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Intellectual Property Rights – India – Part 1

Now that you have found your vehicle you need to stir it without the fruits of your labors being robbed. As all good entrepreneurs we must give credit when is due therefore I must place on record this article is written based on Chittu Nagarajan’s original material.

A good idea in itself is just an idea. It has no value at all until something is done with that idea. That idea has to be produced in a form/product in order to become valuable and in turn the product or service has to be commercialised.

It is a fact that when you are involved with entrepreneurship there is a high probability that you may develop something new. It may be an invention, software, design, literary work etc.

The name or brand that you may have developed will also be new. You must remember that all these have a VALUE attached to them. This VALUE is known as INTELLECTUAL PROPERTY or IP.

Intellectual Property

The following are the options available to you

  • Copyright
  • Patents
  • Trade Marks
  • Industrial Design
  • Integrated Circuits
  • Trade Secrets or Confidential Information

We will take a look at each one of these later in this chapter.

Why Intellectual Property?

Intellectual Property Rights exist to encourage, promote and protect Entrepreneurs.

You do not have to be worried that someone else may reap the benefits of what you have sowed or the hard work you have put in. 

It is vital to acquire your rightful ‘Rights’ to an invention, work or name and then to enforce those ‘Rights’ in the market.

Commercial Value

IP has commercial value or potential commercial value. If you protect it no one else can infringe upon it and use it for their own gain.

If you go through the process of inventing a product, process, or device, if you come up with a great new name or slogan, or if you write a company document, spending the time to protect it can save for your company’s products or name a great deal of legal trouble.

Do some research yourself. This can save you lot of money. The Internet is a boon and so make use of it. Only if there is an infringement of rights can IP rights be enforced.


Copyright in India is governed by the Indian Copyright Act, 1957 as amended by Copyright (Amendment) Act, 1999. Copyright means the exclusive right to do or authorise others to do certain acts in relation to literary, dramatic, musical, artistic works, cinematograph film and sound recordings. Literary work includes computer programmes, tables and compilations including computer databases. E.g. books, music, art, software, films etc. In other words copyright is the right to copy or reproduce the work in which copyright subsists. You can use copyright to protect company brochures, annual reports, or other documents. The law does not permit one to appropriate to himself what has been produced by the labour, skill and capital of another. The objective is to encourage authors, composers, artists and designers to create original works by rewarding them with exclusive rights for a limited period to exploit the work for a monetary gain, to protect the author of copyright work from unlawful reproduction or exploitation of his work by others. How do you benefit commercially? By licensing your exclusive rights for a monetary consideration.

Ingredients for Copyright

Ideas by themselves do not have copyright. Ideas must be expressed in material form for copyright to subsist. In order to secure copyright, the author must have bestowed upon the work in terms of labour, capital and skill. It is immaterial whether the work is wise or foolish, accurate or inaccurate, whether it has any literary or artistic merit. What will be consider sufficient to merit for copyright depends upon each case.

The work should be original. Originality of “expression of thought” is required. The thought itself need not be original. Expression of that thought has to be original and should originate from the author. E.g. Dan Brown’s “The Da Vinci Code” – Ideas themselves are unprotectable under copyright. The work has to be written down, recorded or reduced to material form.

Ownership of Copyright

An author is the copyright owner. Where the making of a work is commissioned or where a work is carried out by an employee in the course of his employment, unless there is an agreement to the contrary, the copyright in the work shall be deemed to vest in the person who commissioned the work or the employer.

Registration of Copyright

No registration is required to acquire copyright. Copyright automatically subsists as soon as the original work comes into existence. Copyright protection is not granted where the work is grossly immoral, illegal, defamatory, seditious, contrary to public policy or calculated to deceive the public

Term of Copyright

Generally, copyright subsists during the lifetime of the author plus 60 years after his death. In case of joint Ownership until all owners life time plus 60 years of the last one. Unpublished during lifetime will also have 60 years from publishing.

Necessary Elements for Copyright notice

There are four elements for copyright notice. These are

  • The symbol ©
  • Year of 1st publication
  • Authors Name
  • All rights reserved

For example Copyright © 2009 Muthu Singaram All Rights Reserved

Berne Convention

Berne Convention for the Protection of Literary and Artistic Works or Berne Convention is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886

Works created or protected in a member country must be given the same protection in all other member countries as that country grants its own nationals. India is a member of this convention.

Other treaties in this area are UCC Geneva Universal Copyright Convention, Geneva Act, UCC Paris Universal Copyright Convention, Paris Act, TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights, membership in TRIPS coincides with membership in the World Trade Organization and WCT WIPO Copyright Treaty, Geneva. India is member of all these treaties besides WCT at the time of writing this book.

Infringement of copy rights

In the U.S. Supreme Court case of MGM v. Grokster it was ruled that one who distributes a device with the object of promoting its use to infringe copyright is liable for the resulting acts of infringement by third parties. Peer to peer services can be sued if they encourage users to share copyrighted material without permission

Recently, A Hong Kong citizen has been jailed for three months for sharing three Hollywood movies online over the BitTorrent network. he happened to be he first person to be convicted using the peer to peer services.

In the next article we will look at other forms of IPRs.

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