The recognition of the need to protect of intellectual property especially with regard to counterfeit trademark and pirated copyrighted goods, the enforcement of intellectual property rights at the borders has emerged as a significant issue in recent times. In view of this, the scheme of border measures has been discussed internationally at various flora including the World Trade Organization, the World Customs Organization, and the World Intellectual Property Organization as well as during negotiations of many multilateral and bilateral free trade agreements.
India too, sought to enable right holders to enforce intellectual property rights at the border and, thereby, enhance border protection of intellectual property rights. In this regard, the Government of India notified the Intellectual Property Rights (Imported Goods) Rules, 2007 in May 2007. The Rules, based on the model legislation by the World Customs Organization, seek to empower the Customs authorities to suspend the clearance of goods suspected to be infringing intellectual property in India. Further, they empower the Customs authorities to adjudicate on the issue of infringement and seize or dispose the goods on finding in favour of the right holder. The Rules, however, present a major source of concern for importers. They fail to strike a balance between the rights of the right holders and the safeguards provided to the importers or the obligations of the right holders. In view of this, they present immense potential for abuse and their implementation has had a chequered history. The controversy surrounding the dual–SIM patent, presently being argued before various Indian flora, highlights the issues raised by the implementation of these rules, and presents a case for their re-evaluation.
ENFORCEMENT LAWS IN INDIA :
The general laws in relation to Intellectual Property Enforcement in India are mainly the following:
• Code of Civil Procedure
• Indian Penal Code
• The Civil and Criminal Rules of Practice.
While Civil Procedure Code provides for the civil remedies and enforcement through civil courts, the Indian Penal Code provides for penal remedies. The rules of practice of the trail courts, High Courts and the Supreme Court of India set the finalities of the enforcement procedure. India follows common law tradition and judicial precedents do have binding force.
ENFORCEMENT MECHCANISM AVAILABLE UNDER THE INDIAN LAW:
Under civil remedy Protection for Design is there against infringement of Copyright in a design area
Compensation and delivery up of infringing articles. No Provision for criminal proceedings against piracy of designs. Unregistered design can be protected under Copyrights Act.
Civil remedies for enforcement of the Copyright including injunction, damages, account of profits, delivery of infringing marks and damages for conversion can be invoked by owner of copyright or in certain cases, publisher of the trademark label.
Suit for damages: Damages can be claimed – (1) as an amount of loss sustained by the holder of copyright by reason of infringement. (2) as an amount representing the profits made by the infringer and (3) as an amount representing the value of infringing copies.
Whenever a registered Tardemark is violated or infringed, to the detriment of its proprietor or user, the aggrieved person can make use of the remedies available in a civil court. The most common remedy for infringement of a registered trademark is to file a suit in a civil court, to restrain the defendant from using the registered trade mark of the plaintiffs. The issues arising in a passing off action are:-
• Whether the plaintiff has established a goodwill or reputation in connection with a business, profession, service or any other activity, among the general public or among a particular class of people prior to the first use of the defendant.
• Whether the defendant’s activities or proposed activities amount to a misrepresentation which is likely to injure the business or goodwill of the plaintiff and cause damage or likely to cause damage to his business or goodwill.
• Whether the defendant succeeds in one or more of the defenses set up by him.
For Patent civil remedy is not there.
Protection for Patents: Criminal liability: penalties available under Section 118. Contravention of Secrecy provisions relating to certain inventions in cases relating to infringement of Patents. Failure to comply with Section 35, is punishable with imprisonment for a term which may extend to two years or with fine or both.
A suit for the infringement of a patent can be instituted only after the sealing of the patent. Damages caused of infringement during the period between the dates of advertisement of acceptance and the date of the sealing may be cleared in the suit. In an action for infringement of a patent a defendant may plead any of the following defenses:-
• Denial of infringement.
• Plaintiff is not entitled sue for infringement.
• License to use the invention expresses or implied.
