General Principles of Contract 13 January 2017

Intellectual Property Rights II

6 st Semister | 3 Year LLB | Karnataka Law University

Shiva Shankara R Shetty is an

practicing chartered
accountant since 2012. He
p ro v i d i n g a p ro f e s s i o n a l
service to the Central and State
Government Undertakings,
Multi-National Companies,
Nationalised Banks, Service
S e c t o r, M a n u f a c t u r i n g
Industries, Real Estate
Developers, etc.

He also possess expert

knowledge in Income taxation
matters, Litigation, Income tax
refund, etc
He also author of the
‘Simplified Approach to the
Income tax’, a hand book to
the IPCE [Inter mediate of the
Chartered Accountancy]
1.Copy right
Copy right is a unique kind of intellectual property. The right which
a person acquires in a work, which is the result of his intellectual
labour, is called his copyright.
The primary function of a copyright law is to protect the fruits of a
man’s work, labour, skill or test from being taken away by other
people.

He resides in Bangalore. Copyright as defined in the Oxford eEnglish Dictionary is an

exclusive right given by the law for a certain term of years to an
Contact us: author, composer, etc., to print, publish and sell copies of his
original work.
M: 91 90358 46043
The statutory definition of the copyright means the exclusive right
O: 080 2678 0452 to do or authorise others to do certain acts in relation to -

E: shetty@ssrshetty.co.in •literary, dramatic or musical works;

W: www.ssrshetty.co.in •artistic work;

•cinematograph film; and

•sound recording.

Object of the copyright

The object of the copyright law is to encourage author’s, composers

and artists to create original works by rewarding them with the
exclusive right for a specified period to reproduce the works for
publishing and selling them to public.

Nature of the copyright

✦A copyright is a form of intellectual property since the product

over which the right is granted i.e., a literary work, is the result of

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General Principles of Contract 13 January 2017

utilisation and investment of the intellect.

✦ Monopoly right: The copyright is a monopoly right restraining the others from exercising that right which
has been conferred on the owner of copyright under the provisions of the Act.

✦ Negative right: The copyright is a negative right meaning thereby that it is prohibitory in nature. It is right
to prevent others from copying or reproducing the work.

✦ Multiple rights: The copyright is not a single right. It consists of a bundle of different rights in the same
work. For instance, in case of literary work, a copyright comprises the right of reproduction in hard back and
paper back editions. The right of serial publication in newspapers and magazines, the right of dramatic and
cinematographic versions, the right of translations, adaptation, abridgement and the right of public
performance.

✦ Neighbouring rights: The copyright consists not merely of the rights to reproduction. It also consists of
the right to work derived from the original works. The rights like the right of public performance, the
recording right and the broadcasting rights which are as important or even more then the right of
reproduction. Such related rights are termed ‘neighbouring rights’.

Main features of the Copyright Act of 1957

• Creation of copyright office and a Copyright Board to facilitate registration of a copyright and to settle
certain kinds of disputes arising under the Act;

• Definition of various categories of work in which copyright subsists and the scope of the rights conferred on
the author under the Act;

• Provision to determine the first ownership of copyright in various categories of the work;

• Term of copyright for different categories of work;

• Provisions relating to assignment of ownership and licensing of copyright including compulsory licensing in
certain circumstances;

• Provisions relating to performing rights of or by societies;

• Broadcasting rights;

• International copyrights;

• Definition of infringement of copyrights;

• Exception to the exclusive right conferred on the author or acts, which do not constitute infringement;

• Author’s special rights;

• Civil and criminal remedies against the infringement;

• Remedies against groundless threat of legal proceedings.

2. Various rights enjoyed by an owner of copyright

The concept of ‘author’ and ‘ownership’ are different when the question of propriety over the copyright
arises. According to the Sec. 17, the author of the work is the first owner of the copyright in the work. To
understand as to who is considered the author of the work, Sec. 2(d) needs to be read. It defines ‘author’ in
relation to various categories of works as follows:

✦ Literary or dramatic work - the author of the work;

✦ Musical work - the compositor;

✦ An artistic work other than a photograph - the artist;

✦ Photograph - the person who takes the photograph;

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General Principles of Contract 13 January 2017

✦ Cinematograph film - the producer;

✦ Sound recording - the producer;

✦ Literary, dramatic, musical or artistic work which is computer generated - the person who causes the work
to be created.

Exceptions to the ownership of the copyright

Sec. 17 statutory recognises the author of the work to be the first owner of the copyright therein. However,
this is subject to some exceptions.

(a) Literary, dramatic or artistic work

Where a work is made by the author in the course of his employment by the proprietor of a newspaper,
magazine or a periodical under a contract of service or apprenticeship for the purpose of publication in a
newspaper, magazine or periodical, the said proprietor will be the first owner of the copyright in the work.
However, this copyright work shall relates to the publication of the work in any newspaper, magazine or
periodical or to the reproduction of the work for the purpose of being so published.

The copyright in a work done by an employee on his own time and not in the course of his employment
belongs to him.

(b) Photograph, painting, portrait

Where a photograph is taken or a painting or a portrait drawn, or an engraving or a cinematograph film made,
for valuable consideration at the instance of any person, such person, in the absence of any agreement to the
contrary, shall be the first owner of the copyright therein.

(c) Work made in the course of the employment under a employment or apprenticeship, the employer (not
being the proprietor of a newspaper, magazine or periodical) in absence of a contract to the contrary, the
employer will be the first owner of the copyright in the work so created.

(d) Lectures delivered in public, that person will be the first owner of the copyright. However, if such lectures
is delivered on behalf of any other person, then such other person will be the owner of the copyright therein.

(e) Government work: The Government is the owner of the copyright in the absence of an agreement to
the contrary.

(f) Work made on behalf of a public undertaking: A work made or first published by or under the
direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement
to the contrary, be the first owner of the copyright therein.

(g) Work of certain international organisation: When a work is considered to be a work of certain
international organisation, in such cases the international organisation concerned shall be the first owner of
the copyright therein.

(h) Apprenticeship: An apprentice is a student bound to another for the purpose of learning his trade or
calling, the contract being of such a nature that the master teaches and the other serves the master with the
intention of learning. Hence, the work belongs to the teacher.

(i) Employee teacher: If an employee teaching in a school, college or university writes a book on the
subject he teaches, he is the author and the owner of the copyright, because he is employed to teach and not
to write text books.

