1) What is a copyright, explain the works in which copyright

subsists?

Copyright is a legal right created by the law of a country that

grants the creator of original work exclusive rights for its use and
distribution. This is usually only for a limited time. The exclusive
rights are not absolute but limited by limitations and exceptions
to copyright law, including fair use

It is a form of intellectual property protection granted under the Indian

Copyright Act 1957 to the creators of original works of authorship such as
literary works (including computer programmes, tables and compilations),
dramatic, musical and artistic works, cinematographic films and sound
recordings

Nature of Copyright Protection

Automatic

Copyright is an unregistered right which subsists automatically as soon as

the work that is eligible for protection is created and recorded on some
medium.
Originality

The work protected need not be new. However, it must be original in the
sense that it is not copied from some other source but is the result of an
application of effort by the creator of the work.
Exclusions

Copyright protects the expression of ideas but not the idea or concept
underlying a piece of work. For that reason, procedures, methods of
operation and mathematical concepts are excluded from copyright
protection.
Works in which Copyright subsists

Section 13 of the Act lists out the work, in which copyright subsists.

Subject to the provision of this section and the other provisions of this Act,
copyright shall subsists throughout India in the following classes of works,

a) Original literary, dramatic, musical & artistic work, b) Cinematograph

films, and
c) Sound recording.

Literary work

It includes computer programmes, tables, compilations including computer

database.

Dramatic work

It includes any piece for recitation, choreographic work or entertainment in

a dumb show, the scenic arrangement or acting form of which is fixed in
writing or otherwise but does not include a cinematograph film.

Musical work

Consists of music and includes any graphical notation of such work, but
does not include any works or any action intended to be sung, spoken or
performed with the music.
Artistic work

It means painting, a sculpture, a drawing, an engraving or a photograph,

whether or no any such work possesses artistic quality.

A work of ‘architecture’ means any building or structure having an artistic

character or design or any model for such building or structure.
Cinematograph film

Means any work of usual recording on any medium produced through a

process from which a moving image may be produced by any means and
includes a sound recording accompanying such visual recording and
‘cinematograph’ shall be construed as including any work produced by any
process analogous to cinematography including video films.
Sound recording

A recording of sounds from which such sounds may be re-produced

regardless of the medium on which such recording is made or method by
which the sounds are produced.
 Broadcasts: Radio and television broadcasts, online streaming, etc.

Typographical Arrangements: Layouts and formatting of published

editions.

In Gleeson v. Denne, (1975) RPC 471, it was held that, if one works hard
enough, walking down the streets, taking down the names of people who
live at houses and makes a street directory as a result of that labour, this
has been held to be an exercise sufficient to justify in making claim to
copyright in the work which is ultimately produced.

In Blackwood v. Parasuraman, AIR 1959 Madras 410, it was held that a

translation of a literary work is itself a literary work and is entitled to
copyright protection if it is original and the author has expended sufficient
labour and skill on it

___________________________________________________________

2) Rights of copyright holder with case laws?

Rights Conferred by the Copyright

Introduction :
Copyright is a legal right created by the law of a country that
grants the creator of original work exclusive rights for its use and
distribution. It is a form of Intellectual property right where protection is
granted to creators of original works of authorship such as literary works
(including computer programmes), dramatic, musical and artistic works,
cinematographic films and sound recordings . In India matters related to
Copyright are governed by the Copyright Act of 1957

The conditions that should be specifically kept in mind while interpreting

the state of ownership which decides the rights are provided statutorily
under Section 17 of copyright Act

1. For Literary works, dramatic or artistic works : The author who

creates them would be the first owner
2. For Works performed under contractual service as an employment :
Ownership lies upon the employer
3. In case of photographs shot for cinematographic films – ownership
lies at whose instance it has been taken
 4. Works done under a value of consideration – ownership lies on person
who pays for such work
5. For speech delivered at public – ownership lies on who delivers such
speech
6. If speech made on behalf of another person – The person who
assigned the work to deliver such speecj would be the owner of the
same
7. Works published or orders passed by the government or any
organization : Ownership lies on the government or the org which
has published it

Rights of owner of a Copyright

Two primary types of rights are conferred on the owner of copyrights –

Economic and moral rights recognized by the Copyright act of 1957 and
international conventions like TRIPS and Berne Convention

A. Economic rights are listed under Section 14 under meaning of

copyright

i. Right to reproduce work:

Copying from previously finished work, editing, modifying .
Example : Making copies of a book.

ii. Right to distribute in market:

Distribute in market for making money out of it, sale, lending for
free or consideration, rental or free distribution , gift etc

iii. Right to communicate to public:

Means making work available to public by broadcasting, simulating
or webcasting

Case Law : Indian Performing Right Society Ltd v Aditya Pandey

In this case the defendant was restrained from communicating any
works to public or performing them in the public without
appropriate authorization or licensing from the owner

iv. Right of adaptation:

Conversion, alteration, transcription, rearranging copyrighted
work etc
This right is exclusively available to musical , literary and dramatic
works and not available to computer programs

Case Law : Macmillan & Company Ltd. V K&K Cooper

 Defendants were as alleged by the Plaintiff, infringing the book
previously published by the plaintiff
Here the court analyzed the nature of the book and held that the
book did not meet the originality requirement and defendants
were not held for infringement

v. Right to Translate :
To any other language he wants

Case Law : CL Academy of General Education , Manipal v

Malini Mallya
Here the court held that mere adaptation of an idea from a book
into a different language or same, does not amount to act of
infringement and there must be substantial copy of work

B. Moral Rights
Section 57 of Copyright Act and article 6b of the Berne Convention
provide legal framework for moral rights

Moral rights are to safeguard personal and reputational interests

beyond monetary and commercial interests and to protect the
integrity of their work

i. Right of attribution / Paternity right

Right not to have their work falsely attributed. Right to prevent
others from claiming ownership as his. Right to have their name
included in reproduction or adaptations

ii. Right of Integrity:

To protect reputation of his own work

Case Law : Mannu Bhandari v Kala Motion pics ltd

The first landmark case

Mannu Bhandari, a famous Hindi language novelist wrote a

novel titled Aap ka Bunty
Defendant produced a motion picture titled Samay ka dhara
based on the novel
Plaintiff was not happy with how the work was adapted and
feard her reputation and image would be tarnished
The court directed defendant to make modifications . However
the order would not be enforced as the parties settled before
the judgement
 iii. Right to retraction
Right to take back previous assertion, give up his rights as an
act of honoring the dignity of his work

Case Law : Amarnath Sehgal v UOI

___________________________________________________________

3) What are the qualifying elements to be in existence in a work for

its copyrighting ability ?

Copyright is a legal right created by the law of a country that grants the
creator of original work exclusive rights for its use and distribution. This is
usually only for a limited time. The exclusive rights are not absolute but
limited by limitations and exceptions to copyright law, including fair use

It is a form of intellectual property protection granted under the Indian

Copyright Act 1957 to the creators of original works of authorship such as
literary works (including computer programmes, tables and compilations),
dramatic, musical and artistic works, cinematographic films and sound
recordings

Nature of Copyright Protection

Automatic

Copyright is an unregistered right which subsists automatically as soon as

the work that is eligible for protection is created and recorded on some
medium.
Originality

The work protected need not be new. However, it must be original in the
sense that it is not copied from some other source but is the result of an
application of effort by the creator of the work.
Exclusions

Copyright protects the expression of ideas but not the idea or concept
underlying a piece of work. For that reason, procedures, methods of
operation and mathematical concepts are excluded from copyright
protection.
Qualification for Copyright Subsistence

In order to qualify for copyright the work, apart from being original, should
also satisfy the following conditions (except in the case of foreign works) –

1. The work is first published in India.

2. Where the work is first published outside India, the author at the date

of publication must be a citizen of India. If the publication was made

after the author’s death the author must have, at the time of his
death, been a citizen of India.

3. In the case of unpublished work the authors is on the date of making

of the work, a citizen of India or domiciled in India. This however,
does not apply to works of architecture.
These provisions do not apply to foreign works or works of

International organizations. Section 40 of the Act empowers the Central

Government, by an order published in the official gazette, to bring foreign

works within the scope of the Copyright Act so that all or any of the
provisions of this Act shall apply to them.

___________________________________________________________

4) Explain the assignment and licensing of a copyright ?

Assignment of copyright: (SEC 18-20)

The owner of copyright work can generate wealth not only by exploiting it
himself but also by sharing it with others for mutual benefits. This can be
done by way of assignment or licensing of copyright.

Assignment of Copyright (Section 18): The owner of the copyright of a

work has the right to assign his copyright to any other person. The effect
of assignment is that the assignee becomes entitled to all the rights related
to the copyright to the assigned work. However, mere grant of right to
publish and sell the copyrighted work amounts to publishing right and not
assignment of copyright. Where the assignee of a copyright becomes
entitled to any right comprised in the copyright, he shall be treated as the
owner of the copyright in respect of those rights

The requirements for an assignment to be enforced are:

(a) It must be in writing.
(b) It should be signed by the Assignor.
(c) The copyrighted work must be identified and must specify the rights
assigned.
(d) It should have the terms regarding revision, royalty and termination.
(e) It should specify the amount of royalty payable, if any, to the author or
his legal heirs.

The Delhi High Court in Pine Labs Private Limited vs Gemalto Terminals
India Limited the Court has held that in case the duration of assignment is
not specified, the duration shall be deemed to be five years and after five
years the copyright shall revert to the author

LICENSING OF COPYRIGHT: The owner of copyright may grant a license

to do any of the act in respect of which he has an exclusive right to do. The
license can be classified into following categories:

Voluntary license (Section 30): The author or the copyright owner has
exclusive rights in his creative work and he alone has right to grant license
with respect to such work. According to section 30 of the Copyright Act
1957, the owner of the copyright in a work may grant any interest in his
copyright to any person by license in writing, which is to be signed by him
or by his duly authorised agent

Voluntary licenses can be:

Exclusive - The term exclusive license has been defined in Section 2(j)
as a license which
confers on the licensee and persons authorized by him, to the exclusion of
all other persons, any right comprised in the copyright work.

Non-exclusive – It does not confer right of exclusion. It is mere grant

of an authority to do aparticular thing which otherwise would have
constituted an infringement. When owner grants an exclusive right, he
denudes himself of all rights and retains no claim on the economic rights
so transferred.

Co-exclusive – Here the licensor grants a license to more than one

licensee but agrees that it will only grant licenses to a limited group of other
licensees.

Sole license – Where only the licensor and the licensee can use it to
the exclusion of any other third party.
 Implied license – Author impliedly allows or permits the use of his
work. For example, he has knowledge that someone is using his work but
he did not take any action

___________________________________________________________

5) what is a compulsory license? Who can issue it and when? And

when can it be revoked?

COMPULSORY LICENSING: A compulsory license is a term generally

applied to a statutory license to do an act covered by an exclusive right
without the prior authorization of the right owner. Compulsory licensing
allows for the use of protected (in this case, copyrighted material) without
the prior permission of the owner of the right.
Section 31 of the Indian Copyright Act provides for the compulsory licensing
of copyright in case of works that are withheld from the public. In case the
copyright owner has refused to:
Republish or allow for the republication of the work or has refused to
allow for the performance of the work in public due to which the work is
withheld from the public;

Allow communication of the work to the public by way of a broadcast of

such work, or in the case of sound recording the work recorded in such
sound recording on terms which the complainant considers reasonable, The
Copyright Board can, after providing a reasonable opportunity for the owner
of the copyright to be heard and after conducting an enquiry and if satisfied,
can direct the Registrar of Copyrights to grant a compulsory license to the
complainant to republish the work, broadcast the work or communicate it
to the public as the case may be. Upon such direction, the Registrar of
Copyrights shall grant the license to the complainant.

Further, a compulsory license can also be granted in case of unpublished

Indian works. Section 31A provides for the same. In case of an unpublished
work wherein the author is dead or unknown or cannot be traced, any
person may apply to the Copyright Board seeking a license to publish such
work.

