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Industrial and Intellectual Property: Meaning and Classification

Study of Industrial and Intellectual Property Rights · Unit I · Topic 1 of 15 · 6 min read

What intellectual property is, how the Paris Convention defines industrial property, how it differs from copyright and related rights, the WIPO and TRIPS catalogues, and the features (intangibility, territoriality, limited term) that every IP right shares.

On this page
  1. 1. Property in ideas
  2. 2. The WIPO definition
  3. 3. Industrial property under the Paris Convention
  4. 4. Copyright and related rights
  5. 5. Industrial and intellectual property compared
  6. 6. Common features of all IP rights
  7. 7. The Indian statutes
  8. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

About these notes. These notes follow KSLU's two-year LL.M. syllabus (2022–23) for the IPR papers (Paper I, Conceptual Study of Industrial and Intellectual Property Rights) and the March/April 2024 paper (code 0161). Every question that paper set is answered in one of these notes. Patents are covered in outline only; the full treatment is in the Law of Patents in India notes.

1. Property in ideas

Intellectual property is the set of legal rights that arise from intellectual activity in the industrial, scientific, literary and artistic fields. Its object is intangible: an invention, a design, a sign, a work of authorship. The physical thing that carries it (a machine, a book, a bottle with a label) is owned separately. A person who buys a novel owns the copy, not the copyright; a person who buys a patented pump may use and resell that pump but may not make others.

The difficulty is economic. Information is non-rivalrous (my use of a formula does not reduce yours) and, once disclosed, non-excludable (anyone who sees it can copy it). Left to the market, creators cannot recover what they spent on creation, and too little is produced. IP law solves this by creating artificial scarcity: a statutory right to exclude others for a period. The cost is that, during that period, the thing is priced above the cost of copying it. Every IP regime is a bargain between these two effects, and most questions in this paper ask you to judge where a particular law has struck it.

2. The WIPO definition

The Convention Establishing the World Intellectual Property Organization (Stockholm, 1967), in Article 2(viii), defines intellectual property by listing the rights relating to: literary, artistic and scientific works; performances, phonograms and broadcasts; inventions in all fields of human endeavour; scientific discoveries; industrial designs; trademarks, service marks, commercial names and designations; protection against unfair competition; and “all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.” The definition is open-ended. Note that it includes scientific discoveries, which almost no national law protects; the list shows the reach of the concept, not the content of any one statute.

3. Industrial property under the Paris Convention

The Paris Convention for the Protection of Industrial Property (1883, last revised at Stockholm in 1967) is the source of the term. Article 1(2) states that the protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition. Article 1(3) says industrial property is to be understood “in the broadest sense”: it applies to commerce and industry proper and also to agricultural and extractive industries and to natural and manufactured products such as wine, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers and flour.

Industrial property therefore divides into two groups:

The first group exists to encourage investment in new things, and so its rights are limited in time. The second exists to keep the market honest about origin, and so its rights can last as long as the sign is used and distinctive.

4. Copyright and related rights

Copyright protects literary, dramatic, musical and artistic works, films and sound recordings. Related (neighbouring) rights protect performers, producers of phonograms and broadcasters. These were historically governed by the Berne Convention (1886) and the Rome Convention (1961), not by Paris. The traditional division of IP is therefore industrial property plus copyright and related rights. The distinction has blurred: software is protected by copyright although it is an industrial product, designs sit between copyright and industrial property, and TRIPS brought all categories under one treaty.

5. Industrial and intellectual property compared

PointIndustrial propertyCopyright
ObjectInventions, designs, signs used in tradeExpression in works of authorship
FormalityRegistration generally requiredArises on creation (Berne, Art 5(2))
TestNovelty, inventive step, distinctivenessOriginality
TermPatent 20 years; design 10 + 5; marks renewableLife of author plus 60 years in India
Treaty baseParis (1883)Berne (1886)
Independent creationNo defence to patent infringementA defence: copying must be shown

The last row is the most useful in an answer. A patent is a monopoly over the idea as claimed, good against someone who reached it independently. Copyright protects only against copying of expression, so a second author who writes the same poem without copying infringes nothing.

6. Common features of all IP rights

  1. Intangible and separable from the physical carrier.
  2. Territorial. An Indian patent gives no rights in Japan. The international treaties do not create global rights; they oblige each member to grant rights on agreed terms to nationals of the others (national treatment, Paris Art 2, Berne Art 5(1), TRIPS Art 3).
  3. Statutory and exclusionary. The right is to stop others; it is not a right to use. A patentee of a drug still needs regulatory approval to sell it.
  4. Limited in time (except marks and GIs) and by exceptions (fair dealing, experimental use, compulsory licences).
  5. Transferable. IP can be assigned, licensed, mortgaged and inherited, which is why it is an asset (see the note on exploitation).

7. The Indian statutes

India now has a statute for each category: the Patents Act, 1970; the Designs Act, 2000; the Trade Marks Act, 1999; the Geographical Indications of Goods (Registration and Protection) Act, 1999; the Copyright Act, 1957; the Semiconductor Integrated Circuits Layout-Design Act, 2000; and the Protection of Plant Varieties and Farmers' Rights Act, 2001. Patents, designs, trademarks and GIs are administered by the Controller General of Patents, Designs and Trade Marks; copyright and layout-designs are under separate registrars; plant varieties under the PPV&FR Authority. Trade secrets have no statute. Appeals from the IP offices lie to the High Courts since the Tribunals Reforms Act, 2021 abolished the Intellectual Property Appellate Board, and the Delhi and Madras High Courts have set up IP Divisions. The National IPR Policy of 2016 brought administration of copyright under the Department for Promotion of Industry and Internal Trade, so that all IP offices now sit in one department.

Debate: is it “property” at all? Critics argue that calling these rights property imports the idea of permanent, absolute ownership and so pushes towards longer terms and fewer exceptions. Peter Drahos, in A Philosophy of Intellectual Property (1996), prefers to see IP as a set of privileges granted for public ends, which the state may limit. James Boyle describes the expansion of IP as a “second enclosure movement” of the intellectual commons. Indian law leans to the instrumental view: section 83 of the Patents Act states that patents are granted to encourage invention and secure its working in India, not to give patentees a monopoly over imports.

How this is examined

The 2024 paper set “Industrial and intellectual properties” as a short note (Q7(c)). Give the WIPO definition, the Paris Article 1(2) list, the two groups of industrial property, the contrast with copyright (use the table), and the common features. For a full essay on the concept, combine this note with the note on theories of IPR. Mention the Indian statute for each category in one line; the examiner wants to see that you know the map.

Now try the real questions: Study of Industrial and Intellectual Property Rights past question papers.