (2011)
directed by Stephen Spielberg) also often have no legal say in use of their work.

Copyright in Performances

Copyright is the part of intellectual property which gives exclusive legal right to the
original creator of the work. The copyright law protects the intellectual creations in
the work that is original. It protects the work as soon as it is created and no
registration formalities are required. Earlier the concept of Copyright was limited to
the books, painting or films, but now the ambit is widened even to computer software
and compilation of data.

• The Oxford English Dictionary defines Copyright as “The exclusive right

given by the law for certain term of years to an author, composer etc ( or his
assignee) to print, publish and sell copies of his original work.”

Amendments – Indian Copyright Act

The Copyright Act, 1957 No protection was given to the actors, musicians, jugglers,
dancers etc the act was silent on the performers’ rights

• The Copyright amendment Act, 1994 Recognised the rights of the performer
under section 38 of the Act ‘Performers Rights’ are introduced.

PERFORMER and PERFORMER’S RIGHTS

Section 2(a)(q) of the Act defines performance as follows: "Performance", in relation

to performer's right, means any visual or acoustic presentation made live by one or
more performers; Section 2(a)(qq) of the Act defines Performer as follows:
"Performer' includes an actor, singer, musician, dancer, acrobat, juggler, conjurer,
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snake charmer, a person delivering a lecture or any other person who makes a
performance; The section 38A of the Act which provides legal provision for
performers’ right which gives exclusive right or authorizes for doing any act in
respect of the performance without prejudice to the rights conferred on authors. This
provision enables the performers’ for royalties which are subjected to committed use.

THE RIGHTS OF A PERFORMER

A performer has the following rights in his/her performance:

• Right to make a sound recording or visual recording of the performance

• Right to reproduce the sound recording or visual recording of the performance

• Right to broadcast the performance

• Right to communicate the performance to the public otherwise than by broadcast.

TERM OF RIGHTS

The Performer’s rights subsist for 50 years from the beginning of the calendar year
next following the year in which the performance is made. Copyright Act, 1957,
Section 40 A says about the application of performer’s right to foreign countries
where there is no rights of such a nature presently. The Central Government may by
notification may extend these rights to such countries if the country has already
provided and intended to provide the such rights.

• Copyright Act, 1957, Section 42A similarly talks about restriction of foreign
organisation and performers, if the foreign country does not give protection of these
rights , the central government may by notification may put restriction upon the
applicability of the provisions of this act on that country or organisation established
there.

NEED FOR PERFORMERS RIGHTS

The recent development in the Act is the recognition to the rights of the performers.
The Copyright Act, 1957 gave recognition to the performers after long time. It was
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only recently when the technological changes threatened the livelihood of performers
that the law intervened to protect performers. Musicians, singers, actors, acrobats etc
come in the category of performers. In the late nineteenth century and the early
twentieth century technology was developed that enabled performances to be
recorded and then enable to both live and recorded performances to be broadcast and
communicated to the public locally, regionally, nationally and eventually
internationally. Performers’ were therefore separated from the performers who had
made them. the development in the technology leads to easy access to the spectators
even to those who are not in the immediate vicinity when the performances was
made. As the live performances or whether the performance is on the stage or in the
broadcasting studio the nature of their performances is no more transitory.

Indian Performing Rights Society Limited:

For performers there is a performing rights society which came into existence on 23rd
August 1969 and named as IPRS. The Indian performers Right Society is not profit
making. It is a company limited by guarantee and registered under the Companies
Act, 1956 and authorized under section 33 of the Act. IPRS has more than 1500
members who are local composers, lyric writers and publishers and also represents
international music .

This body represents the composers, lyricist and the publisher of music. This body
deals with the issuing or granting of licenses for any musical work, literary work to
any person within the territory of India. It is one of its own kinds in India for issuing
and granting of licenses for acquiring rights on the music.

• The users who need to perform or broadcast or play any literary work or musical
work they have to take prior permission or in other words they have to obtain license
for public performance. The users such as radio station, television station etc need to
obtain license.

