Emerging Intellectual Property Landscape of India And China

Introduction

Intellectual Property includes original ideas, research results, critical business information, etc. which are intangible and emanate from human creative labour. In accordance with Article 2 of World Intellectual Property Organization, “Intellectual Property shall include the rights relating to literary, artistic and scientific works, 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 the other rights resulting from intellectual activity in the industrial, scientific, literary or scientific fields.”

Intellectual properties can be divided into two types based on their duration

1. Limited life IP– It includes Intellectual properties which can go to the public domain after some time like patents, copyright, and designs.

2. Unlimited life IP– It includes Intellectual properties which are subject to renewal like Trademarks and trade secrets.

The World Intellectual Property Organization (WIPO) is amongst the 17 specialized agencies of the United Nations Organisation with 185 Member States which lays down rules regarding IP for member countries and resolves international disputes. WIPO aims to promote innovation and creativity for the economic, social and cultural development of all countries, through an effective international intellectual property system.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement controlled by the World Trade Organization (WTO) to set down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members.

Intellectual Property in India

IP laws in India trace their origin from the British era which required several new provisions in the era of globalization and with the rapid advancement in science and technology, newer forms of intellectual property protection are emerging and to maintain the current situation in the field of IP around the world. India became part of the TRIPS agreement in 1995.

TRIPS sets minimum standards for the availability, scope and use of seven forms of intellectual property: copyrights, trademarks, geographical indications, industrial designs, patents, integrated circuit layouts, and undisclosed information (trade secrets). It provides Dispute Settlement Mechanism After India became a member of the TRIPS agreement in 1995 it became challenging for India to amend its laws to be compliant with TRIPS. India got a grace period (10 yrs) till 2005 to amend its laws to be TRIPs compatible, and the amendment culminated in three separate amendment Acts in 1999, 2002 and 2005 that made important adjustments to the Patents Act of 1970 to make it fully TRIPS compliant.

Patent Law

The first legislation made in India regarding IP was made on the patent. In 1856 the first legislation relating to patents in India was enacted, the objective of the Act was to encourage inventions and to induce inventors to disclose the secret of their inventions. In 1872 the Act was named as Patterns and Designs Protection Act. After independence, a Bill was introduced in 1967 and later in 1970 after a recommendation from several committees the bill passed and became the Patents Act, 1970.

Copyright Law

In India, Copyright law was entered in the year 1847 during the rule of the East India Company.  In 1914, the then Indian legislature enacted a new copyright law which was amended several times till 1957 and in 1957 the Copyright Act was enacted by independent India.

Trademark law

The first activity related to trademarks in India was the Trademark Act, 1940 which was a replica of the British trademark Act, 1938. Then after independence, the Trade and Merchandise Act, 1958 was enacted, it was amended several times and finally Trademark Act, 1999 was enacted and is currently used in India.

Geographical Indication

As per WIPO “A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.” In India  Geographical Indications is governed by the Geographical Indications of Goods (Registration and Protection) Act, 1999, which came into force in 2003.

Design

Design refers to the properties of shape, configuration, pattern, ornament, or composition of lines or colors applied to an object, be it in two-dimensional or three-dimensional shapes (or both). The Designs Act, 2000 and the Designs Rules, 2001 currently govern the design law in India. The Act came into force on 25th May 2000 while the Rules came into effect on 11th May 2001.

Intellectual Property in China

China is rapidly becoming a world leader in innovation, and companies around the world are starting to notice it. For companies looking to enter the Chinese market, the country’s intellectual property system can be a major hurdle. The IP landscape in Asia, specifically in China is changing and one of the major equations is China’s unparalleled commitment to becoming an innovation-based economy by 2020, which will greatly increase domestic research and development and patent applications.

Foreign companies have long been suspicious of China’s intellectual property enforcement mechanisms, and these changes will further throw them into the limelight. Intellectual property companies understand the value of intellectual property rights (IPR) and the protection of intellectual property no matter where they operate. However, for those considering entering the Chinese market, it is common knowledge that the practices, laws, and regulations related to intellectual property in China have long been scrutinized in a global context. While there are certainly problems to be solved, much of this skepticism can be attributed to a lack of information. In the Chinese intellectual property landscape, the first thing we need to know is how trademark, patent and copyright laws work.

Trademark Law

The Trademark Law of the People’s Republic of China lays down specific guidelines for trademarks with the aim of “protecting the interests of consumers and promoting the development of the socialist market economy”. Trademarks are registered and approved for the first time by the China Trademark Office, which grants the owner exclusive rights of use. It is important to note that overseas companies must go to a trademark agency in China to register their trademarks.

