Alternative Disputes Resolution and Intellectual Property Rights: Indian Perspective

  • Dr. Arti and Dr Anu Mutneja
  • Show Author Details
  • Dr. Arti

    Faculty at Legal Studies, Desh Bhagat University, Mandi Gobindgarh Punjab, India

  • Dr Anu Mutneja

    Faculty at Legal Studies, Desh Bhagat University, Mandi Gobindgarh Punjab, India

  • img Save PDF

Abstract

Intellectual Property Rights are respected & protected to the mental ability property and another side Alternative dispute resolution is a very cardinal remedial tool to provide speedy justice. So it is significant in the development of individuals and enhancing social justice in society. Article 21 has incorporated speedy justice as fundamental rights of citizens & persons and our constitutional scheme has also enumerated Alternative dispute resolution as a unique method to resolved disputes on the grass-root level & promotion peace & security under Article 51. The development of science & technology and globalization makes the importance of the protection of Intellectual property rights. During Covid human society are depending on digitalization. No doubt it’s given relaxation to the public at large but brought many issues of cybercrime. In the context traditional legal implementation process is more difficult for justice than an alternative dispute resolution mechanism is becomes a more suitable platform to resolved problems concerned with Intellectual Property rights. The paper is evaluating the method of ADR at the national & International level and difficulties related to enforcement. The purpose of the study is to analyze the benefit and procedure of the ADR body with a legislative response about it. The method of research study is a doctrinal methodology used International Convention, national legal document, case study, journal, and authentic websites. The finding of the research study is Alternative dispute resolution is a flexible remedy in the area of Intellectual Property Rights, the need for awareness, and implementation of Door to Door.

Type

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 3, Page 3647 - 3655

DOI: https://doij.org/10.10000/IJLMH.11850

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I.  Introduction

The alternative dispute resolution mechanism does not a new remedial body; it was also rooted & practiced in ancient, medieval, and modern society. The conciliation, mediation, panch parmeshawra were concerned with respected leaders in the community. They provided advice, suggestions & guidance according to the norms of the society and resolved the disputes in a very easy manner. Many countries are witnessed well-practiced mediation like Albania, Burundi, China, Japan, the Philippines, the Republic of Korea, and Singapore[3]. But these types of Alternative Dispute Resolution methods were not supervised by legislation, States so that becomes a chance of misuse.

Another side the development of science technology, the concept of welfare state civilization, demand for rights, are increased dissatisfaction with litigation than once again for the reason, till the 1970s & 1980s rising adaptation of Alternative Disputes Resolution to reduce pending cases and provides speedy justice[4]. Now a raised a question to how the alternative dispute resolution mechanism is useful for the disputes regarding Intellectual Property Rights. Exactly, the Indian legal system has not incorporated and mandates the adaptation of alternative dispute resolution in the matter of Intellectual Property Rights and the Apex Court has never taken a consistent position in this regard. A Modern & civilized system is needed to adapt ADR to resolve a dispute regarding Intellectual Property Rights. Because extreme business environment and protection of intellectual protection rights both is required easy and flexible remedial body[5].

Approximately, in 1980 the Alternative Dispute Resolution method has achieved an extraordinary standing in the intercontinental society and started programs of Alternative Disputes Resolution on a more on a global scale. The basic key point to understand about the ADR it’s enforceability, which provides satisfaction to access to justice, quick remedy, flexible resolve disputes of the parties, etc. another side it is provides a ground there seeds rule of law, equality, and fraternity. The Ubi jus remedium ibi remedium principle talk about where there is right there is a remedy so that Intellectual property right is conferred many rights to a person who is evolved & produces innovate idea, invention, techniques, etc. it plays a greater role to the development of industries, business & make effective academic system, public and private sector[6]. In this context growth of industry & business has brought an adaptation of ADR practitioners and institutions.  It is also attracted the importance of the ADR in the field of Intellectual Property Rights. So that to understand the significance of alternative dispute resolution mechanism & intellectual property rights.

Learning outcomes

  • To discuss ADR & intellectual property concerned theories
  • To understand the potentiality of all theory of the Intellectual property rights
  • To analyze how ADR will be convenient in the context of Intellectual Property Rights
  • To understand ADR programs are developed by Law of courts & legal agencies
  • The ADR is a complement and supports legal processes.

II. Justification to contemplate alternative disputes resolution for intellectual property

Under this head mentioned many theories are concerned with the adaptation of the Alternation Disputes Resolution mentioned for intellectual property.  The three main theories have discussed the relevancy of Intellectual property rights and their implementation.

