Home ›› 05 Nov 2021 ›› Editorial
In international trade, the proportion of goods and services consisting of intellectual property has increased manifold. Intellectual Property (IP) protection offered by countries is inadequate or inappropriate, so there is a danger of distortion of International Trade order. In many countries, enforcement of IPRs could not guarantee to be sufficiently effective. As such from the perspective of improving the international trade order, there was increasing recognition of the necessity to develop a framework to ensure appropriate protection of IP. In the IP field there exited a number of agreements for the international protection of IP such as the Paris Convention related to Industrial property rights including patents and trademarks, the Berne Convention for copy right. However, with more emphasis being placed on the trade-related aspect of IP, it was seen as an urgent task to attain international agreement in the context of GATT, with as many nations as possible participating, concerning standards of protection of IP associated with trade. In this environment, the negotiations concerning TRIPS became one of the important areas for Uruguay Round. The Agreement was finally agreed upon at the Ministerial meeting in Marrakesh, Morocco in 1994 and came into force as part of WTO Agreement on 1 January,1995.
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international legal Agreement between all member nations of the WTO. TRIPS is the most comprehensive multilateral agreement on Intellectual property (IP). The Agreement is a legal recognition of the significance of links between IP and Trade and the need for a balanced IP System. The TRIPS Agreement is a minimum standard agreement, which allows Members to provide more extensive protection of IP if they so wish.
The objects of IP are the creation of human mind, the human intellect. The rights of creators of innovative work are known as IP. The areas TRIPS Agreement defines IP as all categories of IP that are namely: Copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs. Members are free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice. The main features of TRIPS are Standards, Enforcement and Dispute Settlement. TRIPS Agreement is part of the package of the Uruguay Round Negotiation. So it applies to all the members, but the agreement allows countries different period of time to delay applying its provisions.
The general goals of the TRIPS Agreement are set out in its preamble and include reducing distortion and impediments to international trade, promoting effective and adequate protection of IPRs, and ensuring that measures and procedures to enforce IPRs do not themselves become barriers to legitimate trade. The TRIPS Agreement plays a critical role in facilitating trade in knowledge and creativity, in resolving trade disputes over IP and in assuring WTO members the latitude to achieve their domestic objectives. IPR refers to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time. These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize this invention/creation for a given period of time.
TRIPS Agreement provides standarsd concerning the availability, scope and use of IPRs. The contents of the provisions are discussed below in brief:
Copy Rights and Related Issues: Provisions are included regarding clarification of the relation to Berne Convention, protecting the copyrights of Agreement, made express provision for the protection of computer programs and data bases using copyright. In many countries copyright laws permit the private copying of works by the user is not a violation of copy right to reproduce CDs and records for personal enjoyment. So cou ntries have recognized rental rights.
Trademarks: Basically Paris Convention made provisions for independence of each country in the protection of trademarks, the protection of well known marks, the protection of State emblem, the assignment of marks, the protection of marks registered in other countries, the protection of service marks, protection of collective marks an d protection of trademarks. TRIPS Agreement supplements these provisions with extra provisions concerning protectable subject matter and right conferred and terms of protection.
Geographical Indication: The TRIPS Agreement provides additional protection regarding Wines and Spirits offering more through protection.
Industrial Design: The TRIPS Agreement contains provisions concerning the requirements for protection. Since some countries adopt the registration approach to protection of industrial designs in the same way as patents, while other countries protect them as creative works in the same way as copyrights.
Patents: TRIPS Agreement establishes substantive provisions not covered in the Paris Convention. They are patentable subject matter, right to make application holders right to use without authorization, revocation/forfeiture, term of protection and proof for patent process.
Layout designs of Integrated Circuit: The TRIPS Agreement establishes provisions to protect the layout of Integrated Circuit.
Protection of Undisclosed Information: In the course of ensuring effective protection against unfair competition as provided in Paris Convention, members shall protect undisclosed information in accordance with Para-2 of the Agreement and data submitted to the government or its agencies. Natural or legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by or used by others without their consent in a manner contrary to honest commercial practices. However, Members, when requiring as a condition of approaching the marketing of pharmaceutical or agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves considerable effort, shall protect such data against commercial use.
Control of Anti-Competition Practices in Contractual Licences: Members agree that some licensing practices or conditions pertaining to IPR which restrain competition may have adverse effects on trade and impede the transfer and discrimination of technology. But nothing in the agreement shall prevent members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of IPR having an adverse effect on competition in relevant market.
Other Issues: Extension of the transitional period under Article 66.1 of the TRIPS Agreement for LDC members for certain obligations with respect to Pharmaceutical products until 31st December,2032 and for other products until 30th June, 2033. In case of Pharmaceutical products it was up to January, 2016. However, Doha Declaration on the TRIPS Agreement and Public Health opined that further extension be made to facilitate the capacity building and growth of Pharmaceutical Product Industries in the LDCs. Further to amend TRIPS to include mandatory disclosure of origin or generic resources used in patent application ( a guarantee of prior informed consent of communities who own the resources) referred to as the TRIPS/CBD(Convention of Biological Diversity). To extend high level of protection of Geographical Indications (GI) or products associated with a particular place and characteristics on Wines and Spirits to other goods.
Article 27.3(b)should be revised to prohibit patents on plants or animals, micro-organisms, essentially logical process for the production of plants/ animals and non-biological and microbiological process for the production of plants or animals.
(The second and concluding part of the article will be published tomorrow)
The writer is former Director General of EPB. He can be contacted at hassan.youngconsultants@gmail.com
