CONCEPT OF PROPERTY & NATURE OF INTELLECTUAL PROPERTY

CONCEPT OF PROPERTY & NATURE OF INTELLECTUAL PROPERTY

CONCEPT OF PROPERTY AND NATURE OF INTELLECTUAL PROPERTYIntellectual Property Laws

Submitted to: Submitted by:Dr. Jasmeet Gulati Salina Chalana & Sunakshi Sharma 57/10, 59/10 10th Semester Section B

ACKNOWLEDGEMENT

We have given all our efforts in this project. However, it would not have been possible without the kind support and help of many individuals. We would like to extend our sincere thanks to all of them. We are highly indebted to our teacher, Dr. Jasmeet Gulati for her guidance and providing necessary information regarding the project. Salina Chalana & Sunakshi Sharma57/10, 59/1010th SemesterSection B

CONTENTS

INTRODUCTIONThe Latin term Properietat and the French equivalent proprius from where the term property has been derived, means a thing owned with exclusive right of possession, enjoyment and disposition. The American constitution declares liberty as inseparable part of property. The Indian Constitution before the 44th Amendment, declared property as a Fundamental Right. Even after the amendment and deletion of Art. 19 (1)(f), the place of property under Art. 300A has not been diminished and it is still a constitutional right.[footnoteRef:1] [1: ROY, S.C]

CONCEPT OF PROPERTYThe term property is used in different senses. In its most broad sense, it includes those things, whether animate or inanimate, which belong to a person. In this sense a persons life, liberty, reputation and estate constitute his property. This usage has become obsolete and finds place only in the works of the older jurists like Blackstone, Hobbes and Locke. In this sense the term property includes nothing more than corporeal property, i.e., the ownership of material objects alone.In its narrower sense, it contains only proprietary rights but not personal rights. Thus land, shares, debts, copyright, etc., constitute ones property but not his life, liberty or reputation. Thus, property includes any right, which has an economic value. In jurisprudence the term property is, however, used to refer to only proprietary rights in rem, that is to say, such proprietary rights only are available against the world at large. This is the meaning adopted by Salmond.In this sense a patent or a copyright is property, but not so a debt or the benefit of a contract. Proprietary rights which are rights in personam are distinguished as obligations. That part of the law which deals with the proprietary rights in rem is the Law of Property.Corporeal and Incorporeal PropertyCorporeal property is the right of ownership in material things, such as land, house, etc. Incorporeal property are other proprietary rights in rem. Incorporeal property is itself of two kinds, viz., (1) jura in repropria, i.e., proprietary rights over immaterial things, e.g., patents, copyrights and trademarks, and (2) jura in re aliena (encumbrances) whether over material or immaterial things, e.g., leases, mortgages and servitudes.

Tangible

Intangible property, or incorporeal property, describes something which a person can have ownership of and can transfer ownership of to another person, but has no physical substance. It generally refers to statutory creations such ascopyright,trademarks, orpatents. It excludes tangible property likereal property(land, buildings, andfixtures) andpersonal property(ships, automobiles, tools, etc.). In some jurisdictions intangible property are referred to aschoses in action, i.e. rights that are enforced only by legal action as opposed to possessory rights. Channell J described a chose in action in the following terms in Torkington v. Magee:Chose in action is a known legal expression used to describe all personal rights which can only be enforced by action, and not by taking physical possession.[footnoteRef:2] [2: [1902] 2 KB 427 at 430.]

Generally, ownership of intangible property gives the owner a set of legally enforceable rights over reproduction of personal property containing certain content. For example, a copyright owner can control the reproduction of the work forming the copyright. However, the intangible property forms a set of rights separate from the tangible property that carries the rights. For example, the owner of a copyright can control the printing of books containing the content, but the book itself is personal property which can be bought and sold without concern over the rights of the copyright holder.