• Existence of an unlawful contract.
• Claims invalid on account of lack of novelty and non- obviousness.
• Innocent infringement in cases against a claim for damages or account of profit.
The procedure concerning infringement action must confine to the Civil Procedure Code, if the suit is filed before a District Court and if the matter is before the High Court the rule of practice of the court also shall apply. The main reason for a possible delay in getting orders in a patent infringement suit is the provision for preferring appeals from interim order of trial courts.
Protection for Trade Marks Act, 1999 provides for a comprehensive scheme whereby those persons who un-authorized deal with the trade marks can be punished for various offences. The offences includes:- Falsifying and falsely applying trade marks, Selling goods or providing services to which false trademark or false trade description is applied.
Removing piece goods etc. contrary to Sec. 81 which deals with stamping of piece goods, cotton yarn and threads. Falsely representing a trade mark as registered. Falsification of entries in the register; and Abetment in India, of acts done outside India etc.
The punishment of these offences includes a minimum imprisonment of 6 months and minimum of Rs.50, 000 which may extent to a maximum of 3 years and Rs.20, 000 respectively. Section 105 of the Act provides for enhance penalty on second or subsequent conviction.
Protection for Copyright :The owner of the copyright and also any person can initiate criminal proceedings, by filing a complaint before the competent First Class Magistrate within whose jurisdiction, the plaintiff resides or the infringement takes place or deemed to have taken place. The procedure prescribed under Criminal Procedure Code applies to the proceedings before the criminal court.
On conviction, the Criminal Court can sentence the accused to an imprisonment upto 3 years and a fine extending upto Rs.2 lakhs. Recent amendment have made the imposition of punishment to a minimum term of 6 months and a fine of Rs.50,000 mandatory unless for special reasons to be recorded if the magistrate awards lesser punishment than the minimum.
For Protection of Design act, no criminal remedies is there.
For Protection of Trademark: The Act vests certain powers in the various administrative authorities to relief and remedies to the aggrieved persons. It is the Registrar who mostly exercises these powers under the guidance of the Central Government.
For Copyright Protection: An application can be made by the owner of the copyright in any work or by his duly authorized agent, to the Registrar of Copyright to ban the import of infringing copies of trade mark label which were earlier confiscated from infringer to the owner of the copyright.
And for Patent and Design Act, no administrative remedies is there.
BOARD ENFORCEMENT MECHANISM IN INDIA:
In India border measure are enforced by Customs Department. Department of Revenue/Central Board of Excise and custom has issued the notification/Rules/Circular for enforcement of IPR border measure:-
A. Customs Notification No. 49/2007- custom (NT) dated 8-5-2007.
B. Intellectual Property Right (Imported Goods) Enforcement, 2007 dated 8-5-2007
C. Custom Circular No. 41/2007 dated 29-10-2007.
• In section 2 (n) of custom Act, 1962 empowers the Central Government to prohibit importation and exportation of any goods for the protection of Patents Trademarks and Copyrights by Issuing of Notification.
• Section 11 (2) (u) of Customs Act, 1962 empowers the Central Government to prohibit importation and exportation of any goods for the protection of any other law for the time being force by issuing of notification.
Customs Notification to Prohibit Import of infringing goods:
• Department of revenue issued Notification No 49/2007- Customs (N.T) dated 8-5-2007 which prohibits imports:-
Of goods having a false trade mark and false trade description.
Of goods made or produced beyond the limits if India and intended for sale and having in which copyright exists under the Designs Act.
Of product made or protected beyond the limits of India and intended for sale of which patents is in for which patent is force under the Patents Act, 1970.
Of the product obtained directly by the process beyond the limits of India and intended for sale for which patent is force under the patents Act, 1970.
Of goods having false geographical indications.
Of goods prohibited to be imported by issuance of order issued by Registrar of Copyrights under section 53 if Copyright Act, 1957.
Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007
• Import of infringing goods are prohibited under Notification No. 49/2007- Customs (NT) subjects to following conditions and procedures laid down in Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007.
• Department of Revenue notifies the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 on 8th of May 2007.
• The rules have been framed in the line of TRIPS and WCO (world Customs Organization) model.
Salient Features of the Rules:
• The rules inter alia provide for:-
• Filing of a notice by the right holder.
• Registration of said notice by the Customs.
• Time limit for right holder to join proceedings.
• Single point for registration of the notice filed by the right holder.
• Fees of Rs. 2000/- for every notice.
• Adequate protection to the rightful importer.
• Adequate protection to the Customs for bonafide act.
• Suo-moto action by the Customs in specific circumstances
• Disposal of the confiscated goods.
• No action against goods of non commercial nature contained in personal baggage or sent in small consignments intended for personal use of the importer.
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT WITH THE CUSTOMS ACT, 1962 AND PROCEDURE UNDER INTELLECTUAL PROPERTY RIGHTS (IMPORTED GOODS) ENFORCEMENT RULE, 2007
1. Categories of Intellectual Property within the Scope of the Rules:
The Rule 2 of the rules provides definitions. It is borrowed from the model legislation by the Geneva based World Customs Organization, Rule 2(b) and 2(c), defining the term “intellectual property” and “intellectual property law” respectively, indicate that the Rules are applicable to those imported goods suspected to be infringing rights either in a trademark, copyright, geographical indication or patent. It bears noting that the Article 51 of the TRIPS mandates to introduce provisions only with respect to counterfeit trademark or pirated copyright goods. India is not obligated to introduce border measures with respect to other categories of intellectual property such as patents or geographical indications. The extension of border measures to other categories of intellectual property, especially to patents becomes significant in view of the institutional incompetence of the customs authorities to deal with complex matters relating to patent law.
2. Institutional incompetence of Customs Administration to Deal with Patent Related Issues:
The TRIPS does not require members to introduce provisions with respect to all categories of intellectual property and the mandate to introduce border measures under TRIPS extends only to copyright and trademark related matters. In relation to patents, the most relevant argument against introduction of border measures is that the patent infringements are difficult to assess at first sight. This difficulty arises from the technical complexity of products to which patents are attached and the complex nature of patent law itself.
The field of intellectual property law is a specialized field, requiring both legal and technical expertise. The Courts have been divested of their authority to hear such matters which are now heard by a specialized Intellectual Property Appellate Board. The High Court of Delhi with respect to the power of the Drug Controller General of India to decide on matters relating to patent infringement, wherein the Court opined that the Drug Controller lacks the technical expertise to deal with matters relating to patentability and patent infringement.
Patent law requires the understanding of complex technology for the purposes of claim construction, and customs administration lacks the infrastructure to undertake such a process. It is, therefore, suggested that the Customs administration must establish a specialized cell for intellectual property matters comprising of specialized members possessing both technical and legal expertise in such matters.
Definition of Right Holder:
Rule 2 (d) defines right holders to mean a natural person or a legal entity, which according to the laws in force is to be regarded as the owner of protected intellectual property right, its successors in title, or its duly authorized exclusive licensee as well as an individual, a corporation or an association authorized by any of the aforesaid persons to protect its rights. This provision indicates that the owners of intellectual property rights as well as their assignees and licensees are entitled to seek protection under the Rules.
3. Definition of “Goods Infringing Intellectual Property” – A Conundrum
Sub-Rule (a) of definitional Rule defines the term “goods infringing intellectual property” to mean “goods which are made, reproduced, put into circulation or otherwise used in breach of the intellectual property laws in India or outside India and without the consent of the right holder or a person duly authorized to do so by the right holder”. On reading of Rule, the language of confusing, two interpretations may arise The first interpretation, which the author proposes, is that the term “goods infringing intellectual property” means the goods which are made, reproduced, put into circulation or otherwise used in India or outside in breach of intellectual property laws. (the term intellectual property laws shall be interpreted as per Rule 2(c), and shall mean the Copyright Act, 1957, the Trade Marks Act, 1999, the Patents Act, 1970, the Designs Act, 2000 or the Geographical Indications of Goods (Registration and Protection) Act, 1999).
