Intellectual Property RightsUnderstanding Intellectual Property Rights in India from a Constitutional Perspective

INTRODUCTION

The Constitution of India, 1949 (hereinafter referred to as the “Indian Constitution”) enumerated a number of rights, including Fundamental Rights, for both its citizens and other people living in India from foreign countries. As a result, some of these rights are only given to Indian citizens, while others are given to anyone living in India regardless of citizenship, place of residence, or other status. The Rights guaranteed by the Constitution can be divided into Constitutional Rights, Fundamental Rights, and the Right to Enforce a Fundamental Right in the event of violation.

Keeping the above in background, with the advent of Intellectual Property Rights (hereinafter referred to as “IPR”) (IPR from henceforth for brevity) in recent years, it has become imperative to understand the Constitutional implication of IPR. Intellectual Property (hereinafter referred to as “IP”) is essentially related to the creativity and inventions which is a result of application of human mind. Efforts in terms of manpower, time, skill, energy and capital is quintessential to invent or create something novel. Thus, IPR is fundamentally a territorial right of the owner/creator which can be registered with the appropriate authority in some presentable or tangible form which can thus be sold or bought or licensed, like a physical property.

The inventions and creations under IP are a result of constant effort by the person, thus they need to be legally protected. IP has a significant impact upon the economic advancement of any country, thus the need to protect the same becomes even higher.

CONSTITUTION AND ITS IMPACT ON IPR

The state’s policies are directed towards business and other economic and social activities by all of the Directive Principles of State Policy (hereinafter referred to as “DPSP”). These constitutional principles serve as the foundation for the restricted scope of protection and the rights in IP. The government also enacted IP laws, policies, and regulations in accordance with the guiding principles that are directly related to commercial activities and the country’s economic goal as outlined in Part IV of the Indian Constitution.

 The Preamble in the Constitution permits a mixed economy system in India, which has allowed upholding of the economic liberty in our Country. Hence, as far as IP is concerned, economic liberty can only be protected by strong property system.

The definition of the word “Property”,  not only includes tangible property but has a broader scope, and thus indirectly IP can definitely be brought under the ambit of Article 31 & Article 300A of the Indian Constitution, which should be liberally interpreted to extend its application to all those recognised interests which can have characteristics of property rights.

IP is classified into Copyright, Patent, Trademarks, Geographic Indication (hereinafter referred to as “GI”), Traditional Knowledge amongst others.

The Indian Constitution doesn’t provide for protection of IPR under fundamental rights expressly. Yet, they have not been expressly excluded as well. Initially, Right to Property was a fundamental right under Article 19(1)(f) of the Indian Constitution but it was amended to a Constitutional Right in 1978 by the 44^th Constitutional Amendment by inclusion of Article 300A of the Indian Constitution.

Even though an express definition of IP is not included in the Indian Constitution, it can understood from Entry 49 of List 1 of Schedule VII which reads as “patents, inventions and designs; copyright; trademarks and merchandise marks”. Thus, this gives authority to the Central Government to legislate on the matter as per Article 246 of the Indian Constitution.

The same was also held by the  Hon’ble Supreme Court in K.T. Plantation Pvt. Ltd v. State of Karnataka [AIR 2011 SC 3430]. The Court held that:

“the expression property in Article 300A is confined not only to land alone. It includes intangibles like copy rights and other intellectual property and embraces every possible interest recognized by law”

Hence, it can be concluded through judicial interpretation and legislative wisdom that  IPR are included in the ambit of property under Article 300A of the Indian Constitution, though not directly.

As Article 300A of the Indian Constitution is not a Fundamental Right, IPR will not be entitled to protections under Chapter III of the Constitution. When IPR are violated, they will enjoy legal protection being a constitutional right. Thus there is constitutional safeguard against unlawful deprivation of IP, which is further strengthened by statutory protections as guaranteed by various statutes like Copyright Act, 1957, Trademark Act, 1999, Geographical Indications of Goods (Registration and Protection) Act, 1999, Patents Act, 1970.

CONSTITUTIONAL IMPLICATIONS ON COPYRIGHT

Right of the Author and the Copyright Owner

According to Article 19(1)(a) of the Indian Constitution is significant for copyright as Right to Freedom of Speech and Expression is essentially the Right to Express one’s own ideas, thoughts, opinions by orally or written, printed words or by representation of pictures, though any medium or mode. This Fundamental Right also includes right to freely express one’s opinions through a book. Hence, In the State of Maharashtra v. Prabhakar Pandurang [AIR 1966 SC 424] the Hon’ble Supreme Court held that the detenu in preventive detention would also have the right to write a book and the Right to Publish the book and any prohibition without any legal sanction as the restriction on the same would be violative of the Personal Liberty protected under Article 21 of the Constitution.