(A) Utilitarianism Principles

Jeremy Bentham & John Stuart Mill were justified with Intellectual property rights and agree with it is a very significant part of social resource. John Stuart Mill has evolved to the principle of utility, which directs any act if produce pleasures at large people and ensures the absence of pain[7]. They were strong supporters of the liberty of a person which played a crucial role in the development of mental ability. Jeremy Bentham & J.S. Mill has explained the main motto of the all system to maximize the welfare or well-being of all the people with an effective remedy. Jeremy Bentham has given a new mechanism public opinion tribunal like ADR.  They were allowed the conceptions of intellectual property rights and understand it is a way of foster innovation, invention, and balancing the social welfare & loss of monopoly exploitation[8]. It was a very best example of an adaptation of alternative dispute resolution at this time.  The alternative dispute resolution method is played a greater role to provide justice for the public at large which is a unique part of any democratic & socialist society.  All welfare states are founded on the theory that the one who creates something of value is entitled to enjoy the fruits of his labor. The principle of pleasure and pain is also referred to as the alternative dispute resolution remedy for disputes regarding intellectual property. The impact of the utilitarian principle can show on the Paris Convention for the Protection of Industrial Property (1883). This was the first convention in history in the development of the right to Intellectual property.  It covered to- Patents,

  • Trademarks,
  • Industrial designs,
  • Utility models,
  • Trade names and
  • Geographical indications

With the incorporation of the IP started its protection mode also. We can say the journey of ADR continued with the development of Intellectual property rights.

  1. Personality Theory

The theory propounded by Hegel concerns intellectual property right is a spirit of the personality of anyone and should be protected by law & system. The right is benefited for the society in the context the Justice Reed opinion is very valuable that the sacrificial days devoted to creative activities deserve rewards commensurate with the services rendered[9].  It is part of personality as well as utilities of the society. The copyright law in French & German has been incorporating thoughts concerning Kant and Hegel.

  1. Labour Theory

The theory evolved by John Locke who was the founder of Social Contract theory. According to him, one owns creates intellectual effort and labor and gets fruits that are protected by law[10]. Firstly intellectual property was recognized by the Roman law with natural law theory[11]. Natural law theory is concerned with natural rights and justice and appreciated the protection of intellectual rights itself. The classic theory of property is formulated by John Locke can be applied to the recent connecting intellectual Property rights[12].

The above theories are indicating respect & protection of an invention, innovation, new creation, and its speedy implementation. In International Society for Krishna Consciousness v. ISKCON Apparel Pvt. Ltd,[13]the Bombay High Court has explained plaintiff ISKCON is enviable reputation and goodwill acquired that not violated by the defendant Company. The case is clarifying respect & security of intellectual property both are connected themselves. Undoubtedly intellectual property rights deserve the highest degree of protection.

(B) Speedy Justice Principles

Speedy justice is a very new and justified principle to adopt Alternative Dispute Resolution techniques for resolved disputes of IP. Another point the Speedy justice is a fundamental right implicit in the broad sweep and content of Article 21[14]. In Bajaj Auto Limited v. TVS Motor Company Limited[15] the apex court has observed that an effective remedy plus immediate remedy mechanism should be needed about the disputes of intellectual property rights. ADR is a new effective remedy to deals with intangible rights. During a pandemic, increase the dependency on technology and a lot of the issues came in the society related to the infringement of intellectual property rights.

III. Certainty of forum & neutrality: indian public law

Long before ADR had become a term of art or even a subject of any real interest, international trade agreements were incorporating formal dispute settlement mechanisms[16]. The WIPO Convention is played a crucial role in the protection and promotion of intellectual property rights worldwide. The significant ingredient instrument of the World Intellectual Property Organization has established by the WIPO Convention[17]. WIPO has extremely two main objectives are following-

The convention has enumerated a lot of standards for the protection of authors, inventors, and intellectual property rights holders, etc. The convention also provides certain limitations on the protections that mean IPR is not exhaustive rights protected under reasonable restrictions confer by law and State.

Alternative dispute resolution mechanism has provided a forum for speedy justice & given an equal, chief, choice opportunity to the settlement of disputes.  The Indian Constitutions have provided promotion of arbitration for international peace. Article 51(d) confers the State has to endeavor to encourage settlement of international disputes by arbitration; it is also incorporated settlement of national disputes as well. The section 89 of the code of civil procedure code, many decisions of Apex Court as well as Law commission Report 238th are indicated & analysis the significance of the mediation, conciliations & Lok Adalats, etc. the main object of the ADR mechanisms under Section 89 is provided to easy and chief judicial system and access to justice to all[18]. The judiciary has faced many difficulties regarding commercial transactions implicating the laws, just, the fair and reasonable process for settlement of the disputes, many different jurisdictions, etc. bring to attention the reasons in an Intellectual property transaction disputes mandating the ADR.

