LICENSING OF GLOBAL INTELLECTUAL PROPERTY RIGHTS IN THE DIGITAL AGE

THIS ARTICLE WAS WRITTEN BY SAAKSHI S. RAWAT, A STUDENT OF BENNETT UNIVERSITY.

Intellectual Property alludes to the responsibility for products. This incorporates thoughts, plans, images, compositions and manifestations. It additionally alludes to computerized media, for example, sound and video cuts that can be downloaded on the web. The motivation behind intellectual property law is to adjust the privileges of copyright holders and clients. Existing intellectual property law is material in the computerized age too. The paper manages degree and inclusion of different ideas associated with IPR, like scholarly item, licenses, copyright, plans, brand names, PC programming, information bases, Internet and digital laws. Copyright issues related with advanced/electronic data and insurance of advanced right.

The Globalisation of Intellectual Property Rights

Intellectual property rights have emerged as a key issue of global innovation relating to trade and agreements. The most important attempt is to establish a global regime of intellectual property and its protection. The TRIPS has a huge impact on general globalisation and the distribution of knowledge among developed and developing countries. According to Article 7 of TRIPS the protection enforcement of intellectual property rights should be contributed for the promotion of technological innovation and to transfer, and for the mutual advantage of producers as well as the users of those technological knowledge and creating a social and economic welfare and the balance of rights and obligations.

Emerging development issues

After the signing of TRIPS agreement, the developing countries had the chance to develop more strategies, and follow a process which would help in raising awareness as well as development for the agreement. Issues including national implementation of TRIPS agreement, technological development, plant variety protection, geographical indications and biological diversity.

• National implementation of TRIPS

The TRIPS agreement provided timetables, transitional arrangement and reviews to countries. A five-year moratorium was signed in filing that the developing countries will have a grace period of five years over which there immune from charges of being in violation and they can bring their national laws and institutions in line with the agreement the deadline was January 1, 2000. The implementation of this agreement depended on the part of the technical and financial assistance available to the developing countries. Under Article 67 of TRIPS agreement, it is stated that developed country members shall provide, on request and on mutually agreed terms and conditions, technical and financial Corporation in favour of developing and least developed country members.

• Technological development

The technical development is one of the important issues for developing countries because it was originally supposed to GATT driven accord on intellectual property rights. After the embodiment of TRIPS agreement there was extension of school of protection for all types of technologies. Article 27 provides that the patent shall be available and Patents rights should be enjoyed all without discrimination as to the place of invention or field of technology and also to the person who is inventing it, and whether the products used were local or imported from somewhere. This provision of the agreement brought a lot of scope. But later a question or a dispute arose dealing with the pharmaceutical products. In a dispute in 1997 between United States and India, The WTO concluded that the findings according to the Above case The panel concluded that India has not complied with its obligation under the TRIPS agreement and this is why it has failed to establish a mechanism that preserves the novelty and the priority in respect of applications for the patent office in regards to pharmaceuticals and agricultural Chemical inventions during the transitional period to which it is entitled under the agreement. India appealed that some aspects of the report finalised by the panel are wrong but WTO appellate body upheld the findings.

• Plant variety protection

The plant variety protection relates to article 27.3(b) which examines from patent ability of plants and animals and other microorganisms, which are essentially biologically faces for the production of plants and animals other than non-biological. This article states that article 27.3(b) shall be reviewed four years after the date of entry into the force of WTO agreement. The major issue of developing countries, is lack of clarity on the criteria and the rational to determine the exclusion. The general idea presented by the TRIPS is to accent patent ability to plants and other living organisms to but the developing countries are against it and argued for Sui Generis system for the protection of plants and biological diversity. Developing countries have been opposing to this approach because they thought that Sui Generis System only represent the local needs and protection of genetic resources and the rise of local and indigenous communities. Many countries like Costa Rica, India, Thailand, Bangladesh and Pakistan and many members of Southern African development Corporation have adopted this method.

• Geographical indications

Geographical indications are analogues to trademark, they identify the territories. Under Article 22 of TRIPS agreement the protection for Geographical indications have been provided which states identifying a good as originating in the territory of a member, or region or locality in that territory, they are given quality, reputation or characteristic of the good is essentially attributed to its geographical origin. This agreement as for the developing countries has resulted in two situations the first one being non-compliance and the countries who use graphical indication did not fall within the expectations provided under Article 24. The second relating to the level of protection given to the goods covered by this rule list of the developing countries have requested that the scope of protection should be expanded and it was India who had put forward this position in 1996. The geographical indications hope to provide harmonisation of practises written in the country and having specific laws which will also rely on trademark and consumer protection as well as marketing and common laws.

