COPYRIGHT & PATENT

What is copyright?
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.

Does the law allow any use of a work without permission of the owner of the copyright? YES for the purpose of research or private study, for criticism or review, for reporting current events, in connection with judicial proceeding, performance by an amateur club or society if the performance is given to a non-paying audience, and the making of sound recordings of literary, dramatic or musical works under certain conditions.

What is the scope of protection in the Copyright Act,1957 ?

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.

Does copyright apply to titles and names ?

Copyright does not ordinarily protect titles by themselves or names, short word combinations, slogans, short phrases, methods, plots or factual information. Copyright does not protect ideas or concepts. To get the protection of copyright a work must be original.

What is a work?
A work means any of the following , namely, a literary, dramatic, musical or artistic work, a cinematograph film, or a sound recording. For example, the copyright to a Mickey Mouse cartoon restricts others from making copies of the cartoon or creating derivative works based on Disney's particular anthropomorphic mouse, but doesn't prohibit the creation of other works about anthropomorphic mice in general, so long as they're different enough to not be judged copies of Disney's.

What are the classes of works for which copyrights protection is available in India?

Original literary, dramatic, musical and artistic works; Cinematograph films; and

Sound recordings.

Is copyright assignable?
Yes. The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof.

What is the mode of assigning copyright?

It shall be in writing signed by the assignor or by his duly authorized agent. It shall identify the specific works and specify the rights assigned and the duration and territorial extent of such assignment. It shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

What will be the period of assignment if not specifically stated in the assignments? If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment What will be the territorial extent of the assignment if not specified in the assignment? If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within the whole of India.

Is it necessary to register a work to claim copyright?

No. Acquisition of copyright is automatic and it does not require any formality. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.

What is the procedure for registration of a work under the Copyright Act,1957?
Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, facilities exist for having the work registered in the Register of Copyrights maintained in the Copyright Office of the Department of Education. The entries made in the Register of Copyrights serve as prima-facie evidence in the court of law. The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights and is located at B.2/W.3, C.R. Barracks, Kasturba Gandhi Marg, New Delhi- 110 003, Tel: 338 4387

What is the term of protection of copyright?

The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, the 60-year period is counted from the date of publication

Is there any advisory body on copyright matters?

Yes. The government has set up a Copyright Enforcement Advisory Council (CEAC).

Are there special courts for copyright?

No. There are no special courts for copyright cases. The regular courts try these cases. There is a Copyright Board to adjudicate certain cases pertaining to copyright.

What is the structure of Copyright Board?

The Copyright Act provides for a quasi-judicial body called the Copyright Board consisting of a Chairman and two or more, but not exceeding fourteen, other members for adjudicating certain kinds of copyright cases. The Chairman of the Board is of the level of a judge of a High Court.

What is a Patent?
A Patent is an exclusive monopoly granted by the Government to an inventor over his invention for limited period of time.

Who can obtain a Patent?

An inventor or any other person/company assigned by the inventor can obtain the patent over his invention.

Why one should go for a patent?

To enjoy the exclusive rights over the invention. If the inventor does not get the patent rights over his invention and introduce his product/process based on his invention in the market, any body can copy his invention and exploits it commercially. To debar others from using, selling or working out his invention, the inventor must go for getting a patent.

Which invention qualifies for the grant of a patent?

A patent is granted only on that invention, which is new, non-obvious and has industrial applicability.

Who checks the novelty features of the invention?

A patent examiner checks the novelty features of the patent application with the state of the art available.

What is the different between a US patent and an Indian Patent?

A US patent is granted by the United State Patent Office to an inventor, who has filed his application with it, whereas an Indian Patent is granted by the Indian Patent Office to an inventor, who has filed his application with Indian Patent office. A patent granted by a patent office is applicable within the geographical boundaries of that country only. A US Patent is applicable within USA only and has no effect in India, if the same inventor of the US patent has not filed his application in India for the patent grant.

Is there an International/Global patent?

No. There is no International or Global Patent. An inventor has to file an application in each country, where he seeks to protect his invention. There are regional and/or International treaties to facilitate the procedure to seek protection like Patent cooperation Treaty (PCT) or European Patent Convention (EPC)

Industrial Design
Empowering Innovation in Design.
Different Brands Same Product & functional features Same price tag Distinguishing factor {DESIGN} Stimulates Buying decision

Attributes & Advantages.

External Design Ornamentation Unique Identification Avoid Wide Scale imitation Distinguished Image Independent Existence

Shape Configuration Pattern Composition Of Colour

Essentials of Design for Registration

New & conceptual Mental design. Design must relate to the attribute of the product. Applicable on any article in the process. Artistic designs like painting are excluded by the Act. It should appear or be visible on the finished product which it is meant for & must appeal to the eye. Design should not include any trade mark, property mark, or artistic work.

Cont. . .
Any principle of construction would not be a registrable design. Eg, A key cant be registered for its shape intended to engage in a lock. It should be distinguishable from known design or the combination of known. It should not comprise of any scandalous or obscene matter.

Duration of Registration
Total term 15 yrs Initially 10 yrs thereafter 5 more yrs can be extended. Payment of 2,000 needs to be made against extention of term along with the application to the controller. This could be done before the expiry of 10 yrs or immediately after registration.

Strategy for Protection

If 2 or more registration are done on the same design on different dates then the first registration will be valid. It is advisable to register as soon as you are ready with the design. Payment of 500 enables open public inspection to make sure that the design is newest.

Case Study
Importance or design {Toymaker}

TRADEMARK

Trademark..

Visual Symbol

Trademark..
Important form of Industrial Property Rights Key Role in Consumer Economy Enables the consumers to identify the Origin of the Goods/Services The originator of the goods gets protection for the mark

Legal Terms & Requirements

Trademark Act, 1999 Section 2 (b)

A mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and colors.

Legal requirements to register a Trademark under the Act are..

The selected mark should be capable of being represented graphically. It should be capable of distinguishing the goods or services of one undertaking from those of others. It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person.

Functions of Trademarks
It identifies the product and its origin It advertises the product It guarantees its unchanged quality

It creates an image for the product

Trademarks which can be registered..

All marks cannot be registered. To register a mark it must be Distinctive.

Benefits of Trademark
The Regd.Proprietor
The Regd.Proprietor of a trade mark can stop other traders from unlawfully using his trade mark, sue for damages and secure destruction of infringing goods and or labels.

The Government

The Trademark registry average earns a revenue of Rs.30 crors a year. This year they are expecting to cross Rs.40 crors

The Legal professionals

The Trade Marks Registration system is driven by professionals and legal advisors(Agents) who act for the clients in the processing of the trade marks application.

 GEOGRAPHICAL INDICATIONS