Article 19 (i) (a) of the Indian Constitution provides space and protection of intellectual property rights but it is not absolute in manner. Article 19(2) is talking about the reasonable restrictions on the rights of freedom of speech & expression including Rights regarding Intellectual Property. The speedy justice is well-settled rights in the field of criminal prosecutions and coved with civil rights also.  ADR is an alternative remedy that is trying to all get justice in a very speedy manner because justice delays justice denial. Speedy justice is the cornerstones of Article 21 and personal liberty[19].

IV. Principles regarding flexibility of remedy

Flexibility is more concerned to ADR for the resolved dispute concerning Intellectual property rights. It promotes multi-action remedies with the consent of the parties. ADR process is covered in multi-easy method to a settlement of disputes and follows the own procedures. It also provides economic justice, social justice, and an understanding of emotional relations between parties. For example, family courts were early adopters of mediation programs because of the emotional and interpersonal characteristics of family disputes. The judicial efforts are playing the growth of ADR. Intellectual Property to encourage innovation and wealth generation, effective laws and legal processes must satisfy three functions:

  • Recognize private Intellectual Property rights are to award legitimate claims of rights and to deny claims that should not be legally recognized.
  • Enforce and protect legitimate IP rights by providing processes and remedies for their infringement, and
  • Regulate and facilitate the use of legitimate IP rights[20].

The basic point is regarding identifying the functions of IP law broadens to understanding the contributions made within this Symposium. In exploring how to prevent and resolve IP disputes, the Symposium focuses primarily on the enforcement and protection function. But other functions of IP law are affected by the procedures used for enforcing IP rights. What IP rights should be recognized, and how those rights can be regulated and facilitated, and influenced by the feasibility of enforcement efforts[21].

 Next point the three functions advances understanding of each and reveal opposing tensions in their future development and ADR is making an effective platform for the settlement of any dispute of IP in a very easy manner. Technological advances & globalization communications, together with the increase the misuse of the data and copyright authenticate; mediation & conciliation process demands to secure of digitalization of information & intellectual property rights more important. Alternative Dispute Resolution has further made the facilitative function of using or capturing the value of IP rights, far easier manner. The techniques of the ADR are Mediation & Arbitration. The Indian Parliament has passed the Arbitration and Conciliation Act 1996 for the better implementation of the ADR. But it does not provide clear & direct space-related IP disputes.

The benefits of using Alternative Dispute Resolution in the settlement of Intellectual Property issues are mentioned in chart 1.

The above quality & benefits are referred speedy justice to parties concerning Intellectual property Rights. Another thing about the significance of ADR for IP it’s provides an award and cannot generally subject to appeal which means final judgment and without delay implemented. On the other side, the three basic types of international dispute-resolution mechanisms are

  1. Mediation;
  2. Nonbinding arbitration; and
  3. Binding arbitration[22].

V. Legislative response towards adr for ipr: indian perspective

The Arbitration Amendment Act 2019 refers to establish the Arbitration Council of India known as ACI. It has exercised powers recognizing professional institutes that provide accreditation to arbitrators, issuing recommendations and guidelines for arbitral institutions, and taking steps to make India a center of domestic and international arbitrations[23].

Section 130(5) of the patent act, 1970 refers to the adaptation of ADR in resolved disputes concerning Intellectual Property Rights. According to the section,[24] the High Court may –

  • Any time ordering the whole proceedings or
  • Any question or
  • Any issue of fact arising therein to be referred to an official referee, that means
  • Commissioner or an arbitrator shall be construed accordingly.

Today Intellectual Property Rights are very valuable to research collaborations and fundamental tools in the development of business & technological entities. Frequently, all business entities having familiarity with alternative dispute resolution (ADR) can resolve such conflicts efficiently. The Copyright Act, the Trademark Act also provides the indirect adaptation of alternative dispute resolution methods to resolved disputes of IP.

Indian legal framework concerning protection of Intellectual property rights is not very successful and effective. During pandemic miscues of copyrights and other rights become general; so need to speed justice and effective remedy in infringement of intellectual property rights. Article 32 of the Indian constitution has also protector of the IPR and appreciated to speedy justice.