❖ In the case of Entertainment Network (India) Ltd. v. Super Cassette

Industries Ltd., Radio Mirchi was playing music, and Super Cassette
Industries held the rights of it. The music company filed for a permanent
injunction. While the suit was pending, the FM operators applied to the
Copyright Board for the grant of a compulsory license under Section
31(1)(b) of the Copyright Act.
The question that arose here was whether in such a particular
circumstance, granting of a compulsory license was viable. The
broadcasters, i.e., Radio Mirchi, argued that since a license had already
been granted to AIR and Radio City, there were no grounds on which a
license to Radio Mirchi should be denied.
The Court held that since a compulsory license can be granted on grounds
stated in Section 31A of the Copyright Act, i.e., only when access to the
work has been denied to the public. In this case, the license had already
been granted to AIR and Radio City. Therefore, it was not barred to public
access. Thus, the argument of Radio Mirchi holds no water, and they were
liable for infringement of copyright.

Why is compulsory licensing so important ?

The primary objective of compulsory licensing is to

ensure the availability of copyrighted material. The Indian Copyright Act
grants protection to the works of writers, artists, etc. so that they can
benefit from the results of their hard work and creativity.
However, this comes at a price i.e.; the work should be available for access
and fair use for other individuals. There are times when copyright owners
refuse to part from their work.

In such a case, in order to ensure the availability of copyrighted material

to the public and
free flow of ideas and information without infringing the rights of the
copyright owner, compulsory licensing becomes a necessity.

___________________________________________________________

6) What is infringement? Explain the factors determining

infringement

Infringement of Copyright
The purpose of recognizing and protecting the copyright of an author is to
statutorily protect his work and inspire him to exercise his creativeness
further.

A copyright confers exclusive right on the copyright owner .These rights are
conferred on the owner of the copyright to enable him to reap monetary
benefits. If any of the above acts are carried out by a person other than
the owner of copyright, without a licence from the owner, it constitutes
infringement of the copyright

Acts Constitute Infringement

Since the forms of creative works are numerous, the acts which would
constitute infringement would depend upon the nature of the work.

Section 51 of the Act defines infringement of a copyright not specifically

with respect to each kind of creative work, but in general terms. According
to Section 51 of the Act, copyright in a work shall be deemed to be
infringed:

a) When any person without a licence from the owner or the Registrar of
Copyrights does anything, the exclusive right to do which is by this Act
conferred upon the owner of copyright

b) When any person:

i) Makes for sale or hires or sells or lets for hire or by way of trade
displays or offers for sale or hire any infringing copies of the work
covered by copyright; or Distributes , Exhibits in public Illustration

A printer takes a copy of the latest book released by another publishing

house, makes copies of the same and circulates them in the market. His
act amounts to infringement

An Act whether infringement or not – Factors to be Considered

In judging whether an act would amount to infringement or not the facts

which are taken into consideration are:
i) Whether copying has a casual connection, deliberately made or is a
unintentional, indirect copying. Casual connection can be found where the
infringer has some overt motive to produce a copy, for instance reaping
monetary reward.

Illustration

A poem is copied verbatim by another & published in his own name. a third
person borrows the idea of the poem & paraphrases it. In the first case, the
person is directly infringing the copyright. In the latter case, infringement
may be indirect depending upon the degree of similarity between the two
works. Both cases, however, involve infringement.

ii) In determining whether an act amounts to infringement the extent of

defendant’s alteration of the original work; the manner in which defendant
attempts to take advantage of the plaintiff’s work; the nature and extent
of plaintiff’s effort involved in the original work; are the material factors
considered.

Acts not constitute infringement – Statutory Exception

The use of a copyright work by any person other than the owner of
copyright is an infringement. However, the Copyright Act recognizes certain
acts which though done by a person other than the owner of copyright
would not amount to infringement of the copyright.

Section 52 lists the acts which do not constitute infringement of copyright.

These are:
i. A fair dealing with a literary, dramatic, musical or artistic work – for
private purpose like research criticism or review, making copies of
computer programmes.

ii. Reproduction of judicial proceedings and reports – exclusively for the use
of members of legislature.

iii. Reading or recitation in public of extracts of literary or dramatic work.

iv. Publication in a collection for the use in educational institutions in certain
circumstances.

iv. Publication in a collection for the use in educational institutions in certain

circumstances.

v. Reproduction by teacher or pupil in the course of instructions or in

question papers or answers.
7) Short Note – Copyright Board

Copyright Board

The Copyright Board, a quasi-judicial body, was constituted in September

1958. The jurisdiction of the Copyright Board extends to the whole of India.
The copyright board is a body constituted by the central govt. to discharge
certain judicial function under the Act. [1] The Board is entrusted with the
task of adjudication of disputes pertaining to copyright registration,
assignment of copyright, grant of Licenses in respect of works withheld
from public, unpublished Indian works, production and publication of
translations and works for certain specified purposes. It also hears cases in
other miscellaneous matters instituted before it under the Copyright Act,
1957

Composition

It consists of a chairman and not more than fourteen other members. [2]

The Chairman and the members shall hold their office for five years. They

may be reappointed on the expiry of the tenure. [3] The chairman of the

copyright board must be a person who is or has been judge of a High Court

or is qualified for appointment as a judge of a High Court. [4] There is no

qualification mentioned about the members of the Board.

Powers

The Registrar of Copyright and the Copyright Board have the powers of a
civil court in respect of the following matters: [9]

(a) Summoning & enforcing the attendance of any person and examining
him on oath (this jurisdiction extends to the whole of India); [10]

(b) Requiring the discovery and production of any document;

(c) Receiving evidence on affidavit;

(d) Issuing commission for the examination of witnesses and document;

(e) Requisitioning any public record or copy thereof from any court or
office;

(f) Any other matter which may be prescribed.

Functions of Copyright Board

The first and foremost function of the copyright board is to look after
whether the provisions of the Act are followed without any violation or
infringement and to adjudicate certain cases pertaining to copyrights.

Other than this, the copyright board has been provided direct jurisdiction
in relation to matters:

(1) To decide the issue of publication and its date in order to determine
the term of copyright [11]

(2) To decide the term of copyright which shorter in any other country
than that provided in respect of that work under the Act [12] (The decision
of the Copyright board on the above question will be final)

(3) To settle disputes related to assignment of copyright [13]

(4) To grant compulsory licenses for Indian work [14]

(5) To grant compulsory licenses to publish the unpublished work [15]

___________________________________________________________

8) SN Computer software and copyright

Introduction

Copyright was usually associated with artistic products, but today in

addition to all this copyright is now an important tool in protecting computer
software.
In the 1970s and 1980s, there were extensive discussions on whether the
patent system, the copyright system, or a sui generis system, should
provide protection for computer software.

These discussions resulted in the generally accepted principle that

computer programs should be protected by copyright, whereas apparatus
using computer software or software-related inventions should be
protected by patent.

Indian Law

In India, computer software does not form the subject matter of patents as
it does not fulfill the requirements for a patentable product. India has
adopted most of the international instruments like TRIPS, Berne
Convention, WIPO Copyright treaty etc and has also incorporated law on
software protection. The major statutes that cover software protection in
India are the Copyrights Act, 1957 and Patents Act, 1970.

The Act defines computer and computer programs. “Computer Program”

means a set of instructions expressed in words, codes, schemes or in any
other form, including a machine readable medium, capable of causing a
computer to perform a particular task or achieve a particular result.
“Literary work” is defined as that which includes computer programs, tables
and compilations including computer databases. Copyright, in relation to a
computer program means the exclusive right to do or authorize to do any
of the following acts :

To reproduce the work in any material form including the storing of it in

any medium by electronic means;
To issue copies of the work to the public not being copies already in
circulation; To perform the work in public, or communicate it to the public;
To make any cinematographic film or sound recording in respect of the
work; To make any translation of the work;
To make any adaptation of the work;

To do any of the above acts related to the computer program or to use it,
a license is required from its owner. Any person who knowingly makes use
of an infringing copy of a computer program is liable to be punished with
imprisonment for a term of at least seven days and can be extended to
three years and with fine of at least Rs. 50,000.
 UNIT II

1) Explain the salient features of bio-diversity act of 2002?

Background of the Act

After the Convention on Biological Diversity (CBD) was adopted by the

United Nations, in June 1992, the contracting countries were required to
integrate consideration of conservation and sustainable use of biological
diversity into relevant legal procedures, programmes and policies.

The Biological Diversity Act was passed by the Parliament in 2002 after a
process of consultation among stakeholders. The Act provides for
conservation of biological diversity, sustainable use of its components and
equitable sharing of benefits arising out of the use of biological resources.

Salient Provisions of the Act

Some of the salient provisions made in the BDA for regulation of access to
biological diversity, its conservation and sustainable use are:
1. Conservation and sustainable use of biological diversity.
2. Conservation and development of areas important from the standpoint
of biological diversity by declaring them as biological diversity heritage
sites.
3. Protection and rehabilitation of threatened species.
4. To respect and protect knowledge of local communities related to
biodiversity.
5. Regulation of access to biological resources of the country with the
purpose of securing equitable share in benefits arising out of the use of
biological resources, and associated knowledge relating to biological
resources.
6. To secure sharing of benefits with local people as conservers of biological
resources and holders of knowledge and information relating to the use of
biological resources.
7. Involvement of institutions of self-government in the broad scheme of
the implementation of the Act through constitution of committees.

Agro-biodiversity which is a subset of total biological diversity is a major

concern for the world food security and the issues of conservation and
Therefore, the sustainable use of biological diversity at the national as well
as international level is of critical importance For the same reason, the
access to and sharing of both genetic resources and technologies for their
sustainable use among nations are essential.
2) Explain the powers, functions and composition of state bio-

diversity board?

State Biodiversity Board

SBB would be constituted for every state in India to deal with matters
relating to access by Indians for commercial purposes and restrict any
activity which violates the objectives of conservation, sustainable use and
equitable sharing of benefits.

Functions of State Biodiversity Board (Section – 23)

The functions of the State Biodiversity Board shall be to–

(a) advise the State Government, subject to any guidelines issued by the
Central Government, on matters relating to the conservation of
biodiversity, sustainable use of its components and equitable sharing of the
benefits arising out of the utilization of biological resources;

(b) regulate by granting of approvals or otherwise requests for commercial

utilization or bio-survey and bio-utilization of any biological resource by
Indians;

(c) perform such other functions as may be necessary to carry out the
provisions of this Act or as may be prescribed by the State Government.

Power of State Biodiversity Board to restrict certain activities

Section – 24

1) Any citizen of India or a body corporate, organization or association

registered in India intending to undertake any activity referred to in Section
7 shall give prior intimation in such form as may be prescribed by the State
Government to the State Biodiversity Board.

2) On receipt of an intimation under sub-section (1), the State Biodiversity

Board may, in consultation with the local bodies concerned and after
making such enquires as it conservation, may deem fit, by order, prohibit
or restrict any such activity if it is of opinion that such activity is detrimental
or contrary to the objectives of conservation and sustainable use of
biodiversity or equitable sharing of benefits arising out of such activity:
Provided that no such order shall be made without giving an opportunity of
being heard to the person affected.
3) Any information given in the form referred to in sub-section (1) for prior
intimation shall be kept confidential and shall not be disclosed, either
intentionally or unintentionally, to any person not concerned thereto.

Constitution of SBB – Section 22(4)

The Board shall consist of the following members, namely:

a) A Chairperson who shall be an eminent person having adequate
knowledge and experience in the conservation and sustainable use of
biological diversity and in matters relating to equitable sharing of benefits,
to be appointed by the State Government;
b) Not more than five ex officio members to be appointed by the State
Government to represent the concerned Departments of the State
Government;
c) Not more than five members to be appointed from amongst experts in
matters relating to conservation of biological diversity, sustainable use of
biological resources and equitable sharing of benefits arising out of the use
of biological resources.

The head office of the State Biodiversity Board shall be at such place as the
State Government may, by notification in the Official Gazette, specify.

___________________________________________________________

3) Define the constitution , powers and functions of national bio-

doversity authority ?

The Biological Diversity Act, 2002 was born out of India’s attempt to realise
the objectives enshrined in the United Nations Convention on Biological
Diversity (CBD) 1992 which recognizes the sovereign rights of states to use
their own Biological Resources.

