Disruptive Technology and Intellectual Property Rights
Innovations can be augmented, disruptive, or revolutionary. We are living in an unprecedented era of increasing innovations that somewhere are leading us to disrupt technologies. Disruptive innovation refers to the phenomenon of a new player coming along and turning an existing industry on its head and has the potential to penetrate all the related existing industries. The 3D printing, artificial intelligence (AI), connectivity/the Internet of Things (IoT), and blockchains are a few examples of disruptive technology. These technologies certainly make life easier but the same cannot be said about enforcement of Intellectual Property Rights over the use of these technologies.
Intellectual Property (IP) plays an essential role in captivating innovative technology and enhancing the competitiveness of the technology-based market. IP law has seen itself entangled in debates over its ability to adapt to new technologies and now is the time when Intellectual property and disruptive technology need to be speculated together.
THE DOWNSIDES OF INCREASING TECHNOLOGIES UNDER IP
It is generally known that the most economically important innovations are disruptive or transformational as it displaces entire classes of technology through the process of creative destruction. These technologies rather than being incremental can mark a large step forward to evade the existing protected intellectual property. For example, the typewriter industry was displaced by the advent of information technology. In such cases, even strong IPRs in the old technology may not pose a barrier, rather they are “invented around” or evaded by the innovator.
Most importantly, the combination of different results of intellectual activity within a sole technology and formation of complex intellectual rights for such a technology (patent, trademark, copyright, design) leads to much larger complications, like for granting protection to robotics there will be protection under Copyrights, Patents, Trademarks as well as Trade secrets. Hence, granting protection under one comprehensive law becomes impossible and also the entire process of protection becomes expensive and tiresome due to such variation in modes of protection.
ARE INDIAN LAWS ADEQUATE?
It is very much legitimate for a consumer to use certain technology, at the same time it is equally justified by the manufacturer of that technology to protect and earn out of it. Will the outbreak of the disrupted technology lead to the end of conventional thoughts of IPRs?
The main question that revolves around disruptive technologies is whether Indian IP laws are sufficient in finding a solution to the problems that emerge due to these technologies? Also, whether the concept of ease is taking over the concept of impartiality?
In most of such technologies, the division will be in four kinds of IP i.e. copyright law for protecting creative works, design law for the protection of appearance of the product, patent law for protecting the novel innovations and at last trademark for protecting the uniqueness of the product in the marketplace (in some cases trade secrets as well). One of the most complicated overlaps exists among the several overlaps in the forms of IP between the copyright law and the design law. The Designs Act, 2000 under Section 2(a) defines an article as “any article of manufacture and any substance, artificial, or partly artificial and partly natural and includes any part of an article capable of being made and sold separately.”
Further, Section 2(d) defines design as “the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trademark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.”
And under Section 15 of the copyright act, there is an exclusive dismissal of copyright in any design which is registered or capable of registration under the Designs Act, 2000 and if there is a copyright in any design capable of such registration under the Designs Act, the copyright to the article to which the design is applied shall cease to be in effect as soon as it is reproduced more than 50 times by an industrial process by the owner of the copyright or, with his license by any other person.
Hence, under the definition of design, Section 15(2) loses dominion, as there can be no existence of any subject matter that is both copyrightable and design registrable, that is, no artistic work would ever qualify for protection as a design.
The growth of disruptive technology is creating a potential threat over the traditional ideas of protection, manufacturing, and designing of products. However ample of IP laws are clogged up in the complications regarding the treatment of a subject-matter. It is essential to understand that laws regarding these technologies cannot be made very rigid as the kind of creation and progress these technologies are bringing, is supposed to be encouraged by the IP.
In India, the IP laws are neither outdated nor stringent and these laws can be widened enough to cover modern, disruptive technologies. Moreover, a slight modification in the current Indian laws can aid as well as bring transparency to the status and treatment of upcoming technologies.
ABOUT THE AUTHOR
This blog has been authored by Ranish Alia who is a Final Year B.B.A., LL.B. (Hons.) student at Institute of Law, Nirma University, Ahmedabad.
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