Intellectual Property , And it's Classifications. Nature, Purposes, and Necessity, as well as TRIPS covers Rights.

 

Definition of Intellectual Property (Law IP Law)
 Intellectual property law is that area of law concerning legal rights in properties created out of human intellect i.e. creations of the human mind such as ideas, inventions, signs, and information. This law regulates the creation, use, and exploitation of such creations of the human mind or creative efforts.
This law covers:

• Creations of intellectual property.
• Protection of intellectual property and use of intellectual property associated with creative effort or commercial reputation and good will.

Terminological Definitions of IP Law

1. IP law deters others from copying or taking unfair advantage of the work or the reputation of another.
2. IP law provides remedies should infringement (wrongdoing) happen.
3. Remedies are in the form of civil, criminal, and administrative action.
4. Intellectual property refers to the creations of the human mind.
5. Inventions,
6. literary and artistic works.
7. shapes; and symbols.
8. commerce.
9. names, and images used in commerce.
10. Creations of the human mind designated as intellectual property are intangible things.
11. The subject matter of intellectual property is very wide. Intellectual property includes literary and artistic works, films, computer programs, inventions, designs and marks used by traders for their goods or services.

Classification of Intellectual Property

There are several different forms of rights or areas of law giving rise to rights that together make up intellectual property. They are:

1.  Industrial property.
2. Copyright.
3. Others right.

1=Industrial property:

 Such property relates to property in the Industrial, commercial, agricultural and extractive industries and to all manufactured and natural products (Art. 13 of Paris Convention). It is created through the intervention of the industry. Industrial property owner enjoys a monopoly in an invention. Traditionally, a number of intellectual property rights are known as industrial property including:

 Patents – a patent is an exclusive right granted for an invention - a product or the process that provides a new way of doing something, or that offers a new technical solution to a problem,

Trademarks – a trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company.

Designs – an industrial design refers to the ornamental or aesthetic aspects of an article.

 Geographical indications (GI) – a geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to that place of origin.

 2= Copyright

• Right to copy a work.
• Copyright subsists (exists) in various works, for example, literary works, artistic works, musical works, sound recordings, films and broadcasts.
• The author of a work is the person who creates it and is normally the first owner of the copyright.

Copyright gives the owner the right to do certain things in relation to the work-:

• Making a copy. 
• Reproducing the work.
• Translating the work.
• Adapting the work.
• Broadcasting the work or giving a public performance of the work.

Copyright does not create a monopoly in a particular work. For example, one can make a copy of a work for the purposes of non-commercial use, private study, criticism, or review. It does not protect ideas, only the expression of an idea (that is its tangible form).

3/ Others right

• Related right (neighboring right)

A closely associated field with copyright is "related rights" or rights related to copyright that encompass rights similar or identical to those of copyright, although sometimes more limited and of shorter duration.

There are some beneficiaries of related rights are:

• Performers (such as actors and musicians) in their performances.
• Producers of phonograms (for example, compact discs) in their sound recordings, and
• Broadcasting organizations, in their radio and television programs.

Economic right

• The economic rights relating to copyright i.e. sell, distribute etc. begin with the creation and fixation of the work, and last for not less than 50 years after the creator's death.
•  Related rights enjoy shorter terms, normally 50 years after the performance, recording or broadcast has taken place.

Moral right

Copyright and the protection of performers also include moral rights meaning the right of attribution (i.e., the right to be identified as the author of the work the right to claim authorship of a work), and integrity (i.e., the right to protect the work from alterations harmful to the author's reputation – the right to oppose changes to the work that could harm the creator's reputation).
Anyone else who does any of the things of copying without permission of the owner infringes the copyright or related right. Persons without permission may be subject to legal action taken by the owner/licensee for that infringement.

