IPR
Topic 14 Comparative IP Laws
Topic 14 — Comparative Intellectual Property Laws: UK, US and India
Indian intellectual property law is the result of a long conversation with two other systems — the British system from which it inherited the basic statutory architecture, and the American system from which it has borrowed many modern doctrinal innovations. Reading the three side by side reveals not only which features India has imported, but also which it has consciously adapted to its developmental needs. This topic compares the three systems across copyright, patents and trademarks, and ends with the four major divergences where India has charted its own course.
1. Three Systems, One Lineage
All three systems trace back to the same Anglo-American root. The Statute of Monopolies 1623 (England) is the founding patent statute of the common-law world; the Statute of Anne 1710 (Britain) is the founding copyright statute. Both directly influenced the United States — the Constitution's Article I, Section 8, Clause 8 ("to promote the Progress of Science and useful Arts ...") is a deliberate echo. India inherited British IP law via the colonial-era statutes (Patents Act 1856, Indian Copyright Act 1914, Trade Marks Act 1940), then revised them after Independence. Today, the three systems share much of their conceptual vocabulary, but they have diverged in structure, doctrine and policy choices.
Brief Constitutional and Legislative Setting
Feature | UK | US | India |
|---|---|---|---|
Constitutional anchor | Parliamentary sovereignty; no written constitutional provision specific to IP | Article I, Section 8, Clause 8 — empowers Congress | Entries 49 & 49A, List I; Articles 245-246, 253; Article 300A |
Source of law | Common law + statute (CDPA 1988; Patents Act 1977; TMA 1994) | Federal statute (Title 17 USC for copyright; Title 35 USC for patents; Lanham Act for trademarks) | Statute (Copyright Act 1957; Patents Act 1970; TM Act 1999; Designs Act 2000; etc.) |
Treaty implementation | Dualist; legislative incorporation needed | Dualist; legislative incorporation needed | Dualist; Article 253 enables legislative incorporation |
Apex appellate forum | UK Supreme Court | US Supreme Court | Supreme Court of India |
Specialised IP court | Intellectual Property Enterprise Court (IPEC) and Patents Court | Federal Circuit (CAFC) for patents; ITC for trade matters | Delhi HC IPD (since 2022); other HCs gradually following |
2. Copyright Compared
Copyright is the area where the three systems share the most. All three follow Berne Convention principles and recognise broadly the same categories of works. The differences lie in detail — term length, formalities, fair-use vs. fair-dealing, and moral rights.
Element | UK | US | India |
|---|---|---|---|
Principal Statute | Copyright, Designs and Patents Act 1988 (CDPA) | Copyright Act 1976 (Title 17 USC) | Copyright Act 1957 |
Subject matter | Closed list — literary, dramatic, musical, artistic, films, sound recordings, broadcasts, typographical arrangements | Open list — original works of authorship fixed in tangible medium | Closed list — Section 13: literary, dramatic, musical, artistic, films, sound recordings |
Originality test | Skill, labour and judgment (post-2009 also "author's own intellectual creation") | Modicum of creativity (Feist v. Rural Telephone, 1991) | Modicum of creativity (Eastern Book Co. v. D.B. Modak, 2008) |
Formalities | None (Berne) | None for protection; registration required to sue and to recover statutory damages | None for protection; registration optional under Section 45 |
Term — literary works | Life of author + 70 years | Life of author + 70 years (post-1978) | Life of author + 60 years (Section 22) |
Term — sound recordings | 70 years from publication | 95 years from publication (post-1978) | 60 years from publication (Section 27) |
Limitation framework | Fair dealing — closed list of permitted purposes (research, review, news reporting, parody, etc.) | Fair use — open four-factor test (purpose, nature, amount, effect) | Fair dealing — closed list under Section 52 (research, criticism, news reporting, etc.) |
Moral rights | Recognised in CDPA Sections 77-89 (paternity, integrity); waivable | Limited to visual art under VARA 1990 | Recognised under Section 57; not waivable; survives assignment (Amar Nath Sehgal 2005) |
