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Passing on your Best Ideas

Sam Abraham | Print Edition: May 2011

The 21st century definition of ownership has surpassed the possession of the mere tangible to include the most intangible of all assets-ideas or intellectual property (IP).

It is also equally important that your heirs benefit from this right to IP. While they can fight for this after you pass on, it would make life a whole lot easier for them if your will clearly states your wishes. The murky laws of intellectual property rights (IPR) can take years or decades to unravel and allocate ownership of IP.

While the concept has existed for centuries, recent interpretations of IP have made it tougher to conclusively establish ownership if not done on time and legally. With some even arguing for waiver of rights to IP, ensuring that your heirs profit from your work requires careful legal safeguards.

"Of course, most valuable IP assets tend to be owned by corporate entities, most certainly the ones in industrial use, such as patents and trademarks. Individual ownership is typically for copyrights," says Jyoti Sagar, Managing Partner, K&S Partners, Intellectual Property Attorneys. Hence, it is most important that you establish copyright, which, more than anything else, will ease succession of IPR.

What is Copyright?
You should protect anything that you create and which you consider to be of value to you, or your heirs, now or in the future. If it's worth creating, and if others would find it worthy of copying, then it's worth protecting. Copyright is generally for categories of works of authorship, such as literary, dramatic, musical, pictorial, motion picture, architectural works and even computer programs.

Patents are valid for only 20 years and upon the owner's death, they devolve to the heirs.

Trademarks can be renewed indefinitely and inherited through succession laws.

Designs are initially valid for five years and there are provisions for heirs to take over ownership.
It is important for the 'subject matter' of copyright to be an original creation of authorship that can be expressed through a 'tangible medium'. This just means that you must be able to prove it was your original idea and that it can be reproduced in some physical form, such as a book or a canvas. It must also be understood that copyright has time limitations. The duration of the protection depends on the type of copyright.

In case of a 'literary work' copyright lasts for the life span of the author and for sixty years after the author's death. The same principle applies to joint authorship (two or more), with the copyright lasting for the life span of the longest surviving author and sixty years after the longest surviving author's death. Copyright in photographs, cinematographic films and sound recordings will subsist for sixty years.

Protecting Copyright
Once your creation has been fixed in a medium of expression, the copyright on your work is protected by the Copyright Act, 1957. Acquisition of copyright is automatic and it does not require any formality. However, certificate of registration of copyright and the entries made serve as prima facie evidence in a court if a dispute relating to ownership of copyright does ever arise.

So, by registering your copyright you will have irrefutable proof of first ownership of your intellectual property. This should ensure that legal hassles are simplified, if at all they do arise. This proof can be also be used in a court of law in alleged cases of copyright infringement.

Copyright registration can also be proof of date of creation. By registering IP, you will have an individually numbered certificate of registration of copyright relating to that particular work.

What is 'Indian work'?
Any of three conditions must apply for a work to be considered 'Indian' and for Indian copyright laws to be applicable. One, the author must be a citizen of India, two, it should have been first published in India and three, the author, in the case of an unpublished work, at the time of the making of the work be a citizen of India.

Legal heirs can also succeed IP registered overseas. However, such succession may be subject to some laws of the foreign jurisdiction, including local laws. Of course, copyright does not apply if there is a contract that states that the author does have rights to the work as he is being paid or is in the employment of an organisation while authoring that work.

What about tax? Well, currently, IPR does not attract an inheritance tax. However, any income from the ownership of the IPR, say royalty, will be added to the individual's income and taxed appropriately.

Realise that, in all probability, your intangible wealth could earn your heirs more money than prime real estate or shares. After all, a good idea is worth millions.

 Virtual Issues

You may not consider your website or your blog as something to be considered as inheritance. It most definitely is. It's an asset you own and needs to be sold, dissolved or left to someone to run. Otherwise it just sits there in virtual space, ignored and forgotten. In fact, contents of a website are protected as artistic and literary works under copyright law as long as these are original creations. So, decide what you'd like for your online assets if you were to pass them on.

Moreover, what of the many online accounts you have, such as PayPal (which might have money in it)? Don't let them lapse. Compile a set of essential information that you have locked behind virtual doors. Write down this master list somewhere, including usernames and passwords, and leave it for someone trusted in your will.

Also, think about your other applications such as Twitter, your Google Analytics account, your online bookkeeping software or even your e-mail accounts. These are all important too. Write down everything you can think of that belongs to you-license information, domain names or web hosting services. Make sure someone can access this list in case of emergency and tell them where to get the information. Lastly, make sure to let them know when memberships or subscriptions are due.

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