TRADE RELATED INTELLECTUAL PROPERTY RIGHTS: ISSUES AND CHALLLENGES
This essay reports the issues and challenges faced by developing countries because of TRIPS Agreement. Developing countries significantly responded to the TRIPS Agreement by tightening IPR protection regimes. The TRIPS agreement is to some extent, based on a balance between the interests of innovators and users. TRIPS shelters seven types of intellectual property namely, copyright and related rights, geographical indications, patents, trademarks, industrial designs, integrated circuits and trade secrets. The TRIPS agreement brought, four major changes to the development of global IP protection, in terms of substantive and procedural law. First, unlike previous international agreements concerning IPRs, the TRIPS agreement is part of the global rules-based multilateral trading system, the WTO. Second, the scope of the TRIPS agreement is very broad, although the initial aim of the TRIPS Agreement negotiations was to develop a multilateral framework ‘dealing with international trade in counterfeit goods’. Third, the TRIPS Agreement enumerates detailed rules on enforcement, one of the most difficult aspects of an IP regime, which include civil and administrative procedures and remedies, provisional measures border measure, and criminal procedures. Fourth, The TRIPS Agreement clearly confirms the adverse effect of IPR buses and IPR- related anti-competitive practices.
The WTO’s Agreement on The Trade Related Intellectual Property Rights(TRIPs), negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. TRIPS set’s the minimum standards which the signatory countries must provide for in their patent laws, and also provides certain principles to be followed in the recognition of copyright works. It has ensured that the signatory countries now have a common understanding of the parameters to be considered in determining whether a creation deserves protection as an IP. The boundaries for grant of IP protection are thus universally defined and it is rare to see old boundaries eliminated or new boundaries created. The Trade Related Intellectual Property Rights(TRIPs) Agreement was implemented to regulate standards of Intellectual Property (IP) regulations in WTO member countries.
The WTO’s TRIPS Agreement is an attempt to slim the gaps in the way these rights are protected and enforced around the world, and to bring them under common international rules. It establishes minimum standards of protection and enforcement that each government has to give to the intellectual property held by nationals of associate WTO members.
Countries who signed TRIPs have to modify their Patent Act, Copy Right Act, Trade Mark Act etc., in accordance with the provisions of the TRIPs. In India, the government has made a major amendment to the 1970 Patent Act in the year 2005 to accommodate the TRIPs provisions. In 2010, the Copyright Act was amended and was enforced in 2012.
In 2001, developed countries were insisting on an overly narrow reading of TRIPS, hence developing countries-initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal “to promote access to medicines for all. The general goals of the TRIPS Agreement are contained in the Preamble of the Agreement, which reproduces the basic Uruguay Round negotiating objectives established in the TRIPS area by the 1986 Punta del Este Declaration and the 1988/89 Mid-Term Review. These objectives include the reduction of distortions to international trade, promotion of effective and adequate protection of intellectual property rights, and ensuring that measures and procedures to enforce intellectual property rights do not become barriers to legitimate trade. These objectives should be read in conjunction with Article 7, entitled “Objectives”, according to which the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. Article 8, entitled “Principles”, recognizes the rights of Members to adopt measures for public health and other public interest reasons and to prevent the abuse of intellectual property rights, provided that such measures are consistent with the provisions of the TRIPS Agreement.
MAIN FEATURES OF THE AGREEMENT ARE:
Standards: In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. With the exception of the provisions of the Berne Convention on moral rights, all the main substantive provisions of these conventions are incorporated by reference and thus become obligations under the TRIPS Agreement between TRIPS Member countries. The applicable provisions are to be found in Articles 2.1 and 9.1 of the TRIPS Agreement, which relate, respectively, to the Paris Convention and to the Berne Convention. The TRIPS Agreement is thus sometimes mentioned to as a Berne and Paris-plus agreement.
Enforcement: The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. It also contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively avail their rights.
The Agreement provides for certain basic principles, such as national and most-favoured-nation treatment, and some general rules to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement. The obligations under the Agreement will apply equally to all Member countries, but developing countries will have a longer period to phase them in. Special transition arrangements operate in the situation where a developing country does not presently provide product patent protection in the area of pharmaceuticals.
The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.
EVOLUTION OF TRIPS
The rights covered by TRIPS include copyright and related rights; trademarks; geographical indications; patents; industrial designs: layout-designs of integrated circuits; protection of undisclosed information (trade secrets); and control of anti-competitive practices in contractual licenses.