Statutory damages | No fixed statutory minimum; damages calculated on actual loss | Statutory damages of USD 750–150,000 per work (17 USC § 504) | No fixed statutory damages; courts award compensatory + exemplary damages |
✅ Fair Use vs. Fair Dealing — the most-asked comparison US fair use is open-ended: any use can qualify if it satisfies the four-factor test. UK and Indian fair dealing are closed: the use must fall within an enumerated purpose (research, review, criticism, news reporting, parody, etc.). The difference matters in practice. Search-engine indexing and software-reverse-engineering have been held to be fair use in the US; in India and the UK, similar uses have required harder doctrinal work to fit within enumerated purposes. |
📖 Feist Publications v. Rural Telephone Service, 499 US 340 (1991) The US Supreme Court rejected the sweat-of-the-brow doctrine and required a "modicum of creativity" for copyright. The case is the parent of the standard later adopted in India by the Supreme Court in Eastern Book Company v. D.B. Modak (2008) — a clear example of US-to-India doctrinal transplant. |
3. Patents Compared
Patent law is where the three systems most diverge — particularly on subject-matter, exhaustion and pricing/access concerns. The Indian regime, while TRIPS-compliant, includes deliberate flexibilities (Section 3(d), compulsory licensing, working requirement) that go further than the UK or US in protecting public-health and industrial-policy interests.
Element | UK | US | India |
|---|---|---|---|
Principal Statute | Patents Act 1977 (with European Patent Convention overlay) | Patent Act (Title 35 USC); America Invents Act 2011 | Patents Act 1970 (substantially amended 1999, 2002, 2005) |
Filing system | UKIPO; also EPO via European Patent Convention | USPTO; first-to-file (post-AIA) | Indian Patent Office (Mumbai HQ); first-to-file |
Patentable subject matter | Patents Act 1977 Section 1; broad — includes second medical use | Title 35 USC § 101; very broad; "anything under the sun made by man" (Diamond v. Chakrabarty, 1980) | Section 2(1)(j) read with Sections 3 & 4; many statutory exclusions |
Software patents | Excluded "as such" but extensively patented in practice | Patentable if claimed as a process producing a useful, concrete and tangible result | Section 3(k) — excludes "computer programmes per se"; tighter than UK or US |
Plants and animals | Exclusion subject to plant-variety and microorganism exception | Patentable; covered by US Plant Patent Act 1930 | Section 3(j) — plants and animals (other than microorganisms) excluded |
Anti-evergreening | No specific provision | No specific provision | Section 3(d) — Novartis v. UoI 2013 |
Term | 20 years from filing | 20 years from filing | 20 years from filing (Section 53) |
Compulsory licensing | Provided but rarely used | Provided but very rarely used | Used — first compulsory licence granted in Bayer v. Natco 2014 under Section 84 |
Working requirement | No | No | Yes — Form 27 disclosure (Section 146) |
Pre-grant opposition | No | No (post-grant inter partes review available) | Yes (Section 25(1)) |
Patent Linkage | No | Yes (Hatch-Waxman Act) | No — Bayer v. Cipla (Del DB) 2010 confirmed no patent linkage in India |
📖 Diamond v. Chakrabarty, 447 US 303 (1980) The US Supreme Court held that genetically engineered microorganisms are patentable subject matter under § 101. The decision opened the door to biotechnology patenting in the US and the EU. India followed in 2002 by amending Section 3(j) of the Patents Act to permit microorganism patenting while continuing to exclude plants and animals. The decision is therefore the immediate doctrinal ancestor of India's biotech-patent regime. |
📖 Novartis AG v. Union of India, (2013) 6 SCC 1 The Indian Supreme Court rejected a patent on the beta-crystalline form of imatinib mesylate, holding that mere differences in physico-chemical properties without enhanced therapeutic efficacy do not satisfy Section 3(d). The same patent was granted in the US and EU. The case is the most-cited example of conscious Indian divergence from the US patent regime, and has been studied as a model by other developing countries. |
4. Trademarks Compared
Element | UK | US | India |
|---|---|---|---|
Principal Statute | Trade Marks Act 1994 | Lanham Act 1946 (15 USC §§ 1051 et seq.) | Trade Marks Act 1999 |
Basis of right | Registration; common-law protection of unregistered marks via passing off | Use-based; registration is supplementary but registration confers important benefits | Registration; common-law passing off for unregistered marks (Section 27) |
