COVID-19 has completely revolutionized the workplace by pushing most of the organizations and the businesses to quickly switch from ‘office model’ to ‘work-from-home’ model. While working under the roof of an office, there existed legislations and legal framework to monitor the behaviour, but those existing policies need to be adjusted so as to incorporate the WFH scenario.
Some key areas where the legal framework needs to be adjusted are:
Women working at night. Previously as per the Shops and Establishment Act of each state, women employees were prohibited to work during some specified hours at night or they have to arrange for transport services along with escort to make sure that they reach their home safely. So employers had to face compliance issue with regard to women employees. But now since most female employees have moved to WFH, so the employers are free from such compliance issues and at the same time, the floor is open for the employers to look out for those women population who could not previously access the jobs due to geographical and other constraints.
Change in compensation structure. Previously many allowances such as conveyance allowance, meal allowance or food coupons were given out to employees as a part of hardship allowance. But this might not be attractive now considering the WFH scenario. Instead, employers should provide other allowances such as internet reimbursement, ergonomic allowances, IT expenses etc.
Sexual harassment at the new workplace. POSH Act was passed in the year 2013 for the prevention of sexual misconduct at office. But now as the workplace has changed, new forms of misconduct such as repeated phone calls at inappropriate and ungodly hours, forcing to switch on videos, playfully passing lewd remarks and over-discussion of work are creeping up with time. Considering the face that the boundary between work and home has become blurred, POSH needs to incorporate some new rules to prevent such misconduct.
Overtime work. Just a few months back, employers used to measure productivity by checking the entry and exit times of an employee. They used to do so by either swiping their cards or by biometric screening. So if an associate is doing overtime work, usually it was thought that the person is very hardworking. But now the associates are working from home, so performance should now be measured depending on the outcome of the employees rather than on the time spent on doing the work.
Security and compliance threats. SEZ does not have guidelines for WFH facility but STPI has it. As per them, it is necessary for the employees to work on Virtual Private Network. So employees should spend on securing a robust and private WiFi so that that IT security is not compromised on the local system and confidentiality is maintained.
Modification of labour laws like maternity benefits and compensation laws. Previously associates can claim compensation from the employers if any accident occurs at the workplace, but now with the WFH arrangement, the existing compensation laws need to be modified so as to arrange for any compensation if any accident occurs at home.
Our workplace dynamics have completely changed and to enable smooth transition, employers also need to look into the existing legal structure so that eventually the employees does not feel to be disadvantaged. Our home is the new workplace and so laws have to be adjusted taking our ‘home-office’ into consideration.
‘Intellect’ refers to the creations of the mind. Intellectual Property is a type of intangible property and includes inventions, literary and artistic works, symbols, names and paintings.
Intellectual Property Rights (IPRs) are the Rights granted to the creators of Intellectual Property (IP) by the Government. The nature of IPR is territorial. In any country an IP has to seek protection separately under the relevant laws.
Mechanisms which are Special in nature have been kept in place for various territories in order to provide protection to different types of IPRs. It confers an exclusive right to the inventor/ creator or assignee to fully utilize the invention/ creation for a given period of time.
It’s been established that the intellectual labor associated with the innovation should be given due importance so that public good emanates from it.
This is a strong tool, to protect investments, time, money, effort invested by the inventor/creator of an IP, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation.
Hence it aids in the economic development of a country by promoting healthy competition and encouraging industrial development which shall also aid in the growth of the economy.
WHAT IS AN INTELLECTUAL PROPERTY?
Intellectual Property(IP) refers to creations of the mind; inventions; literary and artistic works; and symbols, names and images used in commerce.
IP is divided into two categories: 1) Industrial Property:- includes patents for inventions,trademarks, industrial designs and geographical indications. 2) Copyright:- covers literary works (such as novels,poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design.
In Intellectual property(IP), there are Rights which relates to the rights of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs are included.
WHAT ARE INTELLECTUAL PROPERTY RIGHTS?
So what do you mean by intellectual property rights? IP rights like any other property right allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation.
These rights are outlined in Article 27 of the UDHR which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property Organization (WIPO).
There are various pros which are more compelling than the cons.
1) The progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture.
2) The legal protection of new creations and this encourages the commitment of additional resources for further innovation.
And Lastly the third pros is that the 3) Promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life.
An efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a catalyst for economic development and social and cultural well-being. The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish.
