The following points highlight the seven main forms of sui generis rights. The forms are: 1. Database Rights 2. Mask Work 3. Plant Breeders’ Rights 4. Farmers’ Rights 5. Moral Rights 6. Supplementary Protection Certificate 7. Indigenous Intellectual Property.
Sui Generis Right: Form # 1. Database Rights:
Database rights are a form of exclusive right introduced by European Union Law in 1996 in those countries which follow EU Law. A ‘database right’ is an intellectual property right given to a computer database.
The main points about database rights are as follows:
(i) In most countries database are covered by copyright law to some degree.
(ii) The database rights were introduced by European Union Law to provide greater protection to collection of information.
(iii) Database right is covered by sui generic rights.
(iv) Duration. Database rights last for 15 years, but can be extended if the database is updated.
(v) Protection. Database right prevents copying of substantial parts of database. The protection is over the information, not over the form of expression.
Sui Generis Right: Form # 2. Mask Work Rights:
A mask work is a two or three-dimensional layout of an integrated circuit (IC or “chip”), i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections.
Main points related to mask work are listed as under:
(i) Mask work cannot be protected under copyright law or patent law.
(ii) The mask work exclusive rights were first granted in USA by Semiconductor Chip Protection Act of 1984. Such legislations also exist in Canada and Australia.
(iii) Duration. Rights for semiconductor mask work lasts only for two*years (if unregistered) or 10 years (if registered).
(iv) The exclusive rights in mask work are somewhat like those of copyright: the right to reproduce the mask work or distribute an IC made using mask work.
(v) Reproduction for reverse engineering of a mask work is permitted by law.
(vi) Mask work rights exist when they are created, even without registration.
(vii) Protection under mask work cannot be provided to a mask that is not original.
Database and copyright:
There are some similarity and some differences between database and copyrights which are presented in Table 40.3.
Database and Mask Work:
There is some similarity and some differences between database and mask work which are presented in Table 40.4.
Sui Generis Right: Form # 3. Plant “Breeders’ Rights:
Plant breeders’ rights, also known as plant variety rights (PVR), are intellectual property rights granted to the breeder of a new variety of plant. Plant Breeders Rights are granted to novel plant varieties that are distinctive, uniform, and stable (e.g., cultivars bred true-to-type for desired traits).
The legal protection of a new plant variety is granted to the breeder or his successor. The effect of PBR is that prior authorization is required before the material can be used for commercial purposes.
Main Features:
Main features of Plant Breeders’ Rights in relation to registration, duration, validity, matters covered, requirements, transfer, control, enforcement, rights protected and infringement are briefly presented below:
(i) Registration:
Registration is essential to get legal rights. There is no protection without registration. A nominal processing Fee is charged for registration.
(ii) Duration:
The period of protection varies with plant species. It is 20 years for field crops, 25 years for trees, vines, fruit trees, ornamental trees and shrubs [UPOV 1991].
(iii) Validity:
The protection of the Plant Breeders Rights is valid only in the country where it has been registered. The protection in other countries can be obtained by filling separate application in each country.
(iv) Matters Covered:
The protection right can be granted for varieties of all botanical genera and species. The variety should have a designation [name] as per the rule of International Code of Nomenclature.
(v) Requirements:
There are four basic requirements for protection of a variety under PBR, viz:
(i) Novelty,
(ii) Distinctiveness,
(iii) Uniformity and
(iv) Stability.
(vi) Transfer:
An authorized plant breeder has right to authorize other interested persons for commercial production and marketing of his variety on royalty basis.
(vii) Control:
The authorized plant breeder has right to prevent other from commercial production and marketing of his variety without permission.
(viii) Enforcement:
The Plant Breeders’ Rights come into force immediately after registration of the variety.
(ix) Rights Protected:
It provides exclusive rights to the owner for commercial production and marketing of his variety.
(x) Infringement:
Unauthorized production and marketing of a registered variety by other person amounts to infringement. The owner has the right to take legal action against the infringer and claim damages.
Advantages of PBR:
1. Breeders get benefit of their variety.
2. PBR help in faster development of seed industry.
3. PBR lead to improvement in quality because of competition.
4. PBR are useful in procurement of good material on payment basis.
5. PBR help in enrichment of genetic resources.
Disadvantages:
1. It will promote monopoly.
2. It will encourage unhealthy practices.
3. It may lead to increase in prices.
4. There will be reduction in genetic variability. 5. There will be compulsion to purchase fresh seed every year.
Sui Generis Right: Form # 4. Farmers’ Rights:
Farmers’ rights refer to the rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant or animal genetic resources, particularly those in the centres of origin/diversity.
In other words, the legal rights provided to tanners to save, use, sow, replant, exchange, share or sell his farm produce including seed of a variety protected under Plant Variety Protection Act refer to Farmers Rights. The purpose of these rights is to “ensure full benefits to farmers and support the continuation of their contributions.”
