Comparative Study: Intellectual Property Laws in UK, US and India

This article tends to closely inspect the Intellectual Property Laws in UK, US and India. Indian IP framework ought to strengthen itself and learn from its peers to harness it technological potential.

I. Introduction

The Intellectual Property Rights in India entail an elaborate system by virtue of Copyright Act 1957, Trademarks Act 1999, Indian Patent Acts 1970 and The Designs Act 2000. India is ranked at the 52^nd position with respect to the Global Innovation Index, 2019 amongst 129 other countries.[1] Furthermore, consistently India has been improving in the categories like Patent Applications and PCT patent applications by origin.[2]

It is notable to mark that India remains 1^st across the globe related to Information and Communication technology services exports. Another statistics which must be noted here is the effective translation of innovation inputs into outputs which both India and US are progressively doing well.[3]

Over the last decade, the developing countries or the newly industrialising economies have been witnessing a significant change in the attitude pertinent to their Intellectual Property regime. For instance, in the early 1980s, a number of such countries favoured the revision of the Paris Convention.

The intrinsic reasoning for the current intellectual property legal framework has been discussed hereunder:

• There is an effort to strike the correct balance between the interests of the producers or the creators and the consumers as well. In fact, every country formulates a structure to encompass this rationale, however, the point at which the balance may be struck is contingent upon the level of development and the average income level of the citizens of the country.
• The Indian IP system attempts to warrant rewards for the creators and yet concurrently restricts the monopoly profits and rents to a certain limit that may be collected by the proprietor which commercialises the invention or converts the scientific knowledge into a marketable product. On the latter part of the article, the concept of ‘compulsory licensing’ will manifest the abovementioned rationale.
• Lastly, the IP framework in India aims at creating a conducive atmosphere for the diffusion of existing technologies with the novel ones. The discussion regarding the patentability of processes and but not products in certain sectors follows this reasoning.

II. Comparative Study: Intellectual Property Laws in the UK, US and India

A. Copyright

With respect to the subject matter of copyright, the findings are that there exists a significant similarity in the national laws governing the copyright in UK, USA and India. All of the aforementioned three countries follow the principle of ‘originality’ while conceding the copyright protection to “original literary dramatic, musical or artistic works”.

The expression is referred to in the Copyright, Designs and Patent Act (CDP Act) of the UK in 1988 and a similar expression was used by US’s Copyright Act, 1976. The Indian Copyright Act, 1957 borrowed the expression from Great Britain. A substantial difference noticed in the copyright regime of all these three countries is the UK and India do not require the registration of copyright for protection to subsist, yet US’s system necessitates the registration of copyright.

There is a spike with respect to the unauthorised broadcasting of sports in particular in all the three sports frenzy country leading to irreparable loses to the entities owning exclusive broadcasting of such events. India’s copyright statute mentions Section 37 which confers a special right called the “broadcasting reproduction rights” which shall be vested in the owner for 25 years.

The judicial decisions majorly invoke the John Doe orders or the Ashok Kumar orders to block either the website or corresponding URLs. This has, however, not been efficient to curtail the delinquents from transmitting the live sports broadcasts. The lack of copyrightability of live sports and absence of ISP liability in a country like India is causing such menace to the sports industry which has the potential to procure millions as revenue.

On the other hand, the US with the introduction of the Prioritizing Resources and Organisation for Intellectual Property Act equipped the US officials to cease the operation of domain names with the help of ex parte orders. The PRO-IP Act as it called worked well for the US to curtail the operation of pirate websites. Further, post the enactment of After the enactment of Digital Millennium Copyright Act, 1998 (DMCA) and Online Copyright Infringement Liability Limitation Act the ISPs could be held liable for contributory infringement of copyright if they possess actual knowledge of infringement or receive notice regarding any such infringement.

Similarly, the UK through an amendment in 2003, appended Section 97A to the CDP Act to bring into motion its anti-piracy efforts. Further, the online copyright infringers have been kept at the same footing as the direct copyright infringers after the enactment of Digital Economy Act, 2017.

It is important to note here that the Brussels Convention which concerns the unauthorised distribution of programme-carrying signals transmitted by satellites is only ratified by the US and not by both India and UK.[4] Similarly, meanwhile, when the UK and the US are parties to the Beijing Treaty that dealt with the IP rights of the performers in audiovisual performances, India has not yet contracted to the treaty.