(j) Question paper of an examination: Ownership copyright in examination question papers vests in the
paper setter where no contract to the contrary exists.

(k) Collective works: It includes encyclopaedia, dictionary, year book or generally a work which works or
parts by different authors are incorporated. The first owner of the collective work as a whole is the person
who has collected, edited and organised the work.

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General Principles of Contract 13 January 2017

(l) Musical work: The first owner of a copyright in a musical work is the composer of such work. If, the
work is composed in the course of the employment under a contract of service, the employer will be the first
owner of copyright.

(m) Artistic work: The artist who created the work is the first owner of the copyright. Where the work is
created in the course of the employment unless a contract to the contrary exists, the employer will be the
owner of the copyright.

(n) Plan: The plan of building or a structure is the copyright of the architect. His ownership of copyright can
be eliminated only by an agreement to the contrary. The client is not authorised to make copies of the plan
except for his own study. He can’t use the pre-existing plan even for making an extension of the building
constructed on the basis of the previous plan.

(o) Photograph: The person taking the photograph is the owner of copyright. Where the photograph is
taken for a valuable consideration at the instance of any person, such a person in the absence of any
agreement to the contrary, is the first owner of copyright therein.

Rights conferred by the copyright

• Statutory rights: The person other than a owner of copyright has prohibited from:

✦ in case of a literary, dramatic or musical work, not being a computer programme -

A. To reproduce the work in any material (floppy, CD, HDD, etc);

B. To issue copies of the work to the public (Pirated copy);

C. To perform the work in public or communicate it to the public (to create a drama, TV programme and
broadcast);

D. To make any cinema or sound recording;

E. To translation work;

F. To make any adaptation of the work;

G. Any other act as specified.

✦ in case of a computer programme

• All the acts specified above;

• To sell or give on hire or offer for sale or hire any copy of the computer programme.

• Negative rights: It stops others from exploiting the work of the author for their own benefit without the
consent or license of the author.

• Multiple rights: The copyright is not single right but a bundle of the rights which can exist and be
exploited independently.

• Economics rights: The author may exploit the work himself or licence others to exploit any one or more
of the rights for a consideration which be in the form of the royalty, a lump sum payment.

• Moral rights: These rights are:

✦ Integrity rights: It gives the author the right to prevent alteration, destruction and other actions that
may damage the author’s reputation;

✦ Divulgation rights: It gives the author the right to decide whether to publish or not;

✦ Alteration rights: It gives the author the right to claim authorship of a published work;

✦ Retraction rights: It gives the author the right to withdraw a published work from distribution if it
no longer represents the views of the author.

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General Principles of Contract 13 January 2017

3. Compulsory licence

Compulsory licence in works withheld from public: The owner of copyright, in respect of any Indian
work which has been published or performed in the public.

• has refused to republish or has refused to allow the performance in public of the work and by reason of
such refusal the work is withheld from the public;

• has refused to allow communication to the public by broadcast, of such work or in the case of a sound
recording the work recorded in such sound recording;

the copyright Board shall grant a compulsory licence to the complainant.

Procedure to apply to the Copyright Board

✦ a complaint shall be file to the Copyright Board;

✦ the Board if it considers, then accept the complaint and will issue the notice to both the parties;

✦ a reasonable opportunity of being heard, to be given to the owner of the Copyright Board;

✦ the Board may hold an enquiry;

✦ then, if the Board satisfied that the grounds for such refusal are not reasonable, direct the Registrar of
Copyrights to grant to the complainant a license to republish the work, perform the work in public or
communicate the work to the public by broadcast, as the case may be.

✦ thereupon, the Registrar of Copyrights shall grant the license to the complainant in accordance with the
directions of the Copyright Board, on payment of such fee as may be prescribed.

The expression ‘Indian work’ includes:

✦ an artistic work, the author of which is a Citizen of India; and

✦ a cinema or a sound recording made or manufactured in India

Compulsory license in unpublished Indian works: In case, where the author of India work is dead or
unknown or can’t be traced, or can’t be found, any person may apply to the Copyright Board for a license to
publish such work or a translation thereof in any language.

Procedure:

• Before making an application, the applicant shall advertise his proposed in one issue of English newspaper
having major circulation in India and where the application is for the publication of a translation in any
language, also in one issue of any daily newspaper in that language;

• Application shall be made in prescribed form with a copy of advertisement and along with the prescribed
fee;

• After receiving the application, the Copyright Board may conduct enquiry and if it satisfied, direct the
Registrar of Copyright to grant a license to the applicant to publish a work or a translation thereof in the
language mentioned in the application.

4. Infringement of copyright

A copyright confers exclusive right on the copyright owner to the reproduction of the work in a material
form, storing the work in any medium by electronic means, publication of the work, performance of the work
in public, making of its adaptations and translations.

These rights are conferred on the owner of the copyright to enable him to reap monetary benefits. If any of
the above acts carried out by a person other than the owner of the copyright, without a licence from the
owner, it constitutes the infringement of the copyright.

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General Principles of Contract 13 January 2017

In case the copyright in the work has expired, the work falls in the ‘public domain’ and any act of
reproduction of the work by any person other than the author would not amount to infringement.

Acts which constitutes infringement

• When any person sells or hires or by way of trade displays or offers for sale any infringed copies of work
covered by copyright;

• When any person, distributes for the purpose of trade, any infringed copies of the work; or

• When any person exhibits in public for trade, any infringed copies of the work;

• When any person imports into India, any infringed copies of the work except the copy of any work for the
private and domestic use of the importer;

• The reproduction of literary, dramatic, musical or artistic work in the form of a cinema shall be deemed to
be an infringement.

The elements need to be present to make an act an ‘infringement’ within the meaning of the Act are:

a) Substantial copying; and

b) Direct evidence of copying from the source in which copyright subsists.

Substantial copying: There must be substantial copying of the work.

Illustration: A novel is written by X. Y reads the novel and authors another novel carrying 10 chapters of
the previous book which have been paraphrased by him though manually.

Both novels are sold in the same outlet. In this case, there has been substantial copying with the intention of
cashing it on the work created by another.

Direct evidence of copying: In copyright infringement cases, the direct evidence of copying is generally
difficult to furnish. Evidence of copying has to be recognised from surrounding circumstances. For instance,
evidence copying can be found when the defendant’s work contains the same errors, mistakes as those present
in the plaintiff ’s work. Similarly, in the language and writing style also provides evidence of copying.

