Intellectual Property Laws – Setting Up of Business Entities and Closure Important Questions
Question 1.
What is meant by ‘Industrial Property under the Intellectual Property Rights (IPRs)? [June 2015 (3 Marks)]
Answer:
Legal scholars often make a distinction between intellectual and industrial property. Intellectual property covers copyright and related rights, whereas industrial property means patents, trademarks, trade secrets, and so on. Traditionally this distinction was made because industrial property rights were mostly used by industry, whereas intellectual property right was “only” for artists, writers, and other creative people.
Today the distinction between the two has almost disappeared. Most people use “intellectual property” as a catch-all term, including patents and other items that traditionally were considered “industrial property.”
Question 2.
Two persons applied for registration of the same trademark at the same time. In such a case, how the proprietor of the trademark will be decided? [June 2005 (5 Marks)]
Answer:
There cannot be two or more proprietors of the same trademark belonging to the same class.
There can be two or more proprietors of the same trademark in different classes of trademarks. Eg: Blackberry’s trademark belongs to mobile phones as well as textile and clothing as they both are of a different class.
But is if it is a well-known trademark then there cannot be another proprietor even if it belongs to a different class.
The proprietor of a trademark is decided by the date of usage of the mark by a person in business transactions. Although persons applied for registration of the same trademark at the same time the proprietorship is determined by its usage in a commercial transaction.
Question 3.
Explain the term ‘Well Known Trademark’ as per Trademark Act, 1999. [Dec. 2008 (3 Marks)], [Dec. 2014 (5 Marks)]
Answer:
Mark which is similar to a well-known trademark cannot be registered as a trademark under the Trademark Act, 1999.
Well, Known Trademark [Section 2(1 )(zg)]: A well-known trademark in relation to any goods or services means a mark which has become so to the substantial segment of the public which uses such goods or services such that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.
Examples of well-known trademarks are Google, Tata, Yahoo, Pepsi, Reliance, etc. Further, under the principle of “Trans-border Reputation”, India has afforded protection to trademarks like Apple, Gillette, Whirlpool, Volvo, which despite having no physical presence in India, are protected on the basis of their trans-border reputation in India.
Question 4.
Distinguish between: Collective Trademark & Certification Trademark [Dec. 2009 (5 Marks)]
Answer:
Following are the main points of difference between collective trade-mark & certification trademark:
| Points |
Collective Trademark |
Certification Trademark |
| Meaning |
A collective mark means a trademark distinguishing the goods or services of members of an association of persons which is the proprietor of the mark from those of others |
A certification mark is a mark used in commerce by a person other than its owner. The owner of the certification mark establishes standards for certification to identify that goods or products bearing the mark are of a particular type. |
| User |
Members of collectives use the collective mark to identify their goods and services and to distinguish their goods and services from those of non-members and indicate membership in the group |
A certification mark is a mark used in commerce by a person other than its owner. |
| Example |
Examples of collective trademarks include:
- The “CA” device used by the Institute of Chartered Accountants.
- The “CS” device used by the Institute of Company Secretaries.
|
Some examples of certification trademarks are ‘1ST, ‘Agmark’, ‘Woolmark’ etc. |
Question 5.
Distinguish between: Trademark & Certification Trademark [Dec. 2010 (5 Marks)], [June 2013 (5 Marks)]
Answer:
Following are the main points of difference between trademark & certification trademark:
|
Points
|
Trademark |
Certification Trademark
|
| Meaning |
A trademark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others. |
A certification mark is a mark used in commerce by a person other than its owner. The owner of the certification mark establishes standards for certification to identify that goods or products bearing the mark are of a particular type. |
| User |
A person having a trademark can only use it or he can authorize others by license. |
A certification mark is a mark used in commerce by a person other than its owner. |
| Example |
Some of the well-known trademarks are Coca-Cola, Pepsi, Tata, etc. |
Some examples of certification trademarks are ‘IST, ‘Agmark’, ‘Woolmark’ etc. |
| Assignment |
A trademark can be assigned or transferred by its owner. |
A certification mark cannot be assigned or transferred. |
| Registration |
It is not obligatory upon a proprietor of a trademark to apply for registration. It is optional. |
A certification mark cannot be given to any product or service unless such certification mark is registered. |
Question 6.