The Act aims at the conservation of biological resources, managing its

sustainable use and enabling fair and equitable sharing benefits arising out
of the use and knowledge of biological resources with the local
communities.
According to Sec.2(b) of the act, The biodiversity means the variability
among living organisms from all sources and the ecological complexes of
which they are part and includes diversity within species or between species
and of ecosystems

According to Sec.2(c) of the act, The biological resources means the plants,
animals and micro- organisms or parts thereof, their genetic material and
by-products (excluding value added products) with actual or potential use
or value, but does not include human genetic material.

The National Biodiversity Authority (NBA) was established in 2003 by the

Central Government to implement India’s Biological Diversity Act (2002).
It is a Statutory body that performs facilitative, regulatory and advisory
functions for the Government of India on the issue of Conservation and
sustainable use of biological resources.

The NBA has its Headquarters in Chennai, Tamil Nadu, India.

STRUCTURE OF THE NBA: The National Biodiversity Authority consists of

the following members to be appointed by the central government, namely:

A Chairperson.
Three ex officio members, one representing the Ministry dealing with
Tribal Affairs and tworepresenting the Ministry dealing with Environment
and Forests.
Seven ex-officio members to represent respectively the Ministries of the
Central Government
dealing with:
1. Agricultural Research and Education
2. Biotechnology
3. Ocean Development
4. Agriculture and Cooperation
5. Indian Systems of Medicine and Homoeopathy
6. Science and Technology
7. Scientific and Industrial Research;
Five non-official members to be appointed from amongst specialists and
scientists having
special knowledge and experience in the required matters.

FUNCTIONS OF THE NBA

Creating an enabling environment, as appropriate, to promote
conservation and sustainable use
of biodiversity.
Advising the central government, regulating activities and issuing
guidelines for access to
biological resources and for fair and equitable benefit sharing in accordance
with the Biological
Diversity Act, 2002.
Taking necessary measures to oppose the grant of intellectual property
rights in any country
outside India on any biological resource obtained from India or knowledge
associated with such
biological resources derived from India illegally.
Advising the State Governments in the selection of areas of biodiversity
importance to be
notified as heritage sites and suggest measures for their management.

___________________________________________________________

4) Who is a Benefit claimer ? How can benefit-sharing be given

effect to under
Biodiversity Act, 2002 ?

Ans: According to Section 2 (a) of the Biodiversity Act, 2002, "benefit

claimers" means thenconservers of biological resources, their byproducts,
creators and holders of knowledge and information relating to the use of
such biological resources, innovations and practices associated with such
use and application.

Benefit Sharing: It is the equitable sharing of the benefits (both monetary

and non-monetary), arising out of the use of accessed biological resources,
their by-products, innovations and practices associated with their use and
applications and knowledge relating thereto in accordance with mutually
agreed terms and conditions between the person applying for such
approval, local bodies concerned and the benefit claimers.

As per Biological Diversity Act, 2002, benefits can be shared by means of

– grant of joint ownership of intellectual property right; transfer of
technology; location of production, research and development unit in such
areas, which will facilitate better loving standards to the benefit claimers;
association of Indian scientist, benefit claimers and local people with
research and development in biological resources and bio-surveys and bio-
utilizations; setting up of venture capital fund for aiding the cause of benefit
claims; and monetary and non-monetary benefits.

Benefit Sharing and Biological Diversity Act, 2002: The law relating to
benefit sharing in cases of utilization of genetic resources is further clarified
by the Biological Diversity Act, 2002 legislated in compliance with the
requirements of CBD to which Indian is a signatory.

The Act ensures that there is no piracy of the biodiversity of the Country.
Previous approval of the NBA should be obtained for obtaining any
biological resource occurring in India orknowledge associated thereto for
research or for commercial utilization or for bio-survey & bio-utilization.

An application along with a fee of Rs. 10,000 shall be made for obtaining
approval.
Approval shall also be obtained for transferring the results of any research
relating to biological resources occurring in, or obtained from, India. This
provision is applicable to –
a) A person who is not a citizen of India,
b) A citizen of India, who is non-resident as defined in clause (30) of Section
2 of the Income Tax
Act, 1961
c) A body corporate, association or organization
i. not incorporated or registered in India; or
ii. incorporated or registered in India under any law for the time being in
force which has any non-Indian participation in its share capital or
management.
The Authority after being satisfied of the merits of the application grants
the approval for access to biological resources & associated knowledge
subject to such terms & conditions as it may deem fit to impose. The
approval to access shall be in the form of a written agreement duly signed
by the authorized officer of the Authority and the applicant.

___________________________________________________________

5) Explain the functions of bio-diversity management committee?

According to Section 41 of the Act, every local body shall constitute the
BMC within its area
for the purpose of promoting conservation, sustainable use and
documentation of biological diversity
including:

Preservation of habitats
Conservation of Landraces
Folk varieties and cultivars
 Domesticated stocks And breeds of animals
Microorganisms And Chronicling Of Knowledge Relating To Biological
Diversity

Functions of BMC
To prepare the People’s Biodiversity Register in consultation with the
local people.
The PBRs focus on participatory documentation of local biodiversity,
traditional knowledge and practices. They are seen as key legal documents
in ascertaining the rights of local people over the biological resources and
associated traditional knowledge.
The register shall contain comprehensive information on the availability
and knowledge of local biological resources, their medicinal or any other
use or any other traditional knowledge
associated with them.
To provide education and awareness on Biodiversity building
Eco‐restoration of the local biodiversity
Providing feedback to the SBB in the matter of IPR, Traditional
Knowledge and local
Biodiversity issues, wherever feasible and essential feedback to be provided
to the NBA.
Conservation of traditional varieties/breeds of economically important
plants/animals. Management of Heritage Sites including Heritage Trees,
Animals/ Microorganisms, etc., and
Sacred Groves and Sacred Waterbodies.

Structure
A chairperson and not more than 6 persons nominated by the local body.
Out of total members of a BMC, not less than one third should be women
and not less than 18% should belong to the Scheduled Castes/ Scheduled
Tribes.
The Chairperson of the BMC shall be elected from amongst the members
of the committee in a meeting to be chaired by the Chairperson of the local
body.
The chairperson of the local body shall have the casting votes in case of
a tie.

___________________________________________________________
6) Write a note on meaning , scope and issues of bio-diversity?

Introduction

Biodiversity is a generic term that can be related to many environments

and species, for example, forests, freshwater, marine and temperate
environments, the soil, crop plants, domestic animals, wild species and
micro-organisms.

Biodiversity or Biological diversity is a term that describes the variety of

living beings on earth. In short, it is described as degree of variation of life.
Biological diversity encompasses microorganism, plants, animals and
ecosystems such as coral reefs, forests, rainforests, deserts etc.

MEANING AND SCOPE OF BIOLOGICAL DIVERSITY Meaning & Scope

Biological Diversity

Most straightforwardly, biological diversity or biodiversity is ‘the variety of

life’, and refers collectively to variation at all levels of biological
organization. Thus, one can, for example, speak equally of the biodiversity
of some small or large part of an area, of the area as a whole, of the several
areas in a region, of a continent or an ocean basin, or of the entire Earth.

Many more formal definitions of biological diversity or biodiversity have

been proposed, which develop this simple one. Of these, perhaps the most
important and far-reaching is that given in Article 2 the Convention on
Biological Diversity.

“Biological diversity’ means the variability among living organisms from all
sources including, inter alia, terrestrial, marine and other aquatic
ecosystems and the ecological complexes of which they are part; this
includes diversity within species, between species and of ecosystems.”

The variety of life is expressed in a number of different ways. Some sense

of this variety can begin to be made by distinguishing between different
key elements. These are the basic building blocks of biodiversity. They can
be divided into three groups:

i. Genetic Diversity;
ii. Organismal Diversity; and
iii. Ecological Diversity
Genetic Diversity

Genetic diversity encompasses the components of the genetic coding that

structures organisms and variation in the genetic make-up between
individuals within a population and between populations.

Ecological diversity

Anecological nicheis the role and position a species has in its environment
- how it meets its needs for food and shelter, how it survives, and how it
reproduces. A species' niche includes all of its interactions with the biotic
and abiotic factors of its environment.
Organismal Diversity

Biological classification, or scientific classification in biology, is a method

ofscientific taxonomyused to group and categorize organisms
hierarchically. Rank-based systems use a fixed number of levels in the
hierarchy, such as kingdom, family, genus or species. Rankless

Biological Diversity: Concerns and issues

1. Loss of Biodiversity and Extinctions

It has long been feared that human activity is causing massive extinctions.
Despite increased efforts at conservation, it has not been enough and
biodiversity losses continue. The costs associated with deteriorating or
vanishing ecosystems will be high. However, sustainable development and
consumption would help avert ecological problems.

2. Nature and Animal Conservation

Preserving species and their habitats is important for ecosystems to self-

sustain themselves.

Yet, the pressures to destroy habitat for logging, illegal hunting, and other
challenges are making conservation a struggle.
3. Effect of Climate Change on Biodiversity

Rapid global warming can affect on ecosystems chances to adapt naturally.

The Arctic is very sensitive to climate change and already seeing lots of
changes. Ocean biodiversity is already being affected as are other parts of
the ecosystem.

4. Endangered Coral Reefs

One type of ecosystem that perhaps is neglected more than any other is
perhaps also the richest in biodiversity—the coral reefs.

Coral reefs are useful to the environment and to people in a number of

ways. However, all around the world, much of the world’s marine
biodiversity face threats from human and activities as well as natural. It is
feared that very soon, many reefs could die off.

5. Addressing Biodiversity Loss

At the 1992 UN Conference on Environment and Development (the "Earth

Summit"), the Convention on Biological Diversity (CBD) was born. 192
countries, plus the EU, are now Parties to that convention. In April 2002,
the Parties to the Convention committed to significantly reduce the loss of
biodiversity loss by 2010.

Perhaps predictably, that did not happen. Despite numerous successful

conservations measures supporting biodiversity, the 2010 biodiversity
target has not been met at the global level.

___________________________________________________________

7) Enumerate the objectives of convention on bio-diversity ?

What is the United Nations Convention on Biological Diversity

(UNCBD)?

The United Nations Convention on Biological Diversity, informally known as

the Biodiversity Convention, is a multilateral treaty opened for signature at
the Earth Summit in Rio De Janeiro in 1992. It is a key document regarding
sustainable development. It comes under the United Nations Environment
Programme (UNEP)

• 196 countries are a party to the CBD.

• India is also a party to the Convention. India ratified it in 1994.
• The Biological Diversity Act, 2002 was enacted for giving effect
to the provisions of the Convention.
 • To implement the provisions of the Act, the government
established the National Biodiversity Authority (NBA) in 2003.
The NBA is a statutory body.
• The convention is legally binding on its signatories.
• The Conference of Parties (COP) is the governing body of the
convention. It consists of the governments that have ratified the
treaty.
• Its Secretariat is in Montreal, Canada.
• Only two member states of the United Nations are not Parties to the
CBD, namely: the USA and the Vatican.

The Convention on Biological Diversity (CBD), adopted at the Earth Summit

in Rio de Janeiro in 1992, has several key objectives aimed at promoting
conservation, sustainable use, and equitable sharing of the benefits arising
from biodiversity. Here are the main objectives of the CBD:

1. Conservation of Biodiversity: The primary objective is to conserve

biodiversity, including ecosystems, species, and genetic diversity.
This involves maintaining the variety and variability of life forms on
Earth.
2. Sustainable Use of Biodiversity: Encouraging the sustainable use
of biological resources to meet current and future human needs. This
includes ensuring that the utilization of biodiversity does not lead to
the long-term decline of biodiversity.
3. Fair and Equitable Sharing of Benefits: Promoting fair and
equitable sharing of benefits arising from the utilization of genetic
resources, notably those that are accessed from areas of high
biodiversity.
4. Access to Genetic Resources and Transfer of Technology:
Facilitating access to genetic resources and ensuring the transfer of
appropriate technologies relevant to the conservation and sustainable
use of biodiversity.
5. Awareness-Raising and Education: Increasing awareness and
understanding of the importance of biodiversity and its conservation
among governments, businesses, and the general public.
6. Capacity-Building: Enhancing the capacity of countries, particularly
developing countries, to conserve biodiversity and use it sustainably.
7. Cooperation: Promoting international cooperation among nations
and organizations to achieve the objectives of the Convention
effectively.

