In the age of globalization, patents and intellectual property assume great significance. To help readers get an idea of patents, Mint presents an occasional column on the subject.
There is a great deal of difference between invention and discovery for the purposes of the Patent Act. An invention can be patented. A discovery is not patentable.
Discovery means unfolding what already exists. Invention is proving by experiment what turns out to be new.
A principle of science already exists. But to find a suitable technology applying the scientific principle is an invention. Therefore, inventions normally relate more to the technology than to the theories of science. Accordingly, all inventions relating to new gadgets are patentable.
Interestingly, the distinction between invention and discovery does not apply to the registration of new plant varieties under the Protection of Plant Varieties and Farmers’ Rights Act, because the discovery of a new plant variety occurring in nature is patentable under the Act. The royalty for the new plant so discovered goes to the community that preserves and conserves such a plant.
The local police are threatening me with arrest, saying I have committed an offence under the Copyright Act. I have not committed any infringement. When copyright is the matter of dispute between me and another, is it open to the police to interfere?
The Copyright Act does not specify that the offence of infringement is cognizable or not. But the Criminal Procedure Code in its schedule states that in the case of all offences for which the punishment prescribed in any special Act is a prison term of three years or more, the offence is cognizable by the police. Under Section 64 of the Copyright Act, the punishment prescribed for infringement of copyright is a minimum imprisonment of six months, and up to three years. Therefore, the offence under the Copyright Act is cognizable and the police can act by themselves, even without any complaint for prosecution filed before a magistrate (Abdul Sattar v. Nodal Officer, Anti-piracy Cell, Kerala Crime Branch and another).
But you could explain to the police that there was no infringement in the first case— copying of some expressions may be accidental or mere plagiarism, which is not an offence. You could also tell the police that you have no knowledge of the alleged original work. A request could be made to refer the complainant to approach the civil court for damages instead of seeking prosecution. In fact, you could approach the court for an injunction restraining the complainant from issuing unfair threats, after giving him due notice. Issuing unfair threats is an offence, and you could claim civil remedy such as an injunction and for damages.
What is the difference between plagiarism and copyright infringement?
Plagiarism is the art of bald copying. It may occur in articles and books where certain parts of original literary work of another are reproduced. Copyright infringement is a total copying of the design, story, sequence of events, dialogues and expressions, while making it appear as though what was copied was an original piece. Plagiarism is indulged in a clandestine manner, while a copyright infringement is open and demonstrative.
I have crafted a design that people say is artistic. Should I get it registered as a design or should I get it registered under copyright?
There is copyright to the author in all works of art. It is only a design that is used for commercial purposes that can be registered.
Designs applied to toys, items of decoration, furniture and textiles, all of which are sold more for their attractive looks, are called designs for the purpose of registration under the Designs Act. Your creation is marketable for its artistic characteristics, it is better to register it as a design, in which case you have a monopoly to convert your craft as a marketable item for 20 years.
If it is registered under the Copyright Act, it loses the privilege as a copyrighted work when you apply the design for commercial purposes or more than 50 impressions.
N.K. Acharya is an intellectual property rights attorney specializing in patents, trademarks, copyrights and design.
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