Trade Related Aspects of Intellectual Property Rights: International Scenario

Gazal Gupta

Introduction

Intellectual property is a significant aspect in international trading system. To regulate and safeguard intellectual property rights without counterfeiting or piracy the agreement on trade related aspects of intellectual property rights came into existence. This is an important and comprehensive agreement and this was the source which introduced these rights into international trading system.

Trade-related Aspects of Intellectual Property Rights (TRIPS) was enforced in 1995. It sets some global minimum standards for shielding Intellectual Property Rights (IPR). Most countries had IPR laws but TRIPS helped them in developing those laws and universally recognising a few to help with international trade.

TRIPS implementation in developing countries

The main objective of TRIPS was to give easy access to developing countries of patent protected pharmaceutical products.[1]When TRIPS was implemented in developing countries, it was a major challenge for them as they had to change their existing laws to comply with TRIPS and at the same time work in public interest. An extended period of time was provided to the developing countries to implement TRIPS and all there was co-operation by most of the countries.[2] Today, it is one of the most effective agreements existing and it undoubtedly protects intellectual property rights of people of every country. The scenario in few developing countries was:

Brazil-

The TRIPS agreement was too soon implemented in Brazil leading to a few problems. While it was being implemented, the health ministry took steps to interpret TRIPS and made domestic policies but on the other hand Brazil’s patent office took steps to strengthen intellectual property protection, this led to bureaucratic fights. Further in 2000, USA filed a case against Brazil regarding legality of local working requirements which led to reduction of prices of USA based pharmaceutical products in Brazil. The case was settled and soon enough in 2004[3] one of the biggest steps was taken by Brazil to mould laws together with Argentina of a development agenda at World Intellectual Property. Here the impact of developed countries was discussed and other problems which helped other countries and soon led to proper implementation of TRIPS in India.

India-

India openly challenged TRIPS. Firstly it managed to secure a 10 year change period from implementation of TRIPS and by not fulfilling its obligations in that period it became the first country to go to courts. But soon enough India adapted TRIPS. Various laws and amendments were applied and soon enough the implementation of IPR in India was an example for other countries which they tried to achieve.

TRIPS implementation in developed countries

Even though these countries are not part of the least developed countries (LDC’s) many efforts and non-compliances were there by the developed countries. The scenario in a few developed countries was:

England-

In England, there were provisions for compulsory licensing. However, in the case Parke Davis & co. v. Comptroller of Patents, Designs and Trademarks[4] the provision of compulsory license was sustained which was not complying with the TRIPS agreement. The amendment has been drafted and is still being considered but it has not been implemented yet. Here, there is a amendment in an actual law so it is considered as an achievement and not failure.

United States of America-

This country is one of the best examples of correct implementation of TRIPS. The USA passed an act called Uruguay Round Agreements Act to comply with TRIPS. However, TRIPS require compliance with Berne’s Articles as well from 1 to 21 but it has been found that USA does not comply with it. In re Hilmer[5] it was held that United States patent is based on prior art purposes but United States foreign Paris Convention application was not available for prior art purposes. Except from this, USA was still following TRIPS far more successfully than other countries.

Japan-

It is required by TRIPS that article 18 of Berne Convention should also be followed. Japan’s copyright law was amended in 1971 and protection to sound recordings was extended but only prospectively, not retroactive leading to violation of TRIPS. However, soon enough Japan agreed on the amendment of law.[6] Making it another successful country to abide by TRIPS

Recommendations

For better implementation of TRIPS,

Firstly the problems should be recognised. For that there should be substantial review of its implementation in every country.
Secondly, the countries who are still not complying with TRIPS in their domestic laws should amend them to comply with this universal agreement.
Thirdly, Countries should have a positive approach towards implying TRIPS agreement as it is for their own benefit, this will lead to economic development and diminishing poverty.
Lastly, TRIPS in itself should be amended to recognise genetically engineered mechanisms in environment.

Conclusion

The IPR laws in every country are carefully formulated to make it acceptable to the general public. However TRIPS is an important document and compliance with it is crucial. While expanding the trade and developing economy this agreement should be considered to minimise future disputes and recognise everyone’s intellectual property rights so that there can be unity and integrity between nations. This agreement can help in minimising conflicts and just the implementation of it appropriately in all the countries connects them to one another legally. Also, all kinds of rights i.e. covering authors, copyright rights, etc. by the world trade organisation members are provided to TRIPS for safekeeping of information and healthy trading between countries.


[1]Sundaram, J., 2014. Brazil’s Implementation Of TRIPS Flexibilities: Ambitious Missions, Early Implementation, And The Plans For Reform. [online] Taylor & Francis. Available at: <https://www.tandfonline.com/doi/abs/10.1080/13600834.2014.921387&gt; [Accessed 20 April 2020].

[2]OMC, W., 2020. IMPLEMENTING THE WTO TRIPS AGREEMENT THROUGH PARTNERSHIP & TECHNICAL COOPERATION. [online] Wto.org. Available at: <https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/trips_tech_coop_e.pdf&gt; [Accessed 20 April 2020].

[3]jstor. 2015. Chapter The Framework Of TRIPS(2015). [online] Available at: <https://www.jstor.org/stable/j.ctv941vp4?refreqid=excelsior%3A9ef40f75412b694f780824f48f7c8ce9&gt; [Accessed 20 April 2020].

[4] {1954} AC 321 (H.L)

[5] 359 F. 2d 859 (C.C.P.A. 1966)

[6]Giust, J., 2020. NONCOMPLIANCE WITH Trips BY DEVELOPED AND DEVELOPING COUNTRIES: Is Trips WORKING?. [online] Mckinney Law. Available at: <https://mckinneylaw.iu.edu/iiclr/pdf/vol8p69.pdf&gt; [Accessed 20 April 2020].