What are intellectual property rights

“Intellectual Property shall include rights relating to literary, artistic, and scientific works,
discoveries throughout all areas of human endeavor, scientific advances, industrial design
rights, trademarks, service marks, and commercial names and designations, protection against
unfair competition,” states Article 2 of the WIPO (World Intellectual Property Organization)
– Central Organization for the Protection of Intellectual Property laws and the UN expert
organization.

Intellectual property rights are the rights granted to individuals over the creation of their
minds. For a set period of time, they usually grant the creator exclusive rights to use his or
her creation. Intellectual property (IP) is a non-tangible asset developed by the human mind.
Business organizations may use IP to gain a competitive advantage and drive their growth.
Intellectual property ownership interests, like any other property, can be assigned, licenced,
or otherwise passed to third parties.

Internationally, intellectual property rights (IPR) are valued and exchanged. The WTO’s
TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement recognises the
importance of IP in international trade. The TRIPS Agreement establishes basic requirements
for member governments’ IPR protection.

How it all started?

As intellectual property grew more significant in commerce, the level of protection and
enforcement of these rights varied greatly throughout the world, and these variations became
a source of stress in international economic relations. New globally agreed-upon trade
standards for intellectual property rights were considered as a method to bring greater order
and predictability to the market, as well as a more systematic approach to resolving disputes.

The General Agreement on Tariffs and Trade (GATT) was the only multilateral mechanism
overseeing international commerce until the World Trade Organization (WTO) was
established in 1995. Under GATT, there were eight rounds of negotiations, the first five of
which were solely focused on tariffs, while the sixth round included discussions on anti-
dumping measures, which included provisions for member nations to control the dumping of
goods into their territory by other nations that could harm their economies.

The Uruguay Round was the last GATT round (1986-1994). It was in this session that the
first discussions on trade linked to agriculture, services, and intellectual property rights were
conducted. All 123 countries that took part in the Uruguay Round, including India, became
members of the WTO. WTO now has 164 members, accounting for about 90% of the world’s
countries. The World Trade Organization (WTO) is in charge of negotiating and
implementing new international trade agreements. It is also responsible for ensuring that the
majority of the world’s trading nations comply with the trade agreements they have signed.
The WTO is the legal and administrative framework for managing and growing international
connections between its 157 members on a multilateral basis. Its goal is to establish fair and
secure international trading arrangements in order to stimulate trade and investment and raise
global living standards.

The TRIPS Agreement is one of the most significant WTO accords. The Agreement went into
effect on January 1, 1995.

General provisions and basic principles

The essential principles on the national and most-favored-nation treatment of foreign persons
are found in Articles 3, 4, and 5, and they apply to all kinds of intellectual property covered
by the Agreement. These obligations apply not only to substantive standards of protection,
but also to issues relating to the availability, acquisition, scope, maintenance, and
enforcement of intellectual property rights, as well as issues relating to the use of intellectual
property rights that are specifically addressed in the Agreement. While the national treatment
provision prohibits discrimination between a member’s own nationals and those of other
members, the ‘most-favored-nation’ treatment clause prohibits discrimination between other
members’ nationals. The exclusions authorised under the pre-existing WIPO intellectual
property treaties are likewise available under TRIPS in terms of the national treatment
commitment. Furthermore, governments have the authority to enact legislation to prohibit
right holders from abusing IPR or to challenge practises that unfairly restrict commerce or
impede the international transfer of technology, all in accordance with the Agreement’s
provisions.

What is the TRIPS Agreement about?

The TRIPS Agreement protects intellectual property in trade-related regions to a large extent
and is regarded as a comprehensive new framework for intellectual property standards
protection. The TRIPs Agreement also has the distinction of being the first legal agreement to
address all areas of intellectual property with a number of specific clauses.

The three main significant features governed by the agreement are:

Standard– All member states are required to provide a minimum set of criteria for the
protection of IPRs in each of the IP categories covered by the Agreement. Each area of IP is
addressed in such a way that the major aspects of protection, such as the subject matter
sought to be protected, the rights to be granted, and possible exceptions to such rights, as well
as the minimum period of protection, are all explicitly stated.