B. Patent

Moving forward to the patent the Indian patent statute apart from the universal exceptions of law, morality, public order and injury to animals, plant life and human also encompasses the exclusion of – substances produced by chemical processes, substances intended for use as food or medicine or drugs, methods of agriculture or horticulture and any process for the treatment of human beings, animals or plants. Hence, the impliedly the statute excludes microorganisms, animals and plant varieties.

However, the US differs from such a position except for human beings. Although the patent rights vested by such conferment are similar to the developed nations, yet not identical. The process patent in India is exclusively used for protecting the process but in the US a product manufactured from a patented process also enjoys such rights. Furthermore, the burden of proof in case of infringement lies on the party claiming such infringement which is the complete opposite of US’s standard.

Yet, India, the US and UK being contracting parties to the Patent Cooperation Treaty enjoy the right of protection for an invention concurrently in each of the contracting parties by filing an “international” patent application.

With the advancements in artificial intelligence, many inventors are showing interest in the US rather than India due to Section 3 (k) of the Indian Patents Act which restricts the patentability of “computer programs per se” unless they incorporate a technical application.[5] However, US patent law permits a broader spectrum of software patents.

C. Trademark

The trademarks in India are protected under the Trademark Act 1999 while the US and UK are governed by the Trademark Act 1994 and Lanham (Trade Mark) Act 1946 respectively. In India, a trademark is conferred on the basis of the “first to use” rule which mandates the first use anywhere in the world in addition to the transborder reputation of the mark in India which can be proved by mere availability of advertising materials or literature featuring the impugned mark.

The criterion does not even necessitate the need to be directed towards Indian consumers.[6] However, the US and UK have a much-developed system which requires the use of the mark in the US or a foreign country and US and an establishment of goodwill among the relevant consumers.[7] Further, in India what is important with respect to “use” is the material and meaningful use which may be “non-physical”.[8] Similarly, in the UK the use must be “genuine” and not “mere token use”. The remedies in India unlike the US provides for criminal remedies in case of trademark infringement.

Singapore Treaty which intends to create a dynamic and modern international framework for the harmonisation of administrative trademark registration procedure has not been ratified by India; however, both UK and the US have signed the treaty owing to its wider scope of application in the time of communication technology.[9]

One of the important agreements which India is a part of is the Madrid Agreement which concerns the repression of deceptive and false indications of the source of goods i.e. such goods will be seized or prohibited or sanctions will be imposed on importation. It is peculiar that only the UK and not the US is a party to the agreement.

III. IPR in the Newly Industrialised Nations

Since long, the strength of an IP legal framework of a country could be interlinked with the level of economic advancement. And this could be reckoned as one of the major reasons of the recent wave of reforms in the IP frameworks of the newly industrialised states across the globe. Another reason for this wave is the external pressure exerted by major economies like US.

Hereunder are some of the Asian newly industrialised economies in the last few years have added certain reforms in order to strengthen their IPR regimes[10] –

• An amendment to Taiwan’s Patent Law in 1986 resulted in the reversing of the burden of proof to the person who has allegedly committed the infringement and additional penalties for IPR violations. Enactment of Fair Trade Law in 1991 provided a legislative framework for the protection of trade secrets. India still lacks concrete legislation related to a trade secret.
• Enactment of the new Singapore Copyright Act 1987 widened the scope of infringement and consequently increased the penalties as well.
• Similarly, the Republic of Korea in the year 1986 amended its Patent Act and thereby increasing the duration of protection from 12 years to 15 years, reversing the burden of proof in case of a claim for infringement and additional necessities for compulsory licensing.
• In the early 1980s, Brazil was one of the nations that showed significant resistance towards higher levels of IP protection. However, with the intent to secure the interests of the creators, it enforced the Brazilian Software Law 1987 to extend copyright protection to computer programmes.[11] The Brazilian IP structure indicates that problem in its framework could be solved with a robust legislative initiative for trade secrets rather than a robust patent law due to the benefit from the imitative nature of the activities carried on in the country.[12] Nonetheless, the nation faces the brunt of trade-offs as the foreign proprietors are apprehensive to lose their proprietary technology to the domestic imitators due to the patent lack of a strong protective regime.
• Mexico enacted its Development and Protection of Industrial Property 1991 that expanded the ambit of protection to technological fields which were not covered as patentable subject matters until then.[13] Further in 1991 the Copyright Law in Mexico also witnessed amendment which adopted tougher penalties for copyright infringement.
• The inception of intellectual property protection in China can be traced back to the “four modernisation” policies, which were launched by Deng Xiaoping in 1978. The Chinese government took early cognizance of the development taking place in China and the resulting rise in the Western investors. China has drafted a very evolutionary national IP law and has become a signatory to all the important international conventions. It has instated several organisations like Alfod W.P in 1998 and Cheung G.C.K in 2011 to monitor the IPR compliance and development of IP laws in the country.[14]

