Gavin Howe
India's intellectual property laws have been significantly influenced by their colonial history. During British rule, India adopted several British legal frameworks, including those related to intellectual property. For example, the first copyright law in India, the Copyright Act of 1847, was an extension of the British Copyright Act of 1842. After independence in 1947, India continued to develop its own legal policies, but the foundation laid during colonial rule continued to shape its approach to intellectual property. This has resulted in a complex legislative process with lengthy delays, which can create uncertainty for industries. However, India has laws covering almost all types of intellectual property rights, including patents, copyrights, trademarks, and designs, with recent efforts to strengthen enforcement. Understanding and navigating this landscape is crucial for businesses aiming to succeed in India's emerging market.
| Characteristics | Values |
|---|---|
| First copyright law | Copyright Act of 1847 |
| First post-independence copyright legislation | Copyright Act, 1957 |
| Number of amendments to the Copyright Act, 1957 | 6 |
| Most recent amendment to the Copyright Act, 1957 | Copyright (Amendment) Act 2012 |
| First patent introduced in India | Indian Patent and Designs Act, 1911 |
| Indian Patent Act | 1970 |
| Indian Trademark Law | Trademark Act, 1999 |
| Trade Marks Act amendment | 2010 |
| Indian government's first Intellectual Property Rights Policy | May 2016 |
| Administers Indian law of patents, designs, trademarks, and geographical indications | Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM) |
| Areas of intellectual property covered by Indian law | Trade marks, patents, copyrights, industrial designs, geographical indications, layout designs of integrated circuits, plant varieties, information technology, cybercrimes, and data protection |
| Agreement for establishing intellectual property rights standards | World Trade Organization (WTO) agreement |
| Agreement for harmonizing Indian laws connected with Intellectual Property Rights | Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement |
| Indian law inactive due to lack of implementing procedures | Semiconductor Integrated Circuits Layout Design Act, 2000 |
| Indian law removed customs protection for patents | Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 |
| Engagement with India on IPR | U.S.-India Trade Policy Forum’s Working Group on Intellectual Property |
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What You'll Learn
Copyright Law
The history of copyright law in India can be traced back to the colonial era under the British Empire. The Copyright Act of 1957, which came into force on 21 January 1958, was the first post-independence copyright legislation in India. The Act has been amended six times since, with the most recent amendment occurring in 2012.
The Indian copyright law protects literary, dramatic, musical, artistic works, cinematographic films, and sound recordings. It also protects software coding and programming from reproducing, copying, translating, or adapting. Copyright protection is valid only within India's borders, but India is a member of several international copyright conventions, including the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention, and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
The Delhi High Court, in a 2016 ruling, clarified that copyright is not an absolute right of ownership for authors but is intended to stimulate activity and progress in the arts for the intellectual enrichment of the public. This ruling was demonstrated in the case of Delhi University's Rameshwari Photocopy Service shop, which sold photocopies of textbook chapters. The Court initially ruled that this did not infringe on the publisher's copyright, but the decision was later reversed, citing "triable issues".
In terms of enforcement, India has faced challenges regarding the protection and enforcement of intellectual property rights. While there have been positive initiatives, concrete developments have been limited. The Indian Courts have, however, demonstrated a willingness to adapt to modern issues, such as accepting petitions against unknown defendants in internet law-related litigation, including cases of software piracy.
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Trademark Law
The protection of trademarks in India can be traced back to the Trade Marks Act, 1940, which was similar to the UK Trade Marks Act, 1938. This was followed by the Trade and Merchandise Marks Act, 1958, which was enacted to consolidate provisions related to trademarks in other statutes. The current governing law related to registered trademarks is the Trademark Act, 1999, which was enacted to comply with the TRIPS agreement. This Act was amended in 2010 to include special provisions for the protection of trademarks through international registration under the Madrid Protocol. This amendment allowed for the registration of trademarks in multiple jurisdictions.
The registration of trademarks is administered by the Controller General of Patents, Designs, and Trade Marks, a government agency under the Ministry of Commerce and Industry. Trademark law in India also provides for the rights acquired by registration, including the modes of transfer and assignment of those rights. The law also outlines the nature of infringements and the penalties for such infringements, with remedies available to the owner in the case of infringement.
In 2024, there were noteworthy changes in trademark law, with the integration of AI revolutionising the field. This improved efficiency and accuracy in registration, monitoring, and enforcement. An example of a trademark dispute is MakeMyTrip v. Booking.com, where the court held that the use of keywords did not amount to trademark use. Appeals to the Supreme Court of India are only allowed on a question of law.
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Patent Law
India's patent laws have evolved through three distinct periods: colonisation, post-independence, and globalisation. During the colonial era, India inherited its patent regime from British rule, with the Indian Patents and Designs Act of 1911 creating a system of patent administration led by the Controller of Patents and Designs.
In the post-independence period, two committees, the Bakshi Tekchand Committee in 1949 and the Justice Rajagopal Ayyangar Committee, made recommendations that significantly influenced Indian patent law. The committees focused on India's unique socioeconomic conditions, and their suggestions led to the Patents Act of 1970, which replaced the 1911 Act. This new Act included provisions to reduce the social costs of foreign-owned patents, prohibited patents on products used as food and medicine, shortened the term of chemical process patents, and expanded compulsory licensing. The growth of the Indian pharmaceutical industry is attributed to this law, earning India the title of "the pharmacy of the world".