Enforcement– The second set of clauses focuses on domestic processes and remedies for
intellectual property rights enforcement. The Agreement establishes a set of broad rules that
apply to all IPR enforcement actions. It also includes rules on civil and administrative
processes and remedies, provisional measures, particular border requirements, and criminal
proceedings, all of which outline the procedures and remedies that must be provided so that
the right holders can successfully exercise their rights.

Dispute settlement– Disputes occurring between WTO members over responsibilities

emanating from the TRIPS Agreement are subject to the WTO’s dispute resolution processes.

Purpose of TRIPS Agreement:

The preamble of TRIPS Agreement along with Article 7 clearly lists out the purposes for the
TRIPS agreement-
• To reduce distortion and impediment to international trade.
• To promote effective and adequate protection of intellectual property rights.
• To ensure that measures and procedures to enforce intellectual property rights do not
themselves become barriers to legitimate trade.

TRIPS AND INDIAN IP LAWS:

Copyrights and related rights

The Agreement states that copyright protection only applies to phrases, ideas, techniques,
operating methods, or mathematical concepts. Literary, musical, dramatic, photographic,
sculptural, architectural, choreography, graphic, motion picture, sound recording, multimedia
work, computer programs, and other works are all given copyright. For a certain amount of
time, the owner of a copyright has the right to prevent others from duplicating, distributing,
making derivative works, performing, exhibiting, or utilising the work covered by the
copyright. The essence of copyright is originality, which means that the work was created by
the copyright owner or claimant. A work of originality, on the other hand, does not have to be
innovative. In copyright law, originality does not entail innovation.

The Berne Convention protects computer programs in both source and object code, and
compilations of data in machine-readable or other formats constitute creative works due to
the selection or arrangement of their contents and are thus protected by the Agreement. In the
case of computer programs and cinematographic works, authors are granted the right to
approve or restrict commercial renting of originals or copies of protected works to the public.
However, if giving rental rights leads to widespread copying of such works, jeopardising the
work’s uniqueness, member governments can revoke such rights. The term of protection
extends up to not less than 50 years as per Article 12 of the Agreement.

Trademarks
Article 15 states that any sign, or set of signs, able to distinguish one undertaking’s products
and services from other undertakings’, shall be eligible for trademark registration, provided
that it is clearly detectable. Such signs, in particular words, characters, digits, figurative
components, and colour combinations, as well as any combination of these signs, must be
acceptable for trademark registration. According to Article 16, the trademark owner has the
exclusive right to restrict third parties from using similar or identical signs for products or
services that are similar to those for which the trademark is registered.

Geographical indications

As per Article 22, geographical indications designate a good as coming from a member’s
territory, or an area or place within that territory, where the good’s quality, reputation, or other
attribute is largely due to its geographical origin. Traditionally, some commercial items have
been manufactured in a geographically defined territory. In commercial relations, the
geographical indicator becomes the dependable “carrier” of qualifying product features when
these items are accredited to certain criteria fundamentally due to their geographical
provenance. The purpose and value of geographical indications are subsequently given to
trademarks, and they are entitled to legal protection.

Industrial designs

Articles 25 and 26 of the agreement says members must ensure that fresh or unique industrial
designs generated independently are protected. The Agreement, which is based on the Paris
Convention but goes much beyond it, promises to preserve industrial designs for a minimum
of 10 years. When such activities are conducted for commercial objectives, the right holder
can ban third parties who do not have the holder’s agreement from producing, importing or
selling items that incorporate the protected design.

Patents

According to Article 27 of the agreement, a patent is an intellectual property right (IPR)

awarded to inventors. The inventor, as the patent owner, has the right to prevent anybody else
from creating, using, selling, or importing the patent-protected invention in a specified region
for a set length of time.

The basic criterion of patentability is subject to exceptions. One is for innovations that are
against the public good or morals- this includes inventions that are harmful to human, animal,
or plant life or health, or that are substantially harmful to the environment.

Members may also exclude diagnostic, medicinal, and surgical procedures for the treatment
of people and animals from patentability.