Uruguay Rounds

The advent of machine learning has accelerated the pace of technical developments, specifically with respect to communication, information and biotechnology. This has resulted in the technology exporters and technology leaders to pursue a harmonious international IP regime for patent laws to encompass new processes and products in particular biotechnology, for copyrights to encompass computer informatics and software and for the laws related to trade secrets to be made competent.

The underlying objective is that the technical development in the aforementioned parts is susceptible to replication which may bereave the innovators to reap their rewards of hard work. Therefore the industrialised countries like USA have initiated a brawny multilateral trade negotiation in the Uruguay rounds to create a tighter and wider international course for IP framework with provisions such as dispute settlement and enforcement.[15]

Thereafter the text draft agreement of the General Agreement for Tariffs and Trade (GATT) in December 1991 sought to widen the ambit of intellectual property rights structure, increase the duration for rights granted, minimize the limitations on use of the rights granted and expand the geographical extent of the exercise of rights. Needless to say, India has adopted most of the provisions like, the extension of the term of the patent to 20 years and inclusion of product patents have already been done post the TRIPS accession in 1995.[16]

Conclusion

The enforcement of property rights is not only imperative to reward the creators; but most likely its importance also lies in inducing the firms to hasten the “transition” from imitation to creation and thereby possess a greater measure of technological potency.

In this context, certain key administrative and legal setbacks in the intellectual property rights structure in India may adversely affect the nation. As the investment environment becomes progressively competitive and international trade is on a rise the foreign equity traders and suppliers of the technologies tend to closely inspect the IPR regime and the loopholes. Hence, to avoid a situation like Brazil, the Indian IP framework ought to strengthen itself and learn from its peers to harness it technological potential.

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[1]Shariq Khan, ‘India Climbs five places to 52 on Global Innovation Index’ (Economic Times, 24 July 2019), Available Here, accessed 25 April 2020.

[2] ibid.

[3] ibid.

[4] WIPO, ‘Brussels Convention’ Available Here, Accessed 25 April 2020.

[5] Ferrad Allani v Union of India 2019 SCC OnLine Del 11867.

[6] Intepat Team, Indian Trademark law: Comparative Analysis With the Europe and US (Intepat Services, 5 August 2016), Available Here, accessed on 24 April 2020.

[7] ibid.

[8] Hardie Trading v. Addison Paints 2003(27) PTC 241.

[9] WIPO, ‘Singapore Treaty on the Law of Trademarks’ Available Here, accessed 25 April 2020.

[10] Mitchel B. Wallerstein, Global Dimensions of Intellectual Property Rights in Science and Technology (National Academy Press), Available Here, accessed 25 April 2020.

[11] Frischtak, Claudio R, ‘The Protection of intellectual property rights and industrial technology development in Brazil’ Industry and Energy Department working paper. Industry series paper; no. 13. Washington, DC: World Bank, Available Here, accessed 25 April 2020.

[12] Francis W. Rushing, Intellectual Property Rights in Science, technology and Economic Performance International comparisons (1990, Westview Press).

[13] n (10).

[14] Dominika Bochanczyk, ‘A comparative analysis of intellectual property rights protection in China and India in the 21^st Century’ (2016) JIS 9 (1), Available Here, accessed 24 April 2020.

[15] Ashutosh Kumar, ‘The Uruguay Round: It’s repercussions for India’, Available Here

[16] Vipin Mathur, ‘Patenting of Pharmaceuticals: An Indian Perspective’, Int. J. Drug Dev. & Res., July-September 2012, 4(3): 27-34, Available Here, accessed on 25 April 2020.

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Intellectual Property Rights | Notes, Cases & Study Material