Copying the copyrighted work with even with minor additions, omissions or alterations would still amount to
infringement of the copyright, because such minor additions, omissions or alterations in the copied work
would not make it as original work.

Remedies against infringement of copyright: There are 3 kinds of remedies against infringement of
copyright. They are:

✦ Civil remedy: Injunction, damages or account of profit, damages for infringement, seize of infringed
copies.

✦ Criminal remedy: Imprisonment of the accused or imposition of fine or both. Seizure of infringing
copies.

✦ Administrative remedy: It consists of moving the Registrar of Copyright to ban the import of infringed
copies in to India when the infringement is by way of such importation and the delivery of the confiscated
infringed copies to the owner of the copyright and seeking the delivery.

5. Infringement of literary, dramatic and musical works

If a person without the consent or license of the owner of the copyright does or authorities the doing of any
of the following acts, he will be guilty of infringement of copyright in the work.

• To reproduce the work in any material form including the storing of it in any medium by electronic means;

• To issue copies of the work to the public;

• To perform the work in public or communicate it to the public;

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General Principles of Contract 13 January 2017

• To make any cinema or sound recording in respect of the work;

• To make any translation of the work;

• To make any adaptation of the work;

• To make infringing copies of the work for sale or for hire or display or offers for sale infringing copies;

• To distributing the infringed copies for the purpose of trade;

• To exhibits infringed copies for the purpose of trade to the public;

• To import in to India infringing copies by way of trade to the public;

• When the reproduction of a literary, musical or dramatic work is made into a cinema, there shall be deemed
to be an infringement and the cinema shall be deemed to be an infringing copy.

Infringement of sound recording

A sound recording may be a literary work, for instance, the copyright in the sound recording of Javed Akhtar’s
collection of poem ‘Tarkash’ is with the recording company which has the exclusive right to sell the cassettes
in the market. In case a person makes a recording of the same in a home taping system and sells the same in
the market, he is infringing.

Home taping of sound recording is the most common form of infringement of copyright in sound recording.
Since home taping is done within the confines of homes of people, it is practically difficult to take any action
against such infringement.

Broadcasting agencies such as Television and Radio must obtain a license for the purpose of broadcasting
from the recording company who is the owner of the copyright in the record.

Exceptions to infringement of sound recording

• If the sound recording is played in an enclosed room or hall meant for the common use of residents in any
residential premises not being hotel or similar commercial establishment;

• as part of the activities of a club or similar organisation which is not established or conducted for profit.

For instance, if a sound recording is played in the common room of a school/hostel, it will not constitute
infringement.

6. The rights of broadcasting organisations

The Broadcasting Organisations such as Television, Radio have been vested with certain rights known as
‘Rights of Broadcasting Organisations’.

The term of the ‘Broadcasting Reproduction Right’ shall be 25 years from the date of broadcast. During the
subsistence of Broadcasting Rights, the commission of the following acts by anybody without a license or
consent of the owner of the right (the Broadcasting Organisations) will amount to be an infringement of the
‘Broadcasting Reproduction Rights’.

Such infringement acts are:

✦ Re broadcasting the broadcast;

✦ Broadcast to the public on payment of any charges;

✦ Making any sound recording or visual-recording of the broadcast;

✦ Making any reproduction of such sound recording or visual recording where such initial recording was done
without license or where it was licensed for any purpose not envisaged by such license.

✦ Selling or hiring to the public or offering for sale or hire, any such sound recording or visual recording of the
broadcast.

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General Principles of Contract 13 January 2017

Illustration: A wildlife programme broadcast earlier by the Discovery Channel is again broadcast by the
Doordarshan without any license or consent from the Discovery Channel to do so. There is an infringement
of the Broadcasting Reproduction Right.

Acts which do not constitute infringement of Broadcasting Reproduction Rights

• The making of any sound recording or visual recording for the purpose of teaching or research; or

• The use of excerpts of broadcast in the reporting of the current events or for bona fide review, teaching or
research; or

• Such other acts with necessary adaptations and modifications which do not constitute infringement of
copyright U/s. 52.

7. Assignment of copyright

Assignment of copyright may be general, i.e., without any limitation being placed on the assignee or the
assignment may be subject to certain limitations.

Assignment may be for the full term of the copyright or for a limited period of time. Assignment may be on a
territorial basis, i.e., for a particular territory or country. An owner of a copyright can assign his right in the
above combination of forms.

Mode of Assignment: Sec. 19 elaborates the mode of assignment in the following manner:

✦ Assignment is valid only when it is in writing signed by the assignor or by his duty authorised agent;

✦ The assignment instrument shall identify the work and specify the rights assigned and the duration and
territorial extent of such assignment;

✦ The instrument of assignment of copyright shall also specify the amount of royalty payable, to the author or
his legal heirs;

✦ If the assignee doesn’t exercise the rights assigned to him within one year from the date of assignment, the
assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period
unless otherwise specified in the assignment instrument;

✦ When the period of assignment is not stated, the period shall be deemed to be 5 years from the date of
assignment;

✦ If the territorial limit is not specified, it shall be presumed to extent within India.

Sec. 18 provides that copyright can be assigned even in respect of future works of the author before their
coming into existence. But in that case, the assignment will take effect only when the work comes into
existence.

8. Works in which copyright subsists

A copyright shall subsists throughout India in the following classes of the works, they are:

(a) Literary works: It includes computer programmes, tables, compilations including computer databases.
The Supreme Court has held that, ‘literary work’ is distinct from the ‘dramatic work’. The Supreme Court
has observed that, ‘dance’ would not come within the purview of the literary work would come within the
purview of the ‘dramatic work’.

(b) Dramatic works: It includes choreographic work or entertainment in a dumb show, the scenic
arrangement or acting form of which is fixed in writing or otherwise but doesn’t include a cinema film.

(c) Musical work: It means a work consisting of music and includes any graphical notation of such work, but
doesn’t includes any song, spoken or performed with the music. For instance, an actor’s movements while
rendering the song in a movie can’t be copyrighted.

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(d) An artistic work: It means a painting, sculpture, a drawing (including a diagram, map, chart or plan), an
photograph. A work of ‘architecture’ meaning any building or structure having an artistic character or
design or any model for such building or structure.