These objectives are interconnected and aim to address the challenges

posed by biodiversity loss, ecosystem degradation, and unsustainable
practices that threaten both biodiversity and human well-being.
8) SN Traditional Knowledge

Introduction

The indigenous people of the world possess an immense knowledge of their

environments, based on centuries of living close to nature. Traditional
knowledge (TK)- knowledge system held by indigenous communities, often
relating to their surrounding natural environment like agriculture
knowledge, scientific knowledge, technical knowledge, ecological
knowledge, medicinal knowledge.

Traditional knowledge is practical common sense based on teachings and

experiences passed on from generation to generation. It covers knowledge
of the environment and the relationships between things. As the

elders die, the full richness of tradition is diminished, because some of it

has not been passed on and so is lost.

Key Characteristics of Traditional Knowledge

1. It is preserved and transmitted in a traditional context from generation

to generation.
2. It pertains to a particular traditional or indigenous people or community
3. It is not static, but rather evolves as communities respond to new
challenges and needs

4. It may be collective or individual in nature.

• About 370 million indigenous and tribal people all around the world are
the real custodian and holders of traditional knowledge
• Up to 80% of the world’s population depends on traditional medicine for
its primary health care • This knowledge is indispensable for the poorest
segments of society
• Traditional knowledge also prevents land and soil
degradation, fisheries depletion, biodiversity erosion and deforestation
 UNIT III

1) Explain the conditions required for registration of new plant

varieties, when can it be published? Procedure for registration

The TRIPS Agreement states that "Members shall provide for the protection

of plant varieties either by patents or by an effective sui generis system or

by any combination thereof." In order to fulfil its obligations under the

TRIPS Agreement, India has implemented the Protection of Plant Varieties

and Farmers' Rights Act, 2001. This Act has been passed in order to provide

for the establishment of an effective system for protection of plant

varieties,the rights of farmers and plant breeders, and to encourage the

development of new varieties of plants. The Act helps to stimulate

investment for research and development to produce new plant varieties.

Such protection is also likely to facilitate the growth of the seed industry

that will ensure the availability of high quality seeds and planting material

to the farmers.

Registration of a plant variety gives protection only in India and confers

upon the rights holder, its successor, agent, or licensee the exclusive right

to produce, sell, market, distribute, import, or export the variety.

Who can Apply and What can be Registered

The application for protection under the Act can be made by any of the

following

persons:

• Any person claiming to be the breeder of the variety;

• Any successor of the breeder of the variety;

• Any person being the assignee or the breeder of the variety in respect of

the

right to make such application;

• Any farmer or group of farmers or community of farmers claiming to be

breeder

of the variety;

• Any person authorized to apply on behalf of farmers; or

• Any university or publicly funded agricultural institution claiming to be

breeder of the variety. (sec 14)

Criteria for registration:

Conditions Required for Registration of New Plant Varieties:

 1. Novelty: The plant variety must be new, meaning that it should not
have been commercialized or sold in India prior to the date of filing
the application for registration. It should also be distinct, uniform,
and stable.
2. Distinctiveness: The plant variety must be distinct from any other
known varieties in at least one important characteristic, such as its
morphology, genetic makeup, or performance.
3. Uniformity: The plant variety should be sufficiently uniform in its
relevant characteristics, ensuring consistency in its key traits when
propagated.
4. Stability: The plant variety should remain unchanged in its essential
characteristics after repeated propagation or at the end of a particular
cycle of propagation.
5. Value for Cultivation and Use (VCU): For certain crops, the
variety must also demonstrate its value for cultivation and use,
showing that it is superior or at least comparable to existing varieties
in terms of agronomic performance, yield, disease resistance, etc.
6. Duly Filed Application: An application for the registration of a plant
variety must be filed with the Protection of Plant Varieties and
Farmers' Rights Authority (PPV&FRA) along with the prescribed fee
and supporting documentation.

Publication of Registered Plant Varieties:

Once a plant variety is registered under the PPV&FR Act, it can be published
in the Plant Varieties Journal. Here are the circumstances under which a
registered plant variety can be published:

1. Upon Registration: After the PPV&FRA approves the application and

registers the plant variety, it publishes the details of the registered
variety in the Plant Varieties Journal. This publication includes
information such as the name and address of the breeder, the
characteristics of the variety, and any conditions or limitations on its
use.
2. Expiry of Secrecy Period: In some cases, there may be a secrecy
period during which the details of the variety are kept confidential to
protect the breeder's interests. Once this period expires or if the
breeder waives confidentiality, the variety's registration details are
published in the Plant Varieties Journal.

Dow Agrosciences LLC v. Precision Electronics Ltd. & Ors. (2008):

• Issue: This case involved disputes over the protection of plant

varieties and the unauthorized use of registered plant varieties.
• Judgment: The Delhi High Court addressed issues related to the
infringement of plant breeders' rights and the enforcement of
intellectual property rights in agricultural products. It highlighted the
 importance of legal protection for plant varieties and the rights of
breeders under the PPV&FR Act.

Registration Procedure
Rights holders can apply for the registration of a new variety either
directly or through their agents. The Office of the Registrar, Protection of
Plant Varieties and Farmers' Rights Authority is the appropriate office for
filing of the application in India. The different steps that are involved in the
registration process in India are as follows:

1) Completing the application form and filing

The Applicant has to file the prescribed form with the requisite fee in
the Office of the Registrar. The Applicant can make an application to
the Registrar for registration of any variety of such genera and species
as specified under sub-section (2) of Section 29 or which is an extant
variety or which is a farmer's variety. An agent can complete and sign
the application form, provided that the Applicant has issued a signed
Power of Attorney appointing them as the agent. The application has
to be in respect to a variety and state the denomination assigned to
such variety by the Applicant. It has to be accompanied by an affidavit
sworn by the Applicant that such variety does not contain any gene or
gene sequence involving terminator technology and also a statement
containing brief description of the variety bringing out its
characteristics of novelty, distinctiveness, uniformity and stability. The
application should also contain a complete passport data of the
parental lines from which the variety has been derived along with the
geographical location in India from where the genetic material has
been taken and all such information relating to the contribution, if any,
of any farmer, village community, institution, or organization in
breeding, evolving, or developing the variety. It should also contain a
declaration that the genetic material or parental material acquired for
 breeding, evolving, or developing the variety has been lawfully
acquired.

The Applicant must, along with the application for registration under
this Act, also make available to the Registrar such quality of seeds of
a variety for registration of which such application is made so that the
Registrar can conduct tests to evaluate whether seeds of such variety
along with parental material conform to the standards as may be
specified by regulations. The Applicant should also deposit the
requisite fees for conducting such tests.

2) Review by the Registrar

After the application has been filed, the Registrar will accept the
application absolutely or subject to certain conditions or limitations,
after reviewing the application and making such inquiry as he deems
fit. Should the Registrar not be satisfied with the particulars as
mentioned in the application, he can either direct the Applicant to
amend the application or in the alternative reject the application.

3) Publication and Opposition

After the Registrar accepts the application either absolutely or subject

to any conditions, it will be advertised in the prescribed manner along
with its photographs or drawings. Within three months of the
publication of this application, any person may give notice of his
opposing the application to the Registrar in the prescribed format. Any
person can oppose the application on the following grounds:
• The person opposing the application is entitled to the breeder's
right as against the Applicant;
• The variety is not registerable under the Protection of Plant
Varieties & Farmers' Rights Act, 2001 Act;
 • The registration of this variety will not be in public interest; or
• The variety may have adverse effect on the environment.
After following the prescribed procedure of serving the Notice of Opposition
to the Applicant, perusing the evidence as filed by both the parties and
hearing both the parties, the Registrar will either allow or reject the
opposition.

4) Registration
When an application for registration of a variety (other than an
essentially derived variety) has been accepted and not opposed or
opposed but the opposition has been rejected; the Registrar will issue
a certificate of registration to the Applicant. A person aggrieved by the
decision of the Protection of Plant Varieties and Farmers' Rights
Authority or the Registrar can file an appeal before the Plant Varieties
Protection AppellateTribunal.

5) Term of Registration
The certificate of registration issued by the Registrar is valid for
eighteen years from the date of registration of the variety in the case of
vine and trees, fifteen years from the date of notification of that variety
(under Section 5 of the Seeds Act, 1966) by the Central Government in the
case of extant varieties and for a period of fifteen years from the date of
registration of the variety in other cases. However, the certificate of
registration is valid for a period of nine years in the case of trees and vines
and six years in the case of other crops. The Registrar may review and
renew this registration for the remaining term on payment of the prescribed
fee.

6) Revocation
There are certain circumstances in which the protection that has
been granted to a rights holder can be revoked. These circumstances
in which the same can be done are enumerated below:
 • The grant of the certificate of registration has been based on
incorrect information furnished by the rights holder;

• The registered proprietor is not eligible for protection;

• The rights holder has not provided the Registrar with such
information and documents as are required under the Act;

• The rights holder has not provided the Registrar with an

alternative denomination, which could be used in case the
denomination provided by the rights holder is not available;

• The rights holder has not provided the necessary seeds or

propagation material to the person to whom a compulsory license
has been issued;

• The rights holder has not complied with the provisions of the
Actor the accompanying Rules;

• The rights holder has not complied with the directions of the
Protection of Plant Varieties and Farmers' Rights Authority; or

• The grant of the certificate is not in public interest.

The Registrar also has the authority to either cancel or rectify the
registration on an application made by an aggrieved person.

___________________________________________________________
2) Explain the powers and functions of plant varieties and farmer rights
authorities ?

Introduction

The Protection of Plant Varieties and Farmers’ Rights Act 2001 was enacted
in India to protect the new plant varieties. Rules for the same were notified
in 2003. The Act has now come into force. The Protection of Plant Varieties
and Farmers’ Rights Authority has been set up and is responsible to
administer the Act. The office of the Registrar has started receiving
applications for registration of twelve notified crops viz. rice, lentil, maize,
green gram, kidney bean, black gram, chickpea, pearl millet, pigeon pea,
sorghum, field pea, bread wheat.

Power of Authority (Section – 11)

In all proceedings under this Act before the Authority or the Registrar—

(a) the Authority or the Registrar, as the case may be, shall have all the
powers of a civil court for the purposes of receiving evidence, administering
oaths, enforcing the attendance of witnesses, compelling the discovery and
production of documents and issuing commissions for the examination of
witnesses;

(b) the Authority or the Registrar may, subject to any rules made in this
behalf under this Act, make such orders as to cost as it considers
reasonable and any such order shall be executable as a decree of a civil
court.

General Functions of Authority (Section – 8)

1) It shall be the duty of the Authority to promote, by such measures as it
thinks fit, the encouragement for the development of new varieties of plants
and to protect the rights of the farmers and breeders.

(2) In particular, and without prejudice to the generality of the foregoing

provisions, the measures referred to in sub-section (1) may provide for—
(a) the registration of extant and new plant varieties subject to such terms
and conditions and in the manner as may be prescribed;

(b) developing characterization and documentation of varieties registered

under this Act;
(c) documentation, indexing and cataloguing of farmers’ varieties;

(d) compulsory cataloguing facilities for all varieties of plants;

(e) ensuring that seeds of the varieties registered under this Act are
available to the farmers and providing for compulsory licensing of such
varieties if the breeder of such varieties or any other person entitled to
produce such variety under this Act does not arrange for production and
sale of the seed in the manner as may be prescribed;

(f) collecting statistics with regard to plant varieties, including the

contribution of any person at any time in the evolution or development of
any plant variety, in India or in any other country, for compilation and
publication;

(g) ensure the maintenance of the National Register of plant variety.

___________________________________________________________

3) Discuss the rights recognized for the farmers under the plant
varieties and farmer rights act 2001?

