LLM Group 3 Law of Intellectual Property and Information Technology Copyrights Law and other related rights 2016 Question Paper with Solutions

The World Intellectual Property Organization

Its constitution. WIPO was established by the CONVENTION ESTABLISHING THE WORLD INTELLECTUAL PROPERTY ORGANIZATION, signed at STOCKHOLM ON 14 JULY 1967 and in force from 26 April 1970. It became a SPECIALISED AGENCY OF THE UNITED NATIONS in 1974. It succeeded the United International Bureaux for the Protection of Intellectual Property, the joint secretariat that had administered the Paris and Berne Conventions since 1893. INDIA JOINED ON 1 MAY 1975. Its organs are the General Assembly, the Conference, the Coordination Committee and the International Bureau headed by the Director General, and it is funded largely from the fees of its own registration services rather than from member contributions.

Its objectives, Article 3. To PROMOTE THE PROTECTION of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organisation; and to ENSURE ADMINISTRATIVE COOPERATION AMONG THE UNIONS, that is, the Paris Union, the Berne Union and the others.

Its functions in copyright.

Continuing norm setting. The BEIJING TREATY on audiovisual performances of 2012, in force 28 April 2020, closed the gap the 1996 treaties left for film performers. The MARRAKESH TREATY of 2013 created a copyright exception for persons who are print disabled, and India was the FIRST country to ratify it, on 30 June 2014. Negotiations for a treaty protecting BROADCASTING ORGANISATIONS have continued in the Standing Committee since 1998 without result, so the broadcaster's international floor is still the Rome Convention of 1961.

Dispute resolution and enforcement support. The WIPO ARBITRATION AND MEDIATION CENTER, established in 1994, resolves intellectual property disputes outside the courts, and the UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY, adopted in 1999 on WIPO's recommendation after its Internet Domain Name Process, gives a trade mark owner a fast administrative remedy against an abusive registration. WIPO also runs the ADVISORY COMMITTEE ON ENFORCEMENT, which is deliberately non adjudicatory: WIPO has no power to decide a dispute between States and no sanction, which is precisely why enforcement migrated to the World Trade Organization in 1994.

Step two, protection needs no formality. ARTICLE 5(2) forbids subjecting enjoyment and exercise to ANY FORMALITY, so an author who has registered nowhere may still sue. The same provision makes protection INDEPENDENT of protection in the country of origin, and leaves the extent of protection and the MEANS OF REDRESS to the law of the country where protection is claimed.

Step three, the acts that infringe are defined. Articles 8 to 14ter reserve translation, reproduction, public performance, broadcasting, recitation, adaptation, cinematographic use and resale to the author, so an unauthorised act in any of those categories is an infringement in every Union country. ARTICLE 9(2) confines exceptions by the THREE STEP TEST. ARTICLE 15(1) presumes that the person whose name appears on the work in the usual manner is the author and entitled to sue, which removes the first evidential obstacle in any infringement suit. And ARTICLE 16 requires INFRINGING COPIES TO BE LIABLE TO SEIZURE, including copies imported from a country where the work is not protected.

India, a member since 1928, implements all of this through Chapter IX of the Copyright Act, 1957 and the International Copyright Order, 1999, and gives sixty years where Berne asks for fifty.

Berne Article 5(2), applied in an Indian court. In Sanjay Soya Private Limited v. Narayani Trading Company, judgment of 9 March 2021, the defendant to an infringement suit over an artistic label argued that the plaintiff could not sue because it held no registration under the Copyright Act. G.S. Patel J. rejected the argument, reading section 45, which says a person MAY apply, with section 13, which says copyright SHALL SUBSIST, and with India's obligation under ARTICLE 5(2) OF BERNE that the enjoyment and exercise of copyright be subject to NO FORMALITY. He held registration to be optional and not a precondition to suit, and held an earlier decision of the same Court to the contrary to be per incuriam. The prohibition of formalities is therefore not a diplomatic nicety; it decides Indian litigation.

The Paris question

The Paris Convention for the Protection of Industrial Property, 20 MARCH 1883, is the oldest of the intellectual property treaties and the twin of Berne, but it governs PATENTS, UTILITY MODELS, INDUSTRIAL DESIGNS, TRADE MARKS, SERVICE MARKS, TRADE NAMES, INDICATIONS OF SOURCE and the REPRESSION OF UNFAIR COMPETITION. Its famous provisions are the right of PRIORITY in Article 4, twelve months for patents and six for marks, the independence of patents in Article 4bis, the protection of WELL KNOWN MARKS in Article 6bis and the protection against unfair competition in Article 10bis. NONE OF THIS PROTECTS COPYRIGHT. A candidate who describes the Paris Convention as a copyright instrument has misunderstood the architecture: Paris and Berne are the two founding Unions, one for industrial property and one for authors' rights, and WIPO administers both.

Conclusion. The World Intellectual Property Organization, established by the Stockholm Convention of 14 July 1967 and a specialised agency of the United Nations since 1974, promotes and protects copyright by ADMINISTERING the copyright treaties, by SETTING NEW NORMS where technology has outrun the old ones, by resolving disputes through its Arbitration and Mediation Center and the domain name policy, and by building capacity in developing countries. Its decisive contribution in the digital era was the DIPLOMATIC CONFERENCE OF DECEMBER 1996, which produced the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, and with them the making available right and the protection of technological measures. The BERNE CONVENTION protects against infringement by conferring national treatment without formality, by defining the acts reserved to the author in Articles 8 to 14ter, by presuming authorship in Article 15 and by requiring the seizure of infringing copies in Article 16. The PARIS CONVENTION of 1883 does NOT protect copyright at all, being the industrial property treaty; if the question means the PARIS ACT OF 1971, that is the current text of Berne and the source of the Appendix for developing countries from which sections 32 to 32B of the Indian Act are drawn.