(e) Cinema film: Any work of usual recording on any medium produced through a process from which a
moving image may be produced by any means and includes a sound recording accompanying such visual
recording and ‘cinematography’ shall be construed as including any work produced by any process
analogous to cinematography including video films.

(f) Sound recording: A recording of sounds from which such sounds may be re-produced regardless of the
medium on which such recording is made or method by which the sounds are produced.

9. Software is an intellectual property

The software may be intellectual property and it stored in a medium which bought and sold. It is an article of
value. It is sold in various forms like - floppies, disks, CD-ROMs, magnetic tapes, etc.

Each one of the medium in which the intellectual property is contained is a marketable commodity. They are
visible to the sense. They may be a medium through which the intellectual property is transferred but for the
purpose of determining the question as regards leviability of the tax under a fiscal statute, it may not make a
difference.

A programme containing instructions in computer language is subject-matter of a license. It has its value to
the buyer. It is useful to the person who intends to use the hardware to obtain the desired result. It
indisputably becomes on object of trade and commerce. These mediums containing the intellectual property
are not only easily available in the market for a price but are circulated as a commodity in the market.

Only because of an instructions manual which enables the users to use and install the programme, supplied
with the software, the same would not necessarily mean that it would cease to be a ‘good’.

The Design Act, 2000

10. Origin - Development of the Design Law

Design means, a conception or suggestion or idea of a shape or of a picture or of a device or of some

arrangement which can be applied to an article by some manual, mechanical or chemical means. It is a
conception, suggestion or idea and not an article, which is the thing capable of being registered.

Origin of Design Law: The Design Act was passed in 1911 by the British Government in India. Since India
has made tremendous progress in the field of science and technology, there had been considerable increase in
the registration of designs. To provide more effective protection to registered designs and to promote design
activity in order to promote design element in an article of the production, it had become necessary to make
the legal system of providing protection to industrial design more efficient.

It was also intended to ensure that the law didn’t unnecessarily extend the protection beyond what was
necessary to create the required incentive for design activity while removing impediments to the free use of
available designs.

To achieve these objectives and in order to repeal the Design Act, 1991 which had been extensively amended,
the Design Bill was introduced in the Parliament.

11. Procedure for registration under the Design Act, 2000

The procedure for registration consists of the following steps:

• The proprietor of the design has to file application for registration of the design.

• The application shall be accompanies by 4 copies of representation of the design and the applicant shall
state the class in which the design to be registered.

• The applicant is also to file, if required by the controller, a brief statement of novelty with the application.
The Design Act, 2000 lays down 31 class plus miscellaneous class 99 of goods to which ornamental designs,
etc and which are capable of being registered under this Act generally apply.

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• On receipt of an application, the controller may accept it, if he considers that there is no lawful objection
in the report of examiner to the design being registered.

• In case, any objection appear to the controller is adverse to the applicant or requires any amendment of the
application, a statement of such objection shall be sent to the applicant or his agent in writing.

• The applicant has to remove the objection within one month of communication of the objections to him
failing which the application shall be deemed to have been withdrawn. He may also apply to the controller
for being heard on the matter.

• When the controller refuses the application after the submission, he may directly appeal to the Central
Government whose decision is final.

• On acceptance of design, the controller shall direct the registration and the publication of the particulars of
the application and the representation of the article to which the design has been applied, in the official
journal published.

• When publishing in the journal, the controller may select one or more views of the representation of the
design, which in his opinion would depict the design best.

• When the design is accepted, there shall be entered in the Register of Design, in addition to the particulars
required by the Act -

✦ the number of the design;

✦ the class in which it is registered;

✦ the date of filing the application for registration in this country;

✦ the reciprocity date, if any, claim for the registration.

• On the completion of the above procedure, the controller shall grant a certificate of registration to the
proprietor of the design.

12. Conditions for registration of the design

Original and not previously published in India: A design can be registrable only when it is new or
original and not previously published in India. The expression ‘new or original’ means that it had been
invented for the first time or it has not been reproduced by anyone.

A design would be registrable if the pattern though already known is applied to a new article, e.g., the shape
of teddy bear if applied to a school bag would be registrable what is essential is that the design must be new
with respect to the class of article to which it has been applied.

A combination of previously known designs can be registered if the combination produces a new visual
appeal. The colour may form a part of design but the colour by itself can’t constitute a subject-matter of
design.

No prior publication: The design must not be previously published in India. However, the private or the
secret use or an experimented use of design will not constitute publication by prior use. The publication can
be occur in 2 types:

• Publication in prior document: When the design has been already been published in a document which is
easily available.

• Publication by prior user: When a fashion designer before putting down the design in paper exhibits the
design in a fashion show where the cloths with the design in question have been put to sale.

The design must be applied to a particular article: A design must be incorporated in the article itself as
in the case of a shape or configuration which is 3 dimensional - shape of a bottle or flower vase or the case of
design which is two dimensional - design on a bed sheet, wall paper which serves the purpose of the
decoration. However, the design must be applied to the article itself.

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The design must have visual appeal: The visual appeal of the article must be to the eye of the consumer.

13. Design which are not registrable

The following designs are prohibited from the registration:

• is not new or original; or

• it has been disclosed to the public anywhere in India or in any other country by publication in tangible
form or by use or in any other way prior to the filing date; or

• it is not significantly distinguishable from known design or combination of known design; or

• comprises or contains scandalous or obscene matter.

14. A tennis racquet manufacturing company design a tennis racquet but before it is registered, a tennis
magazine publishes an advertisement of similarly designed racquet although under the different branch
name, who can claim copyright?

There are certain conditions to be fulfilled in order to register the design. The one of essential condition is
that, the design must not be previously published in India. However, the word, ‘publication’ has not been
defined by the Designs Act, 2000. To constitute publication, a design must be available to the public or it has
been shown or disclosed to some person who is not bound to keep it secret.

Example: The display of a design on a skirt of a model in a fashion show constitutes publication of the design.
The private or the secret use or an experimented use of a design will not constitute publication by prior use.
In case, Wimco Ltd., Bombay Vs. Meena Match Industries, Sivakasi, AIR 1983 Del 537: 1983 Rajdhani LR 631,
the Court held that publication means the opposite of being kept secret. It is considered published if a design
is no longer a secret. There is publication if the design has been disclosed to the public or the public is put in
possession of the design. The disclosure even to one person is sufficient to constitute publication.