TRIPS covers IP rights in the following areas:

1. Copyright and Related Rights.
2.  Trademarks.
3. Geographical indications.
4. Industrial Designs.
5. Patents.
6. Layout Designs (Topographies/a mask Integrated Circuits (IC of chip).
7. Protection of undisclosed information.
8. Control of Anti-competitive practices in contractual linens.

[6 - Layout-Designs (Topographies/a mask work) of Integrated Circuits (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. The layout is called a mask work because, in photolithographic processes, the multiple etched layers within actual ICs are each created using a mask, called the photomask, to permit or block the light at specific locations, sometimes for hundreds of chips on a wafer simultaneously.

 Because of the functional nature of the mask geometry, the designs cannot be effectively protected under copyright law (except perhaps as decorative art).
Similarly, because the individual lithographic mask works are not clearly protectable subject matter, they also cannot be effectively protected under patent law, although any processes implemented in the work may be patentable.

So, since the 1990s, national governments have been granting copyright-like exclusive rights conferring time-limited exclusivity to reproduction of a particular layout.]

Nature of Intellectual Property

Generally speaking, intellectual property is property since it can be owned, possessed, or transferred. Legally speaking, intellectual property is property owned with the rights of possession, use, and enjoyment, and which the owner can bestow, collateralize, encumber, mortgage, sell, or transfer, and can exclude everyone else from it. Jurisprudential character involving rights and duties.

 Purchasers' rights and intellectual property rights, not absolute right to use/exploit, obligations to register, etc. Art 42 right to property and 152 ("property" includes property of every description movable or immovable, corporeal or incorporeal, and commercial and industrial undertakings, and any right or interest in any such property or undertaking;).

Purposes of Protecting Intellectual Property

Partly on morality and partly on the concept of reward to control the use and exploitation. There are three (3) theories, natural, reward, and compensatory theory.

Natural theory: -Recognition - A man should own what he produces, that is what he brings into being,
Reward theory: Encouragement of the creator with reward.
compensatory theory: It ensures compensation for creators.
Protection creates a contract between the inventor or designer and the state. It encourages the dissemination of information and widens the publication of available knowledge. To guard against counterfeiting which is a serious problem and to make economic gains.

The necessity to Study Intellectual Property Law
Intellectual property law is a demanding subject. Many aspects of procedural law are also highly relevant to intellectual property law. The study of intellectual property law cuts across boundaries.

MH Tarek

LLB ( hon's ), LLM

Founder- Mootsolution ( The jurists firm )

 

 

The offences and punishment has been mentioned in the Pornography Control Act 2012 and Digital security Act 2018

 

from online

The Parliament has enacted a law by the title of Pornography Control Act, 2012. The law was approved by the President of Bangladesh on 08 March 2012 having been accepted by the Parliament. The preamble of the Act very correctly identifies the reason behind enacting this piece of legislation.

 The preamble says this Act has been enacted to prevent deterioration of moral and ethical values of the society. Information technology with its immense benefits has got some disadvantages as well if it is used by mischief people with criminal intention. It has been seen in our country that video clips, MMS etc, of sexual intercourse or behavior relating to sexual activities have been recorded on camera by a section of people and then used to blackmail, cheat, defame girls and women.

 But The law is observed to be rigid by its nature and has drawn criticism from different quarters of society. on the other hand, the provisions of the Digital Security Act were passed by the parliament in September. The most controversial Act came into effect in October 2018. Though the Act opposed was by many members of media and human rights organizations but yet it came into effect.

Offencess and Punishment under above two laws

Offences and Punishment of porngraphy control Act 2012

Sec 8 (1); 

In pornography act capturing video or still picture of sexual intercourse or behaviors that increase sexual sensation with or without consent of the parties; whose are in sexual interaction; is considered as crime under section 8 of pornography act 2012 and punishment for the crime is maximum 8 year imprisonment and 2 lacks taka fine under section 8 of the pornography act 2012.