Therefore, any Indian author who publishes a book or expresses their opinion in an article is free to do so and is only subject to the reasonable restrictions set forth in Article 19(2) of the Indian Constitution. As a result, individuals are given the freedom to write a book, and publish it, and are now protected under the Right of Freedom of Speech and Expression guaranteed by Article 19(1)(a) of the Indian Constitution.

Any copyright violation would fall under the morality-based restrictions outlined in Article 19(2) of the Indian Constitution because it is wrong to assert another person’s authorship rights, and doing so without their consent or the owner of the licence would be morally wrong. These restrictions are reasonable and are outlined in Article 19(2) of the Indian Constitution. Hence, Article 19(2) of the Indian Constitution restricts copyright violation or infringement.

Right to know and Right to information vs. Compulsory licensing

Right to Know and Right to Information is an integral part of freedom of Right to Speech and Expression, and the Right to Know is now recognized as a basic right which the citizens of a free country like India should aspire in the broader horizon of Article 21 of the Indian Constitution. It is a necessary ingredient of participatory democracy. By virtue of the Right to Know, the citizens in the country pave the way to the grant of compulsory license in case of copyrighted work was not available in India.

CONSTITUTIONAL IMPLICATIONS ON TRADEMARK

Right of Trademark owner

The Right to Practise any profession or to engage in any occupation, trade, or business is granted by Article 19(1)(g) of the Indian Constitution. However, in order to engage in unrestricted commercial activity, it is imperative to protect the business entity’s trademark and any goodwill it has built up because failure to do so could cause the trade and business to suffer.

Thus, the Right to Trade or conduct business includes the Right to Protection against the usurpation of the company’s trade name and goodwill acquired through trade or commerce. Protecting the Trademark from infringement, encroachment, and illicit gain through passing off is therefore protected under Trademark Act, 1999 (hereinafter referred to as “TMA”). The interest of the citizen’s Right to Information about the source and veracity of the claim about the product they want to use is also protected by such Trademark protection.

Additionally, Article 19(1)(g) of the Indian Constitution can be read to mean that the right to business and trade includes limitations on monopolies. As a result, the Indian Constitution also provides protection against monopolies in business, commerce, and trade; if such monopolies exist, the Right to Trade, Business, and Commerce is void and only exists in the text. So, the Indian Constitution also implicitly recognizes the need for acceptable trade and Economic Regulations.

Right to Know by Consumer

A Trademark not only protects the manufacturer but also has a direct effect on consumer protection from deception and unfair trade practices by passing deceptive goods. The citizens in the country also provided with the Right to Know, they are entitled that the goods or the service which they intend to utilize is from the seller or the manufacturer of the service provider who they intended and it provides transparency in the market and enables the consumer to be informed

Additionally, Trademark Protection enables customers to differentiate the goods or services they were intended to use and to steer clear of others and  enables customers to assume a high level of dependability in the quality of the goods or services. As a result, the trademark also safeguards the consumer’s Right to Information about the goods and services. Certification marks, such as ISI, Agamrk, Hallmark, etc., give users information about the quality and standards of various commodities and categories of goods, as well as providing such information to consumers.

CONSTITUTIONAL IMPLICATIONS ON PATENT

Right to Affordable Medicine

The Fundamental Rights enshrined in Part III of the Indian Constitution are meant to complement and add to the many inherent rights for which individuals are already entitled under International Law, including the Universal Declaration of Human Rights (hereinafter referred to as “UDHR”) and other Covenants and Conventions on Human Rights.

In situations where any lifesaving medicine is not affordable, then it is imperative for the state to grant a compulsory license for making such drug available at an affordable cost is the part of the obligation under the Indian constitution and in consonance, the Patent Act, 1970 (hereinafter referred to as “Patent Act”) was enacted with a provision for granting compulsory licensing.

According to Section 84 of the Patent Act, 1970 established three criteria for the grant of a Compulsory Licence, including that the patented invention does not meet the public’s reasonable expectations in this regard, that it is not reasonably priced for the general public, or that it is not being used within the borders of India. If the public need is not met in India as required by Article 21 of the Indian Constitution, the State may impose a Compulsory Licence for a life-saving drug thus making it easily accessible in India as well as reasonably priced. Compulsory Licencing, as in the case of patents under Section 84 of the Patent Act, is based on the public interest.