The Protection of Plant Varieties and Farmers’ Rights Act (PPV&FR Act)
seeks to address the rights of plant breeders and farmers on an equal
footing. It affirms the necessity of recognizing and protecting the rights of
farmers with respect to the contribution they make in conserving,
improving and making Plant Genetic Resources (PGR) available for the
development of new plant varieties.
The PPV&FR Act recognizes the multiple roles played by farmers in
cultivating, conserving, developing and selecting varieties. With regard to
developing or selecting varieties, the Act refers to the value added by
farmers to wild species or traditional varieties/ landraces through selection
and identification for their economic traits. Accordingly, farmers’ rights
encompass the roles of farmers as users, conservers and breeders. Farmers
are granted nine specific rights, which are as under:
Right 1: Access to seed [Section 39(1)(iv)]
Farmers are entitled to save, use, sow, re-sow, exchange, share or sell
their farm produce, including seed of protected varieties, in the same
manner as they were entitles to before the coming into force to the PPV&FR
Act. However, farmers are not entitled to sell branded seed of a variety
protected under this Act. Farmers can use farm saved seed from a crop
cultivated in their own.
Right 2: Benefit sharing [Section 26]

Plant breeders and legal entities including farmers who provide Plant
Genetic Resources (PGR) to breeders for developing new varieties shall
receive a fair share of benefit from the commercial gains of the registered
varieties. Out of all the national plant variety protection laws enacted since
2001, the PPV&FR Act is the first that integrates a provision for access and
benefit-sharing (ABS) along with Plant Breeder’s Rights (PBRs). Accession
of the genetic resource used in breeding is permitted under the Biological
Diversity Act, 2002. However, the PPV&FR Act requires a breeder to make
a sworn declaration on the geographical origin of the genetic resources used
in the pedigree of the new variety, and its accession.
Right 3: Compensation [Section 39(2)]

Registered seed must be sold with the full disclosure of their

agronomic performance under recommended management conditions.
When such seed is sold to farmers but fails to provide the
expected performance under recommended management conditions, the
farmer is eligible to claim compensation from the breeder through the
intervention of the PPV&FR Authority.
Right 4: Reasonable seed price [Section 47]

Farmers have the right to access seed of registered varieties at a

reasonable and remunerative price. When this condition is not met, the
breeder’s exclusive right over the variety is suspended under the provision
concerning compulsory licensing, and the breeder is obligated to license the
seed production, distribution and sales of the variety to a competent legal
entity. Most of the laws for plant variety protection have provisions on
compulsory licensing of protected varieties to ensure adequate seed supply
to farmers, and several of them also use unfair pricing as grounds for
compulsory licensing.
Right 5: Farmers’ recognition and reward for contributing to conservation
[Section 39(i)(iii) & Section 45(2)(C)]

Farmers who have been engaged in PGR conservation and crop

improvement, and who have made substantial contributions in providing
genetic resources for crop improvement, receive recognition and rewards
from the national gene fund. The gene fund receives resources from the
implementation of the Act, which in turn are complemented by contribution
from national and international organizations. The expenditures of the fund
are earmarked to support the conservation and sustainable use of PGR, and
in this way it can be considered to be a national equivalent to the global
benefit-sharing fund operating within the International Treaty on Plant
Genetic Resources for Food and Agriculture.
Since 2007, the Plant Genome Saviour/Community awards, associated with
the national gene fund, has been rewarding farming communities and
individual farmers for their contribution to in-situ and on farm conservation
to the selection of PGR. The Authority in consultation with Government of
India, has established five Plant Genome Saviour Community Awards of Rs
10 Lakh each along with citation and memento to be conferred every year
to the farming communities for their contribution in the conservation of
Plant Genetic Resources.
In accordance with the Protection of Plant Varieties and Farmers’ Rights
(Recognition and Rewards from the Gene Fund) Rules, 2010 the Authority
also setup ten Plant Genome Saviour Farmer Reward of Rs 1 Lakh each
with citation & memento and also twenty Plant Genome Saviour Farmer
Recognition annually from 2012-13 to the farmers engaged in the
conservation of the Genetic Resources of the landraces and wild relatives
of economics plants and their improvement through selection and
preservation.
Right 6: Registration of farmers’ varieties [Section 39(1)(iii)]

The PPV&FR Act allows for the registration of existing farmers’ varieties that
fulfill requirements for distinctness, uniformity, stability and denomination,
but does not include that of novelty. This right provides farmers with a one-
off opportunity for a limited period of time, from the moment when a crop
species is species is included in the crop portfolio under the PPV&FR Act for
registration. Once registered, these varieties are entitled to all PBRs.
Right 7: Prior authorization for the commercialization of essentially derived
varieties [Section 28 (6)]

When farmers’ varieties, whether extant or new, are used by a third party
as source material for the development of an essentially derived variety,
the farmers need to provide prior authorization for its commercialization.
Such a process can allow farmers to negotiate the terms of authorization
with the breeder, which may include royalties, benefit-sharing, etc.
Right 8: Exemption from registration fees for farmers [Section 44]

Under PPV&FR Act, farmers have the privilege of being completely

exempted from payment of any kind of fees or other payments that are
normally payable for variety registration; tests for distinctness, uniformity
and stability (DUS), and other services rendered by the PPV&FR Authority;
as well as for legal proceedings related to infringement or other causes in
courts, tribunal, etc.
Right 9: Farmer protection from innocent infringement [Section 42]
If a farmer can prove before court that he or she was not aware of the
existence of any rights at the time of an infringement on any such rights,
as detailed in the PPV&FR Act, he or she will not be charged. This provision
is made in consideration of the centuries-old unrestrained rights that the
farmers had over the seed of all varieties, the novel nature of the PPV&FR
Act and the poor legal literacy of farmers.

___________________________________________________________

4) Explain the remedies for infringement of plant varieties and

farmer’s rights?

Infringement (Section 64 to 77)

Any violation of the rights of the owner of a variety constitutes

infringement. A right is infringed by a person who is not a breeder of a
variety where he sells, exports, imports or produces such variety without
the permission of the breeder or his registered licensee.

Any person who uses any other variety giving such variety a denomination
identical or deceptively similar to the denomination of a variety registered
under the Act so as to cause a confusion or deception in the mind of the
people in identifying the variety is also considered as infringing the variety.
A variety denomination can serve the same functions as a trade mark.

Remedies for Infringement

Damages and injunctive relief comprise the integrated totality of the

remedies.

In a decision of the English Patent Court in Gerber Garment Technology

v. Lectra System Limited ([1995] RPC 383), the issue of damages was
addressed. The Court held that the measure of damage was the “Sum of
money which will put the injured party in the same position as if he had not
sustained the wrong.” The Court stated that, where secondary losses are a
foreseeable consequence of patent infringement, the secondary

losses can be recovered. The object of damages is to compensate the

patentee, not to punish the infringer. The Court has laid down the legal
principles regarding damages.
 1. Damages are compensatory only.
2. The burden of proof lies on the plaintiff but damages are to be

assessed liberally.

3. Where a patentee has licensed his patent, the damages are the lost

royalty.

4. It is irrelevant that the defendant could have competed lawfully.

5. When the patentee has exploited his patent by manufacture & sale
he

can claim (a) lost profit on sales by the defendant that he would have
made otherwise; (b) lost profit on his own sales to the extent that he
was forced by infringement, to reduce his own price; & (c) a
reasonable royalty on sales by the defendant which he would not
have made.

6. Damages are not capable of precise estimation where the patentee

exploits by his own manufacture & sale.

Another method of protecting the plaintiff is to grant to the plaintiff a

share of profits. The concept of lost profit has been decided in a number of
patent cases.

Lost profits damages may be measured based upon the causation factors
set forth in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc. Under the
Panduit test, the patentee must prove four factors to establish lost profits.
(1) a demand for the products covered by the patent; (2) an absence of
acceptable non-infringing substitutes to the patented product or process;
(3) that the patentee possessed the manufacturing & marketing capabilities
to exploit the demand; & (4) the amount of profit the patentee would have
made had the infringement not occurred.

Injunctive relief shall be an ex parte injunction or an interlocutory relief for

discovery of documents, preserving of infringing variety or document or
other evidence which are related to the subject-matter of the

suit. An injunction is proper only to the extent that it is granted to prevent

violation of any right secured by patent and may not be punitive.

It is the general rule that an injunction will issue when infringement has
been found, absent a sound reason for denying it. The fact that infringer
stopped infringing is generally not a reason to deny an injunction against
future infringement unless there is persuasive evidence that further
infringement will not take place. Discontinuation of making or selling
infringed product is not a sufficient reason for denying injunction.

___________________________________________________________

5) India has adopted a sui generis system for protection of plant

varieties – explain?

ntroduction

The Protection of Plant Varieties and Farmers’ Rights Act 2001 was enacted
in India to protect the new plant varieties. Rules for the same were notified
in 2003. The Act has now come into force. The Protection of Plant Varieties
and Farmers’ Rights Authority has been set up and is responsible to
administer the Act. The office of the Registrar has started receiving
applications for registration of twelve notified crops viz. rice, lentil, maize,
green gram, kidney bean, black gram, chickpea, pearl millet, pigeon pea,
sorghum, field pea, bread wheat.

Under the TRIPS agreement it is obligatory on part of a Member to provide

protection to new plant variety either through patent or an effective sui
generis system or a combination of these two systems. India was therefore
under an obligation to introduce a system for protecting new plant variety.
India opted for sui generis system and enacted The Protection of Plant
Varieties and Farmers’ Rights Act 2001. However, in many countries such
plants can be protected through Breeders’ Rights, patents and UPOV
Convention.
The genesis of the Indian legislation

In India, agricultural research including the development of new plant

varieties has largely been the concern of the government and public sector
institutions. Earlier, India did not have any legislation to protect the plant
varieties and, in fact, no immediate need was felt. However, after India
became signatory to the Trade Related Aspects of Intellectual Property
Rights Agreement (TRIPs) in 1994, such a legislation was necessitated.

Article 27.3 (b) of this agreement requires the member countries to provide
for protection of plant varieties either by a patent or by an effective sui
generis system or by any combination thereof. Thus, the member countries
had the choice to frame legislations suiting their own system and

India exercised this option. The existing Indian Patent Act, 1970 excluded
agriculture and horticultural methods of production from patentability.

The sui generis system for protection of plant varieties was developed
integrating the rights of breeders, farmers and village communities, and
taking care of the concerns for equitable sharing of benefits. It offers
flexibility with regard to protected genera/species, level and period of
protection, when compared to other similar legislations existing or being
formulated in different countries.

The Act covers all categories of plants, except microorganisms. The genera
and species of the varieties for protection shall be notified through a
gazette, after the appropriate rules and by-laws are framed for the
enforcement of the Act.
Objectives
The objectives of the Act are as follows:
(i) To provide for the establishment of an effective system for protection
of plant varieties.
(ii) To provide for the rights of farmers and plant breeders.
(iii) To stimulate investment for research and development and to facilitate
growth of the seed industry.
(iv) To ensure availability of high quality seeds and planting materials of
improved varieties to farmers.
v) to stimulate investments for research and development both in the
public and the private sectors for the developments of new plant varieties
by ensuring appropriate returns on such investments .
vi) to facilitate the growth of the seed industry in the country through
domestic and foreign investment which will ensure the availability of high
quality seeds and planting material to Indian farmers; and
vii) to recognize the role of farmers as cultivators and conservers and the
contribution of traditional, rural and tribal communities to the country’s
agro biodiversity by rewarding them for their contribution through benefit
sharing and protecting the traditional right of the farmers.
6) Enumerate the legal issues pertaining to the protection of plant
varieties?

