The development of science and technology and consequential development of infrastructure led to the integration of different cultures and societies, thus removing geographical barriers. This integration gave rise to enhanced trade between different societies and the increased importance of multi-national corporations. However, this connectedness of the world also implied easy flow of information from one part to another, which in turn implies easy unauthorised use of the same. In the 1970s and 80s, the trade of counterfeit goods raised a serious concern which led to the deliberations on having stronger international cooperation on protecting the original work and the result was the TRIPS agreement.
The Agreement on Trade Related Aspects of Intellectual Property Rights, often called as TRIPS, is a multi-party agreement which is legally binding on all the members of World Trade Organisation. It basically sets down basic norms and standards that the state parties shall apply which granting and protecting intellectual property of other nationals. The negotiation on TRIPS started after the Uruguay round of the General Agreement on Trade and Tariff between 1989-1990 and it is currently administered by World Trade Organisation.
This agreement is the most comprehensive agreement on intellectual property law till date and it introduced intellectual property for first time in multi-lateral trading system. However, the developing countries were concerned because of narrow interpretation of it by the developed countries. This concern paved way for Doha Declaration of 2001 which clarified the scope of TRIPS, stating for example that the agreement should be interpreted in light of ‘promoting access to medicines for all.’
TRIPS talks about providing copyright rights including related rights, patents, geographical indications, industrial designs, trademarks, trade names, new plant varieties, integrated circuit layout designs and undisclosed or confidential information. This agreement also talks about the enforcement procedures, remedies and dispute resolution procedures. However, it is also clearly stated that the enforcement and protection shall be done with the objective of promoting technological innovation and dissemination of technology for the mutual benefit of all. It follows the principle of non-discrimination i.e. giving the foreigners the same rights that are given to the domestic nationals.
The technological gap between the developed and developing countries led to the G77 countries unsuccessfully sought dilution of IPR protection in 1970s. This galvanised major corporate actors in US, Europe and Japan because they were constantly incurring huge losses from trade in counterfeit goods. A new framework for IPR protection was needed which could maintain a proper balance between global social welfare and private ownership of intellectual property. Thus, the negotiations on TRIPS started in the Uruguay round of GATT between 1986-1994 with major role played by the corporate actors of USA. The ratification of TRIPS was made mandatory to become the member of newly established World Trade Organisation. The incentive of becoming a member of WTO led to great number of states ratifying the comprehensive agreement on Intellectual Property law.
SOME IMPORTANT PROVISIONS
The following are some of the most basic and fundamental provisions of Agreement on Trade Related Aspects of Intellectual Property Law –
- According to Article 12 and 14, the protection of the copyrights must be provided for at least 50 years, unless based on life of author.
- Article 9 of the agreement says that the copyrights must be granted automatically and there should be no formalities such as registration as specified in Berne Convention.
- The software and computer programmes must be included within the definition of ‘literary works’ and they should be granted the same copyright protection like other literary works.
- National exceptions to the copyrights must satisfy the three-step test as in Berne Convention.
- Article 33 says that the patents must be granted for at least 20 years and they must be granted in all fields of technology, obviously subject to other patentability requirements. However, certain exceptions are there for the larger public good.
- Exceptions to exclusive rights must be limited, provided that a normal exploitation of the work (Art. 13) and normal exploitation of the patent (Art 30) is not in conflict.
- There should be no unreasonable and unfounded prejudice to the interests of patent holders and right holders for computer programmes.
- Article 30 provides that the legitimate interests of the third parties must be taken into account in the matters of patents.
- The agreement believes that there should not be special benefits for the citizens which are not available for other signatory nations under the principle of national treatment.
The provisions on copyrights in this agreement are borrowed from the Berne Convention on the Protection of Literary and Artistic Works, the only exception being of moral rights. It also borrows substantial part from the Paris Convention for the Protection of Industrial Property. The agreement explicitly mentions that the softwares and databases shall be protected under copyright law, obviously subject to their originality (Article 10).
The TRIPS agreement has both advantages and downfalls at the same time. The temporary monopolies and private IPRs have helped in tackling piracy and counterfeiting which has further helped in encouragement to creativity and innovation by affording them legal protection. Innovation is thus both rewarded and further promoted. The benefits are not only limited to the domestic soil but the comprehensiveness of the global IPR regime has given security to the foreign investors, further encouraging FDI, technology dissemination and diffusion of knowledge into the developing world. TRIPS is therefore able to play a significant role in the overall promotion of trade and economic development.The agreement was based on the inclusive approach and it was flexible keeping in mind the special circumstances of different members. It gave more time to developing countries to implement it than the developed countries and even more time to Less Developed Countries. It was flexible in context of pharmaceutical products as it allowed simultaneous parallel imports of them. The Doha Declaration further clarified the scope and objective of the agreement, thus proving to be a perfect complementary instrument.
However, it is often debated that it was influenced by the western world and the developing countries did not have much input in the terms and provisions of the agreement.The promise of greater access to agricultural and textile markets, economic coercion via threat of American sanctions, the potential development of restrictive bilateral IPR agreements, all played their part in getting developing countries to sign it.The agreement therefore reflects the opinions and interests of major global corporate actors and their governments.
The agreement could be criticised for its hypocrisy. It has a devastating effect on the education, public health and economic development of developing countries. Even the advanced countries don’t get much out of it. So the only section that got benefited was large corporate actors. Thus, Archibugi and Fillipeti have rightly observed that “the real winners from TRIPS are not advanced countries, but rather the large corporations that pressed for its adoption”. No doubt, the agreement had certain benefits but these don’t work together for enhanced global welfare.
- Archibugi, D. and Filippetti, A. (2010) ‘The Globalisation of Intellectual Property Rights: Four Learned Lessons and Four Theses’, Global Policy, 1, 2, 137-149.
- Botov, I. E. (2004) ‘From the Paris Convention to the TRIPS Agreement: A One-Hundred-and-Twelve-Year Transitional Period for the Industrialized Countries’, Journal of World Intellectual Property, 7, 1, 115-130.
- Chang, H-J. (2001) Intellectual Property Rights and Economic Development – Historical Lessons and Emerging Issues. Third World Network: Penang.
- Commission on Intellectual Property Rights (CIPR) (2002a) Integrating Intellectual Property Rights and Development Policy: Executive Summary. CIPR: London.
- May, C. and Sell, S. K. (2006) Intellectual Property Rights: A Critical History. Lynne Rienner Publishers: Boulder.
- Drahos, P. (2002) ‘Developing Countries and International Intellectual Property Standard-Setting’, Journal of World Intellectual Property, 5, 5, 765-789.
- Trade Related Aspects of Intellectual Property Rights, 1994.
- Berne Convention for Protection of Literary and Artistic Works, 1883.
- Paris Convention for Protection of Industrial Property, 1886.
Matthews D., Globalising Intellectual Property Rights: The TRIPs Agreement. Routledge: London (2002).
DrahosP.,‘Developing Countries and International Intellectual Property Standard-Setting’, Journal of World Intellectual Property, 5, 5, 765-789 (2002).
May, C. and Sell, S. K, Intellectual Property Rights: A Critical History. Lynne Rienner Publishers: Boulder (2006).