Indian government has collaborated with European country for the development of Intellectual property rights & innovation economy policy in 2016. The main vision behind this collaboration is to promote new startups, awareness about IP & regional innovation on the grass root level[25]. All these thinks indicated adaptation of alternative dispute resolution tool in resolved the dispites of intellectual property.

VI. Conclusion

The concluding remarks the ADR for Intellectual property rights dispute is likely to help more the parties and provides a faster remedy. It’s created new opportunities for parties & formulated constructive methods to help business entities & innovative ideas, thinks, etc. the lack of direct legislative provisions about the ADR in the disputes of IP created many difficulties to understand how ADR is efficient dispute resolution for IP. The need should be amended intellectual Property rights law and expressly mentioned alternative dispute resolution process in resolved to disputes of IP. Recent time wants to improve the business environment and IPR protection and it is enhancing the importance to reform the IPR law. The protection of Intellectual property rights is becoming vastly valuable across the world. Digital mediation & arbitration should be evolved by the Government; need to the mindset to enforcement it then the mechanism can be given better response in resolved disputes concerning IP. I acknowledge Ms. Aasha Devi and thank her contribution, my sincere thank to the Desh Bhagat University to provides a research resource library for the prepared this paper.

*****

[1] Author is a Faculty at Legal Studies, Desh Bhagat University, Mandi Gobindgarh Punjab, India.

[2] Author is a Faculty at Legal Studies, Desh Bhagat University, Mandi Gobindgarh Punjab, India.

[3] WIPO Guide on Alternative Dispute Resolution (ADR) Options for Intellectual Property Offices and Courts, Korean Intellectual Office, WIPO/ADR Arbitration &Mediation Centre, 2018.

[4] Maurer Bill, The Disunity of Finance: Alternative Practices to Western Finance, 413The Oxford Handbook of the Sociology of Finance, (2012).

[5]Ankur Singhal & Vasavi Janak Khatri, Recent Developments Concerning Arbitrability of IPR DasSisputes in India: a Need for Reform, 1-18, Vol. 5 Indian Law Review,(2020).

[6] Professor (Dr.) Ranbir Singh, Dr. Vishwas Devaiah, Intellectual Property Theoretical Justifications for Intellectual Property, An MHRD Project under its National Mission on Education Through ICT(NME-ICT), available at: https://epgp.inflibnet.ac.in/Home/ViewSubject?catid=20(last visited on 19/05/2021).

[7] Ibid.

[8] Peter S. Menell, Intellectual Property: General Theories, available at: http://www.dklevine .com/archive/ittheory.pdf(last visited on 19/05/2021).

[9] Mazer v. Stein, 347 U.S. 201 (1954).

[10]M Du Bois, Justificatory Theories for Intellectual Property Viewed through the Constitutional Prism, PER / PELJ 2018(21) Open Access Online Law Publications (2018).

[11] Ibid.

[12] Herman T. Tavani, Locke’s Intellectual Property Rights & the Information Common, 87-97, Ethics & Information Technology, (2005).

[13] Commercial IP Suit (L) No. 235 of 2020.

[14] M.P. Jain, Indian Constitutional Law, 1199, (6th edn. 2013).

[15] (2008)36 PTC 417.

[16] O. Thomas Johnson Jr, Alternative Dispute Resolution in the International Context: The North American Free Trade Agreement, 46(5) SMU Law Review 2175 (1993).

[17] Summaries of Conventions, Treaties and Agreements Administered by WIPO, World Intellectual property Organization, (2013).

[18] Dr. Marisport A, Resolving Pending Cases Through Alternative Dispute Resolution Under Section 89 Of Civil Procedure Code: A Case Study, Department Of Justice, Ministry Of Law And Justice, Government Of India,(2019).

[19] Ibid.

[20] Thomas D. Barton & James M. Cooper, Symposium Introduction: Advancing Intellectual Property Goals Through Prevention And Alternative Dispute Resolution, California Western International Law Journal, Vol. 43, No. 1 (2012).

[21] Id. at2

[22] O. Thomas Johnson Jr, Alternative Dispute Resolution in the International Context: The North American Free Trade Agreement, 46(5) SMU Law Review, 2178 (1993).

[23]Nishith Desai, Dispute Resolution in India,(2020) available at: http://www.nishithdesai.com /fileadmin/user_up load/pdfs/Research%20Papers/Dispute_Resolution_in_India.pdf(last visited on 20/05/2021).

[24] Section 103(5), Patent Act, 1970.

[25] European Business & Technology centre Enabling Europe India Collaboration, available at: https://ebtc.eu/initiatives-ip-forum.php(last visited on 30/ 05/2021.

*****