The legal issues pertaining to the protection of plant varieties primarily

revolve around intellectual property rights and the balance between
promoting innovation and ensuring access to genetic resources. Here are
some key legal aspects and issues:

1. Intellectual Property Rights (IPR):

o Plant Variety Protection (PVP): Many countries have
specific laws and systems for granting PVP rights, which allow
breeders to control the propagation and sale of their new plant
varieties for a set period.
o Patents: Some plant varieties may also be eligible for patent
protection, especially if they involve genetic modifications or
other innovations that meet patentability criteria.
2. Access to Genetic Resources:
o Equitable Benefit-Sharing: International agreements like
the Convention on Biological Diversity (CBD) emphasize the fair
and equitable sharing of benefits arising from the use of genetic
resources, particularly in developing countries where
biodiversity is rich.
o Prior Informed Consent (PIC): Obtaining PIC from countries
or communities before accessing their genetic resources is
crucial to ensure legality and ethical use.
3. Farmers' Rights:
o Traditional Knowledge: In many agricultural communities,
farmers have developed and preserved traditional plant
varieties. Balancing the rights of traditional knowledge holders
with those of commercial breeders is a significant legal issue.
o Seed Sovereignty: Farmers' rights to save, exchange, and
sell seeds are often protected to ensure food security and
preserve agricultural biodiversity.
4. Biosecurity and Biosafety:
o Regulation of GMOs: Genetically modified organisms (GMOs)
in agriculture raise concerns about environmental impact, food
safety, and unintended consequences. Regulatory frameworks
address these issues through risk assessment and
management.
5. International Treaties and Agreements:
o UPOV Convention: The International Union for the Protection
of New Varieties of Plants (UPOV) provides a framework for
harmonizing PVP laws internationally.
o CBD and Nagoya Protocol: These agreements govern access
to genetic resources and the fair and equitable sharing of
benefits arising from their utilization.
6. Enforcement and Compliance:
 o Ensuring compliance with national and international laws
governing plant variety protection requires effective
enforcement mechanisms.
o Monitoring and preventing unauthorized use or infringement of
plant breeders' rights is essential for maintaining the integrity
of the legal framework.
7. Ethical and Socioeconomic Considerations:
o Issues such as the impact on small farmers, biodiversity
conservation, and sustainable agriculture practices are
increasingly considered in legal frameworks related to plant
variety protection.
o Ethical considerations include ensuring that legal protections do
not hinder access to essential agricultural inputs or impede
research and innovation that benefits society as a whole.
7) National Gene Fund – SN
 UNIT IV

1) Define design, what are the requirements for registration of

design and explain the procedure for registration of design?

What are “Designs”?

The term ‘design’ refers to the distinctive elements of shape, form,

patterns, or combinations thereof given to an article, whether in two-
dimensional or three-dimensional form, using any manufacturing process.

Creating a design can involve manual, mechanical, automated, or chemical

methods, individually or collectively, resulting in an aesthetically appealing
finished article that can be visually recognised. However, it does not include
mechanical devices or standard or construction materials.

Registrable Designs and Procedure for Registration Registrability

of Design

1. Design must be applied to Articles

A Design is something which is applied to an article and not the article itself.
A design must be incorporated in the article itself as in the case of a shape
or configuration which is three-dimensional, e.g., shape of a bottle or flower
vase or the case of design which is two dimensional, e.g., design on a bed
sheet, wallpaper which serves the purpose of decoration.

An article to which the design is to be applied must be something which is

to be delivered to the purchaser as a finished article.

2. Appeal to the Eye.

The design must be capable of being applied to an article in such a way

that the article to which it is applied will appeal to and judged solely by the
eye. The particular shape, configuration, pattern or ornamentation must
have a visual appeal. Feature to be registered must “appeal to the eye” and
be “judged by the eye. In Amp v. Utilux, (1972), it was held that ,
(a) to have eye appeal, the features must be externally visible.
(b) The feature must appeal to the customer’s eye.
(c) The eye appeal need be neither artistic nor aesthetic, provided that
some appeal is created by distinctiveness of shape, pattern, or
ornamentation calculated to influence the consumer’s choice.

3. Novelty or Originality

A design can be registered only when it is new or original and not previously
published in India. A design would be registrable if the pattern

though already known is applied to new article. For example, the shape of
an apple if applied to school bag would be registrable.

It was held in Pilot Pen Co. v. Gujarat Ind. P. Ltd, (AIR 1967 Mad 215)
that registration could not be deemed to be effective unless the design,
which sought to be protected, was new and original and not of a pre-
existing common type.
In Rotela Auto Components (P) Ltd. and Anr. v. Jaspal Singh, (2002
(24) PTC 449 [Del]) it was held that, the test for novelty and originality is
dependent on determining the type of mental activity involved in conceiving
the design in question.
4. Original and not Previously Published in India

A design can be registrable only when it is new or original & not previously
published in India.

A design would be registrable if the pattern though already known is applied

to a new article. E.g., the shape of teddy bear if applied to a school bag
would be registrable.

A combination of previously known design can be registered if the

combination produces a new visual appeal.

Colour may form a part of design but the colour by itself cannot constitute
a subject-matter of design.

5. No prior Publication

A design can be registered only when it is not previously published in India.

In the case of Wimco Ltd. v. Meena Match Industries, (AIR 1988 Del
587) the Court held that publication means the opposite of being kept
secret. The disclosure even to one person is sufficient to constitute
publication.

The design cannot be registered under Design Act if it is not significantly

distinguishable from known designs or combination of known designs. To
constitute publication a design must be available to the public and it has
been ceased to be a secret. For e.g.:-the display of a design on a saree in
a fashion show is a publication of that design.
Procedure of Registration of a Design

The procedure for registration of a design is comparatively simple when

compared to procedure of a patent or a trade mark.

Briefly, the procedure consists of the following steps:

1. Submission of Application
2. Acceptance/objection/refusal
3. Removal of objections/appeal to CG
4. Decision of CG
5. Registration of Design

Submission of Application

The proprietor of the design shall submit the application for registration in
the patent office. The application shall be in the prescribed form and shall
be accompanied by the prescribed fees. According to Section 5(1), the
controller may on application made by any person claiming to be the
proprietor of any new or original design not previously published in any
country and which is not contrary to public order and morality, register the
design under the Act.

The application is to be accompanied by the prescribed fee and in

prescribed Form and in prescribed manner. The application shall state the
class in which the design is to be registered.

Documents to be filed with Application

The application under Section 5 shall be accompanied by four copies of the

representation of the design and the applicant shall state the class in which
the design is to be registered. The applicant is also to file a brief statement
of novelty with the application.

The Design Act, 2000, which he claims for his design lays down 31 classes
plus miscellaneous class 99 of goods to which ornamental designs, etc.,
and which are capable of being registered under this Act generally apply.
Acceptance /Refusal

Before registration the Controller shall refer the application to an examiner

appointed under this Act, to determine whether the design is capable of
registration under this Act. The Controller shall consider the report of the
examiner and if satisfied that the design complies with all requirements for
registration under this Act shall register it.

The Controller may if he thinks fit refuse to register the design. The
aggrieved by such refusal may appeal to the High Court. The Controller
may refuse to register a design, the use of which would be contrary to
public order or morality.
Objection/Removal of Objection/Appeal to CG.

If on consideration of the application any objections appear to the

Controller, a statement of these objections shall be sent to the applicant or
his agent. The applicant has to remove the objection within one month of
communication of the objections to him failing which the application shall
be deemed to have been withdrawn.

He may also apply to the Controller for being heard on the matter. When
the Controller refuses the application after the submission, he may directly
appeal to the Central Government whose decision is final.
Decision of Central Government

The decision of the Central Government on the registrability of the design

is final.

Publication of particulars of Registered Design

On acceptance of design filed in respect of an application, the Controller

shall direct the registration & publication of the particulars of the application
& the representation of the article to which the design has been applied, in
the Official Gazette. When publishing in the Gazette, the controller may
select one or more views of the representation of the design, which in his
opinion would depict the design, be

Register of Design

1. When the design is accepted, there shall be entered in the Register

of design, in addition to the particulars required by the Act, the
number of the design, the class in which it is registered, the date of
filing the application for registration in this country, the reciprocity
date, if any, claim for the registration, & such other matters as would
effect the validity or proprietorship of design.
2. When such Register of Design is maintained wholly or partly on
computer floppies or diskettes, such computer floppies or diskettes
shall be maintained under superintendence & control of Controller &
in case of any dispute or doubt with regard to information of designs,
the information as contained in the back-up or master files shall be
final.
 3. Where the accepted design is one in respect of which a reciprocity
date has been allowed, registration, the extension or the expiration
of the copyright in the said design shall be reckoned from such
reciprocity date. On the completion the above procedure the
controller shall grant a certificate of registration to the proprietor of
the design.

___________________________________________________________

2) Explain the salient features of design act 2000?

Salient feature of The Design Act

The Designs Act, 2000 which came into effect from May 11, 2001 replacing
the earlier Designs Act, 1911. The salient features of the new Design Law
are:
1. A provision claiming priority from a Design application filed in any
Convention country has been introduced. India is a member of WTO, Paris
convention and has also signed Patent Co-operation Treaty. As a result
members to these conventions can claim priority rights.

2. International classification based upon Locarno classification has been

adopted wherein the classification is based on articles - the subject matter
of design. Under the previous law a 'Design' was classified on the basis of
the material of which the article was made.

3. Under new law, a Design registration can now be obtained for new or
original features of shape, configuration pattern, ornamentation or
composition of lines or colours as applied to an article, whether in 2 or 3
dimensions or both.

4. A concept of "absolute novelty" has been introduced whereby a 'novelty'

would now be judged based on prior publication of an article not only in
India but also in other countries. Under the previous law, the position was
ambiguous.

5. A Design registration has been brought within the domain of the public
records right from the date it is physically placed on the Register. Any
member of public can take inspection of the records and obtain a certified
copy of the entry. In the previous Act, there was a 2-year confidential
period -post registration -which prohibited taking inspection/certified copy
of any entry in the records.
6. A Design registration would be valid for 10 years (from the date of
registration which is also the date of application) renewable for a further
period of 5 years. Under the previous law the validation period was 5 years
which was extendable for 2 terms of 5 years each.

7. A Design registration can be restored within a year from its last date of
expiry. Under the previous law, no provision relating to restoration upon
expiration of the Design registration was provided.
8. Cancellation of a Design registration under the new law is possible only
before the Controller and there are a couple of additional grounds which
have been recognized:-

(a) The subject matter of Design not registrable under the Act
(b) The subject matter does not qualify as a 'Design' under the Act.

Under the previous Act, the cancellation was provided for before the
Controller within 12 months from registration on limited grounds and in the
High Court within 12 months or thereafter.

9. Under the new Act, a District Court has been given power to transfer a
case to the High Court - having jurisdiction - in the event the Defendant
challenges the validity of Design registration.
10. As regards assignment of Design registration under the new law, it has
been made mandatory to have the same registered with the Authorities
within six months from the date of execution or within an extended time
period of six months.

___________________________________________________________

3) what are the functions and powers of controller of design under the
design act?

1. Powers and Duties of Controller

Powers and Duties of Controller

Chapter VII, Section 32 to 36 of the Designs Act, 2000 deals with powers
and duties of Controller.
Powers of Controller in proceedings under Act (Section 32)
Subject to any rules in this behalf, the Controller in any proceedings before
him under this Act shall have the powers of a civil court for the purpose of
receiving evidence, administering oaths, enforcing the attendance of
witnesses, compelling the discovery and production of documents, issuing
commissions for the examining of witnesses and awarding costs and such
award shall be executable in any court having jurisdiction as if it were a
decree of that court.
Exercise of the discretionary power by Controller (Section – 33)

Where any discretionary power is by or under this Act given to the

Controller, he shall not exercise that power adversely to the applicant for
registration of a design without (if so required within the prescribed time
by the applicant) giving the applicant an opportunity of being heard.
Power of Controller to take directions of the Central Government
(Section – 34)

The Controller may, in any case of doubt or difficulty arising in the

administration of any of the provisions of this Act, apply to the Central
Government for directions in the matter.
Refusal to register a design in certain cases (Section – 35)

(1) The Controller may refuse to register a design of which the use would,
in his opinion, be contrary to public order or morality.
(2) An appeal shall lie to the High Court from an order of the Controller
under this section.

