Unit 13: Copyright and Trademark Law

Copyright and trademark are two branches of intellectual property (IP) law that protect intangible creations, but they protect different things and rest on different justifications. Copyright protects original creative expression; trademark protects the signs that distinguish one trader's goods from another's. This unit establishes the concept and principles of copyright and its neighboring rights, then traces the historical growth of trademark law at national and international levels.

• Intellectual property: rights over creations of the mind, granting the holder time-limited or renewable control over use, so as to reward creativity and secure investment.
• Copyright branch: literary, dramatic, musical and artistic works, plus films and sound recordings; arises automatically on creation.
• Trademark branch: words, logos, symbols, shapes and sounds that identify commercial origin; strengthened by registration and use.
• Territorial principle: IP rights are granted by each state and enforced within its borders, so international treaties coordinate protection across countries.
• Balance principle: the law weighs the creator's private reward against the public interest in access, competition and information.

II. Copyright and Neighboring Rights

Protection of original expression and of the rights adjacent to it

Copyright grants an author exclusive economic and moral control over the reproduction and communication of an original work, while neighboring (or "related") rights protect those who transmit or perform works rather than author them.

A. Concept

Copyright is the exclusive legal right, granted to the creator of an original work, to reproduce, distribute, perform and adapt that work for a defined period.

• Subject matter: original literary, dramatic, musical and artistic works, plus cinematograph films and sound recordings — e.g. a novel, a song's notation, a painting.
• Automatic subsistence: protection arises the moment the work is fixed in a tangible form; registration is optional and only evidentiary (Indian Copyright Act, 1957).
• Expression not idea: copyright protects the form of expression, never the underlying idea, fact or method — the "idea–expression dichotomy."
• Bundle of rights: the owner holds economic rights (reproduction, communication to public, translation, adaptation) and moral rights (attribution and integrity).
• Duration: typically the life of the author plus 60 years in India (life + 70 in the EU and USA), after which the work enters the public domain.

B. Principles

Copyright law operates through a small set of governing principles that recur across national statutes and treaties.

• Originality: the work must originate from the author and show minimal skill, labour and judgment — not mere copying. The threshold is low but real.
• Fixation: in many systems the work must be recorded in a material form before protection attaches (writing, recording, coding).
• Territoriality with national treatment: each country protects works under its own law, but treaties require it to treat foreign authors as it treats its own nationals.
• Exhaustion: once a lawful copy is sold, the owner's control over that particular copy's resale is spent (first-sale doctrine).
• Fair dealing / fair use: limited use without permission is allowed for research, private study, criticism, review, news reporting and education.
  • Fair dealing: a closed list of permitted purposes, as in India and the UK.
  • Fair use: an open, four-factor test in the USA (purpose, nature, amount, market effect).
• Moral rights: the paternity right (to be named) and the integrity right (to object to distortion) survive even after economic rights are assigned.

C. Neighboring Rights

Neighboring rights protect intermediaries whose contribution helps a work reach the public, distinct from the authorship that copyright rewards.

• Rationale: performers, producers and broadcasters invest skill and capital in disseminating works, so they receive their own related rights rather than authorship.
• Three principal holders:
  • Performers: singers, actors, musicians, hold rights over the fixation, reproduction and broadcast of their live performances (performer's rights).
  • Producers of sound recordings (phonogram producers): control reproduction and distribution of the recording, separate from the song's composer.
  • Broadcasting organisations: hold "broadcast reproduction rights" over their signals against re-broadcasting and recording.
• Shorter duration: related rights generally run for a fixed term from performance or broadcast (commonly 25–50 years) rather than measured by an author's life.
• International anchor: the Rome Convention (1961) was the first treaty to protect performers, phonogram producers and broadcasters together; later reinforced by the WIPO Performances and Phonograms Treaty (WPPT, 1996).

III. Historical Development of the Concept of Trademark and Trademark Law

From maker's marks to a coordinated international system

A trademark is a sign capable of distinguishing the goods or services of one undertaking from those of others, and its law evolved from private craft marks into registered, statutory and treaty-protected rights.

A. Concept of Trademark

A trademark identifies commercial origin and guarantees consistent quality, protecting both the trader's goodwill and the consumer against confusion.

• Function: it answers "who made this?" and lets buyers rely on a source — e.g. a logo, brand name, or the distinctive shape of a bottle.
• Registrability requirement: the mark must be distinctive, either inherently (invented words like Kodak) or through acquired reputation.
• Bars to registration: marks that are generic, descriptive, deceptive or identical to an earlier mark are refused.
• Rights conferred: the exclusive right to use the mark on the registered goods and to prevent confusingly similar use by others (infringement).
• Renewable term: unlike copyright, a trademark can last indefinitely so long as it is renewed and used — commonly in 10-year cycles.

B. Historical Development — National

Trademark protection began as commercial custom and hardened into statute, most clearly traced through English and Indian law.

1. Early and common-law phase:
   • Maker's marks (medieval guilds): craftsmen and merchants marked goods to signal origin and enforce guild quality standards.
   • Passing-off action: English common law protected traders against rivals who misrepresented goods as theirs, protecting goodwill without any register.
2. Statutory phase:
   • UK Trade Marks Registration Act, 1875: created the first trademark register, so priority could be proved by registration date rather than only by prior use.
   • India: protection was initially given only through passing-off and the Specific Relief Act; the first dedicated statute was the Trade Marks Act, 1940, modelled on UK law.
   • Trade and Merchandise Marks Act, 1958: consolidated Indian trademark law after independence.
   • Trade Marks Act, 1999: the current Indian statute, enacted to meet TRIPS obligations; it recognised service marks, well-known marks and a 10-year renewable term.

C. Historical Development — International

Because trademarks are territorial, cross-border trade forced states to coordinate registration and recognition through a chain of treaties administered largely by WIPO.

• Paris Convention for the Protection of Industrial Property (1883): the foundational treaty for trademarks and patents.
  • National treatment: each member must protect foreign applicants as its own.
  • Right of priority: an applicant filing in one member state may claim that date when filing in others within six months for marks.
• Madrid Agreement (1891) and Madrid Protocol (1989): created the Madrid System, allowing a single international application to seek protection in many countries at once.
• Nice Agreement (1957): established the Nice Classification, the international system of 45 classes of goods and services used to file marks.
• World Intellectual Property Organization (WIPO, 1967): the specialised UN agency that administers these treaties and coordinates global IP policy.
• TRIPS Agreement (1994): annexed to the WTO agreement, it set binding minimum standards.
  • Scope: required protection of service marks and well-known marks, and a minimum initial registration term of seven years, indefinitely renewable.
  • Enforcement: obliged members to provide civil, criminal and border enforcement, backed by WTO dispute settlement.
• Effect on national law: TRIPS drove states such as India to modernise statutes (the 1999 Act), harmonising domestic trademark law with the international framework.

IV. Copyright and Trademark Compared

Why the two regimes differ in object and term

Though both are intellectual property, copyright and trademark diverge in what they protect and how long protection lasts.

• Object protected:
  • Copyright: original creative expression — a book, film, song.
  • Trademark: a distinctive sign of origin — a brand name or logo.
• Origin of the right:
  • Copyright: automatic on creation and fixation.
  • Trademark: strengthened and secured by registration and continued use.
• Duration:
  • Copyright: finite (life plus 60–70 years), then public domain.
  • Trademark: potentially perpetual through renewal.
• Harm addressed: copyright targets unauthorised copying of expression; trademark targets consumer confusion about commercial source.
• Shared foundations: both rest on territoriality tempered by national treatment, both are coordinated through WIPO-administered treaties, and both balance private reward against the public interest.