Distinguish between: Infringement of trademark and Passing off [June 2011 (5 Marks)]
Answer:
Following are the main points of difference between infringement of trademark and passing off:
| Points |
Infringement of trademark |
Passing off
|
| Meaning |
Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees. |
Passing off is a common law tort, which can be used to enforce unregistered trademark rights. The law of passing off prevents one person from misrepresenting his goods or services as that of another. |
| Action |
The infringement action can be only in respect of a registered trademark. |
Passing off action can be taken in respect of registered trademark as well as for unregistered trademark. |
| What to establish |
The definition of ‘infringement’ is very wide. ‘Similarity’ and ‘likely to confuse’ is sufficient to establish infringement of the trademark. |
While for ‘passing off’ the mark should be ‘deceptively similar’. |
| Base for action |
For infringement action, one has proved a violation of his statutory right. |
For passing off action one has to show misrepresentation, deceit, or bad faith. |
Question 7.
What do you understand by ‘Collective Trademark’? Also state the provisions applicable to the collective marks under the Trademark Act, 1999. [Dec. 2011 (5 Marks)]
Answer:
Collective Trademarks includes:
- The “CA” device used by the Institute of Chartered Accountants
- The “CS” device used by the Institute of Company Secretaries
- The mark “CPA”, used to indicate members of the Society of Certified Public Accountants
- The marks of various confederated lobby groups.
The “collective” itself typically does not sell goods under the mark but instead advertises or promotes the goods or services of its members under the mark.
Example: Turkey. The Perfect Protein (National Turkey Federation)
- Association uses the mark to promote the interests of its members.
- Members use the mark on their products to distinguish their products from those of non-members
Question 8.
State the absolute grounds for refusal of registration of a trademark. [Dec. 2013 (3 Marks)]
Answer:
Absolute grounds for refusal of registration [Section 9]: Following trademarks cannot be registered:
(a) Which are devoid of any distinctive character ie. not capable of distinguishing goods or services of one person from those of another person.
(b) Which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or services.
(c) Which consist exclusively of marks or indications which have become customary in the current language or in the bonafide and established practices of the trade.
However, if a trademark has acquired a distinctive character as a result j of the use made of it or is a well-known trademark, its registration shall | not be refused.
Question 9.
Explain the meaning of the term ‘certification trademark’ under the Trademarks Act, 1999. [Dec. 2015 (3 Marks)]
Answer:
Certification Trademark [Section 2(1 )(e)]: Certification trademark to mean a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which is certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registerable as such in respect of those goods or services in the name, as proprietor of the certification trademark, of that person.
Some examples of certification trademarks are ‘1ST, ‘Agmark’ etc.
In simple words, a certification mark certifies the nature or origin of the goods or services on or in connection with which it is used. This includes, for example, region or location or origin, materials of construction, method or mode of manufacture of goods or provision of services, quality assurance, the accuracy of the goods or services, and any definable characteristic of the goods or services.
Question 10.
What is a ‘trademark’? Comment on the benefits of a trademark to all stakeholders. [Dec. 2016 (5 Marks)]
Answer:
A trademark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others.
A trademark may be located on a package, a label, a voucher, or on the product itself. A trademark symbolizes the business’s reputation. Trademark is the valuable property of any business. Some of the well-known trademarks are Coca-Cola, Pepsi, Tata, etc. It is intangible property.
Common benefits of trademark:
- It identifies the goods/or services and their origin.
- It guarantees its unchanged quality.
- It advertises the goods/services.
- It creates an image for the goods/services.
Question 11.
Pankaj, Director of M/s. Mustered Oil Manufacturing Company, seeks your advice for the selection of a trademark which he proposes to be used for its products. Describe various natures of trademarks and which trademarks are considered as strong in nature. [Dec. 2018 (5 Marks)]
Answer:
Following are the prerequisites for registration of a trademark to be registered,
- The selected mark should be capable of being represented graphically (that is in the paper form).
- It should be capable of distinguishing the goods or services of one undertaking from those of others.
- It should be used or proposed to be used the mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without the identity of that person.
Any startup needs to be cautious in selecting its trade name, brands, logos, packaging for products, domain names, and any other mark which it proposes to use. You must do proper due diligence before adopting a trademark.
The trademarks can be broadly classified into the following five categories:
- Generic
- Descriptive
- Suggestive
- Arbitrary
- Invented/Coined
Generic Trademark: Generic mark means using the name of the product for the product, like “Salt” for salt.