Appeals to the High Court (Section – 36)

(1) Where an appeal is declared by this Act to lie from the Controller to the
High Court, the appeal shall be made within three months of the date of
the order passed by the Controller.
(2) In calculating the said period of three months, the time (if any)
occupied in granting a copy of the order appealed against shall be excluded.
(3) The High Court may, if it thinks fit, obtain the assistance of an expert
in deciding such appeals, and the decision of the High Court shall be final.
(4) The High Court may make rules consistent with this Act as to the
conduct and procedure of all proceedings under this Act before it.

4) what are the rights of a design owner?

The exclusive right conferred on a design is termed as ‘copyright in design’.

This should
not be confused with exclusive right granted for literary & artistic work also
termed a
‘copyright’ in the literary & artistic work. There may be certain designs
which can qualify for
registration both under the Design Act and the Copyright Act.
The industrial & product design are covered by the Designs Act, 2000, if a
design has been
registered under this Act, it cannot be protected by the Copyright Act even
though it may be an original artistic [Link] a design qualifies for
registration under the Design Act but has not been so registered under the
Designs Act, the exclusive right will subsist under the Copyright Act. If such
a design is of an article which is commercially produced, the copyright over
the design under the Copyright Act will cease to exist when the article to
which the design has been applied has been reproduced more than fifty
times by an industrial process by the owner of the copyright. There is an
overlapping area of the applicability of the Designs Act and the Copyright
Act but they cannot be applied co - terminously for protection of the same
subject-matter.

After obtaining registration under Section 5 of the Designs Act, 2000, the
proprietor of designs is conferred with 'copyright in design' for a period of
10 years. According to Section 2(i) of the aforementioned statute,
'copyright in design' signifies an exclusive right to apply a design to an
article in any class with which the design has been registered. The Delhi
High Court while dealing with the case of Polymer Papers Ltd. v. Gurmit
Singh (2002), interpreted Section 11 of the Designs Act, 2000 stating that
the provision makes it clear that the 'copyright in design' could only be
claimed on registered designs.

After a design has been registered, the two rights that are made entitled to
the registered
proprietor are:

i. Right to exclusive use of the registered design;

ii. Right to protect the design from infringement (which in the language of
Design Act,
2000 means piracy of designs).
i) The right to exclusive use of the design
When a design is registered, the registered proprietor of the design shall,
subject to
the provisions of the Act of 2000, have the copyright in the design during
ten years
from the date of registration.
If, before the expiration of the said ten years application for the
extension of the
period of copyright is made to the Controller in the prescribed manner, the
Controller shall, on payment of the prescribed fee, extend the period of
copyright
for a second period of five years from the expiration of the original period
of ten
years.
ii) Right to protect the design from piracy: Infringement of a copyright
in a design is termed as Piracy of Design. Any person responsible for
infringing the monopoly of the proprietor of aregistered design is guilty of
piracy and is liable to a fine of a sum not exceeding 25 thousand rupees.
The registered proprietor is also granted the right to bring a suit for
recovery of damages or for injunction against the reputation of such piracy
provided that the total sum recoverable in respect of any design shall not
exceed 50 thousand rupees. The above right is laid down in Section 22(2)
of the Designs Act, 2000.

Duration of protection: Once a design meets the statutory conditions, it

is registered and the
proprietor of the design acquires a copyright over that design which lasts
for a duration of 10 years from the date of registration (in cases where
claim to priority has been allowed, the duration is 10 years from the priority
date), further extendable to an additional period of 5 years upon a
requestmade within the said protection period.9 The date of registration,
except in case of priority, is the
actual date of filing of the application. In case of registration of design with
priority, the date of registration is the date of making an application in the
reciprocal country.

Marking of an article to obtain Relief under the Act: It is the duty of

the registered owner of a design to affix on his article(s) on which registered
design has been applied, with the prescribed mark or words or figures,
which expressly denote that such a design has been registered with the
Controller. A failure to do so renounces the right to file a claim of
infringement and damages in the future. In such a case the registered
owner must show proof beyond reasonable doubt that –
1. All necessary steps to mark the article were taken; or
2. Infringement took place after receiving knowledge of the copyright
existence

Overlap of protection vis-a-vis Design Rights: Design rights are

notoriously famous for overlapping with other IP rights inter alia copyrights.
Although, scope of protection extends only to the aesthetic features of a
design and not to functionality, unlike under patents which grant protection
to inventions resulting in technological advancements and functionality
thereof.

By definition, the registered proprietor of a design acquires a copyright in

the said design. There is no simultaneous protection for a design under the
Copyright Act and the Designs Act, as Section 15(1) of the Copyright Act
bars copyright protection to a registered design. Copyright in an
unregistered design would also cease once the design has been reproduced
more than 50 times by an industrial process by the owner or with his
license, by another person11

Design Protection under the Paris Convention: India is one of the

countries signatories to the Paris Convention. Therefore, the provisions for
the right of priority are applicable. Based on a regular application first filed
in any one of the contracting states, the applicant may, within a time-period
of not more than six months (from the date of filing the first application in
India), apply for design protection in other contracting states. The latter
application will be treated as if it had been filed on the same day as the
first application.
__________________________________________________________
5) What do you mean by piracy in Copyright design ? What remedies
are available
against the piracy of Copyright Design ?
 UNIT V

1) Explain how the paris convention has contributed to the

international protection of IPR?

See IPR 2 notes in QP folder Q#31

2) Explain the salient features of convention on biological

diversity?(CBD)

See IPR 2 notes Q#32

3) Explain the importance of TRIPS agreement for development of

IPR?

See IPR 2 notes Q#33

4) Explain the salient features of berne convention?

See IPR 2 notes Q# 34

5) SN Doha round of trade negotiation

Doha round of trade negotiation

Ans: The Doha Round, launched in November 2001, is the latest round of trade negotiations
among
the WTO members. Its aim is to achieve major reform of the international trading system
through the
introduction of lower trade barriers and revised trade rules.
 The Round is also known semi-officially as the Doha Development Agenda as a
fundamental
objective is to improve the trading prospects of developing countries.
 As part of the development agenda of Doha, rich countries are supposed to take on greater
commitments to open up markets in goods and services compared to developing countries.
 The mandate for the negotiations includes agriculture, NAMA (industrial goods), services,
rules, including fisheries subsidies, and TRIPS (intellectual property).
 Through the Doha round of trade negotiations, India is seeking a "permanent solution" to
its
problem of treating food procurement subsidies (public stockholding programmes for food
security purposes).
 India, along with other developing countries and LDCs, is seeking the adoption of the
principles
of special and differential treatment and less than full reciprocity for developing and LDC
members as an integral part of international trade negotiations.
 Through the negotiations, India also wants a special safeguard mechanism to protect poor
farmers against indiscriminate imports.
 In Doha, ministers also approved a decision on how to address the problems developing
countries
face in implementing the current WTO agreements.
 India is a member of G-33, a coalition group of developing Members, and has been
making all
efforts to negotiate and achieve a positive outcome on the issue of public stockholding for
food
security purposes at WTO.
 The G33 group includes 47 developing and least developed countries (June 2022).
 2. if the proprietor elects to bring a suit for the recovery of damages for any such
contravention, and an injunction against the repetition thereof, to pay such damages as
may be awarded and to be restrained by injunction accordingly.

Unit – V

31. Explain how ‘Paris Convention’ has contributed for the International Protection of
IPRs.
Ans: The Paris Convention applies to industrial property in the widest sense, including patents,
trademarks, industrial designs, utility models (a kind of "small-scale patent" provided for by the laws
of some countries), service marks, trade names (designations under which an industrial or commercial
activity is carried out), geographical indications (indications of source and appellations of origin) and
the repression of unfair competition.

When there was no existence of any international convention in the field of industrial property, it was
difficult to obtain protection for inventions in different countries of the world due to the diversity of
laws. In addition, patent applications were filed at the same time in all countries to prevent a
publication in one country destroying the novelty of the invention in other countries. These practical
problems constituted a strong objective to overcome such problems in the case of IPR. In the late
nineteenth century, the development of a more international-oriented flow of technology and increased
international trade increased the need for harmonization of industrial property laws in both the patent
and trademark sectors. The Paris Convention is also administered by WIPO.

It came into existence to provide some international harmony in intellectual property laws and was
adopted on March 20, 1883, at Paris and enforced on July 7, 1884. It provides basic guidelines for the
protection of intellectual property such as patents, utility models, industrial designs, trademarks,
service marks, trade names, sources of information or signs of appeal, and some provisions for
harassment and national treatment of unfair competition. This treaty came into existence in India on
December 7, 1998. Under the convention, in the anti-discrimination principle, a member country is
empowered to grant nationals of other member countries the equal protection and advantages as it
grants to its own nationals. This anti-discrimination policy of the convention is also a fundamental
principle of many other intellectual property agreements and treaties.
National Treatment: National treatment can be defined with regards to the protection of industrial
property as each country who is a member of the Paris Convention must grant equal protection of their
invention to nationals of the other member countries as it grants to its own nationals. The relevant
provisions are included in Articles 2 and 3 of the Convention. Equal national treatment should be given
to citizens of countries that are not members of the Paris Agreement if they are domiciled in a member
country or if they have “legitimate and efficient” industrial or commercial establishments in the
country concerned.

However, there is no requirement to be the domicile of the country where protection is claimed may
be imposed upon nationals of member countries as a condition for benefiting from an industrial
property right. The doctrine of national treatment not only guarantees that the foreigners will be
protected, but also that they will not be discriminated on any basis. Example: A Russian national
applying for a patent in China will have the same patent rights and level of protection in China as a
Chinese national.

A framework of Priority: Another fundamental principle of the Paris Convention is a ‘framework of

priority’. Under the Paris Convention, an invention can be protected at the same time in various
countries. This also means of access to national patent systems to foreign applicants. An inventor has
the authority to claim the filing date of his first patent application in respective convention country as
an effective filing date for further subsequent applications (regarding the same invention) in any other
member country. Further, the applications must be filed within 12 months of the earliest application in
a matter to claim the priority date.

Example: A USA patent application is lodged on 10 March 2000. On 10 March 2001, the same patent
application is filed in China. China is a convention member and as a result, the Chinese application is
treated as though it was filed on 10 March 2000. If without the treaty, the patent in the example was
treated as though it was filed on 10 March 2002 in China, the invention would likely already have been
disclosed and thus un-patentable in China.

The meaning of the right of priority means that in the foreign country, the application of patent will be
filed from the earliest date of filing in the home country for purposes of the prior art. This is profitable
for an inventor , as it allows the inventor to prevent detrimental effects of public disclosure of his
invention that occurred after the earliest application and before filing in foreign countries.
 32. State the important/salient features of Convention of Biological Diversity (CBD) 1961.
Ans: Several international conventions and treaties related to biodiversity are under enforcement.
Convention on Biological Diversity (CBD), 1992 is the most important international convention
related to biodiversity, which brought new era in the field of biodiversity. The convention
recognized for the first time in international law that the conservation of biological diversity is “a
common concern of humankind” and is an integral part of the development process. The
agreement covers all ecosystems, species, and genetic resources. The Convention acknowledges
that substantial investments are required to conserve biological diversity. It argues, however,
that conservation will bring us significant environmental, economic and social benefits in return.