CONCEPT OF INTELLECTUAL PROPERTYIntellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual property rights protect the interests of creators by giving them property rights over their creations.The Convention Establishing the World Intellectual Property Organization (1967) does not seek to define intellectual property, but gives the following list of the subject matter protected by intellectual property rights: literary, artistic and scientific works; performances of performing artists, phonograms, and broadcasts; inventions in all fields of human endeavour; scientific discoveries; industrial designs; trademarks, service marks, and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.Intellectual property relates to items of information or knowledge, which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information or knowledge reflected in them. Intellectual property rights are also characterized by certain limitations, such as limited duration in the case of copyright and patents.The importance of protecting intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property in 1883 and the Berne Convention for the Protection of Literary and Artistic Works in 1886. Both treaties are administered by the World Intellectual Property Organization (WIPO).[footnoteRef:3] [3: wipo]

The subject matter of intellectual property is very wide and includes literary and artistic works, films, computer programs, inventions, designs, trademarks etc. Intellectual property law concerns the legal rights associated with creative effort or commercial reputation.Intellectual property creates rights and duties. The reason for the development of the law regarding intellectual property is that a person who creates a work or has an idea which he develops has a right, based on morality and concept of reward, to control the use and exploitation of it, and to prevent other from taking unfair advantage of his efforts.The scope of intellectual property is expanding very fast and attempts are being made by persons who create new creative ideas to seek protection under the umbrella of intellectual property rights. Infringement of others rights or making counterfeits is equal to theft of goods. The intellectual property law protects the owner from the infringement and counterfeiting. The term intellectual property has come to be internationally recognized as covering patents, industrial designs, copy right, trademarks, know-how and confidential information. Patents, designs and trademarks used to be considered as different kinds of industrial property.Copyright: It relates to artistic creations, such as poems, novels, music, paintings, and cinematographic works. In most European languages other than English, copyright is known as authors rights. Simply put, copyright is a legal term describing rights given to creators for their literary and artistic works. The dictionary meaning of term is:The right of literary property as recognized and sanctioned by positive law. An intangible incorporeal right granted by statute to the author or originator of certain literary or artistic production, whereby he is invested a limited period, with sole and exclusive privilege of multiplying copies of the same and publishing or selling them. Copyright is based on the concepts of originality and reproduction of the work in any material form. The expression copyright refers to the main act which, in respect of literary and artistic creations, may be made only by the author or with his authorization. That act is the making of copies of the literary or artistic work, such as a book, a painting, a sculpture, a photograph, or a motion picture. The second expression, authors rights refers to the person who is the creator of the artistic work, its author, thus underlining the fact, recognized in most laws, that the author has certain specific rights in his creation, such as the right to prevent a distorted reproduction, which only he can exercise, whereas other rights, such as the right to make copies, can be exercised by other persons, for example, a publisher who has obtained a license to this effect from the author.

Industrial Property: The broad application of the term industrial is clearly set out in the Paris Convention for the Protection of Industrial Property (Article 1 (3)): Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.Industrial property takes a range of forms, these include patents to protect inventions; and industrial designs, which are aesthetic creations determining the appearance of industrial products. Industrial property also covers trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, as well as geographical indications, and protection against unfair competition. In some of these, the aspect of intellectual creation, although existent, is less clearly defined. What counts here is that the object of industrial property typically consists of signs transmitting information, in particular to consumers, as regards products and services offered on the market. Protection is directed against unauthorized use of such signs likely to mislead consumers, and against misleading practices in general.[footnoteRef:4] [4: Wipo 895]

Trademark: Trademark is a mark which is expressed in the form of letter, number figure, or combination of one or two. In includes any device, bond, heading, level, ticket, name signature, word, letter numerical, and shape of goods, packaging or combination thereof. The purpose behind the protection of Trade Marks law is to protect the publish from confusion and deception by identifying the source or origin of particular products as distinguished from similar productsIn the case of Trademarks, there are two types of rights- one is obtained by registration under the Trade Marks Act, 1999, and other is acquired by actual use in relation to some product or service. In case of unregistered trademarks, the proprietor has protection under the law of passing off. It is based on common law. The object of this law is to protect the goodwill and reputation of business from encroachment by dishonest competitors.