Descriptive Trademark: Descriptive marks mean the mark describing the character of the products, like using the mark “Fair” for the fairness creams.
Suggestive Trademarks: Suggestive marks mean the mark suggesting the character of the products, like “Habitat” for home furnishings products. Arbitrary Trademarks: Arbitrary marks means mark which exists in popular vocabulary, but has no logical relationship to the goods or services for which they are used, like “Blackberry” for phones.
Invented/coined Trademarks: The invented/coined marks mean coining a new word that has no dictionary meaning, like “Adidas”.
The strongest marks that are easiest to protect are invented or arbitrary marks. The weaker marks are descriptive or suggestive marks that are very hard to protect. The weakest marks are generic marks that can never function as trademarks.
India follows the NICE Classification of Goods & Services for the purpose of registration of trademarks. The NICE Classification groups products into 45 classes (classes 1-34 include goods and classes 35-45 include services). The NICE Classification is recognized in the majority of the countries and makes applying for trademarks internationally a streamlined process. Every startup, seeking to trademark goods or services, has to choose from the appropriate classes, out of the 45 classes.
While adopting any mark, the startup should also keep in mind and ensure that the mark is not being used by any other person in India or abroad, especially if the mark is well-known.
Question 12.
Govind has newly started a ready-to-eat food products manufacturing company. He seeks your advice for the selection of a trademark; for his products. Brief him with an example on the following categories of trademarks referring to the provisions of the Trademark Act, 1999:
1. Generic marks
2. Descriptive marks
3. Suggestive marks
4. Arbitrary marks
5. Invented/Coined marks
Also, suggest to him which Categories or Categories are strong and which are weak with respect to the protection of Trademark rights. [June 2019 (5 Marks)]
Answer:
The trademarks can be broadly classified into the following five categories:
- Generic
- Descriptive
- Suggestive
- Arbitrary
- Invented/Coined
Generic Trademark: Generic mark means using the name of the product for the product, like “Salt” for salt.
Descriptive Trademark: Descriptive marks mean the mark describing the character of the products, like using the mark “Fair” for the fairness creams.
Suggestive Trademarks: Suggestive marks mean the mark suggesting the character of the products, like “Habitat” for home furnishings products. Arbitrary Trademarks: Arbitrary marks means mark which exists in popular vocabulary, but has no logical relationship to the goods or services for which they are used, like “Blackberry” for phones.
Invented/coined Trademarks: The invented/coined marks mean coining a new word that has no dictionary meaning, like “Adidas”.
The strongest marks that are easiest to protect are invented or arbitrary marks. The weaker marks are descriptive or suggestive marks that are very hard to protect. The weakest marks are generic marks that can never function as trademarks.
India follows the NICE Classification of Goods & Services for the purpose of registration of trademarks. The NICE Classification groups products into 45 classes (classes 1-34 include goods and classes 35-45 include services). The NICE Classification is recognized in the majority of the countries and makes applying for trademarks internationally a streamlined process. Every startup, seeking to trademark goods or services, has to choose from the appropriate classes, out of the 45 classes.
While adopting any mark, the startup should also keep in mind and ensure that the mark is not being used by any other person in India or abroad, especially if the mark is well-known.
Question 13.
Write a short note on Enforcement of Trademark Rights [June 2019 (3 Marks)]
Answer:
Trademarks can be protected under the Trademark Act, 1999 and the common law Le. under the remedy of passing off. If a person is using a similar mark for similar or related goods or services or is using a well-known mark, the other person can file a suit for violation of his intellectual property ie. trademark rights irrespective of the fact that the trademark is registered or not.
Registration of a trademark is not a pre-requisite in order to sustain a civil or criminal action against the violation of trademarks in India. The prior adoption and use of the trademark are of utmost importance under trademark laws.
The relief which a Court may usually grant in a suit for infringement or passing off includes a permanent and interim injunction, damages or account of profits, delivery of the infringing goods for destruction, and cost of the legal proceedings. It is pertinent to note that infringement of a trademark is also a cognizable offense and criminal proceedings can also be initiated against the infringers.
Question 14.