SALIENT FEATURES OF CONVENTION ON BIOLOGICAL DIVERSITY:

i. CBD recognizes that Conservation of Biological Diversity is a common concern of
humankind. Earlier, biodiversity was considered heritage of humankind. But CBD recognizes
that States have sovereign right over their biological resources. CBD puts the responsibility
of conservation and sustainable use of biological resources on the states. (Art. 3 of CBD) Thus,
states have sovereign right to exploit their biological diversity as per their policies. Previously
biodiversity was considered heritage of humankind. State is responsible to control their
resources without damaging the environment of other states.
ii. CBD has recognized that certain human activities have reduced biodiversity. The reason being
the lack of information and knowledge about biodiversity and need to develop scientific,
technical and institutional capabilities.
iii. Therefore, CBD stresses upon the need to establish the mechanism for fair and equitable
sharing of benefits arise from biodiversity and their related traditional knowledge, especially
the need of full participation of women at all levels in policy making and implementation for
biodiversity conservation.
iv. CBD seeks to establish strong cooperation among states, regions, intergovernmental
organizations and non-governmental sectors, special consideration to developing countries
(more for the LDCs) to provide additional financial resources and relevant technologies.
Accordingly, each contracting country has to cooperate other countries for the conservation
and sustainable use of biodiversity. The cooperation can be bilateral or multilateral. If
necessary, any party can ask help from competent international organizations for arranging
cooperation.
v. CBD is committed to conserve and sustainable use of biological diversity for the benefit of
present and future generations. (Art. 6 of the CBD)
 a) Develop national strategies plans or programmes for the conservation and susta1nable
use of biological diversity or adapt for this purpose existing strategies plans or programmes
which shall reflect, inter alia, the measures set out in this Convention relevant to the
Contracting Party concerned; and
b) Integrate as far as possible and as appropriate the conservation and sustainable use of
biological diversity into relevant sectoral or cross sectoral plans, programmes and
policies.”
vi. CBD envisages identification and monitoring system for effective conservation of
biodiversity, under Article 7, and for in situ conservation under Article 8 and for ex situ
conservation under Article 9.
a) Identify components of biological diversity important for its conservation and sustainable
use having regard to the indicative list of categories set down in Annex I;
b) Monitor, through sampling and other techniques, the components of biological diversity
identified pursuant to sub-paragraph (a) above paying particular attention to those
requiring urgent conservation measures and those which offer the greatest potential for
sustainable use;
c) Identify processes and categories of activities which have or are likely to have significant
adverse impacts on the conservation and sustainable use of biological diversity, and
monitor their effects through sampling and other techniques; and
d) Maintain and organize, by any mechanism, identification and monitoring activities
pursuant to sub-paragraphs (a), (b) and (c) above.”

33. Discuss the background, objects and salient features of TRIPS Agreement.
Ans: The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an
international agreement administered by the World Trade Organization (WTO) that sets down
minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of
other WTO Members. It was negotiated at the end of the Uruguay Round of the General Agreement
on Tariffs and Trade (GATT) in 1994. The TRIPS Agreement is one of the most significant WTO
accords. The Agreement went into effect on January 1, 1995.

The General Agreement on Tariffs and Trade (GATT) was the only multilateral mechanism
overseeing international commerce until the World Trade Organization (WTO) was established in
1995. Under GATT, there were eight rounds of negotiations, the first five of which were solely
focused on tariffs, while the sixth round included discussions on anti-dumping measures, which
included provisions for member nations to control the dumping of goods into their territory by other
nations that could harm their economies.

TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and
Trade (GATT) in 1994. Its inclusion was the culmination of a program of intense lobbying by the
United States, supported by the European Union, Japan and other developed nations.

After the Uruguay round, the GATT became the basis for the establishment of the World Trade
Organization. Because ratification of TRIPS is a compulsory requirement of World Trade
Organization membership, any country seeking to obtain easy access to the numerous international
markets opened by the World Trade Organization must enact the strict intellectual property laws
mandated by TRIPS. For this reason, TRIPS is the most important multilateral instrument for the
globalization of intellectual property laws.

Objectives of TRIPS: The protection and enforcement of intellectual property rights should contribute
to the promotion of technological innovation and to the transfer and dissemination of technology, to
the mutual advantage of producers and users of technological knowledge and in a manner conducive
to social and economic welfare, and to a balance of rights and obligations. The TRIPS Agreement
protects intellectual property in trade-related regions to a large extent and is regarded as a
comprehensive new framework for intellectual property standards protection. The TRIPs Agreement
also has the distinction of being the first legal agreement to address all areas of intellectual property
with a number of specific clauses.
Salient Features of TRIPS Agreement: Specifically, TRIPS contains requirements that nations’
laws must meet for: copyright rights, including the rights of performers, producers of sound
recordings and broadcasting organizations; geographical indications, including appellations of origin;
industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new
plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also
specifies enforcement procedures, remedies, and dispute resolution procedures.

TRIPS agreement introduced intellectual property law into the international trading system for the
first time and remains the most comprehensive international agreement on intellectual property to
date. In 2001, developing countries, concerned that developed countries were insisting on an overly
narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha
declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can
and should be interpreted in light of the goal “to promote access to medicines for all.”

The three main issues governed by the agreement are:

 Standard– All member states are required to provide a minimum set of criteria for the protection
of IPRs in each of the IP categories covered by the Agreement. Each area of IP is addressed in
such a way that the major aspects of protection, such as the subject matter sought to be protected,
the rights to be granted, and possible exceptions to such rights, as well as the minimum period of
protection, are all explicitly stated.

 Enforcement– The second set of clauses focuses on domestic processes and remedies for
intellectual property rights enforcement. The Agreement establishes a set of broad rules that
apply to all IPR enforcement actions. It also includes rules on civil and administrative processes
and remedies, provisional measures, particular border requirements, and criminal proceedings, all
of which outline the procedures and remedies that must be provided so that the right holders can
successfully exercise their rights.

 Dispute settlement– Disputes occurring between WTO members over responsibilities emanating
from the TRIPS Agreement are subject to the WTO’s dispute resolution processes.

The whole TRIPS Agreement is further divided into seven parts which contain the complex
provisions regarding intellectual property:

 Part I- General Provisions and Basic Principles (Article 1 to Article 8)

 Part II- This part covers the requirements for the availability, scope, and application of
intellectual property rights. (Article 9 to Article 40)
 Part III- The enforcement of IPRs is the focus of this part. (Article 41 to Article 61)
 Part IV: This part covers the procedures for obtaining and maintaining intellectual property
rights. (Article 62)
 Part V: This part deals with the prevention and resolution of conflicts resulting from the
provisions of the Agreement. (Article 63 to Article 64)
 Part VI: This part is about transitional agreements. (Article 65 to Article 67)
 Part VII: This part of the Agreement deals with a variety of institutional arrangements. (Article
68 to Article 73).
34. Explain the object and salient features of Berne convention. Explain of 'Berne
Convention'.
Ans: Bern is the capital of Switzerland. This convention was held in Switzerland, in the year 1887.
Berne Convention is considered to be the very first international treaty in the field of Copyrights. It
got revised in 1896 (Paris), then in 1908 (Berlin),1914 (Berne), 1928 (Rome), 1948 (Brussels), then
in 1967 and finally in 1971 (Paris). Berne Convention has 38 articles which are broadly divided into
two categories:

• Article 1-21: They deal with rights, duties, and obligations of member states.

• Article 22-38: They deal with administrative and final clauses of this convention.
The major objective of this convention was to give a uniformity to the rights of authors in their literary
and artistic works. The convention contains some basic principles.

The first and the foremost principle was that there should be a principle of national treatment,
according to which, if any artistic work is originated in any one of the members states then, in that
case, it should be considered as originated in every state and it should be granted the same right as it
will get in its own country. Apart from the national treatment, they get it is very important that this
protection is granted automatically and there is no compulsion of getting oneself registered in that
country.

Another important provision of this convention is that it covers works or expressions of “folklore”.
Folklore refers to oral history which is passed down from generation to generation and is kept active
by the people in the culture. Now, this tradition and history consist of music, legends or even myths.
So, this convention gives protection to both published as well unpublished works.

Article 2(6) of the convention states that the convention is to operate for the benefit of both authors as
well his/her successors in title.

That is why Article 7 states that the minimum duration of protection is the whole life of the author and
50 years after his death. For cinematographic works, the duration of protection is 50 years after the
work has been made available to the public and in case it is not made available more than 50 years
after the making of such work.
This convention proved beneficial for its member countries as the work of its authors are automatically
protected from being plagiarized in other countries, which ultimately will help these authors in
expanding their market share across borders and deriving profit from it.

35. Explain the objectives of Convention on Bio-diversity (CBD).

Ans: The Convention on Biological Diversity (CBD) is the international legal instrument for "the
conservation of biological diversity, the sustainable use of its components and the fair and equitable
sharing of the benefits arising out of the utilization of genetic resources" that has been ratified by 196
nations.

Its overall objective is to encourage actions, which will lead to a sustainable future. The conservation of
biodiversity is a common concern of humankind. The Convention on Biological Diversity covers
biodiversity at all levels: ecosystems, species and genetic resources. It also covers biotechnology,
including through the Cartagena Protocol on Biosafety. In fact, it covers all possible domains that are
directly or indirectly related to biodiversity and its role in development, ranging from science, politics and
education to agriculture, business, culture and much more.

The CBD’s governing body is the Conference of the Parties (COP). This ultimate authority of all
governments (or Parties) that have ratified the treaty meets every two years to review progress, set
priorities and commit to work plans.

The Secretariat of the Convention on Biological Diversity (SCBD) is based in Montreal, Canada. Its main
function is to assist governments in the implementation of the CBD and its programmes of work, to
organize meetings, draft documents, and coordinate with other international organizations and collect and
spread information. The Executive Secretary is the head of the Secretariat.

The convention reminds decision-makers that natural resources are not infinite and sets out a philosophy
of sustainable use. While past conservation efforts were aimed at protecting particular species and habitats,
the Convention recognizes that ecosystems, species and genes must be used for the benefit of humans.
However, this should be done in away and at a rate that does not lead to the long-term decline of biological
diversity.
The convention also offers decision-makers guidance based on the precautionary principle that where
there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty
should not be used as a reason for postponing measures to avoid or minimize such a
threat.

The Convention acknowledges that substantial investments are required to conserve biological diversity.
It argues, however, that conservation will bring us significant environmental, economic and social
benefits in return.

Objectives of Convention on Biological Diversity: The objectives of the Convention on

Biological Diversity are expressed in its Article 1:

 the conservation of biological diversity;

 the sustainable use of its components; and
 the fair and equitable sharing of the benefits arising out of the utilization of genetic
resources, including by appropriate:
➔ access to genetic resources,
➔ transfer of relevant technologies,
➔ funding.
The Convention is thus the first agreement to address all aspects of biological diversity: species,
ecosystems and genetic resources. It is indeed the first time that genetic diversity is specifically
covered in a binding global treaty.

The Convention also recognizes - for the first time - that the conservation of biological diversity
is "a common concern of humankind" and an integral part of the development process. In other
words, the Convention recognizes that all humanity has an interest ensuring the conservation of
biological diversity, including poor nations, women and indigenous people, and that it needs to
be addressed by concerted international action.

Some of the many issues dealt with under the convention include:

 Measures and incentives for the conservation and sustainable use of biological diversity.
 Regulated access to genetic resources and traditional knowledge, including Prior Informed
Consent of the party providing resources.
 Sharing, in a fair and equitable way, the results of research and development and the benefits
 arising from the commercial and other utilization of genetic resources with the Contracting
Party providing such resources (governments and/or local communities that provided the
traditional knowledge or biodiversity resources utilized).
 Technical and scientific cooperation.
 Access to and transfer of technology, including biotechnology, to the governments and/or
local communities that provided traditional knowledge and/or biodiversity resources.
 Coordination of a global directory of taxonomic expertise (Global Taxonomy Initiative).
 Impact assessment.
 Education and public awareness.
 Provision of financial resources.
 National reporting on efforts to implement treaty commitments.

Unit – I
1. Computer software and copyright.
Ans: In India, the Intellectual Property Rights (IPR) of computer software is covered under the
Copyright Law. Accordingly, the copyright of computer software is protected under the provisions of
Indian Copyright Act 1957.

Computer program are literary works under the definition in the Copyright Act. A “computer
program” is a set of statements or instructions to be used directly or indirectly in a computer in order
to bring about a certain result. Copyright for computer programs prohibits copying of program
structure and design. The graphics, sounds, and appearance of a computer program also may be
protected as an audio-visual work; as a result, a program can infringe even if no code was copied.

Just as a copyright came into being when the original lines of source code were written by the
programmer, so another copyright comes into being for each addition or modification to the source
code that shows sufficient originality. Because of this, a computer program generally is protected not
by a single copyright but by a series of copyrights starting when it is first written and continuing
through the last modification.

Protection of Copyright Software: Generally, copyright laws protect the form of expression of an
idea, but not the idea itself. With respect to software, this typically means that the computer program,
in both human-readable i.e., Source Code and machine-executable form i.e., Object Code, and the
related manuals are eligible for copyright protection, but the methods and algorithms within a