Sec 8(2): 

If a person harms another person's social or personal dignity or through money intimidation or any other benefit, or mentally tortures a person by means of any pornography that is committed with or without consent of a person, it shall be considered as crime and punishment for such crime is maximum 5 years rigorous imprisonment and 2 lacks taka fine under section 8 of the pornography act 2012.

Sec 8(3); 

Distribution of pornography via any electronic device, internet, social communication site or hand to hand is punishable under this act. For such types of crime he will be gone into imprisonment for utmost 5 year and 2 lack taka fine.

Sec 8(5);

 production, sale, purchase, distribution, promotion, informing source of porn expressively or attempt to do any such act is punishable for utmost 2 year in jail and 1 lack taka fine.

Sec 8(6);

 According to minority act 1878 a minor is belongs to any age bellow 18 year and making a porn video with minor is major crime and for this criminal will be convicted for 10 year imprisonment and 5 lack taka fine.

Sec 8(7); 

persons committing assistance or association with actions described in sec 8(5) is punishable equally. ( punishable for utmost 2 year in jail and 1 lack taka fine.)

Sec8(4);

When public disturbance, troubles and chaos revealed due to distribution, exhibition or publication will be punishable as maximum 2 year in jail along with 1 lack taka fine.

Offences and Punishment of Digital Security Act 2018

from online

17) Punishment for Illegal Entrance in Critical Information Infrastructure, etc.: -

Offence

(1) If any person intentionally or knowingly in any Critical information infrastructure-:

a. Illegally enters, or

b. By means of illegal entrance, harms or destroys or renders inactive the infrastructure or

tries to do so then the above activity of that person will be an offense under the Act.

Punishment

(2) If any person of Sub Section (1)-:

a. Commits any offense within the Clause (a) then, the person will be penalized by

imprisonment for a term not exceeding 7(seven) years or by fine not exceeding 25

(twenty five) lacs taka or with both.

b. Commits any offense within Clause (b) then, the person will be penalized by

imprisonment for a term not exceeding 14 (fourteen) years or with fine not exceeding 1

(one) crore taka or with both.

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits the offense then, he will be punished with lifetime imprisonment or

with fine not exceeding 5 (five) crore taka or with both.

18) Illegal Entrance in computer, digital device, computer system, etc. and punishment:-

Offence

(1) If any person willingly:

 a. illegally enters or help to enter in any computer, computer system or computer network, or

b. illegally enters or helps to enter with the intention of committing a crime then the

activity of that person will be a offense under the Act

Punishment

(2) If any person under Sub Section (1)- a. Commits any offense within the Clause (a) then, the person will be penalized with imprisonment for a term not exceeding 6 months or by fine not exceeding 3 (three) lacs taka or with both.

b. Commits any offense within Clause (b) then, the person will be penalized with

imprisonment for a term not exceeding 3(three) years or with fine not exceeding 10

(ten) lacs taka or with both.

(3) If an offence within the Sub-Section (1), is committed in case of a secured computer or

computer system or computer network then, the person will be penalized by imprisonment

for a term not exceeding 3(three) years or by fine not exceeding 10 (ten) lacs taka or with

both.

(4) If any person commits the offense within this Section for the second time or recurrently

commits it then, he will be penalized with punishment that is two times of the punishment

designated for the main offense

 

19) Damage of Computer, Computer System, etc. and punishment:-

Offence

(1) If any persona. Collects any data or data-storage, information or part of it from any computer, computer

system, or computer network or collects transferable information or part of it or copy of

it stored in the said computer, computer system or computer network, or

b. Intentionally inserts or tries to insert any virus or malware or any harmful software in

any computer or computer system or computer network, or

c. Intentionally harms or tires to harm the data or data-storage of any computer, computer

system, or computer network or harms or tries to harm the Programs protected in a

computer, computer system, or computer network or

d. By any means stops or tries to stop a valid or authorized person to enter any computer,

computer system, or computer network, or

e. Intentionally creates or tries to create spam or undesired emails without the permission

of the sender or receiver, for any product or service marketing, or

f. Interferes unjustly in any computer, computer system or Computer network or by lies

and deliberate falsity enjoys the service of an individual or transfers the charge or tries

to transfer of such service into the account of another

Then, that person’s activity will be an offense under the Act.