So, the tennis racquet manufacturing company can’t apply for its registration. Because, the said racquet has
already been published.

15. Piracy of a registered design

Infringement of a copyright in design is termed as ‘piracy of a registered design’. It is not lawful for any person
during the existence of the copyright to do the following acts without the consent or license of the registered
proprietor of the design. Sec. 22 of the Design Act, 2000, lays down that the following acts amount to piracy:

• To publish or expose for sale of any article, which either the design or any fraudulent or obvious imitation
has been applied;

• To apply the design that is registered to any class of goods covered by the registration;

• To import for the purpose of sale, any article belonging to the class in which the design has been registered
and to which the design or a fraudulent or obvious imitation thereof has been applied.

Any unauthorised application of the registered design or a fraudulent or obvious imitation thereof to any
article covered by the registration for trade purpose or the import of such articles for sale is a piracy or
infringement of the copyright in the design.

Fraudulent and obvious imitation

The only common factor between the two is that both should be imitations. Thus even in the case of
fraudulent imitation the design applied must be an imitation of the registered design.

In a fraud the imitation has been made with the intention to deceive another person with the knowledge that
what is being done is a violation of the other person’s right. Therefore, where fraudulent imitation is
established, the court will declare it as an infringement of copyright in the design. There must be exact
duplication an imitation of the registered design.

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Test to determine infringement

The Court has to determine whether the alleged infringement has the same shape or pattern and must
eliminate the claim of similarity due to similarity of functions. Similarity of functions would result when two
articles have same shape due to the inherent nature of the goods.

Example: Two pens will be necessarily be similar in having an ink-tube, a cap and nib for writing.

This element of functional similarity is to be eliminated.

Judicial remedy

The judicial remedy for infringement of a registered design includes damages along with an injunction.

Damages: The payment of a certain sum of money by the person who pirates a registered design. The fine
shall not exceed 25,000/- for every contravention, it has to pay to the registered proprietor of the design.

Injunction: It against repetition of the piracy.

16. Powers and duties of the Controller

The Controller General of Patents, Designs and Trade Marks appointed u/s. 4(1) of the Trade and
Merchandise Marks 1958 is to be the Controller of Designs for the purpose of this Act.

Powers and duties of the Controller

(a) Power of civil court: The controller has been vested with the powers of a civil court for the purpose of -

• receiving evidences;

• administering oaths;

• enforcing the attendance of witnesses;

• compelling discovery and production of documents;

• issuing commission for examination of witnesses and awarding costs.

Such award is executable in any court having jurisdiction as if it were a decree of that court.

(b) Exercise of discretionary power by controller: Any discretionary power has been given to the
controller, he is not to exercise that power adverse to the applicant for registration of a design. Without
giving a opportunity of being heard to the applicant is falls within the discretionary power of the controller.

(c) Power of controller to take Central Govt directions: In cases of doubts or difficulty arising in the
administration of any of the provisions of the Act, the controller may apply to the Central Govt for the
direction.

(d) Refusal to register a design in certain cases: The controller may refuse to register a design, if it is
contrary to the public order or morality.

(e) Power to correct, clerical errors: The controller may correct any clerical error in the representation
of a design or in the name or address of the proprietor of any design or any other matter which is entered
upon the register of designs.

17. Objects and reasons of the Design Bill

• It enlarges the scope of definition of ‘article’ and design and introduces the definition of ‘original’.

• It enlarges the scope of ‘prior publication’.

• It incorporates the provisions for delegation of the power of the controller to other officers and duties of
examiners.

• It contains provisions for identification of non-registrable designs.

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• It contains provisions for substitution of application before registration of a design.

• It introduces internationally followed system of classification in the place of the Indian classification.

• It contains provision for maintaining the Register of designs on computer.

• It contains provision for restoration of lapsed designs.

• It contains provision for appeal against order of the controller before the High Court instead of Central
Government as existing.

• It revokes the period of secrecy of 2 years of a registered design.

• It provides for compulsory registration of any document for transfer of right in the registered design.

• It introduces additional grounds in cancellation proceedings and makes provision for initiating the
cancellation proceedings before the controller in place of High Court.

• It enhances the quantum of penalty imposed for infringement of registered design.

• It enhances initial period of registration from 5 to 10 years, to be followed by a further extension of a period
of 5 years.

• It contains specific provisions to protect the security of India.

18. Rights granted to the proprietor of the design

✦ The proprietor of design, have the copyright in the design 10 years from the date of registration.

✦ Before the expiration of the said 10 years, the period of copyright can be extended for another 5 years on a
application in prescribed format, shall be made to the controller.

✦ Protection against infringement of the design: Any person responsible for infringing the registered design is
guilty of piracy and liable to a fine of sum not exceeding Rs. 25,000/-.

✦ The registered proprietor can bring a suit for recovery of damages or for the injunction against the
reputation of such piracy. The total recovery shall not exceeds Rs. 50,000/-.

19.Bio-diversity - Scope and nature of bio diversity

The term biodiversity refers to the variety of life on earth at all its levels, from genes to ecosystems, and the
ecological and evolutionary processes that sustain it.

Biodiversity includes not only species and it consider rare, threatened or endangered living thing even
organisms we still know little about such as microbes, fungi and invertebrates.

Why is Biodiversity important?

We need biodiversity to satisfy basic needs like food, drinking water, fuel, shelter and medicine. Much of the
world’s population still uses plants and animals as a primary source of medicine.

Eco systems provide services such as pollination, seed dispersal, climate regulation, water purification,
nutrient cycling and control of agricultural pests. Many flowering plants depend on animals for pollination
and 30% of human crops depend on the free services of pollinators.

Purpose of the Biological Diversity Act, 2002

• To protect biological, geological and land scope diversity and ecological process through conservation and
sustainable use;

• To protect the environment which is basis for human activity, culture, health and well-being, how and in the
future including a basis for semi culture.

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20.The Biological Diversity Act, 2002

Biological diversity means variability among living organisms from all sources and the ecological complexes of
which they are part and includes diversity within species or between the species and of ecosystems.

Objects: The objects of the Biological Diversity Act, 2002 is:

• Conservation of biological diversity;

• Sustainable use of its components;

• Equitable sharing of the benefits arising out of utilisation of the genetic resources.