The standards of protection and enforcement required of WTO member states are very high, in that they are essentially those that developed countries themselves have only recently reached. In that sense, TRIPS mark a coming together of three trends in international IPR law whose beginnings date back to the end of the nineteenth century but that have become especially apparent in the last two decades.
The first trend embodied in TRIPS has been the widening of the scope of subject matter that can be protected, and the reduction or elimination of ‘exceptions’. Some of which include the extension of copyright protection to computer programs, which are now treated as literary works, and the application of patent protection to plants, animals, micro-organisms, DNA sequences, and pharmaceuticals. In many countries drugs had been excluded from patent protection on the grounds of public interest.
The second trend is the addition of new types of rights to the global IPR regime such as plant breeders’ rights, and rights to layout-designs of integrated circuits (which is explicitly required by TRIPS).
The third is the progressive international standardization of the basic features of IPRs. For example, patent regulations increasingly provide protection for a period of 20 years from the date of application. Until recently there was wide variation in timescales between countries. Also, patent applications in almost all countries must now be subjected to literature searches and examinations to ensure that what they describe is genuinely new, inventive and industrially applicable. Moreover, patent rights are now almost universally assigned to the first applicant rather than the first inventor (except in the United States where it is the opposite).
THE POST-TRIPS INTELLECTUAL PROPERTY ENVIRONMENT
Since the implementation of the TRIPS chapter as part of the Uruguay Round outcome in 1994, there has been much activity, but not much forward movement, in trade-related intellectual property rule making at the multilateral level. Perhaps the most important development in terms of standards has been the 2003 Doha Declaration on the TRIPS Agreement and Public Health. Under this exception, negotiated with great difficulty and used only once by a single country to date (Canada in 2005), domestic patent provisions in any WTO member country can be amended to allow generic pharmaceutical companies to obtain compulsory licenses to manufacture and sell medicines to least-developed countries facing public health crises in the three carefully defined and circumscribed medical categories of HIV/AIDs, malaria and tuberculosis.
In addition to the baseline intellectual property standards created by the TRIPS agreement, many nations have engaged in bilateral agreements to adopt a higher standard of protection. These collection of standards, known as TRIPS+ or TRIPS-Plus, can take many forms.
“TRIPS-plus” provisions include, lengthened patent data requirements, strengthened copyright provisions and expanded coverage for geographical indications in new regional and bilateral trade agreements to which they are a party. These cultural and social aspects of intellectual property rights have evoked interest from civil society and non-governmental organizations and have involved increasingly the United Nations Educational, Scientific and Cultural Organization (UNESCO). One of outcomes of this international activity was the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions completed in 2005. The “Development Agenda” proposed as part of the reform process underway in WIPO could have a major impact on intellectual property standards in the future.
“The one-size fits all” or “the higher the better” approach to intellectual property standards is increasingly at variance with WIPO’s Development Agenda. The large, and progressively more influential, emerging economies such as Brazil, China and India, with rapidly developing high-tech sectors, are becoming less inclined to support comprehensive and coherent intellectual property standards at the levels favoured by the United States, the European Union and other developed countries. Such standards are not, in any case, easily enforceable in low-income countries. Serious discussions are underway about a new WIPO Substantive Patent Law Treaty, which could allow the patenting of biomedicines, genetic resources and related elements, and extend exclusive data protection to the pharmaceutical and, perhaps, to other sectors.
There is, as well, increasing pressure from private sector interests in developed countries, supported by their governments, to extend copyright terms to 75 years from 50 years, to introduce a stronger “notice and takedown” system targeted at internet service providers, and for technological protection measures or “digital locks” to curtail unauthorized copying, distribution, performance and display of content. Many users, such as libraries, universities and some in the literary community, have objected strongly to these proposed and possible future restrictions. To deal with the problems that have arisen, they advocate broader exemptions to copyright rules, such as expanded fair dealing or fair use provisions, aimed at ensuring a wider diffusion of ideas and knowledge without the threat of expensive litigation or restrictions on interoperability.
Intellectual property rights have to be enforceable. Or, more precisely, the TRIPS Agreement says governments have to provide effective procedures for enforcement. The question of discussing enforcement routinely in the TRIPS Council has sometimes been controversial.
Some developed countries considered counterfeiting and piracy to be a serious problem and wanted to discuss it; developing countries abstain themselves, fearing that this would target them and be used to argue for new standards more stringent than those in TRIPS.
Recently (around 2011) the discussion has focused on an Anti-Counterfeiting Trade Agreement (ACTA) negotiated by a group of countries.