INTELLECTUAL PROPERTY HOLDERS IN A QUANDARY DUE TO COVID-19 PANDEMIC
While experts are in a combat mode and the race is on to discover the cure for COVID-19, the claim of intellectual property rights for exclusive use of the cure poses a dilemma as it is not considered the most rational thing to do at the moment.
Carlos Correa addressed to organizations like WHO, WTO and WIPO via an open letter to seek support for WTO countries that invoke the ‘security exception’ contained in Article 73 of the Agreement on Trade Related Intellectual Property Rights (TRIPS) Agreement, to take ‘actions it considers necessary for the protection of its essential ‘security interests’ in the wake of COVID-19 threat.
It has been suggested that invocation of exception under Article 73 will be warranted to procure medical products and devices or to use the technologies to manufacture them as necessary to take cue of the present public health emergency.
By suspending the enforcement of any Intellectual Property right as given under Article 73(b) of TRIPS Agreement, an obstacle for the procurement or local manufacturing of the medical equipments shall be necessary in order to protect the population of the world will be outlasted.
The question which is raised due to the above is regarding IP rights which are aimed to aid the public by promoting technological advancement in return of providing the inventor an exclusive right over the invention, though for a limited time. Though the IP rights are at a standstill due to the outbreak the IP Registry offices all over have limited their functioning.
TYPES OF INTELLECTUAL PROPERTY
Trade Mark: –
A trademark is used in order to identify a business entity and it also differentiates the goods made or services offered by a company or an individual. Names, Words, Logos, Colors, Packaging, Sounds (audible), Signs (visual) or any combination thereof are considered and can be filed as trademarks.
A trademark must be Unique and Distinctive in nature and must also avoid adjectives for eg efficient and Names of person or places (E.g. India). Even Obscene words, Religious or Government words or symbols (E.g. OM) and Common Shapes (Square) should be avoided.
The Trade mark means a mark used in relation to goods for the purpose of indicating a connection in the course of trade between the goods and some person having the right as proprietor to use that mark.
The function of a trade mark is to give an indication to the purchaser or a possible purchaser as to the manufacture or quality of the goods, to give an indication to the trade source from which the goods come or the trade hands through which they pass on their way to the market.
The Trade Marks Act, 1999 is an act which provides for the registration and better protection of trademarks for goods and services and for the prevention of the use of fraudulent marks. A trade mark is valid for a period of 10 years.
Case Name: The Coca-Cola Company v. Bisleri International Pvt. Ltd Case Citation: Manu/DE/2698/2009
Copyright: –
Copyright is an exclusive legal right granted to the creators of an intellectual work. The owner of a Copyright has rights to reproduce, translate, adapt, perform, distribute and must be publicly allowed to display the work, etc.
Registration is not mandatory since copyright comes into existence as soon as the intellectual work is created but it is recommended to register a copyright for better enforceability, since registered copyrights have more evidentiary value in court.
(a) Types of Works covered under Copyright:-
(1) Literary including Software – Books, Essay, Compilations, Computer Programs.
(2) Artistic – Drawing, Painting, Logo, Map, Chart, Plan, Photographs, Work of Architecture.
(3) Dramatic – Screenplay, Drama.
(4) Musical – Musical Notations.
(5) Sound Recording – Compact Disc.
(6) Cinematograph Films – Visual Recording which includes sound recording.
(b) Duration of Copyright:-
(1) Literary, Dramatic, Musical or Artistic Works – Lifetime of the author + 60 years from the death of the author.
(2) Anonymous & Pseudonymous Works – 60 years from the year the work was first published.
(3) Works of Public Undertakings & Government Works – 60 years from the year the work was first published.
(4) Works of International Organizations – 60 years from the year the work was first published.
(5) Sound Recording – 60 years from the year in which the recording was published.
(6) Cinematograph Films – 60 years from the year in which the film was published.
Case Name:- Indian Performing Rights Society Ltd. v. Eastern India Motion Picture Association Case Citation: – 1977 SCR (3) 206
Designs: – The Design Act, 2000 states that it protects the aesthetic and ornamental features of an object. As per the Act a 2D or 3D pattern of a handicraft, a product, or even an industrial commodity.
The Unique Selling Point (USP), protects the looks and feels of the product and it prevents the duplication of the product. An industrial design helps in drawing a customer’s attention and helps in increasing the commercial value of an article.