Salient features of the Act

✦ Prohibition on transfer of India genetic material outside the country without specific approval of the
Indian Govt:

✦ Prohibition of anyone claiming an patent over biodiversity or relevant knowledge without the permission of
India Govt;

✦ Regulation of collection and use of biodiversity by Indian national, while exempting local communities
from such restrictions;

✦ Guidelines for sharing the benefits from the use of biodiversity including transfer of technology, monetary
returns, joint research and development, joint IPR ownership, etc.;

✦ Guidelines for conserve sustainable use of biological resources including the species protection of projects,
integration of biodiversity in to the plants and policies of various department and sectors;

✦ Provisions for local communities to use of their knowledge and to charge fee for this;

✦ Regulation of the use of the genetically modified organisms;

✦ Setting up of national, state and local Biodiversity funds to be used to support conservation and benefit
sharing;

✦ Setting up of Biodiversity Management Committee (BMC) at local village levels, State Biodiversity Boards
at state level and National Biodiversity Authority at national levels.

21. Functions of the National Biodiversity Authority

• Advise the Central Govt on matter concerning the conservation of biodiversity sustainable use of its
components and fair and equitable sharing of the benefits arising out of the use of biological resources and
knowledge;

• Coordinate the activities of the State Biodiversity Boards;

• To provide the technical assistance and guidance to the State Biodiversity Boards;

• To sponsor investigate and research;

• To engage consultants for a specific period not exceeding 3 years for providing technical assistance to the
authority in the effective discharges of its functions;

• To collect, compile and publish technical and statistical data, manuals, codes or guides relating to
conservation of biodiversity, sustainable use of its components and fair and equitable sharing of benefits
arising out of the use of biological resources and knowledge;

• To organise a comprehensive programme regarding conservation of biodiversity, sustainable use of

components and fair and equitable sharing of the benefits arising out of the use of biological resources and
knowledge;

• To prepare the annual budget of the authority including its own receipts;

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• To recommend creation of posts to the Central Govt foe effective discharge of the functions by the
authority;

• To give directions to State Biodiversity Boards and the Biodiversity Management Committee in writing for
effective implementation of the act;

• To report to the Central Govt about the functioning of the authority and implementation of the Act;

• To sanction grants to the State Biodiversity Board and Biodiversity Management Committee for specific
purposes;

• To regulate the commercial utilisation or bio-survey and bio-utilisation of any biological resources by the
Indians;

• Any other functions as may be assigned by the Central Govt., from time to time.

22. Functions of the State Biological Board

✦ To advice the State Govt on matters relating to conservation of diversity, sustainable use of its components
and equitable sharing of benefits arising out of utilisation of biological resources;

✦ To regulate the granting of approvals or reports for commercial use or bio-server and bio-utilisation of any
biological resources by Indian;

✦ To prepare and submit, its annual accounts to the National Authority Board as well as one copy to the State
Govt;

✦ Any other functions as may prescribed by the State Government.

23. Bio piracy

Bio piracy refers to illegal exploitation of biological resources and the indigenous knowledge associated with
it, for commercial gain.

The traditional knowledge, processes and resources widely known in the indigenous population is
misappropriated for commercial benefit without any proper compensation awarded to the rightful owners.

Biopiracy operates through unfair application of patents to genetic resources and traditional knowledge. Due
to competition in the pharmaceutical and agricultural area, big companies do not have time to collect samples
legally, so they engage in biopiracy in order to be the first to patent biological material.

Bio piracy method

Collaboration with universities, Govt and NGO, which are able to contribute relatively low-cost field research
and input. In exchange for their involvement those organisation receive:

(a) Project funding;

(b) Scholarship; and

(c) Technological hardware.

Bio piracy effects on Biodiversity

Biopiracy alters the environment, which in turn causes biodiversity depletion. The biodiversity depletion
effects on food security.

24.Traditional Knowledge

Traditional knowledge is knowledge, know-how, skills and practices that are developed, sustained and passed
on from generation to generation within a community, often forming part of its cultural or spiritual identity.

Traditional knowledge can be found in a wide variety of contexts, including agriculture, scientific, technical,
ecological and medical knowledge as well as biodiversity knowledge.

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Innovations based on traditional knowledge may benefit from patent, trademark and geographical indication
protection or be protected as a trade secret or confidential information. However, traditional knowledge as
such - knowledge that has ancient roots and if often oral - is not protected by conventional intellectual
property system.

25. Constitutions of National Biodiversity Authority

National Biodiversity Authority is a body corporate and having perpetual succession and a common seal. The
head office of the Authority is at Chennai. It may establish offices at other places in India, with the
permission of the Central Govt.

Constitution

• Chair person: He is to be appointed by the Central Govt. He has to be an eminent person having
adequate knowledge and experience in conservation and sustainable use of biological diversity and in
matters relating to equitable sharing of the benefit.

• Three ex officio members: They are appointed by the Central Govt., one representing the Ministry of
Tribal Affairs and two representing the Ministry of Environment and Forests.

• Seven ex officio members: They are appointed by the Central Govt., to represent respectively the
ministers of Central Govt dealing with the following:

✦ Agricultural research and education;

✦ Biotechnology;

✦ Ocean development;

✦ Agricultural and cooperation;

✦ Indian system of Medicine and Homeopathy;

✦ Science and Technology;

✦ Scientific and Industrial Research.

• Five non-official members: They appointed from among specialists and scientists having special
knowledge of or experience in the matters relating to conservation of biological diversity, sustainable use of
biological resources and equitable sharing of the benefits arising out of the use of biological resources,
representatives of industry, conservers, creators and knowledge holders of biological resources.

26.Biodiversity management Committee

Every local body has to constitute a Biodiversity Management Committee within its area for the purpose of
promoting conservation, sustainable use and documentation of biological diversity including preservation of
habits, conservation of landraces, folk varieties and cultivars, domesticated stocks and breeds of animals and
microorganisms and chronicling of knowledge relating to the biological diversity.

• Landrace: Primitive cultivar that was grown by ancient farmers and their successors;

• Folk variety: A cultivated variety of plant that was developed, grown and exchanged informally among
farmers;

• Cultivar: A variety of plant that has originated and persisted under cultivation or was specifically bred for
the purpose of cultivation.

The National Biodiversity Authority and the State Biodiversity Boards have to consult the Biodiversity
Management Committee while taking any decision relating to the use of biological resources and knowledge
associated with such resources occurring within the territorial jurisdiction of the Biodiversity Management
Committee.