 

Punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding 7(seven) years or fine not exceeding

10 (ten) lacs taka or with both.

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be punished with imprisonment for a term not exceeding

10( ten) years of imprisonment or with fine not exceeding 25 (twenty five) lacs taka or with

both.

20) Offenses relating to Computer Source Code Change and Punishment:-

Offence

(1) If any person intentionally or knowingly hides or destroys or changes the source code used

in any computer, computer system, or computer network or if he tries to hide, destroy or

change the source through another person and if that source code is preserved and

securable then that act of the said person will be considered an offense under the Act.

Punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding 3 (three) years or fine not exceeding

3 (three) lacs taka or with both.

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be punished with imprisonment for a term not exceeding

5(five) years or with fine not exceeding 5 (five) lacs taka or with both.

21) Punishment for Any propaganda or campaign against liberation war, Cognition of

liberation war, Father of the nation, National Anthem or National Flag: -

offence

(1) If any person by means of digital medium runs any propaganda or campaign or assists in

running a propaganda or campaign against the liberation war of Bangladesh, Cognition of

liberation war, Father of the Nation, National Anthem or national Flag then, that act of that

person will be an offense under the Act.

Punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding 10 (ten) years or with fine not

exceeding 1 (one) crore taka or with both.

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be punished with life term imprisonment or with fine

not exceeding 3 (three) crores or with both.

22) Digital or Electronic Forgery:-

Offence

(1) If any person commits forgery by means of any digital or electronic medium then that

activity of that particular person will be an offense under the Act.

Punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding 5 (five) years or with a fine not

exceeding 5 (five) lacs taka or with both.

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be punished with imprisonment for a term not exceeding

7 (seven) years or with fine not exceeding 10 (ten) lacs taka or with both.

23) Digital or Electronic Fraud:-

Offence

(1) If any person commits fraud by means of any digital or electronic medium then that activity

of that particular person will be an offense under the Act.

Punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding 5 (five) years or by fine not exceeding

5 (five) lacs taka or with both

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be punished with imprisonment for a term not exceeding

7 (seven) years or with fine not exceeding 10 (ten) lacs taka or with both.

24) Identity Fraud or Being in Disguise:-

Offence

(1) If any person intentionally or knowingly uses any computer, computer Program, computer

system, computer network, digital device, digital system or digital network,

a. With the intention of deceiving or cheating carries the identity of another person or shows any person’s identity as his own, or

 b. Intentionally by forgery assuming the identity of a alive or dead person as one’s own for

the following purpose:

i. To achieve some advantages for oneself or for any other person;

ii. To acquire any property or interest in any property;

iii. To harm a person by using another person’s identity in disguise.

Then the Act of the person will be an offense under the Act.

Punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized by imprisonment for a term not exceeding 5 (five) years or fine not exceeding 5

(five) lacs taka or both

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be punished with imprisonment for a term not exceeding

7 (seven) years or with 10 (ten) lacs taka or with both.

25) Publishing, sending of offensive, false or fear inducing data-information, etc.:-

Offence

(1) If any person in any website or through any digital medium:

a. Intentionally or knowingly sends such information which is offensive or fear inducing, or which despite knowing it as false is sent, published or propagated with the intention to annoy, insult, humiliate or denigrate a person or

b. Publishes or propagates or assists in publishing or propagating any information with the

intention of tarnishing the image of the nation or spread confusion or despite knowing it

as false, publishes or propagates or assists in publishing or propagates information in its

full or in a distorted form for the same intentions. Then, the activity of that person will be an offense under the Act.

Punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding 3(three) years of or fine not

exceeding 3(three) lacs taka or with both.

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be punished with imprisonment for a term not exceeding

5(five) years or with fine not exceeding 10 (ten) lacs taka or with both.

26) Punishment for Collecting, Using sIdentity Information without Permission, etc :-

Offence

(1) If any person without any legal authority collects, sells, takes possession, supplies or uses

any person’s identity information, then, that activity of that person will be an offense under

the Act.

Punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding 5 (five) years or fine not exceeding 5

(five) lacs taka or with both.

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be penalized with imprisonment for a term not exceeding 7 (seven) years or with fine not exceeding 10 (ten) lacs taka or with both.

27) Punishment for committing Cyber-terrorism: -

offence

(1) If any person –

a. With the intention to breach the national security or to endanger the sovereignty of the

Nation and to instill terror within the public or a part of them creates obstruction in the

authorized access to any computer, computer network or internet network or illegally

accesses the said computer, computer network or internet network or cause the act of

obstruction of access or illegal entry through someone, or

b. Creates such pollution within any digital device or inserts malware which causes in the

death of a person or results in serious injury to a person or raises a possibility of it, or

c. Damages or destroys the supply of daily necessities of public or adversely affects any

critical information infrastructure

d. Intentionally or knowingly enters or penetrates any computer, computer network,

internet network, any secured data information or computer database or such secured

data information or computer database which can be used to damage friendly relations

with another foreign country or can be used for acts against public order or which can

be used for the benefit any foreign country or any foreign person or any group.

Then that activity of that person will be considered as cyber security crime.

punishment

(2) If any person commits any offense mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding 14(fourteen) years or with fine not

exceeding 1(one) crore taka or with both.

(3) If any person commits the offense mentioned in sub-section (1) for the second time or

recurrently commits it then, he will be punished with lifetime imprisonment or with fine not

exceeding 5(five) crore taka or with both

28) Publication, Broadcast, etc. of such information in any website or in any electronic format that hampers the religious sentiment or values:-

 

Offence

(1) If any person or group intentionally or knowingly with the aim of hurting religious

sentiments or values or with the intention to provoke publish or broadcast anything by

means of any website or any electronic format which hurts religious sentiment or values

then such activity of that person will be considered an offence.

Punishment

(2) If any person commits an offence under sub section (1), the person will be sentenced to a

term of imprisonment not exceeding 7 (seven) years or fine not exceeding 10 (ten) lac or

both.

(3) If any person commits the offence mentioned in sub-section (1) second time or repeatedly,

he will be punished with imprisonment not exceeding 10 (ten) years or fine not exceeding

20 (twenty) lac taka or both.

29) To publish, broadcast, etc., defamation information:-

Offence and Punishment

(1) If a person commits an offence of publication or broadcast defamatory information as

described in section 499 of the Penal Code (Act XLV of 1860) in any website or in any other

electronic format then he will be sentenced to a term of imprisonment not exceeding

3(Three) years or fine not exceeding Tk.5 (Five) lac or both.

(2) If any person commits the offence mentioned in sub-section (1) second time or repeatedly,

he he will be sentenced to a term of imprisonment not exceeding 5(Five) years or fine not

exceeding Tk.10 (Ten) lac or both.

30) E-Transaction without legal authority Offence and Punishment:-

(1) If any person:

Offence

a. Does e-transaction through electronic and digital medium of any bank, insurance, or any other financial institution or any mobile money service providing organization without legal authority,

or.

b. Does e-transaction that has been declared illegal by the Government or Bangladesh Bank,.

Then such activity will be considered as an offence.

Punishment

(2) If any person commits offence mentioned in sub section (1), the person will be penalized

with either maximum of 5(five) years of imprisonment or fine of Tk. 5 (five) lac or will be

punished with both.

