TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS)

IN NEWS:

• The United States has declared its support for a temporary waiver of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement for COVID-19 vaccines at the World Trade Organisation (WTO).

INTELLECTUAL PROPERTY RIGHTS:

• Intellectual property rights (IPR) are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
• The key forms of intellectual property protection are:
  1. Patents: A patent gives the inventor the exclusive right to prevent others from making, using or selling a similar product for a fixed period of time
  2. Copyrights: Copyrights offer protection for music, films, written works of fiction, poems, architectural designs and other works of cultural value.
  3. Trademarks: Trademarks are commercial source indicators, distinctive symbols, words or designs that identify certain goods or services produced or provided by a specific person or enterprise.
  4. Trade secrets: Any information that may be used in the operation of a business and is sufficiently valuable to give actual or potential economic advantage is considered a trade secret.
• Intellectual property rights are customarily divided into two main areas:
  1. Copyright and rights related to copyright:
     • The rights of authors of literary and artistic works are protected by copyright, for a minimum period of 50 years after the death of the author.
  2. Industrial property:
     • One area can be characterized as the protection of distinctive signs, in particular trademarks and geographical indications
     • Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.

TRIPS AGREEMENT:

• The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property.
• Negotiated during the 1986-94 Uruguay Round, TRIPS introduced intellectual property rules into the multilateral trading system for the first time.
• The agreement introduced global minimum standards for protecting and enforcing nearly all forms of intellectual property rights (IPR), including those for patents.

FEATURES:

• National treatment: TRIPS require all members to treat nationals of other countries no less favourably than their own nationals on all matters concerning IPRs, subject to certain exceptions.
• Most-favoured-nation treatment: Advantages, privileges granted by a Member to the nationals of any other country should be extended unconditionally to the nationals of all other Members.
• The TRIPS Agreement covers five broad areas:
  • How general provisions and basic principles of the multilateral trading system apply to international intellectual property
  • What the minimum standards of protection are for intellectual property rights that members should provide
  • Which procedures members should provide for the enforcement of those rights in their own territories.
  • How to settle disputes on intellectual property between members of the WTO
  • Special transitional arrangements for the implementation of TRIPS provisions.
• TRIPS covers Copyright, trademarks, geographical indications, patents, Industrial designs, trade secrets and Layout designs of integrated circuits and sets out the minimum standards of protection to be provided by each Member.
• The TRIPS Council is responsible for administering the TRIPS Agreement.
• Enforcement: The agreement deals with domestic procedures and remedies for the enforcement of intellectual property rights.
• Dispute settlement: The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.
• The TRIPS Agreement promotes transfer of technology and requires developed country members to provide incentives for their companies to promote the transfer of technology to least-developed countries in order to enable them to create a sound and viable technological base.

THE DOHA DECLARATION:

• In 2001, WTO Members adopted a special Ministerial Declaration at the WTO Ministerial Conference in Doha to clarify ambiguities associated with TRIPS.
• The Declaration identified specific options open for governments to address public health needs, termed as ‘flexibilities’. The most significant flexibility was the right to grant compulsory licenses.

SIGNIFICANCE OF TRIPS:  

• Promotes knowledge economy: TRIPS stems from the recognition of contemporary significance of the knowledge economy, and private intellectual property (IP) as a major component of international trade. TRIPS is seen as representing an enforceable global system of IPR protection that plays an essential role in the modern global information society.
• Promotes free and fair trade: Absence of an IPR protection constitute a significant non-tariff barrier in trade. TRIPS has put in place a global minimum standard of IP protection that all WTO members must adhere to, thereby promoting global barrier free trade.
• stimulate domestic innovation: By instituting legal protection, the disclosure of new knowledge and creativity is encouraged, and the significant costs associated with the creative process (such as with research and development) can therefore be recouped and remuneration earned.
• Benefits developing world: The security offered to developed world patent holders and others can also encourage foreign direct investment, technology transfer and licensing, and the diffusion of knowledge to the developing world.
• Equitable treatment: The agreement recognizes the differing position of member states vis-à-vis their relative economic status, administrative capabilities, and technological base and provides relaxations. Eg: Least-developed countries were given more time to implement the TRIPS provisions.
• Flexibility: The agreement offers flexibility to all members in interpreting various articles of the agreement. Eg: Compulsory licensing.

CRITICISM:

• Encourages capitalism: TRIPS help large corporates to garner huge benefits through IP rights. Eg: In the US, pharmaceutical companies can charge whatever they want for their medicines. They typically raise prices twice a year, often doubling or tripling them during a drug’s patent-protected years.
• Inappropriate uniform standards: Developed countries are home to the overwhelming majority of IP rights-holders that stand to benefit from increased protection. But developing and underdeveloped nations lack the basic infrastructure and resources and hence they are at a disadvantage.
• Social cost: Before TRIPS, many countries either did not patent medicines or provided less than the 20-year protection. Contemporary TRIPS rules, however, drive up costs to unaffordable levels by enabling monopoly pricing and excluding cheaper ‘generic’ alternatives.
• Challenges in compulsory licensing: There has been fierce opposition of the use of compulsory licensing from the developed world. For eg: Legitimate efforts by a few developing countries to practice these measures in the face of high predominance of HIV/AIDS among their populations were legally challenged by some developed member states of the WTO.

INDIA AND TRIPS:

• For India, the WTO’s TRIPs agreement became binding from 2005 onwards as the country has got a ten-year transition period (1995-2005) to make the domestic legislation compatible with TRIPs.
• Different amendments to the various existing Acts- Patent Amendment Act (2005), Copy right Amendment Act (2010), are made to strengthen domestic legal framework to fulfill the harmonization with the WTO’s TRIPS agreement.

NATIONAL IPR POLICY, 2016:  

• The National IPR Policy is a vision document that encompasses and brings to a single platform all IPRs.
• Released with the motto “Creative India; Innovative India”, the policy document highlights seven key objectives:

1. IPR Awareness- Outreach and Promotion: To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
2. Generation of IPRs: To tap into the fertile knowledge resource and stimulate the creation of IP assets.
3. Legal and Legislative Framework: To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest
4. Administration & Management: To modernize and strengthen service oriented IPR administration.
5. Commercialization of IPR: Efforts for creation of a public platform to connect creators and innovators to potential users, buyers and funding institutions.
6. Enforcement and Adjudication: To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements
7. Human Capital Development: To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs

PRACTICE QUESTION:

Q. Discuss the salient features of the TRIPS agreement with special reference to compulsory licensing provision?