Intellectual Property rights an Overview, and influence of Torts on it

By Anupam Singh


We are all aware of the term property; it refers to someone’s possession or their belongings. It is derived from the Latin word ‘proprietary which means ‘one’s own. So in simple terms property means ownership and control over one’s possessions. Generally, the meaning of property is narrowed down to material goods only, but it also relates to non-material or non-tangible goods. One’s own emotions, their own ideas and innovation are one possession too. They are as important as material possessions, as innovation in today’s competitive life is something remarkable, irrespective of any field it’s the key to development, and thus provides with lots of benefits whether they are economical or developmental. Conclusively it becomes important that creation and human intellect should be considered as one’s own property too, otherwise others will take undue benefits of somebody else’s intellect. This kind of property is known as Intellectual property.

Intellectual property refers to the possessions of intangible creation of the human intellect. To put simply intellectual property is the creation of the human mind and skills; it can be anything such as invention, artistic or literary work, innovation, discovery, sign for a product, design of a product etc… The intellectual property provides the possessor with legal rights to use its own creation for his or her benefits. As there are rules and regulations in a society protecting the rights of the people similarly the rules protecting intellectual property are termed as intellectual property rights; providing protection to inventors that would both increase the incentive for research and development, leading to economic growth and also safeguard benefits of someone’s creations from being used by others.

Basic categories of intellectual property rights:-

There are different categories of intellectual property right defining rights over different creations. We are going to discuss some basic categories that are mostly used to secure intellectual property rights:-

  1. Copyright: – Also known as author’s right, it represents the legal right of a creator over its creation. Basically, it’s a legal term that defines the legal right of creators over their artistic or literary work. Different varieties of work under this head include novels, poems, plays, computer programs, films etc. that falls under the category of literary work and artistic works such as paintings, drawings, photographs etc. Copyright ensures the right of the owner over their creation but it does not safeguard the ideas, procedure, methods etc. involved in the creation.
  1. Patent: – It’s the legal right granted over an invention or innovation. It can be granted to both processes as well as product. To acquire a patent it is necessary that the invention holds the creditability of practical application. It protects the benefits of the inventor from the invention, from being used by others. Under patent rules protection is recognized only for a limited period of time. In return for protection patent holders are required to disclose information about their patented invention publically.
  1. Trademarks: – Trademarks refer to unique and distinctive symbols, signs for specific goods and services given by individuals or enterprise. It can be words, letters, numerical symbol etc. It provides the owner with absolute rights to use the mark. As these signs help the customers identify the goods and services of a particular firm or group and define the nature and quality of a product it becomes extremely necessary to protect these signs.
  1. Designs: – Design mean shape, configuration, pattern or composition applied of a product. It increases the quality and appearance of a product and gives it an innovative look that eventually helps in more retailing. Thus it is also an important intellectual property with multiple benefits.

Intellectual property rights in India

India is a developing country and second-largest in terms of populations. Under such circumstances, intellectual property becomes really essential for a nation for its development. Thus India tries to enforce proper rules regarding intellectual property, making a balance between innovator’s right and societies’ benefit at large. IPR can be traced back to the British period in India when the first act relating to patent, Act VI of 1856, was passed by Britishers in India.  The recognition of these rights is a current matter in India, as on May 2016 National Intellectual Property Rights (IPR) Policy 2016 was released with a motive to increase creativity and innovation and to benefit all.

Different laws regulating intellectual property in India are:-

  1. Indian Patent Act 1970:- it along with Patent Rules1972, has taken effect on 20th April 1972. It replaced the Indian Patent and Designs Act 1911. According to this act, the patent is only granted when the invention shows
    1. Novelty; It should be new, non-existing,
    2. Inventive steps or non-clarity; that means it should possess characteristics of development and should not be very obvious and
    3. Capable of industrial application; that means it should not be abstract and is capable of being used in industries.

A patent under this Act is valid for 20years from the date of grant by the controller as it was also observed in Dr Snehlata C. Gupta v. Union of India & ORS. Inventions which are contrary to natural laws, related with commercial exploitation, methods of agriculture, pharmaceutical product, and atomic energy are some issues in which patents are not awarded. Also, the patent is not granted on the mere discovery of an existing substance as supported in Novartis Ag v. Union of India.

  1. The Trade Marks Act, 1999:- to provide better protection regarding trademarks and to fulfil international obligations India scrapped the old Trade & Merchandise Marks Acts, 1958 and enacted Trade Mark Act, 1999. It has broadened the meaning of trademarks and has included service marks in it too. It has accepted the principle of ‘well-known trade marks’ that provide extraordinary protection to marks which has become a substantial segment of the public. It has also enhanced the term of protection from 7 years to 10 years. Indian judiciary has extended the same protections to domain names too as observed in the case Yahoo!, Inc. v. Akash Arora & Anr. For classifying good and services it has adopted the international classification of goods and services given by the World Intellectual Property Organization (WIPO). In India, unregistered trademarks are also protected by common laws, but they are not granted the statutory right of infringement.
  1. The Copyright Act, 1957:- it provides safeguard to works or creation of different innovators. By section 13 of the Act, it is extended to categories of literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. Indian copyright laws fully reflect the laws observed in the Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention, to which India is a member. Registration of work is not mandatory under this law, it’s required only for records. But still, registration makes the work more protected. Original artistic and literary, dramatic and musical work is granted copyrights for a lifetime and up to 60 years after the death of the owner. In the case of cinematograph films, sound recordings, works of government and works of international organizations period of 60 years is granted.
  1. Other laws: – There are many other bodies of laws regulating different fields of intellectual property. Protecting designs, biodiversity etc. They are as follows:- The Designs Act, 2000; The Geographical Indications of Goods (Registration & Protection) Act, 1999; The Semiconductor Integrated Circuits Layout Design Act, 2000; The Biological Diversity Act, 2002; The Protection of Plant Varieties and Farmers’ Rights Act, 2001.