Patent Law

The People’s Republic of China promotes inventions and creations, especially the development of science and technology. Patents are granted for the first-to-file basis and only for designs that are unique and do not conflict with existing patents. Once granted, no company or individual may use the patent without the consent of the patent holder. However, there is no patent opposition procedure in China. This means that any company can challenge the validity of an existing patent by submitting a request for a declaration of invalidity to the patent examination board along with sufficient evidence.

Copyright Law

The Copyright Law of the People’s Republic of China aims to protect the copyrights of authors of literature, art, and scientific works. It was passed in 1990, enforced in 1991 and was revised in 2002. Copyright holders do not have to register as heirs of copyright as they are automatically protected by the Bern Convention. There is a voluntary policy on copyright registration, but issuing a copyright certificate can help owners easily prove ownership in the event of a dispute. Works created by companies typically have a copyright term of fifty years.

Intellectual property Trends- India & China

With the development in the technical and medical world, trade and commerce in the era of globalization are facing rapid development which needs better protection. The result of which is in front of us in the form of development in IP laws around the world and organizations involved in developing it.

For example, with more than 3 million filings per year, trademark protection for IPs is the most sought-after worldwide, with growth rates on a par with patents. In 2009, a quarter of all trademark applications were filed with the China Trademark Office. If we combine with the holdings of India, the Republic of Korea and Japan, these four offices in Asia accounted for 37% of all global trademark applications. India has shown the highest five-year growth (13.5%) from 2005 to 2009 and China had one of the highest annual growth rates (20.8%) in the field of intellectual property registration from 2008 to 2009. In 2009, China’s share was 50%. of total industrial design submission activity, while growing 12.3% from 2008 to 2009, with India ranked 9th.

Future of IP in India & China

With the introduction of the Judicial Protection of Intellectual Property Rights Protection in China (2016-2020), China has committed to improving its intellectual property regulations. Major areas for improvement included better compensation for damage and better rules for testing procedural measures and jurisdictional improvements to improve intellectual property litigation. Adding to this, China passed the Foreign Investment Law (FIL) in March 2019 and has entered Phase 1, which has concluded discussions on additional foreign investment protection and better transparency of the regulations that were finalized earlier this year. In phase 2, foreign companies can expect improvements in trade secrets and patent law, which will have an impact on market liberalization.

As of India, the government must maintain a delicate balance between the national interest and the protection of intellectual property rights. However, the benefits of stronger regulation of intellectual property rights are difficult to ignore, especially as India is making great strides in science and technology, industry, agriculture, and culture. Without strong intellectual property rights protection, innovation and creativity cannot bloom. Innovators and creatives will not be able to reap the fruits of their hard work. In India, there are institutions like the Centre for Scientific and Industrial Research (CSIR) that have made significant contributions to scientific innovation. They were unable to market many products because there was no strong intellectual property protection. For centuries, Indians have used indigenous knowledge and materials to create useful products for everyday use. This kind of traditional knowledge is a great source of innovation and employment. Ensuring better legal protection will encourage grass-roots innovation and improve the lives of ordinary Indians.

Conclusion

From an intellectual property perspective, countries around the world can be divided into two broad segments: developed and innovative, and developing and emulating. The evolved and the innovators have well-defined and understood intellectual property laws that impose a stricter intellectual property regime. Next up is the second segment, which includes countries like India and China that are gradually moving towards an increasingly stringent intellectual property regime, albeit with some temporary deliberate delays in India. One can assume that India has great innovation potential. With initiatives like Make in India, all industries in India will respond to become increasingly innovative and eventually, laws and courts will enforce stricter IP regulations. The regime in India too. The future of intellectual property rights in India will depend on these things: awareness of the benefits of intellectual property rights, stronger enforcement, and convincing Indians that national interests will not be harmed.

References

1. https://www.trustiics.com/intellectual-property-rights-china/

2. https://www.inhouselawyer.co.uk/legal-briefing/chinas-changing-ip-landscape/

3. https://www.scmp.com/news/china/politics/article/3131750/intellectual-property-chinas-evolution-norm-taker-norm-setter.

4. https://www.effectualservices.com/the-role-of-intellectual-property-rights-in-technology-innovation/

5. http://caaa.in/Image/34_Hb_on_IPR.pdf

This article has been written by S Pavithra, 2nd Year BA LLB student at Army Institute of Law, Mohali.

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