Protection of Intellectual Property Rights (IPR) of Drones and Unmanned Aerial Vehicles (UAVs) | Technology Lawyer in Delhi NCR | IT Attorney in Delhi NCR | Corporate Lawyer in Delhi NCR |
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Introduction
Civilian drones have their usage in plenitude. The immense potential of drones has led to the increasing acceptance of drones in India. They exemplify an outward growth in terms of technology and its utility indicates a significant development in various sectors of the economy. With new Drone Rules, 2021 in place, the government of India provides a sufficient thrust to the businesses and companies engaged in this arena to expand and manifest their handlings in tandem, to cater to large sectors, and contribute unanimously. However, since drones are a creation of intellect, their misuse or infringement is a major concern as well. With a favorable nudge to the technology in India, there is a greater magnitude for its infringement, which could be violative of the rights of companies working in this area. Civil drones, being extensively accessible, could be easily tethered and duped by businesses, individuals, or companies intending to catapult with malevolent intentions. Hence, the question stands aloft as to what rights are available in such regard and how we can protect drones under the regime of Intellectual property laws.
As per the common parlance of a man, intellectual property rights can semantically mean those rights which essentially protect the creation of an intellectual mind. These rights are available to those persons who have created something and brought it to fruition with their intellectual efforts. Hence, these rights give the creator an exclusive right over its creation for a limited period of time. In pursuance of the same, this research delineates various kinds of Intellectual property laws that can be evoked by businesses/ companies engaged in this area in the exercise of their right against infringement and duplicity.
Intellectual Property (IP) Protection’s for Drones & Unmanned Aerial Vehicles (UAVs)
Unmanned Aircraft Systems (UAS) or drones is a technology that is derived out of intellect and hence attracts various protection available under the ambit of Intellectual property laws. If a company is engaged in the business of drones or drone components, the following protections are available –
Patenting the Innovation: The patent refers to an exclusive right available to the creator to exploit his/her creation for a limited period of time. In simpler terms, it primarily is the monopoly over am creation. In India, the law regarding patents is provided under the Patents Act,1970 and the invention is subject to those provisions. Unmanned aircraft systems (UAS) or drones being innovative is solely a subject of patent and exemplifies a monopoly right in respect of an invention. As a result, the inventor is entitled to exclude anyone else from commercially exploiting his invention.
Despite the recognition, the grant of the patent also realizes the creativity of an inventor, encourages, and inspires further inventions which are substantial for the technological growth in India. Taking reference to the infamous judgment in Bayer corporation V/s Union of India, the High Court of Bombay cited that the ‘object of the patent law is to encourage scientific research, new technology, and industrial progress’. Hence persons of interest can file an application for patenting their drones under the dynamic provisions of the Patent Act, 1970. In the milieu of excessive competition and rampant adversaries in the commercial market, it is advisable to get the innovation patented to secure one’s monopoly over their independent discovery. In case the inventors fail to patent one’s innovation and, in the hindsight, realize the need after having faced malevolence by competitors, then in such a case, no remedy shall be available to the inventor. The Drone Rules, 2021 allows for registration of various types of Unmanned Aircraft Vehicles (UAS), and to support one’s invention the inventor can apply for patents, as per the rules provided under the Patents Act, 1970.
Although, it is exigent to note the pre-condition for receiving a patent for one’s innovation. Under Indian law, a patent is only granted for those inventions which are new or novel, must involve an inventive step and must not be obvious to predict or accrue, and is definitely capable of industrial application. If any of the aforementioned conditions are missing, then the inventor would be dispelled from receiving the patent for its innovation. If the invention is in consonance with the requirement as provided, then the inventor may proceed by filing the application for patent. The application for a patent must be for one innovation only. The application is to be filed in the Patent Office as per section 6 – 11 of the Patents Act, 1970.
Post filing, publishing, and reviewing, as a part of procedural aspects under the Patent Act 1970, a patent is granted to the patentee for his/her innovation for a period of 20 years. It is imperative to understand the benefits of patenting if the invention is neoteric. Patenting it, would protect from unforeseeable malignancies and shall promote the invention into a different firmament of development. Further, patenting is significant and is substantially lucrative in the commercial sector of the economy.
Trademark Protection for Unmanned Aircraft Systems (UAS): In the milieu of prolific competition in the commercial market, one generally assumes the distinction of his good or service from that of the others. Subsequently, a name or a symbol is given to the product that is used as an identification and differentiates the same from the others. When similar goods are produced in a market for the purpose of consumption by the masses, it generally leads to overlapping and infringement of one’s right over that good or service. This eventually leads to a situation of conflict in society and unravels a commercial commotion in the economy. Besides incessant competition, a company’s goodwill, and reputation in the commercial arena, are indispensable for the sustenance of the products or services, a company intends to offer. There are instances, where errant businesses greedily endeavor to ride on the crest of established businesses and bogart their profits. To overcome this snag, the concept of ‘trademark’ was put to the fore as a panacea to protect and preserve the goodwill of companies and avert any reputational damage caused by such a usurpation. There are primarily two important purposes of the trademark. First, it protects the public from confusion and deception by identifying the source or origin of products as distinguished from other similar products and secondly, it protects the trade and business of the trademark owner and safeguards the goodwill which is attached to his trademark. Trademark is a type of intellectual property that certainly includes any word, name, symbol, configuration, device, the shape of goods, packaging, combination of colors, or any other combination which is adopted by one for identification and is used for differentiating his goods from the others. To register as a ‘Trademark’ three essentials must be fulfilled. First, it should be a mark, second, it should be capable of being represented graphically, and third, it should be capable of distinguishing the goods or services of one person from those of others. Once a company registers its unmanned aircraft systems (UAS) as per the Drone Rules, 2021, it is advisable to assign a name to those prototypes and get a trademark for the same to safeguard one’s products from the others. Trademark registration confers an exclusive proprietor right to the use of the trademark, as a whole. Hence, it reflects ingenuity and companies must be steadfast in procuring the same.