Strong IPR protection can hinder, rather than nurture, economic development while economies with weak IPR protection can actually gain advantages. Only after countries have accumulated sufficient indigenous capabilities with extensive science and technology infrastructure to undertake creative imitation in the later stage does IP rights protection become an important element in technology transfer.
The WTO Secretariat, in undertaking technical cooperation activities relating to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), has found a real need among diverse stakeholders for clarity on key economic concepts, and for brief explanations on the economic analysis of contemporary policy issues relating to intellectual property and trade.
The 2001 Doha Declaration on TRIPS and Public Health was a political statement affirming that intellectual property protection and public health objectives do not contradict each other: “We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health.”
It gave governments the confidence to use the flexibilities available in the TRIPS Agreement. For example: compulsory licensing and parallel imports.
Geographical indications are place names (in some countries also words associated with a place) used to identify the origin and quality, reputation or other characteristics of products.
Two issues are debated in the TRIPS Council under the Doha mandate: negotiations to create a multilateral geographical indication register for wines and spirits; and discussions on extending the higher (Article 23) level of protection beyond wines and spirits.
Trips, Biodiversity, Traditional Knowledge, Plants and Life Forms
In the TRIPS Council, these topics are usually discussed under three merged agenda items — a “triplet” of related issues. They come under the Doha Development Agenda although members does not agree on whether they are negotiations. These issues are also discussed in separate consultations chaired by the Director-General or a deputy.
Animals and plants. TRIPS Art.27.3(b) deals with patentability or non-patentability of plant and animal inventions, and the protection of plant varieties. It has been under review in the TRIPS Council for several years.
The Doha Declaration added:
TRIPS and CBD — the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity
Traditional knowledge — the protection of traditional knowledge and folklore
The TRIPS Council’s review is guided by the TRIPS Agreement’s objectives (Article 7 which says the objective is innovation and technology transfer for social and economic benefits) and principles (Article 8, which refers to health and other social and economic objectives, and to abuse of rights), and must take development fully into account.
Nicola Bianchi and Petra Moser (2017) find historical evidence that under particular circumstances compulsory licensing – a key mechanism to deteriorate intellectual property rights that is covered by Article 31 of the TRIPS – may be effective in promoting invention by increasing the threat of competition in fields with low pre-existing levels of competition. They argue, still, that the benefits from weakening intellectual property rights strongly depend on whether the governments can convincingly commit to using it only in exceptional cases.
The 2002 Doha Declaration affirmed that the TRIPS agreement should not avoid members from taking measures necessary to protect public health. Despite this recognition, less-developed countries have claimed that TRIPS’s flexible provisions, such as compulsory licensing, are near-to impossible to exercise. Less developed countries have cited their domestic manufacturing and technology industries as evidence of the policy’s bluntness.
TRIPS-plus conditions mandating standards beyond TRIPS have also been the subject of scrutiny. These agreements contain conditions that limit the ability of governments to introduce competition for generic producers. In particular, the United States has been criticized for advancing protection well beyond the standards mandated by TRIPS. The TRIPS agreement allows the grant of compulsory licenses at a nation’s discretion.
It is a new era for trade-related intellectual property. The world has advanced; it will not shift backwards — intellectual property rights will remain part of international trade agreements, but varying standards combined with improved and less discriminatory enforcement will characterize future global activity in this area. This transformation in approach to trade-related intellectual property rights reflects the evolution of social, cultural and political mores and attitudes, as well as a more finely tuned understanding of the relationships among innovation, creation, and wider, more efficient, dissemination of intellectual property. Increasingly, health, education, heritage and the global commons, including environmental considerations, are concerns in the context of changing demographics and shifting public opinion; new ways to involve broad publics through consultations, round tables, discussions, focus groups and social media will enhance, and at times, perhaps overtake legislative options. The movement of legitimate goods, services, capital, ideas and skilled persons will, undoubtedly, intensify as the world continues to emerge, slowly and fitfully, from the Great Recession of 2008-2009 and resumes its process of integration.
The debate over IPR is complex, wide-ranging and, unfortunately, inconclusive. As this brief survey shows, there are really two debates going on. The first revolves around the improvement, reform, and harmonization of the legal framework and procedures that define and protect the IPR in the developed countries. The second is centered on the degree to which developing countries must protect the IPR owned by developed countries. It is clear that the current systems that underpin the IPR in both developing and developed countries are under mounting stress and are performing inadequately. There is no global agreement on how the current systems should be reformed. Accordingly, IPR-related disputes are beginning to affect trade relations negatively.