The third period, globalisation, saw India liberalise its economy in 1991 and adhere to the General Agreement on Tariffs and Trade (GATT 1947), which was succeeded by the World Trade Organization (WTO). As a member of the WTO, India had to amend or enact laws to comply with the TRIPS Agreement, which presented challenges due to differences in constitutional priorities compared to countries like the United States.
More recently, India has made amendments to its patent working requirements. Patentees/licensees now need to submit a Working Statement (Form 27) once every three financial years instead of annually. This change aims to facilitate commercial opportunities and emphasise the substantial commercialisation of patents over a longer period.
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Protection of Plant Varieties
India has a unique and complex system of intellectual property laws, which are often discussed and decoded on the SpicyIP blog. One key area of focus within this system is the protection of plant varieties and farmers' rights.
The Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act) is a key piece of legislation in this area. It grants intellectual property rights to plant breeders, researchers, and farmers who develop new or existing plant varieties. This Act establishes an effective system for protecting plant varieties and the rights of those who breed and cultivate them. It also encourages the development and cultivation of new plant varieties.
The PPVFR Act provides exclusive rights to produce, sell, market, distribute, import, and export the variety. The protection period varies depending on the type of crop, with field crops protected for 15 years, trees and vines for 18 years, and notified varieties for 15 years from the date of notification under the Seeds Act, 1966. Essentially Derived Varieties (EDV) can also be registered under this Act, whether new or existing. Farmers are entitled to save, use, sow, re-sow, exchange, or sell their farm produce, including the seeds of a registered variety, without branding. They are also exempt from any fees related to the Act and can claim compensation if a registered variety does not perform as expected.
The Protection of Plant Varieties and Farmers' Rights Authority, under the Ministry of Agriculture and Farmers Welfare, is responsible for implementing the PPVFR Act. This includes approving DUS test fees and guidelines for various crop species. The Authority also confers awards, such as the Plant Genome Saviour Community Award, to recognize those who conserve natural biodiversity or develop artificial biodiversity.
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Commercial Use and Disclosure Law
India is a signatory of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Under Article 39(2), TRIPs allows members to create laws that prevent the unauthorised disclosure and use of certain information, as long as it meets specific criteria. The three criteria are:
- The information is not generally known or readily accessible to people within the circles that normally deal with this kind of information.
- The information has commercial value because it is secret.
- Reasonable steps have been taken by the person in control of the information to keep it secret.
In addition, the Information Technology Act 2000 (IT Act) has extraterritorial operation in certain cases, such as cyberattacks that involve computer systems located in India, even if the attack was carried out from outside the country. In these cases, the IT Act allows for action to be taken in India, and law enforcement authorities have jurisdiction to address the issue.
Common causes of action against the misappropriation and unauthorised disclosure of trade secrets include breach of confidence, breach of contract, tort of misappropriation, and criminal offences such as theft and criminal breach of trust.
In terms of advertising, the Advertising Standards Council of India (ASCI) has a self-imposed discipline that all advertisements must follow the ASCI Code. This code applies to advertisements that are read, heard, or viewed in India, even if they originate from abroad, as long as they are directed at Indian consumers. The ASCI Code includes guidelines such as:
- Social media advertisements must be clearly distinguishable from other content and include upfront disclosures at the beginning of the post.
- Advertisements should not be offensive, indecent, or vulgar, especially in the depiction of women, and should not cause grave and widespread offence.
- Special care should be taken in advertisements addressing those with perceived inadequacies, such as physical attributes like height or weight, to ensure that claims do not exceed generally accepted standards of medical practice.
- Advertisements inviting the public to invest money should not contain misleading statements regarding security, rates of return, or terms of amortisation.
- Advertisements should not show or refer to dangerous practices, manifest a disregard for safety, or encourage negligence.
- Advertisements should not propagate products or services that are banned under the law.
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Frequently asked questions
Indian laws cover various forms of IPR, including trademarks, patents, copyrights, industrial designs, geographical indications, integrated circuit layout designs, plant varieties, information technology, cybercrimes, and data protection.
During British rule, India adopted several legal frameworks based on British laws, including the Copyright Act of 1847, which was modelled after the British Copyright Act of 1842. After independence in 1947, India continued to modify and develop its own legal systems, but the foundations laid during colonialism remained influential.
India's accession to the WTO agreement and compliance with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement have harmonized its IP laws with international standards. Indian statutes, enforcement provisions, and dispute resolution methods are now fully TRIPS-compliant.
The Trade Marks Act provides for the registration of service marks, multiclass applications, a ten-year registration term, and recognition of well-known marks. The 2010 amendment to the Act allows Indian entities to register their trademarks in 97 countries through a single application under the Madrid Protocol.
The Ministry of Education's Innovation Cell has taken initiatives to foster innovation and promote IP literacy in classrooms across India. Additionally, engagement continues through forums like the U.S.-India Trade Policy Forum's Working Group on Intellectual Property.