Tony Singh is a popular stage performer and M/s. Pon Sun Studios, Chandigarh is having all the rights, titles, and interests in the personality of the artist along with the trade. A company started selling miniature toys of Tony Singh to encash his popularity. In the light of statutory provision, examine the remedy available against the company for infringing Tony Singh’s right to publicity [Dec. 2019(3 Marks)]
Answer:
Tony Singh, being the lawful owner of the trademark, M/s. Pon Sun Studies can institute a civil suit seeking a restraint on infringement of the trademark. The facts are similar to the decided case Daler Mehndi Entertainment v. Baby Gift House & org. In that case, the court held that passing off would occur when the mark is being used to create confusion in the minds of the consumer that results in the damage or loss of business for the person or company who are the lawful owner of the trademark
Question 15.
What do you understand by ‘Geographical Indications of Goods’? Also state which classes of goods can be registered under the Geographical Indications of Goods (Registration & Protection) Act, 1999?
Answer:
The Geographical Indications of Goods (Registration and Protection) Act, 1999 is for the protection of geographical indications in India.
India, as a member of the World Trade Organization (WTO), enacted the Act to comply with the Agreement on Trade-Related Aspects of Intellectual Property Rights. The geographical indication tag ensures that none other than those registered as authorized users or at least those residing inside the geographic territory are allowed to use the popular product name. Examples of Indian Geographical Indications are Darjeeling Tea, Kanchipuram Silk Saree, Alphonso Mango, Nagpur Orange, Kolhapuri Chappal, etc.
Registration to be in respect of particular goods and area [Section 8]: A geographical indication may be registered in respect of any goods as per classification made by the Registrar in respect of a definite territory of a country, or a region or locality.
The Registrar shall classify the goods in accordance with the International Classification of goods for the purposes of registration of geographical indication.
The Registrar may publish in the prescribed manner an alphabetical index of classification of goods.
Any question arising as to the classification of goods in respect of which the geographical indication then the Registrar decision in the matter shall be final.
Question 16.
What are the grounds for the prohibition of registration of geographical indications under the Geographical Indications of Goods (Registration & Protection) Act, 1999? [Dec. 2014 (5 Marks)]
Answer:
Prohibition of registration of certain geographical indications [Section 9]: Following cannot be registered as geographical indications:
- Use which likely to deceive or cause confusion
- Use contrary to any law
- Which comprises or contains scandalous or obscene matter
- Which likely to hurt the religious feelings
- Which would be disentitled to protection in a Court
- Which are generic names or indications (ie. the word has lost its original meaning and has become a common name)
Question 17.
What do you understand by the ‘Design’ Designs Act, 2000? Also state the objective of the Designs Act, 2000.
Answer:
A design to be registrable must be new or original. ‘Original’, in relation to a design, means originating from the author of such design and includes the cases which though old in themselves yet are new in their application. It should not be previously published in India or anywhere in the world.
It should be significantly distinguishable from known designs or a combination of known designs and should not comprise or contain scandalous or obscene matter. It should also be not contrary to public order or morality. A design can be registered in respect of any or all of the articles comprised in a prescribed class of articles.
When a design is registered, the registered proprietor of the design shall have copyright in the design. Copyright under the act means the exclusive right to apply a design to any article in any class in which the design is registered.
The proprietor of the design shall have copyright in the design for 10 years from the date of registration. Provision for the extension of the period of the copyright for another 5 years is also provided under the act. Any design registered under the act is not eligible for protection under the Copyright Act.
The objective of the Designs Act, 2000: The objective of the Designs Act, 2000 is to protect new or original designs so created to be applied or applicable to a particular article to be manufactured by industrial process or means. The important purpose of design registration is to see that the artisan, creator, originator of a design having aesthetic look is not deprived of his bonafide reward by others applying it to their goods.
Question 18.
Registration of certain designs is prohibited under the Design Act, 2000. Discuss. [Dec. 2015 (3 Marks)]
Answer:
Prohibition of registration of certain designs [Section 4]: Following designs cannot be registered under the Act:
(a) Design that is not new or original.
(b) Design that has been already disclosed to the public anywhere in India or in any other country.
(c) Design that is not significantly distinguishable from known designs or a combination of known designs.
(d) Design that comprises or contains scandalous or obscene matter.
Question 19.
What do you understand by the infringement (piracy) of registered design? [June 2014 (3 Marks)], [Dec. 2016 (3 Marks)]
Answer:
Piracy of registered design [Section 22]: During the existence of copyright in the design there is protection against Piracy.