Examination | Absolute and relative grounds; no opposition before registration | Absolute and relative grounds; opposition system | Absolute (Section 9) and relative (Section 11) grounds; pre- and post-registration opposition |
Term | 10 years renewable indefinitely | 10 years (initially); renewable indefinitely; affidavit of use required | 10 years renewable indefinitely (Section 25) |
Well-known marks | Recognised; cross-class protection | Famous marks doctrine; dilution under FTDA 1995 / TDRA 2006 | Section 11(6); cross-class protection; statutory list of factors |
Comparative advertising | Permitted with conditions (Trade Marks Act 1994, s. 10(6)) | Generally permitted as commercial speech | Permitted if not disparaging; balanced against passing off and dilution |
Domain names | Nominet UK DRS | UDRP through ICANN; ACPA 1999 | INDRP for .in domains; UDRP for .com etc.; Yahoo! v. Akash Arora 1999 |
✅ First-to-Use vs. First-to-File In the United States, trademark rights are acquired primarily through use in commerce. A junior registrant cannot displace a senior user even if the user never registered. In the UK and India, the right is acquired primarily through registration — but the law also recognises common-law rights of unregistered users, enforced through the tort of passing off. The Indian Trade Marks Act 1999 mirrors the UK position closely; India is therefore a "first-to-file with passing-off backup" jurisdiction. |
5. Four Major Indian Divergences
Where India has consciously departed from UK and US precedent, the divergence almost always reflects developmental priorities. Four examples are particularly significant.
A. Section 3(d) of the Patents Act 1970 — Anti-Evergreening
Neither the US nor the UK has an equivalent provision. India's Section 3(d) denies patents for new forms of known substances unless enhanced therapeutic efficacy is shown. Upheld by the Supreme Court in Novartis v. Union of India (2013), it has prevented "evergreening" of pharmaceutical patents and become a model for several developing countries.
B. Compulsory Licensing as a Practical Tool
The US and UK have compulsory licensing provisions on the books but use them very rarely. India activated the regime in Bayer v. Natco (2014), granting the country's first compulsory licence on the cancer drug Sorafenib. The decision became an international reference point for the use of TRIPS flexibilities to advance public-health goals.
C. Plant Varieties — Sui Generis Approach
The US protects plant varieties through the Plant Patent Act 1930 and is a UPOV member. India is not a UPOV member; the PPV&FR Act 2001 creates a sui generis regime that recognises both breeders' rights and farmers' rights — including the right to save, exchange and sell farm-saved seed of a protected variety. No other major IP system has farmers' rights of equivalent strength.
D. Moral Rights of Underlying Authors of Music and Film
The US recognises moral rights only for visual art (VARA 1990). The UK recognises moral rights but allows them to be waived. India recognises moral rights for all categories of authors under Section 57 of the Copyright Act 1957, and these rights are not waivable. The Copyright (Amendment) Act 2012 went further: it gave authors of underlying literary and musical works incorporated into films a non-waivable right to royalty (Sections 19(9) and 19(10)). Recent Bombay High Court litigation (IPRS v. Music Broadcast Ltd., 2023) has confirmed that this right operates against radio broadcasters who use sound recordings.
6. Why the Comparison Matters
A judiciary candidate who understands these comparative dimensions can do three things at once: (i) interpret Indian statutes by reference to their British and American antecedents, recognising both inheritance and conscious departure; (ii) understand why the Indian regime makes the policy choices it does; and (iii) anticipate how courts will develop Indian doctrine — typically by reading US and EU innovations through the lens of Indian developmental needs. Indian courts routinely cite Feist (modicum of creativity), Diamond v. Chakrabarty (microorganism patenting), Reckitt & Colman v. Borden (passing off trinity) and Hand J. in Nichols (abstractions test) — but always reshape the doctrines to fit Indian context.
🎯 EXAM POINTERS — TOPIC 14
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