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The Biodiversity Management Committee may levy charges by way of collection fee from any person for
assessing or collecting any biological resources for the commercial purposes from areas falling within its
territorial jurisdiction.

27. Powers and functions of the Central Government

✦ To develop national strategies, plans, programmes for conservation and promotion and sustainable use of
biological diversity;

✦ To introduce a measures of identification and monitoring of areas rich in biological resources;

✦ To give incentives for researches, training and public education to increase the awareness;

✦ To issue a directions to the Government, in case where any area rich by biodiversity, biological resources is
being threatened by overuse, abuse or neglect;

✦ To offer any technical and other assistance to State Government;

✦ To integrate conservation, promotion and sustainable use of diversity in to relevant sectoral or cross-
sectoral plans, programmes and policies;

✦ To undertake any measures for assessment of environmental impact of any project which is likely to have
adverse effect on biological diversity;

✦ To regulate, manage or control the risks associated with the use and release of living modified organisms
resulting from biotechnology;

✦ To undertake measures to respect and protect the knowledge of local people relating to biological diversity,
as recommended by the National Biodiversity Authority;

✦ To notify any species which is on the verge of extinction, or likely to become extinct in the near future and
prohibit or regulate collection of such species for any purpose and take appropriate steps to rehabilitate and
preserve those species;

✦ To designate institutions as repositories for different categories of biological resources;

✦ To declare that the provisions of this Act are not to apply to any items, including biological resources
normally traded as commodities.

28.Powers and functions of State Government

• The State Government may, from time to time in consultation with local bodies, notify areas of biodiversity
importance as biodiversity heritage sites;

• The State Government may frame rules for management and conservation of heritage sites;

• The State Government has also to frame schemes for compensating or rehabilitating any person or section
of the people economically affected.

29.Access and benefit sharing arrangement

Any foreign individual, institution or company desiring access to biological resources occurring in India or
knowledge associated thereto for research, commercial utilisation or bio-survey and bio-utilisation is required
to seek prior approval of the National Biodiversity Authority [NBA].

When granting approval, NBA enters in to benefit sharing agreement with the applicant imposing condition
which secure equitable sharing of benefits arising out of the use biological resources and associated
knowledge. These benefits may either be monetary or non-monetary in nature.

30.Benefit claimers

Benefit claimers are conservers of biological resources and their by products and creators and holders of
knowledge and information relating to the use of such biological resources, innovations and practices
associated with such use and application.

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31. Protection of Traditional Knowledge

The importance of traditional knowledge of the indigenous community is now known to the world. With this
realised importance comes the need to protect this knowledge and to prevent its misappropriation. But the
question is how?

In India, after the Neem patent controversy, the need to protect traditional knowledge of India has gained
importance. India has taken an initiative through TKDL, a collaborative project of Council of Scientific and
Industrial Research [CSIR] and Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and
Homeopathy [AYUSH] which helps the examiners of patent offices to search for any information regarding
substance or practice while granting patents and they can dismiss the grant of patent, if the substance or
practice is already there in the TKDL list as Indian Traditional Knowledge.

Plant Varieties and Farmer’s Right Act, 2001

32. Salient features of the Protection of Plant Varieties and Farmer’s Right Act, 2001

(a) Authority: The Central Government shall establish an Authority to be known as the protection of Plant
Varieties and Farmer’s Rights Authority.

(b) Registration of farmer’s varieties: A farmer’s variety is a variety that has been traditionally cultivated
and evolved by farmers, or is a wild relative or land race in common knowledge of the farmers.

(c) A new variety shall be registered if it meets the criteria of novelty, distinctiveness, uniformity and stability.
The criterion of novelty requires a variety to be in commercial use for less than one year in India or 4 years
outside India. The variety must be distinguishable for at least one essential characteristic from any other
variety whose existence is a common knowledge on any country.

(d) Any variety that involves any technology which is injures to the life or health of human beings, animals or
plants shall not be registered.

(e) The duration of protection of varieties will be 15 years for the extant varieties, 18 years for varieties of trees
and vines and 15 years for varieties of other crops.

(f) The Central Government is to constitute a National Gene Fund.

(g) Compulsory license may be granted after 3 years of registration of a variety if seeds of the variety are not
available to the public either in adequate quantity or at a reasonable price.

(h) The Central Government shall establish Plant Varieties Registry for the registration of plant varieties. The
registry shall maintain “National Register of Plant Varieties” containing the names of all registered
varieties, name and address of their breeder’s and other relevant details.

(i) The breeder shall be required to deposit specific quantities of seeds/propagules of the registered variety as
well as its parental line in the National Gene Bank as specified by the protection of Plant Varieties and
Farmers’ Rights Authority.

(j) Requirement for the breeder to disclose to the farmers the expected performance of the variety under
given conditions, farmers can claim compensation if this expectation is not fulfilled.

33. Objectives of the Act

The objectives of the Act are as follows:

• To provide for the establishment of an effective system for protection of plant varieties;

• To provide for the rights of farmers and plant breeders;

• To stimulate investment for research and development and to facilitate growth of the seed industry;

• To ensure availability of high quality seeds and planting materials of improved varieties to farmers.

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34.National gene Fund

The Protection of Plant, Varieties and Farmer’s Right Act, 2001 empowers the Central Government to,
establish a fund called ‘National Gene Fund’. The fund created out of:

✦ the benefit sharing from the breeders;

✦ the annual fee payable to the Authority by way of royalties;

✦ the compensation provided to the communities;

✦ the contribution from any national and international organisation and other sources.

The fund will be utilised for the following purposes:

• to distributing the shares to benefit claimers, either individuals or organisations;

• for compensation to village communities;

• for supporting conservation and sustainable use of genetic resources;

• for strengthening the capabilities of the panchayat in carrying out such conservation and sustainable use.

35. Compulsory license

Any person, after expiry of 3 years from the date of registration, can apply to the protection of Plant Varieties
and Farmer’s Right Authority for a compulsory license for undertaking the production, distribution and sale
of the seed or other propagating material on the grounds that the reasonable requirements of the public for
seeds or other propagating material of the variety have not been satisfied or not available to the public at a
reasonable price.

The application should contain a statement of the nature of the compulsory license. Applicant’s interest and
the facts upon which the application is based.

The protection of Plant Varieties and Farmer’s Right Authority in consultation with the Central Government
and after hearing both the parties may pass an order for the registered proprietor to grant the license on such
terms and conditions as the authority deems fit.