Any person cannot:
(a) Apply the design or its imitation to any article for sale, if it is fraudulent or obvious imitation;
(b) Import any article for the purposes of sale where the design of the imported article is fraudulent or obvious imitation;
(c) Publish or exposing goods for sale in any article, knowingly that the design or its fraudulent imitation has been applied to that article.
The person acting in contravention of the piracy of registered design shall be liable to pay to the registered proprietor of the design a sum up to ₹ 25,000 (maximum ₹ 50,000). In addition, damage can be claimed and an injunction can be taken from the Court.
Question 20.
One of the objectives of the Design Rules, 2001 is to enable protection of newly created designs applying to an article manufactured by a particular industrial process? Elucidate. [Dec.2019(3 Marks)]
Answer:
Objectives of the Designs Rules, 2001 is to enable protection of newly created designs applying to particular articles manufactured by the industrial process.
It refers in legal definition to:
- Any mode or principle of construction or anything which is in substance merely mechanical device.
- Any trademark which is a registered trademark indicating a connection in course of trade between the goods and some person having the right, either as proprietor or as a registered user, to use the mark; Any trademark which denotes the ownership of moveable property belonging to a particular person.
- Any trademark which is a painting, sculpture, drawing, engraving or photograph, or any work of architecture or any other work of artistic craftsmanship.
Question 21.
State the work in which copyright subsists and the work in which it does not subsist? [Dec. 1999 (7 Marks)], [Dec. 2000 (6 Marks)]
Answer:
Works in which copyright subsists [Section 13(1)]: The copyright shall subsist throughout India in the following classes of work:
- Original literary, dramatic, musical & artistic work
- Cinematograph films and
- Sound recording
Certain conditions for copyright [Section 13(2)]:
- In case of published work: The author must be a citizen of India whether the work is first published in India or outside India. If the author dies before publication, he must be a citizen of India at the time of his death.
- In case of unpublished work: The author should be a citizen of India or domiciled in India.
- In case of joint authorship: Conditions (1) & (2) should be satisfied by all the authors.
- In the case of architecture work: Such work must be located in India.
Work in which copyright does not subsist [Section 13(3)]: The copyright shall not subsist in the following cases:
(a) In any cinematograph films: If a substantial part of the film is an infringement of any other work.
(b) In any sound recording: If in making such recording there is an infringement of any other work.
(c) In case of or artificial work: Copyright shall subsist only in artistic character & design and shall not extend to processes or methods of construction.
Question 22.
State whether copyright in future work can be assigned and if so, can the assignment be done for a part of the term of the copyright? [Dec. 2000 (2 Marks)]
Answer:
Meaning of Assignment: An assignment may be defined as the transfer of a particular right, leaving nothing with the assignor by virtue of assigning a particular right, and bestowing on the assignee the whole of the legal interest in the right issued.
Assignment of Copyright [Section 18]:
- The owner of the copyright in an existing work may assign to any person the copyright either wholly or partially either for the whole term of the copyright or any part thereof. The prospective owner of the copyright in a future work may also assign copyright. However, in the case of future work, the assignment shall take effect only when the work comes into existence.
- When rights in copyright are assigned
- The assignee is an owner in respect of right assigned and
- Assigner is an owner in respect of right not assigned.
- In case of copyright in future work, the assignee includes the legal representatives of the assignee.
Question 23.
State whether the assignment of copyright shall be writing or not? [Dec. 2000 (2 Marks)]
Answer:
Mode of Assignment [Section 19]:
- The assignment must be in writing, duly signed by the assignor or his authorized agent.
- The assignment must specify details of work assigned, right assigned, duration, and territorial extent of such assignment.
- The assignment must specify the amount of royalty payable to the author or his legal heirs.
- If the assignee does not make use of the rights assigned to him within a period of 1 year from the date of assignment, the assignment shall be deemed to have lapsed unless otherwise specified in the assignment.
- If the period of assignment is not stated, it shall be deemed to be 5 years from the date of assignment.
- If the territorial extent of the assignment of the rights is not specified, it shall be presumed to extend within India.
Question 24.