Interpretation, the term “in India or outside India” qualifies the place where the infringing act takes place. The question whether goods made, reproduced, put into circulation or otherwise used outside India can breach the intellectual property laws above mentioned? The simple answer is no. The Patent Act, 1970 under S. 48 provides that the patentee has the exclusive rights mentioned therein in India. Similarly, Section 13(1)28 of the Copyright Act, 1957 provides that copyright shall subsist throughout the territory of India. Further, trademark law in India is territorial in nature and requires that the infringing activity must take place within the territorial limits of registration, i.e., within India. The Model Law, under Article 1, includes a that clause “if such making, reproduction, use or putting into circulation of the goods took place outside the country the goods are deemed to be infringing if the acts would have constituted an infringement in the country had they been undertaken in the country”.
The alternative interpretation of the Rule 2(a) involves reading the terms “in India or outside India” as qualifying the term “intellectual property law”, rather than defining the place where the infringing acts occur whether the acts are infringing as per the Indian intellectual property laws or the intellectual property laws outside India, the goods shall be considered as goods infringing intellectual property. It is conclude that those goods which are made, reproduced, put into circulation or otherwise used in breach of intellectual property laws of countries other than India shall be considered to be “goods infringing intellectual property”.
The Rules, under such an interpretation, in effect allow the right holder to rely on rights which are available under intellectual property laws outside India, even where such rights are not available under the Indian laws. Such an interpretation would render the provision arbitrary and in discord (without a “reasonable nexus”) with the object of the legislation, thereby making them susceptible to being struck down as unconstitutional.
B. Procedure for Registration:
The Rules provide an elaborate procedure for the enforcement of intellectual property rights of the right holders by customs authorities. The Rules envisage the provision of notice by the right holder to the Commissioner of Customs (or any officer authorized on his behalf) requesting for the suspension of clearance of goods suspected to be infringing intellectual property.
The Right holder is required to give the notice in a specified format (provided in the Annexure) along with the payment of Rs. 2000 as application fee. Whether his notice has been registered or rejected within a period of 30 days.41 The registration of notice is subject to two conditions, namely: the execution of a bond by the right holder with the Commissioner of Customs undertaking to protect the importer, consignee and the owner of the goods and the competent authorities against all liabilities and to bear the costs towards destruction, demurrage and detention charges incurred till the time of destruction or disposal. Further, the right holder is required to execute an indemnity bond with the Commissioner of Customs indemnifying the customs authorities against all liabilities and expenses on account of suspension of the release of allegedly infringing goods.
On the registration of the notice, the Commissioner is required to communicate to the right holder the validity period of the registration during which the assistance by the customs authority shall be rendered, with the minimum period being one year. Rule 4(3) of the Rules provides that all customs offices shall render assistance to the right holder.
C. Scope of the Power of the Customs to Detain and Seize Goods Under the Rules:
1. Rules 6 and 7: Enabling Provisions-
Rules 6 and 7 are the enabling provisions which empower the customs administration to suspend the clearance of goods infringing intellectual property rights. Rule 6 provides that after the grant of the registration of the notice the import of allegedly infringing goods into India shall be deemed as prohibited within the meaning of Section 11 of the Customs Act, 1962. Rule 7(1)(a) of the Rules empowers the customs authority to suspend the clearance of goods on the basis of the notice given by the right holder to suspend the clearance of goods if he has reason to believe that the imported goods are suspected to be goods infringing intellectual property rights. The rules further provide for communication of the order of suspension of clearance to both the importer and the right holder, stating the reasons for such suspension. From the date of such communication, the right holder is required to join the proceedings before the customs administration within a period of ten working days (extendable to twenty working days) failing which the goods shall be released provided that all other conditions of import of such goods have been complied with. Rule 7(1) (b) empowers the customs authority to suspend the clearance of goods suo motu if it has prima facie evidence or has reasonable grounds to believe that the imported goods are goods infringing intellectual property.