Right of Patentee

In contrast, the patentee’s right is likewise protected by Article 14 of the Indian Constitution, and citizens who have patent rights are further protected by Article 19(1)(g) of the Indian Constitution, while those who violate the patentee’s rights are forbidden with reasonable restrictions under Article 19 (6) of the Indian Constitution. Thus, the infringers shall not be allowed to assert their right under 19(1) (g) of the Indian Constitution to engage in trade or business with the patent-protected goods or processes.

Under the reasonable restrictions provided by Article 19(6) of the Indian Constitution, the Statutory Right granted to the patentee is safeguarded which is granted under Patent Act. Although not explicitly stated in the Indian Constitution, these can be inferred. In case of any ambiguity regarding the patent holders and infringers right to conduct business under Article 19(1)(g) of the Indian Constitution, it is resolved through judicial inferences as well as interpretations drawn from the express statutory provisions. The Patentee’s Right is a statutory one under the Patent Act , and it is not prohibited by Article 19(1)(g) of the Indian Constitution. However, it is subject to the reasonable limitations set forth in Article 19(6) of the Indian Constitution.

Patent Disclosure vs. Right to Information

The Right to Information is guaranteed to all citizens. If the Patentee wants to protect his patentable invention for the statutory period 20 years, he must disclose it. The description of the patented invention must be sufficiently clear, complete, certain, without any ambiguity, and concise for any person in India with average skill and knowledge of the relevant field to understand it.

Hence, the Patentee’s description of the invention must include the “best way to perform the invention or to replicate the invention with adequate drawings, explanations, examples, and even to give models with a prototype at the time the patent application is filed.” The Patentee must be granted statutory protection under the patent statute for a finite time of 20 years in exchange for the full disclosure of the claimed invention, assuming that the innovation satisfies other statutory requirements.

If an invention is concealed or not disclosed in clear terms, and if someone in India with average skill and knowledge of the invention is related to the disclosure of the invention but is unable to use or reproduce the invention from the disclosure made, the right of the public to information is violated, and the Patent may be revoked, as provided in Section 64(h) of the Patent Act.

Constitutional Implications on GI.

Similar to Trademark Protection, the Geographical Indications of Products (Registration and Protection) Act, 1999 safeguards trade, commerce, and business based on a product with a geographical origin. GI also allow consumers to distinguish between different goods and to place a higher degree of trust in the quality of those goods based on their geographical origin. In a similar vein, manufacturers of goods or products based on geographical origin are protected under Article 19(1)(g) of the Indian Constitution, and violators of GI are subject to restrictions under Article 19(6) of the Indian Constitution.

AMLEGALS REMARKS

Though Indian Constitution does not have any express provision on protection of IPR, the jurisprudence has been evolved to protect them under the same. Interpretation of Part III and Part IV of the Indian Constitution have been in line with International Treaties and Obligation of the Indian State under Trade Related Aspects of Intellectual Property Rights (hereinafter referred to as “TRIPS”) With the advent of IPR and its significant impact upon the economy, the judiciary has been active in adjudicating claims to protect IPRs. India announced its first National IPR policy in 2016, thus taking into cognisance the importance of IPR in today’s economy. The portfolios of Patents, Designs, Trademarks, Copyright, Geographical Indicators, all fall under the Department for Promotion of Industry and Internal Trade (hereinafter referred to as “DPIIT”). Under DPIIT, the Cell for IPR Promotion and Management is tasked with implementing India’s National IPR Policy.  It spearheads the Indian government’s efforts to streamline IP processes, increase IP awareness, promote commercialization, and enhance enforcement.

The Indian Government has improved its IPR regime over the past five years by making strides to modernise its IP offices, increase manpower, use IT and technology for e-filing of applications, deliver certificates of grant and registration of patents and trademarks in a digital format, decrease the number of trademark forms, use video conferencing for hearing IP applications, establish expedited examination procedures, and raise awareness of IP rights.

An IPR enforcement toolbox was introduced by DPIIT in collaboration with the Federation of Indian Chambers of Business and Industry to help police combat IP crimes, particularly counterfeiting and piracy.

– Team AMLEGALS assisted by Ms. Maneesha S (Intern)