The length of protection is normally 20 years from the date of filing of the patent application.
Member nations could provide specific exemptions to exclusive rights conferred by a patent
under Article 21 of the Agreement, given that such exclusions do not unreasonably conflict
with a normal exploitation of the patent and therefore do not unreasonably bias the patent
owner’s legitimate interests, taking into consideration the legitimate interests of third parties.
Furthermore, Article 29 mandates that the patent filing discloses the innovation in a manner
that is explicitly clear and complete for a person knowledgeable in the art to carry out the
invention. Article 31 of the Agreement contains provisions that allow the government of a
member nation to award a compulsory licence for medicines without the patentee’s approval,
subject to specific circumstances.

Layout-Designs (Topographies) of Integrated Circuits

Importing, selling, or distributing (for commercial reasons) a secured layout design, an

integrated circuit where a secured layout design is implemented, or an article including such a
circuit is prohibited under Article 36 of the Agreement. From the date of filing an application
for layout designs, the protection offered in this sector of IP is at least ten years. According to
Article 37, member countries may limit the length of protection to fifteen years from the date
of development of the layout design.

Protection of undisclosed information

The information which is undisclosed is referred to as a trade secret. Article 39 of the

Agreement requires member states to provide trade secret protection in accordance with the
Agreement’s provisions. TRIPS mandates that member countries should create national
legislation to prevent such information from being revealed to, obtained by, or used by third
parties without the agreement of the person who is lawfully in possession of it, in a manner
that is inconsistent with fair trade practises. Such information must be confidential, have
commercial value as a result of its confidentiality, and have been subjected to reasonable
efforts to keep it hidden in order to be granted protection.
Enforcement

Governments must guarantee that IPR can be implemented to prevent or discourage

infringement, according to the Agreement. The methods must be just and equal, as well as not
overly cumbersome or expensive. They shall not impose unreasonable deadlines or
unjustified delays. People concerned must be allowed to request a court review, an
administrative decision or appeal a lower court’s judgement. The TRIPS agreement goes into
great detail about how to defend intellectual property rights, including requirements for
gathering evidence, interim measures, injunctions, damages, and other penalties. It states that
courts must have the authority to compel the disposal or destruction of objects that infringe
on intellectual property rights under specified situations. On a commercial scale, wilful
trademark counterfeiting or copyright infringement must be prosecuted as a crime.
Governments must also ensure that holders of intellectual property rights can get assistance
from customs authorities to prevent the import of counterfeit and pirated goods.
Prevention and resolution of conflicts resulting from the provision of the TRIPS
Agreement

The TRIPS Council is in charge of the provisions relating to dispute resolution and
prevention. The common register, which contains a compilation of laws and regulations, final
judicial decisions, and other information pertaining to the Agreement, should be established,
Article 63 establishes an obligation to notify laws and regulations to the TRIPS Council or
the WIPO. Article 64 of the Agreement outlines processes for preventing and resolving
disputes. For this aim, the WTO Agreement’s integrated dispute settlement procedure will
apply to TRIPS issues.

Transitional agreements: The TRIPS agreement allowed countries to delay the

implementation of its terms for various lengths of time. These timeframes specify the period
between when the agreement entered into force (on January 1, 1995) and when it got
implemented in member countries.

Institutional arrangements: Article 68 of the TRIPS Agreement establishes The TRIPS

Council. The TRIPS Council oversees the administration of this Agreement, including
members’ compliance with their duties under it, and provides members with the opportunity
to consult on trade-related aspects of intellectual property rights. It carries out any other
obligations that the members delegate to it, including providing any help sought by them in
the context of dispute resolution procedures. The TRIPS Council may consult with and obtain
information from any source it finds relevant in carrying out its tasks.
Criticism of Trade-Related Aspects of Intellectual Property Rights

 Although the TRIPS agreement sets fundamental and compulsory obligations on

signature member states to implement the bare minimum standards of IP protection in
all of its components, the agreement is not free from criticism.
 TRIPS effectively have little to do with trade directly and have instead led to trade
being negatively impacted and restricted, which goes against the ideologies of the
World Trade Organisation.
 Intellectual property rights are domestic and territorial. They are governed by
domestic laws and regulations. There is no worldwide patent.
 The approach of ‘one size fits all’ is inappropriate for countries that are in their
developing stage, and have not yet been developed completely.
 Companies doing ‘generic’ are not doing something innovative and have gotten
unwarranted rights and protections on them.
 The rationale for the TRIPS agreement was trans-border and not domestic, but
domestic rights and protection of intellectual property have proliferated over the
years. There is nothing trans-border in it.
Principles of the international intellectual property regime

It was with the Paris Convention for the Protection of Industrial Properties, 1883, which is
commonly known as the Paris Convention, that the principles of intellectual property rights
began to take shape. It was followed by the Convention for the Protection of Literary and
Artistic Works, 1886 which is infamously known as the Berne Convention.