(3) If any person commits the offence mentioned in sub-section (1) for the second time or

repeatedly, he will be punished with a maximum of 7(seven) years imprisonment or with

maximum fine of Tk. 10 (ten) lac or both.

31) Deterioration of Act-order, etc. and Punishment:-

Offence

(1) If any person intentionally publish or broadcast any kind of file in any website or digital

format which will create hostility, hatred or adversity among people or destroy any

communal harmony or create unrest or disorder or deteriorates or threatens to

deteriorate the law and order then that activity of that person will be considered as an

offence.

Punishment

(2) If any person commits any crime mentioned within sub section (1), the person will be

penalized with imprisonment for a term not exceeding to 7(seven) years or fine not

exceeding Tk. 5(five) lac or with both.

(3) If any person commits the crime mentioned in sub-section (1) for the second time or

recurrently commits it, he will be punished with imprisonment for a term not exceeding

10(ten) years or with fine not exceeding Tk.10 (ten) lac or with both.

32) Breaching Government Secret Offence and Punishment:-

Offence and Punishment

(1) If any person commits or aids and abets in committing an offence under Official Secrets Act, 1923 (Act No XIX of 1923) through computer, digital device, computer network, digital network or through any other digital medium, then he will be punished to a term of imprisonment not

exceeding 14(fourteen) years or with fine not exceeding Tk.25 (Twenty Five) Lac or with both.

(2) If any person commits the offence mentioned in sub-section (1) for the second time or

recurrently commits it, he will be punished with life imprisonment or with fine not exceeding Tk.1(one) crore or with both.

 

33) Illegal Transferring, Saving etc. of Data-Information, Punishment:-

Offence

(1) If any person enters any computer or digital system illegally and does any addition or subtraction transfer or with the aim of transfer save or aid in saving any data-information belonging to government, semi-government, autonomous or statutory organization or any financial or commercial organization then the activity of that person will be considered an offence.

Punishment

(2) If any person commits an offence mentioned in sub section (1), he will be sentenced to a term of imprisonment not exceeding 5(Five) years or with fine not exceeding Tk.10 (Ten) lac or with both. (3) If any person commits the offence mentioned in sub-section (1) second time or recurrently commits it then, he will be sentenced to a term of imprisonment not exceeding 7(Seven) years or with fine not exceeding Tk.15 (Fifteen) lac or with both.

34) Hacking Related Offence and Punishment:-

Offence and Punishment

(1) If a person commits hacking then it will be considered an offence. and for this, he will be

sentenced to a term of imprisonment not exceeding 14(Fourteen) years or with fine not

exceeding Tk.1 (One) Crore or with both.

(2) If any person commits the offence mentioned in sub-section (1) second time or repeatedly

then, he will be penalized with life imprisonment or with fine not exceeding Tk.5 (Five)

Crore or both

35) Aiding in Commission of Offence and its Punishment:-

Offence

(1) If any person aids in committing any offence under this Act then such act of that person will

be considered an offence.

Punishment

(2) In case of aiding of an offence, the punishment will be the same as that of the original

offence.

36) Offence Committed by Company:-

Offence

(1) In case of a company committing an offence under this Act, all such owner, chief executive, director, manager, secretary, shareholder or any other officer or employee or representative of the company having direct connection with the offence will be considered as the offender unless he can prove that the offence took place without his knowledge or he took all possible steps to stop the commission of the offence.

Punishment

 (2) If the company mentioned under subsection (1) is a company having corporate legal personality then apart from the people mentioned, the company can also be charged and found guilty under the same proceedings, but only the monetary punishment can be imposed on the company as per the relevant provisions.

37) The power to give order of compensation:

Offence and Punishment

If a person causes financial damage to another person under Section 22 digital or electronic

forgery, under Section 23 digital or electric fraud and under Section 24 identification fraud

or by means of disguise, the tribunal may order him to compensate the affected person by

giving money equivalent to the damage caused or a suitable amount after considering the

damage caused

MH Trek