Intellectual property rights at International level

As in this ever-growing world, every nation is connected to each other, trade, publications, research is all interlinked at the international level thus rules governing different aspects are constructed internationally so that they can benefit everyone. Similarly, Intellectual property rights are also followed both at the national level as well as the international level. Internationally mostly respective rules are set up by United Nations and through many treaties between different nations. World intellectual property organization, WIPO has been established by U.N for regulation of intellectual property. These organizations and treaties lay down the basis or ground rules for intellectual properties’ protection and the final discretion regarding these laws are with the government of different nations.

Some important conventions due to which these rights were established at the international level are as follows:-

  1. The Berne Convention for the Protection of Literary and Artistic Works: – it was a significant international congregation for the establishment of copyright protection. India became a member of the Berne Convention on April 1, 1928; it was devised to unify copyright protection all over the world. Adopted on September 9, 1886, at Berne and came into force on December 4, 1887. It has recognized that the work of foreign copyright owner would be treated legally equal as domestic copyright holders. It does not require any registration or publication of copyright notice in order to achieve copyright. It has also extended the minimum period of copyright to throughout the life of the author plus 50 years.
  2. Paris Convention for the protection of Industrial Property: – this convention was held with the motive to facilitate the protection of intellectual property such as trademarks, sign marks, design, patent etc. It was adopted on March 20, 1883, in Paris and enforced on July 7, 1884. Earlier it was hard to apply for a patent in all countries and it reduced the novelty of a country. It introduced the principle of ‘national treatment, by which a foreign patent was treated the same way as a domestic patent. Rights such as ‘right to priority’ and ‘independence of patent’ were granted under this convention.
  3. TRIPS Agreement: – Trade-related aspect of intellectual property rights, TRIPS is an international agreement between all members of the world trade organization. The most important part of it is that it lays down all the standards for the protection of intellectual property. Different nations have to follow these standards. It aims towards removing distortion in international trade and protecting the efficient protection of intellectual property.

Intellectual property rights and torts:-

Basically every nation has their intellectual property laws, protecting the rights of inventors and benefiting the society at large. These Acts provide with statutory laws for their protection but intellectual rights are not only protected by statutory laws but also common law actions such as torts. There are many cases when tortious liability is fussed with intellectual property rights which provide remedy by common law actions. 

Some Torts under I.P laws are:-

  1. Libel: – It’s a tortious act which refers to the publication of false information or defamatory statement about someone that injures his or her reputation. Sometimes copyrighted documents are creating degrading someone’s reputation solution for such grievances lies in the common law. A very well-known case in this matter is Bindrim v. Mitchell in which the defendant published about the insight of petitioner’s camp in his book, which he agreed to conceal in an agreement with him.
  2. Invasion of privacy: – Tort in which a person’s privacy is hindered or his personal information is made public, that is unwanted publicity on private information. Many times private information’s are leaked in published works as observed in Dresbach v. Doubleday Co., Inc
  3. Passing off: – It is a common-law tort. Recognized under trademark protection its deal with identical or similar trademarks for undue benefits. It thus prevents from misrepresenting goods and services of one with others. The landmark case in this field is Perry v Truefitt which has established this principle defines that, nobody has the right to represent  its goods as of somebody else
  4. Misappropriation: – In this tort a person’s name or reputation is used for personal gain or advantage without consent. As in the case of Cohen v Herbal Concepts Inc . where pictures of the plaintiff and her daughter were used in a cosmetic commercial without tier consent.
  5. Joint Tortfeasors: – it makes more than one party liable for a tort committed and brings them under jurisdiction. Similarly in intellectual property rights, it helps when two or more parties have joined in infringement of a right.


We observed both national and international laws regarding intellectual property. It’s not universal throughout the world. Internationally only grounds rules are established by different countries’ for their regulation, otherwise it totally depends upon different nations to which extent they want their laws to be. In this process developed countries such as U.S.A tries to secure more strong rights such that their innovations cannot be exploited whereas developing countries’ such as India tries to balance them between individual’s gain and public’s benefit, thus restricting rights on certain subject such as framing, pharmacy etc. We also observed that not only these rights are protected by intellectual laws but many common law torts also safeguard these rights. Conclusively I.P.R is a complex system worldwide, but it provides with assistance in protection of benefits of innovation and also promotes research and development.

Author Anupam Singh is a law student at University five years law college, University of Rajasthan

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