Manish assigned the copyright of his book to his nice Sujata in 2017. In 2019, due to some misunderstanding between them, Manish wants to revoke the assignment. Sujata contends that she has not made any fault and that she had helped a lot and there is no ground for revocation of assignment. Decide. [Dec. 2002 (6 Marks)]
Answer:
Facts of Case -Manish assigned the copyright of his book to his nice Sujata in 2017. In 2019, due to some misunderstanding between them, Manish wants to revoke the assignment. Sujata contends that she has not made any fault and that she had helped a lot and there is no ground for revocation of the assignment
Provision: As per Section 19A, if an assignee fails to exercise the right assigned to him then Copyright Board may on receipt of a complaint from the assignor and after holding an inquiry can revoke such the assignment. However, the Copyright Board will not pass an order to revoke the assignment unless the terms of the assignment are harsh to the assignor (ie. Author). It is also provided that no order to revoke the assignment can be passed within a period of 5 years from the date of assignment.
Thus, Manish can succeed to revoke the license only after 5 years of the assignment if he shows to the Copyright Board that the terms of the assignment are harsh to him.
Conclusion: Hence, Manish cannot revoke the assignment in 2019 if he has made an assignment in 2017.
Question 25.
Whether registration of copyright is compulsory? Whether non-registration deprives the owner of his right to bring both a civil and criminal action against on offense of infringement? [Dec. 2000 (4 Marks)]
Answer:
Registration of copyright is not obligatory it is optional. Non-registration does not deprive the owner of his right to bring both a civil & criminal action against an offense of infringement. For registering the work in copyright application has to be made in Form IV with prescribed fee to the Registrar of Copyright.
Entries in Register of Copyrights [Section 45]: The author or the owner or other person interested in the copyright may make an application in Form IV accompanied by the prescribed fee to the Registrar of Copyrights.
If the application is in respect of an artistic work, then an application for registration should be accompanied by a certificate from ‘Register of Trademark’ that no trademark which identical or deceptively similar to such artistic work has been registered under that Act.
On receipt of an applicant for registration of copyright, the Registrar may enter the particulars in the Register of Copyrights after holding inquiry as he may deem fit.
Question 26.
What do you understand by ‘infringement of the copyright’? [June 2006 (5 Marks)]
Answer:
Meaning of Infringement of copyright: Any person without authorization from the owner exercises these rights in respect of the work, which has copyright protection, it constitutes an infringement of the copyright.
When copyright infringed [Section 51]: In the following cases, copyright in a work shall be deemed to be infringed:
(a) Doing anything without a license from the copyright owner.
(b) Permitting for profit without a license any place to be used for the communication of the work to the public.
(c) Making or offering for sale or hire, or selling or letting for hire in public or importing into India any infringing copy of the work.
(d) Imports into India any infringing copies of the work
Exception: Import of one copy of any work is allowed for private and domestic use and it is not an infringement of copyright.
(e) Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright; or
(f) By way of trade, exhibits in public
Explanation: The reproduction of literary, dramatic musical, or artistic work in the form of a cinematograph film shall be deemed to be an infringing copy.
Question 27.
Write a short note on the Term of Copyright [Dec. 2010 (3 Marks)]
Answer:
Sections 22 to 29 deal with the term of copyright.
| Type of work |
Term of copyright
|
| Copyright in published literary, dramatic, musical, and artistic works |
A lifetime of the author (+) 60 years beyond his death. |
| The general rule is that copyright lasts for 60 years. |
In the case of original literary, dramatic, musical, and artistic works the 60 years period is counted from the year following the death of the author. |
| Copyright in anonymous and pseudonymous works |
Next 60 years from the year in which the work has been first published. But if names are disclosed, it will be 60 years from the year following the year in author dies. |
| Copy right in the posthumous work |
Next 60 years from the end of the year in which the work has been first published. |
| Copyright in photographs |
| Copyright in cinematograph films |
| Copyright in sound records |
| Copyright in Government work |
| Copyright in works of public undertakings |
| Copyright in works of international organizations |
| The broadcast reproduction right |
Next 25 years from the end of the calendar year in which the broadcast is made. |
The above table depicting the term of copyright is given for the information of the students. In the examination, the answer can be written as given below
The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical, and artistic works the 60 years period is counted from the year following the death of the author.
In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government, and works of international organizations, the 60 year period is counted from the date of publication.
Meaning of certain words:
- Anonymous: (of a person) not identified by name; of unknown name.
- Pseudonymous: Writing or written under an assumed name.
- Posthumous: Occurring, awarded, or appearing after the death of the originator.
Question 28.