Intellectual Property Licensing in India

• License Agreement and why it needs to be in writing

When an organisation takes the decision to license its IP, they have to go through different types of IPRs and relevant legal provisions to state whether their agreement is required to be written or not. In case of PVR pictures Ltd versus studio 18, the parties came into an agreement which was called Term Sheet Agreement (TSA) and had agreed that PVR would be the exclusive licensee for the distribution of rights. Later PVR filed a suit for infringement, On the grounds that the film shortcut has infringed their exclusive distribution licence. And interim relief should be given to them. It was held that TSA does not constitute a license agreement and the parties did not complete that agreement, the PVR does not possess any legal rights or copyright to entertain the suit.

• Terms of a License Agreement

A license agreement should be well drafted and provide all details and follow all the rules and restrictions imposed on it. The agreement Should contain the geographical location, the rights given under rights granted, clauses regarding the revocation of licence, royalty or consideration for the grant of licence to stop the drafting should be inclusive of all the certain license terms which are essential.

• Ownership of Improvements, Enhancements and Modifications to Intellectual property

A person has the right to create and design improvements in the existing technology or introducing any new feature which can enhance the results. But they should be regarding the development within the field of licensed technology.

• Quality Control

The quality is the part of Indian trademark law, the principle is that the quality should be of leading roles and should basically be permitted by the owner of a trademark to ensure that the licensor maintains the quality control over the product. It is equally important that the license agreement which pertains to Quality control.

• Registration, Stamp Duty, Royalty

A license agreement which is proposed to be executed should be registered, and if not, should face repercussions. It is the patents act and the trademark act as well as the design, act which make it mandatory for the registration of license agreement. The stamp duty varies from state to state and it is important to determine the benefit of it in a particular state. If that equates time duty has not been paid for the document such documents cannot be admitted in evidence or for any purpose to be acted upon. The royalty is determined by the large extent and understanding between the parties, it is by the virtue of dominant positions in the market. The royalty is different from case-to-case basis and for holders to impose royalty it is based on the net sale price of the final product. The competition commission of India has made multiple decisions on determining the royalty rates. It was held that charging different licensing fees for same is against the terms of FRAND.

Why India needs to modernise its copyright laws for the digital era

Recently there have been talks of amending the Copyright Act of 1957, saying that industries performing an evolving in the light of changes and the use of Internet and digitalisation has increased globally as well as locally. About 95% of the Indian consumers listen to music via online streaming according to the consumer inside report of music, 2018 it was released by the International Federation of Phonographic Industry. There was surge in 2020 which was doubled then the numbers of 2019. Due to this pandemic situation, it was stated that the copyright on the Internet and the digitalisation should be taken as a concern. The copyright aims in creating a balance between the creators and the people who have access to them. At the same time, they are thinking about the beat and under voluntary licences which the owner should have. It is further noted that the copyright limitation in India is only 60 years whereas other countries have around hundred years too. As there is a growth on the Internet which is seen through the last 2-3 years, it has become necessary that it should be protected and the digitalisation of copyright industries such as print and audio-visual media, lowered distribution cost should Remove barriers to the market and also protect the creative content.

According to the mandatory data sharing regime there are chances that the balance between incentives and access under the copyright act may need to be negotiated with the copyright holders. In 1994 India amended its section 2(o) of copyright act as per the arrangement made under the TRIPS agreement and protection for data and literary work was provided. However, the Draft National E-commerce Policy, 2019 appears to be in conflict with the international obligation and domestic copyright laws. They have made references and highlighted at large platform but this vast amount of data and enjoy the benefits of network effects. There are talks of preserving the data under rest in the case of the Himalaya Drug Corporation Vs Summit, 2005, Delhi High Court had observed that the company had invested significant time, labour, skill, money in curating a horrible database and it was held that the defendant had infringed the copies copy right by reproducing this data on their website.

References

1. The TRIPS agreement covers: copyright and related rights; trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.
2. Jones, C.I. 1995. “R&D-Based Models of Economic Growth.” Journal of Political Economy, Vol. 103, pp. 759-784.
3. Davis, L. 1999. Impact of the Patent System on the Innovating Firm’s Use of Knowledge.
4. National Academy of Sciences 1997. Intellectual Property Rights and Plant Biotechnology.
5. Obhan and Associates- Article on IP licensing in India.