The authority will determine the duration of the compulsory license on case-to-case basis. However, the
duration shall not exceed the total remaining period of the protection. If the authority satisfied that a
compulsory license.

36.Farmer’s right

The Protection of Plants and Farmer’s Rights Act, 2001 deals with farmer’s rights. This Act was enacted to
recognise and protect the rights of the farmers in respect of their contribution made at any time in
conserving, improving and making available plant genetic resources for the development of the new plant
varieties.

Such protection is likely to facilitate the growth of the seed industry which will ensure the availability of high
quality seeds and planting material to the farmers. It also provides the right of communities and protection of
innocent infringement.

Section 39 talks about the farmers rights:

• A farmer who has developed a new variety shall be entitled for registration and other protection;

• The farmer’s variety shall be entitled for registration if the application contains declaration as specified;

• A farmer who is engaged in the conservation of genetic resources of landraces and wild relatives of
economic plants and their improvement through selection and preservation shall be entitled for
recognition and reward from the Gene Fund.

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• A farmer shall be entitled to use, sow, re-sow, exchange, share or sell his farm produce including the seeds of
a variety protected. However, farmers shall not be entitled to sell branded seed of a variety protected.

Branded seed means, any seed put in a package or any other container and labelled in a manner indicating
that such seed is if a variety protected under this Act.

Rights of community

Any person, group of persons or any Governmental organisation, on behalf of any village or local communities
in India, can make any claim attributable to the contribution of people of that village or local community has
contributed significantly in the change of the any variety for the purpose of staking a claim on behalf of such
village or local community.

Where the Government is satisfied that such village or local community has contributed significantly to the
change of the variety, it shall report its findings to the Authority.

Then Authority, may grant such sum of compensation to a person or group of persons or Government or
NGO. Any such compensation granted shall be deposited by the breeder of the variety in the Gene Fund. The
compensation granted shall be deemed to be an arrear of land revenue and shall be recoverable by the
Authority accordingly.

37. Procedure for the registration of plant varieties

(a)An application shall be made by:

✦ a breeder of the variety;

✦ a successor of the breeder of the variety;

✦ a assignee of the breeder of the variety;

✦ any farmer or group of farmer’s or community of farmers claiming to be the breeders of the variety;

✦ any university or publicly funded agricultural institution claiming to be the breeder of the variety.

(b) The following varieties can be registered:

• Extant variety;

• Farmer’s variety; and

• Such genera and species as specified by the Central Government.

(c) The following new varieties shall not be registered:

✦ a variety is not capable of identifying;

✦ a variety which consists solely of figures;

✦ a variety is liable to mislead or to cause confusion;

✦ a variety which is not different or closely related to the species already registered under this Act;

✦ a variety is likely deceive the public or cause confusion in public regarding the identity of such variety;

✦ a variety is likely to hurt the religious sentiments of any particular class of section of the Citizen of India;

✦ a variety is prohibited to use as a name or emblem for any of the purposes mentioned in Sec. 3 of the
Emblems and Names (Protection of Improper Use) Act, 1959;

✦ a variety is comprised of solely or partly of geographical name.

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(d) Procedure for application

• The application shall be with respect to a variety and state the denomination assigned to such variety by
the applicant;

• The application must be accompanies by an affidavit sworn by the applicant that such variety doesn’t
contain any gene or gene sequence involving terminator technology;

• The application shall be in prescribed form;

• The application shall contain a complete data of the parental lines from which the variety has been derived
along with the geographical location in India from where the genetic material has been taken and also such
information relating to the contribution, farmer, village, community, institution or organisation in breeding
evolving or developing the variety;

• The application shall be accompanied by a statement containing a brief description of the variety;

• The application fee has to paid and the proof of the payment shall be attached;

• The declaration that the genetic material or parental material acquired for breeding, evolving or developing
the variety has been lawfully acquired, and

(e) After making such inquiry, the Registrar may accept the application absolutely or subject to such condition
or limitation as he deems fit under Sec. 20. He can also reject the application;

(f) When application is accepted, it is advertised for objections from the interested persons;

(g) Any interested person can make an objection within 3 months from the date of such advertisement on
payment of the prescribed fee. The grounds for opposition:

✦ that the variety is not registrable under this Act; or

✦ that the grant of certificate may not be in public interest; or

✦ that the variety may have adverse effect on the environment; or

✦ that the person opposing the application is entitled to the breeder’s right as against the applicant.

(h) Issue of certificate of Registration

When a application has been accepted and either -

• the application has not been opposed and the time of notice of opposition has expired; or

• the application has been opposed and the opposition has been rejected.

- the Registrar shall register the variety.

On the registration of the variety, the Registrar shall issue to the applicant a certificate of registration in the
prescribed form, and sealed with the seal of the Registry. The copy of the certificate has to send to the
Authority for determination of the benefit sharing.

38. Rights conferred on breeder

A certificate of registration for a variety shall confer an exclusive right on the breeder or his successor, his
agent or license, to produce, sell, market, distribute, import or export the variety subject to provisions of the
Act.

In case of extant variety, unless a breeder on his successor establishes his right, the state Government shall be
deemed to be the owner of such right.

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39.Right of researchers

The use of any variety registered under the Act by any researcher is not prevented, but the permission of the
breeder of a registered variety is required where the repeated use of such variety.

40.Infringement of rights and its remedies

Infringement of rights means when ones right who is authorised for it is used by someone else who is not
authorised for it. A right is infringed by a person -

• who is not being a breeder of variety registered or registered agent or a registered licensee of that variety,
sells, exports, imports or produces such variety without the permission of its breeder or within the scope of
registered license or registered agency without the permission of the registered licensee or registered agent;

• who uses, sells, exports, imports or produces any other variety giving such variety, the denomination
identical with or deceptively similar to the denomination of a variety registered under this Act in such
manner as to cause confusion in the mind of general public in identifying such variety.

Suits for infringement of the established right shall be instituted in the District Court only. In a suit, a court
may grant an injunction and at the option of the plaintiff, either damages or a share of the profits.

TRIPS

41. Objective of the TRIPS

• Protection of intellectual property rights;

• Promotion of technological innovations;

• Transfer of technology for mutual benefit of producers and users of the technology;

• Social and economical welfare;

• Balance of rights and obligations.

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