Discuss the provisions of the Copyright Act, 1957 relating to infringement of copyright. [June 2012 (5 Marks)]
Answer:
Facts of Case -Manish assigned the copyright of his book to his nice Sujata in 2017. In 2019, due to some misunderstanding between them, Manish wants to revoke the assignment. Sujata contends that she has not made any fault and that she had helped a lot and there is no ground for revocation of the assignment
Provision: As per Section 19A, if an assignee fails to exercise the right assigned to him then Copyright Board may on receipt of a complaint from the assignor and after holding an inquiry can revoke such the assignment. However, the Copyright Board will not pass an order to revoke the assignment unless the terms of the assignment are harsh to the assignor (ie. Author). It is also provided that no order to revoke the assignment can be passed within a period of 5 years from the date of assignment.
Thus, Manish can succeed to revoke the license only after 5 years of the assignment if he shows to the Copyright Board that the terms of the assignment are harsh to him.
Conclusion: Hence, Manish cannot revoke the assignment in 2019 if he has made an assignment in 2017.
Question 29.
The Copyright Act, 1957 provides for civil remedies for infringement of copyright. Comment. [June 2008 (5 Marks)], [June 2013 (3 Marks)]
Answer:
Civil remedies for infringement of copyright [Section 55]:
- Remedies: Where copyright is any work that has been infringed, the owner of the copyright shall be entitled to remedies like injunction, damages, accounts, etc.
- No Damages: If the defendant proves that he was not aware and has no reasonable ground to believe that copyright subsisted in the work, then the only remedy available to the plaintiff is to share profits of the defendant and an injunction in respect of the infringement of copyright by the defendant.
- Presumed Author: In any proceeding in respect of infringement of copyright, if the author or publisher appears in on copies of work then he shall be presumed to be the author or the publisher of the work unless the contrary is provided.
- Court Discretion: The Court has discretion in granting the costs of the proceedings.
Question 30.
Discuss the classes of work for which copyright protection is available under the Copyright Act, 1957 duly amended from time to time. [Dec. 2018 (3 Marks)]
Answer:
Copyright subsists throughout India in the following classes of works:
- Original literary.
- Dramatic work.
- Musical work (consists of music and also graphic notation of such works but excludes any words or action intended to be sung, spoken, or performed with music).
- Artistic works (painting, sculpture, drawing, engraving, photograph, architecture, or any other work of artistic craftsmanship (whether or not any such work poses artistic work).
- Cinematograph films (work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording).
- Sound recordings (recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced).
Question 31.
Prof. Ritika Verma has authored a book ‘IFRS – A Practical & Simple Approach’. She wants to get a copyright of the same under the Copyright Act, 1957. Advice Ritika on the rights that are protected to her after obtaining the copyright of the book. [Dec. 2018 (3 Marks)]
Answer:
Protection to Authors: Copyright protects the rights of authors, Le., creators of intellectual property in the form of literary, musical, dramatic, and artistic works and cinematograph films and sound recordings.
Following rights are protected:
- To reproduce the work.
- To issue copies of the work to the public.
- To perform the work in public.
- To communicate the work to the public.
- To make any translation of the work.
- To make any adaptation of the work.
(Conversion of dramatic work into non-dramatic work, literary work into dramatic work, re-arrangement of literary or dramatic work, depiction in comic form or through pictures of a literary or dramatic work, transcription of musical work, or any act involving rearrangement or alteration of existing work and the making of a cinematograph film of literary or dramatic or musical work)
In addition to all the rights applicable to a literary work, the owner of the copyright in a computer program enjoys the rights to sell or give on hire or offer for sale or hire, regardless of whether such a copy has been sold or given on hire on an earlier occasion.
Question 32.
In the light of the provisions of the Copyright Act, 1970, in the following cases who are the owners of the copyrights:
(i) Musical Sound Recordings;
(ii) Works by Journalists. [June 2019 (3 Marks)]
Answer:
Copyright is the right of the artist, author, producer of films, etc. who has created work by use of their artistic skills. Technically owner of the copyright is its author. The term ‘author’ is in the Act as follows:
Author [Section 2(d)]: Author means:
| In relation to a literary or dramatic work |
The author |
| In relation to a musical work |
The composer |
| In relation to an artistic work other than a photograph |
The artist |
| In relation to a photograph |
The person taking the photograph |
| In relation to a cinematograph film or sound recording |
The producer |
| In relation to any literary dramatic musical or artistic work which is computer-generated |
The person who creates the work |
Keeping in view of the above provisions of the Copyright Act, 1970, owners of copyrights are:
- In musical sound recordings: Lyricist, composer, singer, musician, and the person or company who produced the sound recording.
