Intellectual Property Rights Environment In India

November 24, 2011 by  Filed under: Domain 


In India there is a well-established statutory, administrative and judicial framework to safeguard intellectual property rights , whether they relate to patents, trademarks, copyright or industrial designs. The contract/License, Copyright, Undisclosed information i.e. Trade Secret , Patents have an impact on software while Trade Marks and Layout Design have impact on hardware rather than the software. In this paper both impact are being focused. But before going further lets first take an overview about these areas

Contract/License: It governs or implies conditions in any transaction and its equally valid for computer software.

Copyright : It mainly lies in description, includes literary, and artistic works such as novels, poems and plays, films, musical works, artistic work such as drawing, painting, photographs, architectural design and sculptures. Basically it’s the form of expression of view or ideas.

Undisclosed Information/trade secret : It’s a secret. In the trade , it must not be general or public knowledge. Things which can give advantage over the competitors who do not know or use it, it mainly consist of any formula, pattern, device or compilation of information.

Patents : A patent is a set of exclusionary rights which are granted to the holder of patent by a state with the protection scope from replication for a maximum of 20 years.

Trade Marks : These are names, symbols, words or devices which are used by providers of services or manufacturers of goods to distinguish their goods and services from others and to identify them.

Trade Related Intellectual Property Rights (TRIPS):

The TRIPS Agreement provides protection for “undisclosed information.” Such information must be secret, i.e., not generally known or readily accessible to “persons within the circles that normally deal with the kinds of information in question.” Also, the information must have commercial value because it is secret and the information must be the subject of reasonable steps by its owners to keep it secret.

2.Areas Affecting The IPRs

The major areas which affects IPRs are copyrights, patents design, trademarks and trade secrets. In India government follows some certain laws and these laws used to amend timely or when required. Now, there are some provision which are personalized by Indian regime for IPRs section. This paper consists of its brief outline which is next.

2.Copyrights In India

Copyright in India is protected under the provision of Indian Copyright Act 1957. In 1994 major changes were introduced and came into effect from 1957 which make this law even toughest. The copyright law clearly explained

• Copyright holders’ right

• Software position on rental

• User right for making back up copies

Since most software is easy to duplicate, and the copy is usually as good as original, the Copyright Act was needed. Some of the key aspects of the law are:

• According to section 14 of this Act, it is illegal to make or give out copies of copyrighted software without appropriate or specific authorization.

• The violator can be tried under both civil and criminal law.

• A civil and criminal act may be instituted for injunction, actual damages (including violator’s profits) or statutory damages per infringement etc.

• Serious penalty and fines for infringement of software copyright.

• Section 63 B stipulates a minimum prison term of 7 days, which can be extended up to 3 years.

When an offender uses an infringing copy of a computer program, the user liable to be punished with imprisonment of between seven days and three years and a fine of between Rs50,000 (US$1,037) and Rs200,000 (US$4,150).

2.2 Design Act In India

This Act may be called the Design Act, 2000. It states that ‘design means only the feature of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two or three dimensional “design” or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark’.

The filing of applications for Design has increased from 2874 in 1999-2000 to 5372 in 2006-07. and number of applications examined has also gone up to 5179 in 2006-07 against the figure of 2067 in 1999-2000. And the number of registered design got an increment from 1382 in 1999-2000 to 4431 in 2006-07. The figure 1 below shows the difference in number of designs registered in years

Figure 1. Increased designs

2.3 Trade Marks In India

The Indian law of trademarks is enshrined in the Trade & Merchandise Marks Act, 1958 (hereafter “the existing Act”). However, the existing Act is set to undergo a transformation to bring it in conformity with the TRIPS Agreement to which India is a signatory. A new statute i.e. the Trade Mark Act, 1999 (hereafter, the “new Act”) has been enacted in India. However, the enforcement of the new Act is pending till a date is finalized by the Government of India. Under the existing Act, a trademark is a mark used in relation to goods so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark.

The protection of trademark is available only on material goods or commodities traded. But under the new Act trademark registration would be extended to services also. The followed figure 2 shows the huge difference in increased number of trademark registered since 1999.

The number of filed Trademarks were 66,378 in 1999-2000 which increased upto 1,03419 in 2006-07 and the examined trademarks in 1999-2000 were 42500 which raised to 85185 in 2006-07. The number of the registered trademarks in 1999-2000 was 8010 which increased upto 109361 in 2006-07.

Figure2. Increased trademarks

2.4 Patents In India

As per the provisions of the Trade Related Intellectual Property Rights (TRIPS) agreement under the WTO, India was necessary to amend its Patent Laws to provide for a TRIPS compliant regime by January 1, 2005. There has been extensive debate within the country about what the contours of India’s Patent Laws should be.

Mainly based on Indian Patent Act Amendment 2005 where a patent for any invention granted under this Act’ , “invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art.

The Indian Patent Office granted a record 15,262 patents during 2007-08, the government said, more than double the 7,539 granted the previous year (2006-07) and nearly eight times more than the 1,911 patents granted three years ago, in 2004-05. Historically, the total number of patent filings by residents of India is just three per million population, against a world average of 250. The figure 3 shows the drastic increase in number of filed , examined and the granted patent and its expected that the number of granting patents will be double in next year.

Figure 3.Patents increased

2.5 Trade Secret In India:

The importance of Trade Secret in the ambit of intellectual property has gained extensive recognition so much so that trade secret protection of working technologies has taken priority over patent protection. TRIPS includes provisions for the protection of Trade Secrets, under the general term ‘Undisclosed Information’, the modalities of achieving this has been left to the individual members as to how to make available such protection.

Trade secrets are protected in India either through contract law or through the equitable doctrine of breach of confidentiality. It is common to introduce clauses of confidential nature in a technology transfer or other license agreement to keep up the confidential nature of the subject matter, not only during the employment period of the employees and contractors but also after its termination, though for a fixed period of time. The skill, knowledge and experience of a particular profession can also be protected in certain circumstances from misuse through contractual obligations.


In offshore business model, Intellectual Properties protection is a significant element. Intellectual property lose may cause the severe loss of position of any industry. The knowledge these IPRs of the country will help to reduce this kind of risk for sure. As intellectual economy is the core of intellectual Property so the knowledge of these four factors are very much crucial for the sake of intellectual economic growth in India. So its necessary commit for the protection and to develop the IPRs in Indian computer industry with these secure regimes.

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