The FAO Conference held in Rome from 11-29 November, 1989 endorsed the concept of Farmers Rights with a view to:
(i) Ensuring global recognition of the need for conservation and the availability of sufficient funds for these purposes;
(ii) Assisting farmers and farming communities throughout the world, especially those in areas of original diversity of plant genetic resources, in the protection and conservation of their PGR and of the natural biosphere; and
(iii) Allowing the full participation of farmers, their communities and countries in the benefits derived, at present and in the future, from the improved use of PGR.
Sui Generis Right: Form # 5. Moral Rights:
Moral Rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928.
Moral rights are a special extension to copyright that gives the originator of a copyrighted work rights over its use. The originator can specify moral conditions on the use or exploitation of their creation, even when the rights are licensed or sold to others’.
The main points related to moral rights are presented below:
(i) These are rights provided to authors and directors of copyrights to protect their personal interest in relation to their creations. These rights are provided beyond those strictly recognized in copyright law.
(ii) Moral Rights were granted to authors under the Berne Convention (1989) giving the author (i) right to attribution, and (ii) right to integrity.
(iii) The creator of the work has the right of attribution and integrity, even after sale or transfer of the copyright. In other words, the creator or author shall have the right to claim authorship of the work even after sale or transfer of the copyright.
(iv) Transfer. The copyrights can be transferred or assigned to others, but Moral Right cannot be transferred or assigned.
(v) The author has right to object to any distortion, mutilation or other modification which would be prejudicial to his honour or reputation.
Sui Generis Right: Form # 6. Supplementary Protection Certificate:
This term is used in European Countries. This is an extension of the term given to pharmaceutical or plant protection patent. A supplementary protection certificate (SPC) is a sui generis, patent-like, intellectual property right. This type of right is available for medicinal products, such as drugs, and plant protection products, such as insecticides, and herbicides.
Main points related to supplementary protection certificate are given below:
(i) It is in use in European Union member countries.
(ii) It is a sui generis, patent like, intellectual property right.
(iii) The SPC comes into force only after the expiry of corresponding patent.
(iv) Duration. It has maximum life time of 5 years when granted after 10 years after filing date of a patent. The term would be less than 5 years if it is granted after 5 years from the date of filing the corresponding patent. However, the market exclusivity cannot exceed 15 years.
(v) The SPC provides long term authorization to a patent for marketing.
(vi) Conditions of Issue. It is issued against a patent generally immediately on expiry of the term of the patent. It cannot be issued before 5 years from filing date of corresponding patent.
(vii) The registration is required which is issued on national basis. A separately application is to be filed for registration in each country.
Sui Generis Right: Form # 7. Indigenous Property Rights:
The Indigenous Knowledge also known as Traditional Knowledge [TK] refers to the knowledge, innovations and practices of indigenous people and local communities. In other words, it is the: knowledge gained through tradition from ancestors about plants and animals, medicines, agricultural practices and other matters.
Main points about traditional knowledge are listed below:
(i) Traditional knowledge can be protected by sui generic rights.
(ii) Traditional knowledge is also known as indigenous knowledge or local knowledge or traditional ecological knowledge.
(iii) It covers the matured long-standing traditions and practices of certain regional, indigenous, or local communities. In other words, it is gained from experience gained over the centuries and adapted to local culture and environment.
(iv) It includes knowledge about plants, animals, indigenous treatment of diseases through herbal medicines, cultural practices etc.
(v) Traditional knowledge is based on teachings and experiences and is orally passed on from generation to generation to some persons only. Earlier there were no written document on traditional knowledge.
(vi) Some forms of traditional knowledge are expressed through stories, legends, folklore, rituals, songs and even laws.
(vii) There is difference between local knowledge and traditional knowledge. The former existed from decade to century, whereas the latter existed from millennia.
(viii) It is collectively owned by the people or natives of an ecosystem or region.
(ix) Traditional knowledge incorporates knowledge of ecosystem and code of ethics governing appropriate use of environment. This code includes rules and conventions promoting desirable ecosystem relations, human-animal interactions and even social relationships. A combination of traditional and non-traditional knowledge will form a rich and distinctive understanding of life and the world.
The ecological knowledge is composed of both traditional knowledge and experiential knowledge gained through personal experience.
Traditional knowledge is very important almost in every sphere of life. Hence, its protection is very necessary otherwise this valuable knowledge will be gradually lost.
Advantages and Disadvantages of IPR:
Intellectual Property Rights refer to the legal rights provided to an inventor to derive economic benefits from his invention/innovation.
The main advantages of IPR are as follows:
(i) It promotes healthy competition for invention/innovation among the intellectuals.
(ii) It helps in improving the quality of the product.
(iii) It makes available new ideas technologies to different countries.
(iv) It leads to faster development of industries organizations engaged in research and development work.
There are some disadvantages of Intellectual Property Rights which are briefly presented below:
(i) The procedure of registration, particularly of patents, is very lengthy.
(ii) It involves lot of money transaction in registration, renewal and licensing.
(iii) It invites lots of court cases due to infringements.
(iv) It may lead to monopoly of right holders, etc..