- In works by journalists during their employment: In the absence of any agreement to the contrary, the proprietor.
Question 33.
Prerna has taken some books from Library and she wants to reproduce “Verbatim” some pages from the book of her Ph.D. thesis. She would like to know from you whether she will be violating any Copyright protection in doing so. Also, brief her exceptions available to protect the interest of the users under Copyright law. [Dec. 2019(3 Marks)]
Answer:
Facts of Case: Prerna has taken some books from Library and she wants to reproduce “Verbatim” some pages from the book of her Ph.D. thesis. She would like to know from you whether she will be violating any Copyright protection in doing so.
Provision: Verbatim reproduction of pages of the book for the Ph.D. thesis is not protected under the fair use doctrine of the Copyright Act, 1957. The case of Fateh Singh Mehta v. OP Singhal decided by the Rajasthan High Court deals with a similar set of facts whereby the research thesis submitted by the respondent was copied verbatim to large extent by the appellant for preparing his Ph.D. thesis. It was held to be an infringement on part of the appellant.
In order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works enjoying copyright.
It includes:
- for the purpose of research or private study,
- for criticism or review,
- for reporting current events,
- in connection with a judicial proceeding,
- for the purpose of education and religious ceremonies
Section 52 of the Copyright Act, 1957 provides for various other purposes which will constitute fair use of copyrighted material.
Conclusion: Therefore Prerna who is using the book for research work has not violated a copyright
Question 34.
Who is entitled to make an application for a patent? [June 2007 (5 Marks)]
Answer:
Persons entitled to apply for Patents [Section 6]: An application for a patent for an invention may be made by any of the following persons:
- True and first inventor of the invention.
- The assignee of the true and first inventor of the invention.
- The legal representative of a deceased person who was entitled to make an application before his death.
An application may be made by any of the above persons either alone or jointly with any other persons.
Eg: Ramlal invented a pen that can capture all data that is written in which pen. Either Ramlal can apply for a patent or if he dies then Randal’s wife can apply. If Ramlal assigned his invention to Reliance Industries then Reliance Industries can apply.
Question 35.
Distinguish between: Invention & Patentable Invention [June 2008 (4 Marks)], [June 2009 (5 Marks)]
Answer:
Invention means a new product or process involving inventive steps and £ capable of industrial application.
The invention is a product of original thought. Mere discovery of an already existing principle is not an invention, e.g. Edison invented the electric bulb while Columbus discovered America. The invention must result in a new product or new result or new process or a new combination.
The word ‘patentable invention’ is not defined anywhere in the Patent Act, 1970. However, one can say that ‘patentable invention’ means invention for which patent can be granted under the Patent Act, 1970. Section 3 enumerates the inventions which are not patentable.
Question 36.
Mention any five inventions which are not patentable under the Patents Act, 1970. [Dec. 2008 (5 Marks)]
Answer:
What is not Invention [Section 3]: This section gives the list of inventions that are not patentable under the Patents Act, 1970.
Some of these are given below:
- An invention that is frivolous.
- An invention that claims anything obviously contrary to well-established natural laws.
- Morality
- Injurious to public health
- a mere arrangement or re-arrangement or duplication of known devices
- a method of agriculture or horticulture
- inventions relating to atomic energy
- The mere discovery of a scientific principle.
- The formulation of an abstract theory.
- Discovery of any living thing or non-living substance occurring in nature.
- A mathematical or business method or a computer program per se or algorithms.
- A literary, dramatic, musical, or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions.
- A presentation of information.
Inventions relating to atomic energy not patentable [Section 4]: No patent shall be granted in respect of an invention relating to atomic energy falling Section 20(1) of the Atomic Energy Act, 1962.
Question 37.
Does a patent obtain in India give worldwide protection? [Dec. 2012 (5 Marks)]
Answer:
Patents are territorial rights. In general, the exclusive rights are only applicable in the country or region in which a patent has been filed and granted, in accordance with the law of that country or region. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide.
Setting Up of Business Entities and Closure Questions and Answers