Both the above-mentioned conventions were negotiated and also re-negotiated as well as
amended throughout the years, and eventually, they were finally incorporated and advanced
in Trade-Related Aspects of Intellectual Property Rights (TRIPS) through the Uruguay Round
of Negotiations from 1986 to 1994, which came into effect from the 1st of January 1995.
The Paris Convention covers only the industrial property such as patents, trademarks,
industrial designs, utility models, geographical indications, service marks, trade names and
the prevention of unfair competition.

The Paris Convention was created with two goals, which are as follows;
• to prevent the unforeseen loss of patent protection eligibility by publishing 81 patent
applications and taking part in international exhibitions before submitting national
patent applications; and
• to some extent, harmonize the various patent laws of the various countries.

BERNE CONVENTION: States began to become more interested in the potential for
international cooperation on intellectual property during the nineteenth century because of
increased literacy piracy. Literary pirates misrepresent someone else’s ideas as their own.
This desire of such cooperation initially showed itself through bilateral agreements. Most
country copyright laws were only a few decades old in 1886. The only protection offered was
that provided by monopolies, or privileges granted for the publication of specific works.

Eight countries ratified the Berne Convention for the first time in 1886, namely- Belgium,
France, Germany, Italy, Spain, Switzerland, Tunisia, and the United Kingdom. India has been
a member of the Berne Convention since April 1928.

The Berne Convention, like the Paris Convention, was based on the idea of national treatment
and stipulated a set of basic rights that all nations had to uphold. The multilateral age of
global intellectual property cooperation began with the Paris and Berne Conventions.

The Berne Convention covers the rights of authors as well as the preservation of works. The
treaty is founded on the below-mentioned fundamental principles and includes a number of
provisions that specify the minimum level of protection that must be provided, as well as
exceptional measures that developing nations may apply.
CASE LAWS:
TRIPS agreement plays a significant role in IP laws globally, especially in patents. TRIPS
poses protection to intellectual property for a specified period and makes it difficult to obtain
patents. Although the laws were simple with patents in India and some like developing
countries before the introduction of TRIPS, scenarios changed after its advent. The scope of
TRIPS can be studied in the Indian Pharmaceutical sector with its impact on the health of the
public.

There is an emerging need for the pharmaceutical sector in India due to its growing
population. As per the provisions of The Patents Act, 1970, the production of generic drugs
and importation of patented drugs were allowed at lower prices which were later amended
with the introduction of the TRIPS agreement to The Patents Act, 2005. As per the amended
act, inventors are obliged to share complete details of their inventions which restrict others
from making, selling, or importing them for 20 years.

In the case of Roche vs. Cipla 2012, a dispute arose between the healthcare company of
Swiss and an Indian Pharmaceutical company over a drug named ‘Erlotinib’ which was used
for treating Lung Cancer and was patented by Roche and was selling it by the name
‘Tarseva’. Justice Bhatt of Delhi High decided this case and rejected a temporary injunction
filed by Roche against Cipla for manufacturing the same drug even though it was patented
because,

 Roche’s drug was thrice more expensive

 It was against public policy

Impact on pharmaceutical sector

As already discussed, TRIPS poses several restrictions on patenting of generic drugs by
giving protection to the innovator as it is believed that the innovator should be the person to
enjoy benefits arising from it and if everyone will be copying that idea, the benefit won’t be
available to the innovator. It is evident that affordable medicine is one of the major concerns
in India whose substantial population lives under the poverty line and prices of medicines are
such that are not affordable by them, so to assure absolute access to health services, the
following implementations have been made by India:
 TRIPS flexibility
 Effective utilization of Compulsory Licensing.
Furthermore, the Indian judiciary is attempting to strike a balance between-
 Rights of Patentee and,
 Fundamental Right of Health
Bayer Corporation v. Union of India (2012)