In case of suo motu action, Rule 7(4) of the Rules requires the right holders to give notice under Rule 3 and to fulfil obligations (such as execution of bond under Rule 5) within a period of 5 days from the date of suspension of clearance, failing which the goods shall be released by the customs administration. If the right holder complies with the above mentioned provisions (both in case of prior notice or for suo motu action), the Deputy Commissioner of Customs or the Assistant Commissioner of Customs is empowered to seize the goods under Section 110 of the Customs Act, 1962 if he has reason to believe that the goods are“goods infringing intellectual property rights” and are liable for confiscation under Section 111(d) of the Customs Act, 1962.
2. Rule 7 and Audi Alteram Partem:
Rule 7 of the Rules is the enabling provision empowering the Customs administration to suspend the clearance of goods. The order for suspension of clearance of goods under Rule 7(1) is made on the basis of the notice given by the right holder, and this forms the basis for the suspension of clearance. Therefore, the right holder is entitled to make a prima facie case for infringement by virtue of the notice. However, the importer is not provided an opportunity to be heard and he is entitled to seek the clearance of the goods only after he receives the communication from the customs authority under Rule 7(2).
The very nature of the order is such that the rule of audi alteram partem must be excluded. That being said, it is imperative that the post-decisional hearing shall take place “as soon as” the order for suspension of clearance is made. The requirement under the Rules is that the order of suspension must be communicated to the right holder “immediately”. Therefore, the importer’s right may be prejudiced for an unreasonable period of time with his goods being detained at the ports without a decision being reached by the customs authority. Once the right holder has joined the proceedings, the proceedings may prolong for an unreasonable period of time, as is often the case in India given the administrative delays.
The requirements laid down in the case of Maneka Gandhi v. Union of India, is that in cases of post decisional hearing, a fair opportunity of being heard must be “given immediately” after the impugned order. If the post-decisional hearing is commenced immediately but is unreasonably or unduly delayed, the purpose of giving the post-decisional hearing “immediately” would be defeated. Such a reading shall enable importers to seek an appropriate writ in cases where there is an unreasonable delay in the reaching its conclusion, with the reasonableness being tested on a case by case basis.
3. No Need for prima facie Evidence: Undue Burden on Customs Administration:
The format of notice provided in the Annexure indicates that the right holder is not required to provide evidence to establish that the goods are infringing in cases where he does not seek to prevent the import of a specific consignment. The right holder is required to give prima facie proof of infringement only where the infringement by goods in a specific consignment is alleged at the time when the notice for registration is given. A situation where at the time when the right holder gives the notice of registration there is no specific consignment which infringes the rights of the applicant. The right holder in such circumstances shall be granted the registration of the notice without submitting any proof concerning infringement regarding a specific consignment. On the basis of this notice, the customs administration is required to determine the scope of his intellectual property rights and detain goods which they suspect to be infringing.
Under the TRIPS Agreement, the right holder making an application for suspension of clearance of the goods to the Customs administration is required to provide “adequate evidence” to satisfy the customs administration that there is prima facie an infringement of the intellectual property right.
D. Right to Examination of Goods and Supply of Information:
Rules 8, 9 and 10 contain provisions for examination of goods by the right holder, supply of information to the right holder and supply of information to the importer, respectively. Rule 8 empowers the Commissioner to allow the right holder/importer to examine the goods, the clearance of which has been suspended, and to provide representative samples for examination, testing and analysis to assist in determining whether the goods are pirated, counterfeit or otherwise infringe an intellectual property right. Rule 9 enables the right holder to seek information such as the name and address of the importer and such additional relevant information regarding the consignment which has been suspended. Similarly, Rule 10 enables the importer to seek information relating to the right holder. However, these provisions are to be applied without prejudice to the protection of confidential information, thereby ensuring that sensitive information regarding the importer or the right holder is not disclosed.