In India, the trademark is registered in accordance with the provisions enlisted under the Trademarks Act, 1999. With respect to registration, provisions enumerated under Section 18-26 of Chapter -III are to be referred to. Any person who is claiming to be the proprietor of a trademark used or proposed to be used by him must apply to the Registrar in writing in the prescribed manner for the registration of his trademark. It is important to note that, registration of trademark in India is on a ‘first come first basis’, which means that trademark will be granted to those persons, who are ‘first to file for the trademark registration. Hence it is important to apply for the registration as early as possible.
A trademark is registered under section 23 of the Trademarks Act, 1999. According to this section, when an application for registration of a trademark has been accepted an either, the application has not been opposed and the time for notice of opposition has expired or the application has been opposed and the opposition has been decided in favor of the applicant, the Registrar shall register the said trademark within 18 months of filing the application. The duration of registration of a trademark is 10 years and must be renewed within time. Hence, the Registrar may remove the trademark if the applicant fails to renew or re-register within the prescribed limit in the prescribed manner.
Copyright Protection of Photos, Videos, and Data Captured by the Drones: Intellectual property is a compendium of rights that provides greater protection to the products or services bestowed from an intellect. Besides, a structural, and monumental form of protection to the unmanned aircraft system (UAS), it is prudent to protect the data collected by that technological prototype. The main utility of a drone is its data collection capability and if that information is infringed or damaged, will severely wreak havoc. Further, it will defeat the purpose of the technology, intended to use extensively in the upcoming days. Thus, in realizing the need to protect the ‘subject-matter’ garnered by drones or other kinds of unmanned aircraft systems (UAS), ‘Copyright’ protection can be extended to companies concerned in this regard.
Copyright is an amalgamation of exclusive rights and is commonly referred to as a ‘negative right’ since it endows the rightful owner with the right to prevent all others from copying its work or doing any other acts that amount to infringement of its right under the law. Copyrights are effective in nature and realizes a monopoly over the production of a person’s skill and labor as his property. The studies carried out under the implication of academia or for undertaking research through drones can seek the protection of their data through copyrighting. For companies that carry out pursuits of photography or videography or for other purposes, where the unmanned aerial system is used to produce data, can be given hermitage under copyright law.
The law regarding copyright is derived from the Copyright Act, 1957, and persons considering copyright must ensure its congruence with the act, as such. Copyright subsists in the works related to original literary, dramatic, musical, and artistic works. It also protects cinematograph films and sound recordings. Copyright protects the economic as well as the moral rights of an owner. Chapter X, Section 44-50 (A) of the Copyright Act, 1957 deals with the registration of copyright. Under the act, the registration of copyright is optional and not mandatory. It is not a precondition to claim a copyright in a work. Copyrights come into fruition as soon as the work is created and is given a material form. Copyrights exist whether registration is done or not and the registration acts as a mere piece of evidence and has a substantive value that helps ascertain the claim, if and when in a dispute before the court. Hence, copyright protection also strengthens the liberated usage of drones for commercial purposes.
Design Registration: The designs of an article are paramount for its utility. When the product is made, it is ensured that it is visually attractive to the buyers or consumers irrespective of its technicalities or functionalities. Visual attraction is a peculiar characteristic of a product and must be protected from infringements as such. These are known as designs as it only caters to the aesthetic of a product. Intellectual property laws take under its domain only ‘industrial designs’ that necessarily deal with the aesthetic nature of a finished product. With immense competition and vagaries in the commercial market, design robbery and duping are rife. Manufacturers invest a large sum of money in designs and hence legal protection is a concomitant right, which becomes necessary to procure in lieu of new designs and their application to articles.
In India, rules regarding ‘designs’ are governed by the Designs Act, 2000 which incorporates all the necessary amendments made in pursuance of development in the science and technology arena, in India. Under this act, designs mean the features of shape, configuration, pattern, ornament, or composition of lines or colors applied to any article or not the article itself. The definition of design is applicable to an article in two-dimensional or three-dimensional form or in both forms. To evoke the provisions of this particular law, it is to be assured that a mere mechanical device or a functional design is not registrable. A design that has functional attributes cannot be registered under the Designs Act. The protection under the Designs Act is granted only to those designs which have an aesthetic value or otherwise appeal to an eye.
A device will be given protection under the design law only if it is new or original, has not been disclosed to the public, is significantly distinguishable from known designs or a combination of known designs and does not contain any scandalous or obscene matter, and finally is not contrary to the public order or morality. An application for registration of designs is to be to the Controller of designs. Hence, companies or manufacturers of drones and drone components can seek the protection of their designs which are peculiar and contain aesthetic features to the naked eye. Quite recently, the Indian Institute of Science Education and Research Mohali (IISERM) got a Design registration for a drone that can detect radioactivity. This example is an example to other companies or businesses or educational institutions to undertake the registration of designs for their unmanned aircraft systems if required.
Conclusion
Assuring Intellectual Property Rights (IPR) protection for Unmanned Aircraft Systems (UAS) is ingenious and indicates an informed state of existence, especially in the era of immense competition in the commercial market. In India, most of the Intellectual property laws are predicated on the ‘first to file basis and thus it is advisable to be nimble with one’s approach to register and obtain protection for one’s Unmanned Aircraft System (UAS). Not only does it advance the monopoly over one’s products but also proves to be lucrative in the global commercial market.
Authored By: Adv. Anant Sharma & Anchita Saxena