Patent is a document, issued, upon application, by a government office (or a regional office acting for several countries), which describes an invention and creates a legal situation in which the patented invention can normally only be exploited (manufactured, used, sold, imported) with the authorization of the owner of the patent. Invention means a solution to a specific problem in the field of technology. An invention may relate to a product or a process. The protection conferred by the patent is limited in time (generally 20 years). Basic concept of intellectual property, the patent law centres round the concept of novelty or lack of anticipation and inventive step. Design law is based on novelty or originality of the design not previously published in India or any other country.

NATURE OF INTELLECTUAL PROPERTY:

I. Intellectual Property is an intangible propertyIntellectual property is a creation of human mind. It is intangible and incorporeal. Intellectual property generally provides protection for the results of creativity. Intellectual property is, however, similar to physical property in many respects. For example, it can be bought and sold. But, it is different from tangible property in many aspects. Unlike tangible property, a copyright work cannot be possessed, although it can be owned. Copyright works are separate pieces of property from any tangible property like, videotape, book, etc they may be contained in.

II. Jurisprudential characterIntellectual property gives rise to rights and duties. It establishes property rights, which give owner the right to do certain things in relation to the subject matter. For example, if the right is a copyright and the subject matter is a piece of music, the owner of the copyright has the exclusive right to make copies of the sheet music, to make an arrangement of the music and to control the performance of the music. However, the owner also has the negative right to prevent others from doing such things in relation to the music. The right can arise automatically, on the creation of the thing to which the right pertains. In terms of intellectual property, rights is a right to do certain things, such as making copies of a work of copyright, making articles to a design covered by a design right or making products in accordance with a patented invention. The correlative duty is a duty owned by all others not to infringe the right. This duty exists even if the person does not know about the right. The duty not to infringe is often curtailed by way of exceptions to infringement. Copyright law permits many things to be done that would otherwise infringe, for example the fair dealing provisions.

III. TerritorialAn intellectual property issue is generally resolved by national law. Intellectual property rights are given by national laws and do not apply in other countries. However, because of international importance of the IPRs, several conventions have been created to simplify the process of obtaining rights under the laws of the other countries.

IV. AssignableIntellectual property can be bought, sold, licensed or hired like any other property. Intellectual property rights give rise to a form of property that can be dealt with just as with any other property, and which can be assigned, mortgaged and licensed. For example, an inventor can provide license to any other person for industrial re-creation or exploitation of his invented work.

V. DivisibleSometimes, several persons may have legally protected interests involved in a single original work without affecting the interest of the other right holders on that same item. For example, copyright may be made up of different rights, which may be divided into different persons like publishers, adaptors, translators, etc. Intellectual property rights do not necessarily go with the physical goods which support or embody them: while buying a computer program, the programmer who wrote it retains copyright and can stop others from doing certain things like making copies for others.Intellectual property can be sliced in different ways. An inventor may have patented technology which applies to several products. The inventor can license it to different persons for each product or to more than one person and may choose to keep some rights. The inventor may have patents in several countries, and license them each in a similar way.[footnoteRef:5] [5: https://books.google.co.in/books?id=MQ0FIwlsl6wC&pg=PA6&dq=features+of+intellectual+property&hl=en&sa=X&ei=WpzpVJ2lIszhuQTZ_IDQBg&ved=0CBwQ6AEwAA#v=onepage&q=features%20of%20intellectual%20property&f=false]

VI. MonopolisticThe intellectual property is can be treated as exclusive property. The intellectual property rights are negative in nature, because the owner is given the right to exclude others. To take an example, As copyright in the letter written by him to B does not give any positive right of ownership over the physical medium of the piece of paper. Rather, it gives A the right to prevent B or anyone else, from infringing any one of the particular rights conferred on the copyright owner by statute, like the right to stop the letters from being copied.Also, the owner of such intellectual property is the only one who has the right to exploit the right. In case of a patent, the owner of such patent is the only one who can make the patented product, offer it for sale, or use it by way of trade. Thus, intellectual property rights give rise to legal monopoly.[footnoteRef:6] [6: https://books.google.co.in/books?id=m0VZAwAAQBAJ&pg=PT62&dq=nature+of+intellectual+property&hl=en&sa=X&ei=0DboVIvkC5fmuQSThYDgDg&ved=0CDgQ6AEwBQ#v=onepage&q=nature%20of%20intellectual%20property&f=false]

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