E. Disposal of Infringing Goods:
Rule 11 provides for the disposal of infringing goods. This rule is applicable where upon determination by the Deputy Commissioner of Customs/Assistant Commissioner of Customs, it is found that the goods detained or seized have infringed intellectual property rights, and have been confiscated under Section 111(d) of the Customs Act, 1962 and no legal proceedings are pending in relation to such determination. The said authority in such cases can destroy the goods under official supervision or dispose them outside the normal channels of commerce after obtaining ‘no objection’ or concurrence of the right holder. Rule 11 raises major concerns for the importer since the disposal of goods by the Customs authority amounts to a final determination of the rights, and the only remedy is to seek monetary compensation from the right holder.
Customs Circular 41/2007:
Central Board of Excise and Customs has issued a circular No. 41/2007 dated 29-10-2007 which apart from explaining various provisions of Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, in border security measure, place detailed procedure for electronic registration of the notice by the Right Holders. Salient features of the Circular 41/2007:-
• On- line recordation as a trade facilitation measure.
• 110% of value of goods Bond amount and 25% of bond value as BG- uniformity.
• Recordation valid for 5 years (extendable thereafter on payment of fees).
ISSUES RAISED BY THE IMPLEMENTATION OF THE RULES: A CASE STUDY:-
A. The Ram Kumar Patent Saga
This litigation involves a patent granted to Mr. Soma Sundaram Ram Kumar on a “Mobile telephone with a plurality of SIM cards allocated to different communication networks”. Mr. Ram Kumar sought to enforce the patent rights against a number of multinational and national importers including Hansum India, Samsung and Micromax.
Mr. Ram Kumar filed an application in the Chennai Patent office on March 4, 2002 containing 4 claims and 12 drawings and was allotted Patent Application No. 161/MAS/2002 which was granted in 2008. Mr. Ram Kumar, then filed an application under Rule 3 of the Intellectual Property Rights Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. Mr. Ram Kumar filed an application on December 8, 2008 with the Officer of Commissioner of Customs under the Customs Notification No. 47/2000 read with Circular No. 41/2007 Customs Circular dated 29.10.2007 called the Instructions for Implementation of Intellectual Property (Imported Goods) Enforcement Rules, 2007.
The first course of litigation before the Indian Courts was with respect to the constitutionality of the Rules. In this petition, Samsung raised the issue of lack of expertise of the Customs authorities. However, the petition had to be subsequently withdrawn for the lack of territorial jurisdiction.
The second course of litigation was before the Madras High Court, wherein Mr. Ram Kumar sought a restraining order against manufacturers such as Samsung, Mirco Electronics and Spice Mobile, restraining them from manufacturing and selling multiple SIM holding mobile phones.
The third course of litigation was before the customs authorities and highlights the concerns on behalf of the importers. The claims related to dual SIM which allowed simultaneous communication multiple headsets
The Chennai customs authority upheld the contentions of Hansum India Ltd. Holding that the claim 1 of Mr. Ram Kumar patent had limited scope. The claims, therefore, were held not to be infringed by the cell phones manufactured by Hansum since these cell phones used a single headphone/earphone jack. Similarly, the New Delhi customs authority, in an order dated 8th June, 2009, by J.P. Kundu, the Assistant Commissioner of Customs, found that claim made by Mr. Ram Kumar was vexatious and the impugned goods were covered by the prior art declared by him.
Against the orders of customs authorities, Mr. Ram Kumar filed writ petition in the Madras High Court, dismissing the petition, held that the proper forum for the redressal was the Customs Appellate Tribunal, an authority envisaged as the appellate authority under the Customs Act, 1962. Therefore, at present, the orders of the Customs administration allowing the clearance of the goods from the Mumbai, Chennai and Delhi ports stand affirmed and, the stand of the importers has been upheld.