Case Name:-Cello Household Products v. M/S Modware India and anr Case Citation:- Notice of Motion (L) No. 209/2017 in Suit (L) No. 48/2017
Patents On the 4th December, 2018, The Ministry of Commerce and Industry released the draft (rules amendment) for Patents Act 1970. These rules are mainly amended with respect to international applications, patent opposition and a few form related extensions. The Central Government proposes to make these amendments in exercise of the powers conferred by section 159 of the Patents Act, 1970.In order to align with TRIPS, inventions which are not patentable have been included even, wider rights of patentee is incorporated. Uniform period of protection is 20years. Case Name: Bajaj Auto Limited v.TVS Motor Company Limited. Case Citation: JT 2009 (12) SC 103
5. Integrated Circuits
Semiconductor Integrated Circuits Layout Design (SICLD) Act 2000 states the meaning of Semi conductor Integrated Circuit as, a product having transistors and other circuitry elements designed to perform an electronic circuitry function. There are 2 types of designs as per the act:-
(i) Layout Design – A layout of transistors and other circuitry elements including lead wires which connects semiconductor integrated circuits.
(ii) Layout-Design Registry (SICLDR) is the office where the applications on Layout-Designs of integrated circuits are filed for registration. The jurisdiction of this Registry is whole of India. The Registry, as per the guidelines laid down in the Semiconductor Integrated Circuits Layout Design (SICLD) Act 2000 and the Semiconductor Integrated Circuits Layout-Design (SICLD) Rules 2001, examines the layout-designs of the Integrated Circuits and issues the Registration Certificate to the original layout-designs of the Semiconductor Integrated Circuits.
Case Name: Sunil Alag v. Union of India and Others Case Citation: W.P. (C) 8152/2013
6. Biological Diversity
The Biological Diversity Act 2002 was enacted to realize the objectives enshrined in the United Nations Convention on Biological Diversity (CBD) 1992 which was passed by the Lok Sabha on 2nd December 2002 and by the Rajya Sabha on 11th December 2002.
It recognizes the sovereign rights of states to use their own Biological Resources due to the scarcity and also to conserve it. The Act provides for a mechanism for equal sharing of benefits arising out of the use of traditional biological resources and knowledge. It is a federal legislation enacted by the Parliament of India for preservation of biological diversity in India.
Case Name: Environment Support Group vs National Biodiversity Authority Case Citation: W.P. No.41532 / 2012
7. Plant Varieties and Farmers
Protection of Plant Varieties and Farmer’s Rights Act of 2001(PPV & FR Act, 2001) confers right to breeders, researchers and farmers over their plant varieties. Reaching legislation with regards to establishing rights for farmers to save, use, exchange and sell farm saved seed.
The Act establishes nine rights for farmers of which the most important in this regard are the right to “seed” and the right to “compensation” for crop failure (Art. 39). Not only does the 2001 Act protect the rights of framers to save, use, exchange and sell farm- saved seed, it also seeks to ensure that these seeds are of good quality, or at least that farmers are adequately informed about the quality of seed they buy.
In addition, safeguards are provided against innocent infringement by farmers. Farmers who unknowingly violate the rights of a breeder are not to be punished if they can prove that they were not aware of the existence of such a breeder’s right (Art 42).
Case Name:- Monsanto Technology LLC & Ors Vs. Nuziveedu Seeds Ltd & OrsHigh Court of Delhi Case Citation: CS (Comm) 132/2016
The Geographical Indication of Goods:- The Geographical Indications of Goods (Registration and Protection) Act, 1999 states Geographical Indication as it is primarily an agricultural or food product, natural or a manufactured product (handicrafts, Handloom textiles or industrial goods) originating from a definite geographical territory. A product is considered to be manufactured in a territory if any one of the activities of either the production or of processing or preparation of the goods takes place there. It promotes the producers prosperity of goods which have been produced in the geographical territory.
It helps the producer community to differentiate its products from other competing products that are present in the market and generate goodwill around its products. Hence, it acts as a signaling device by helping consumers to identify genuine quality products.
Case Name:- Tea Board Vs ITC Limited on 20 April, 2011 Case Citation:- GA No. 3137 of 2010 CS No. 250 of 2010
It has been suggested that invocation of exception under Article 73 will be warranted to procure medical products and devices or to use the technologies to manufacture them as necessary to take cue of the present public health emergency.
CONCUSION
The above overview clearly depicts that India has adopted and adhered to the latest IPR Regime and it has forayed into the global trade competition with a double edged sword.
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