“Intellectual property rights” is a paradox, where it promotes innovation and creativity, on the one hand, it might stagnate and monopolize ideas and business, on the other.

With the development of human intelligence, complications also arose such that it became necessary to balance man’s imagination and the output of such imagination. This led to the introduction of restrictions on innovations such that the intellect had to be used within the “practical framework” of the law and legal system. A classical example of such a restriction is the ground of “morality” whereby innovations outside the societal purview of ‘acceptance’ were disallowed and discouraged. In patents, it is seen in the form of gambling slots, genes and transgenetic products, etc., in trademarks it includes not limited to using improper, obscene or lewd words or any mark sexually explicit, or profane and in copyrights, it involves works such as, graffiti, literature that is violent or emotionally disturbing, etc. These examples are just the tip of the iceberg but the list goes one.

A summary of this concept under each form of intellectual property is discussed below, primarily covering the Indian scenario.

1. Trademarks

The Indian law which is governed by the Trade Marks Act, 1999 (hereinafter ‘the Act’) is explicit and clear about the concept of marks not registrable in terms of touching upon ethics standards. As per Section 9(2) of the Act, the absolute grounds of refusal of a trademark for registration are scandalous or obscene matter and hurting religious sentiments, among other things. Therefore, it is nothing short of the fact that any trademark which comprises or contains scandalous or obscene matter shall not be registered as a trademark in India. The bone of contention here is defining the word “obscene” which is usually taken from Section 292 of the Indian Penal Code, 1860, which once again is an archaic law in my opinion which warrants a revisit and probably amendment. However, the proposed Trade Marks Manual has gone ahead and redefined the perspective and approach towards “obscenity” by stating that it is a question of fact and it is for the applicant to demonstrate that it is not so when faced with objections under this provision. While the progress seems commendable, only with progress in time would we know how the actual concept itself is going to be practised going forward.

2. Patents

The Patent law in India is based on the Patents Act, 1970 (hereinafter ‘the Act’) which has laid out in detail under Section 3(b) that inventions ‘….contrary to public order or morality or which causes serious prejudice to human, animal-plant life or health or to the environment’, is not an invention and cannot be granted protection. This provision unambiguously states that inventions which are against public order or morality cannot be protected. Therefore, as mentioned above, gambling slots, genes and transgenetic products are debatable inventions for being protected under the Act. Though there is a slight shift in paradigm, the rigidity continues in India when compared with the United States of America where the definition of the term ‘invention’ is more on a case to case basis.

3. Copyrights

The Copyright Act, 1957 (hereinafter referred to as ‘the Act) is the governing law in India for all copyrightable works. It covers all kinds of works such as literary, dramatic, artistic, cinematographic, musical and sound recordings. This coverage is also expanding with changing times with development in the areas of art, literature, media and entertainment. A peculiar aspect of the Act is that, unlike trademarks and patents, there is no specific bar on non-copyrightable works in terms of “morality”, “public order” or “obscenity”. At least, there is no express mention in the Act itself, though the concepts are derived from other related legislations.

However, a dichotomy exists in copyright because copyright subsists the moment the work is created. Therefore, the nature of work is usually never a factor because of such subsistence. This means that works such as Graffities, nude/naked sculptures, pornographic films are all copyrightable works. If analyzed logically and technically only, they are all “creative works”, the primary requirement of copyright protection. Graffiti are writing or drawings scribbled, scratched, or sprayed illicitly on a wall or other surface in a public place, which is often classified as public nuisance and damage to public property. In reality, that graffiti deserves to be protected but it is being drawn at the cost of public property and money, hence, is such work really worth all that pain? Is the work worth “disrupting public order”?

The main question that arises in such works is that of “morality”, “public order” or “obscenity”, which, as mentioned above, is a grey area and remains unexplored. The most relevant or closest law is that of Section 292 of the Indian Penal Code, which is ancient and needs to be updated. A greater progress would be seen when these words are expressly defined, even if it is through precedents, and are inserted into the respective statutes. ‘Precedents’ would definitely remind us of the case of Aveek Sarkar v. State of West Bengal (Criminal Appeal No. 902 of 2004) which was the turning point in defining ‘obscenity’ and the case which propagated the ‘Community Standard Test’ but the main question, as mentioned repeatedly, lies in the actual use and implementation of the said test and/or other criteria.