The case involving parallel imports and trademarks in India, Cisco Techonology Vs Shrikhant the plaintiff’s employed sec. 29(6) (c) of custom act read with sec 140 defense and were successful in getting an exparte order directing the customs authorities to notify all ports to bar imports of defendant goods and also appointing a local commissioner to seize all goods bearing the mark in issue and inventory the same.
In the judgement of the Delhi High Court in Electronics Company Ltd. & Anr. vs G.Choudlhary & Anr defendants, who were the parallel importers were held liable for infringement of Trademark. The registered owner of the Trademark “Samsung” filed a suit against the defendants for importing from China and selling in cartridges and toners branded “Samsung” manufactured by the plaintiff itself in China. The plaintiff argued that although the products are genuine, they were not meant for Indian markets. The reasons by the plaintiff included that the descriptions that accompanied the products were in Chinese, there was no warranty offered and that the use of these products were likely to constitute a breach of warranty of other legally purchased machinery.
Bangalore Aug 10, 2003: Banashankari police arrested three software engineers for illegally copying software from a company they were working for. The accused enginners, who were working with the Ishoni Networks India Private Limited, had started a new company called Ample Wave Communication Network in Koramangala. They had illegally copied code of the company’s software and were using at their company, police said Ishoni Director Antonio Mario Alvares had lodged the complaint with Banashankari police. Police have seized four computers, four CPUs, four keyboards, one server and one laptop from the accused.
New Delhi Aug 28, 2002: Central Bureau of Investigation officials in New Delhi nabbed Shekhar Verma, a former employee of Mumbai-based Geometric Software Solutions Company and a computer engineer from the Indian Institute of Technology, Kharagpur. It turned out that Verma was accused of stealing $60 million worth of source code of a software product of Geometric Software’s US-based client, Solid Works, and trying to sell them to other companies for a fortune. The American firm has the exclusive rights over the software.
Summary of Indian Government Initiatives to Protect IPR :-
The Indian government has initiated various steps towards Intellectual Properties Rights Protection. Indian enforcement agencies are working effectively and there is a decline in the levels of piracy in India. In addition to intensifying raids against copyright violators, the Government has taken a number of measures to strengthen the enforcement of copyright law. A summary of these measures is given below:-
• The Government has brought out A Handbook of Copyright Law to create awareness of copyright laws amongst the stakeholders, enforcement agencies, professional users like the scientific and academic communities and members of the public. Copies of the Handbook have been circulated free-of-cost to the state and central government officials.
• National Police Academy, Hyderabad and National Academy of Customs, Excise and Narcotics conducted several training programs on copyright laws for the police and customs officers. Modules on copyright infringement have been included in their regular training programs.
• The Department of Education, Ministry of Human Resource Development, Government of India has initiated several measures in the past for strengthening the enforcement of copyrights that include constitution of a Copyright Enforcement Advisory Council (CEAC), creation of separate cells in state police headquarters, encouraging setting up of collective administration societies and organization of seminars.
• The Government also initiates a number of seminars/workshops on copyright issues. The participants in these seminars include enforcement personnel as well as representatives of industry organizations.
As a consequence of the number of measures initiated by the government, there has been more activity in the enforcement of copyright laws in the country. Over the last few years, the number of cases registered has gone up consistently.
As a laws concerning intellectual property are already in place, the need of the hour is a specialized and tactful judiciary, which can deal with intellectual property rights issues with aptness keeping the national interest in mind and ensure effectiveness of enforcement system. Rights holder should be encouraged to participate in enforcement actions. The quantum of damages awarded by the court should be such that they not only compensate the right holder for the losses suffered, but should also act as a deterrent for infringers form engaging in illegal activities. Infringers can also be directed to take corrective advertising to indemnify the loss caused to the good will of the right holder.