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IPRS Limited v Hello FM Radio (Malar publications Limited)

According to this case the Indian Performing Rights Society Limited (IPRS) secured
an injunction from the Delhi High Court against Hello FM Radio (Malar Publications
Limited). The defendants were broadcasting the songs without obtaining licenses
from the Indian Performing Rights Society Limited (IPRS).In this case IPRS wanted
either Hello FM Radio (Malar Publications Limited) should obtain license or have to
stop broadcasting the songs, or both. In this case the Delhi High Court granted the
injunction. By restricting the Hello FM Radio from playing music without obtaining
license from the Indian Performing Rights Limited (IPRS)

Phonographic Performance Ltd

Phonographic Performance Ltd (PPL), a copyright society registered under the

Copyrights Act, which took the hotels to court for failing to pay copyright license
fees. PPL is the sole authority to administer the broadcasting, telecasting and public
performance rights and to collect license fees on behalf of the music industry.

Phonographic Performance Limited v Hotels: In the past also Mumbai High Court
directed hotels to pay towards copyright license fee for playing music in the new-year
parties organized by them where an entry fee was charged.

Event and Entertainment Management Association v. Union of India and ors. The
Delhi High Court held that the law laid down in Federation of Hotels and Restaurant
Association of India v. UOI held that the working of the copyright societies to be
monitored and guided by the Copyright Act.

The Indian Performing Rights v Kolkata knight Riders: A suit on copyright violation
against Kolkata Knight Riders (KKR) was filed on May 14th, 2008 by The Indian
Performing Rights Society (IPRS). The allegation was about playing 14 popular
Hindi film songs like "Om Shanti Om" during IPL matches at Eden Gardens without
permission. The Kolkata High Court refused the application for injunction on the use
of the songs and directed the parties to file affidavits. This matter is yet to be decided.

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International Convention for the protection of Performers, Producers, Phonograms
and broad casting Organizations (Rome Convention 1961)

Rome Convention, 1961 granted following rights to the performers under Article 7:

 Right to prevent the broadcasting and communication to the public of their live
performances without their consent.
 Right to prevent fixation to their live performances without their consent.
 Right to prevent reproduction of the fixation to their live performances without
their consent under the following circumstances: If the original fixation was
made without their consent

REMEDIES AGAINST INFRINGEMENT OF PERFORMERS RIGHTS

The following remedies may be availed in a suit against infringement of performers

rights under Sections 55 and 63 to 70 of the Copyright Protection Act.

(i) Civil remedies: Under civil remedies, the owner of the copyright, or his assignee
or his exclusive licensee or a legatee may obtain

(a) injunction

(b) claim damages

(ii) Criminal remedies: In addition to civil remedy the Copyright Act enables the
owner of the copyright to take criminal proceedings against the infringer. The offence
of infringement of copyright is punishable with imprisonment which mayextend from
a minimum period of six months to a maximum period of three years or with a fine of
the order of Rs 50,000/- to Rs 2.00 lakhs.

(iii) Anton Pillar order: In appropriate cases the court may on an application by the
plaintiff pass an exparte order requiring the defendant to permit the plaintiff
accompanied by solicitor or attorney to enter his premises and take inspection of
relevant documents and articles and take copies thereof or remove them for safe
custody.

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CONCLUSION
Intellectual Property Rights are rights that protect intellectual property thereby
stimulating the creativity of the skilled. The inventions benefit the society and lead to
growth in the economy.

In knowledge based economy, intellectual property rights are very much essential for
progressive societal development. The IPR is basic necessity to be a part of local as
well as global competitive trade as without dissemination of IPR knowledge and
implementation, creating the innovative environment is really impossible. It is
essential for policy makers to include IPR in basic educational system and promote
IPR registration by encouraging the innovators and creators. India is having all the
resources in terms of available raw material, cheap labour, innovative and creative
dedicated manpower. No doubt that India and other developing countries will
definitely harness its proportionate share in global trade by exploration in Intellectual
Property Rights.

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