TRIPS and Compliance: Where Do India Stand?

Trade Related Aspect of Intellectual Property Rights of World Trade Organisation (WTO) is commonly known as TRIPS. It lays down the minimum standards regulation to be followed by governments in any form of Intellectual right. It was the first time when agreement introduces for intellectual property rights at multilateral trading system. Intellectual Rights is given to persons over the creations of their minds. These rights are territorial rights, which mean that they are valid only in the jurisdiction where they have been registered or otherwise acquired.

Background

World Trade Organisation (WTO) is a legal foundation for the development of trade relations with 167 members at international level. It aimed to provide fair and stable condition for international level to encourage trade and investment at worldwide level. The successful multilateral agreement that is General Agreement on Tariff and Trade (GATT 1947) for solving the major issue of reducing the tariff worldwide in Uruguay round as a result the developed nations like USA starts facing increasing competition in manufactured exports and for Intellectual property as technology has been become important for goods and commodities and there was higher proportion of invention and design so it provide for  the establishment of Trade Related Aspect of Intellectual Rights (TRIPS) to reduce the distortions and impediments to international trade and to promote effective and adequate protection of intellectual property rights and to ensure that rights does not become the barriers to trade. 

TRIPS Provisions

Brief introduction of various parts of TRIPS agreement-

a)    General Provision and Basic Principles

Part I of the TRIPS agreement provides general and basic principles like national treatment and favoured national treatment and also includes rights of Intellectual property rights which is provided under section B of this part.

b)    Standard concerning the availability, scope and use of rights.

 

Part II of the agreement describes the minimum standards of Intellectual property which has been provided to each and every member of the agreement in following fields are:-

            The Intellectual Properties Rights covered under TRIPS are as follows:-

  • Copyright and related rights
  • Trademarks including service marks
  • Geographical indications including appellations of origin
  • Industrial designs
  • Patents including the protection of new varieties of plants
  • Layout designs (topographies) of integrated circuits
  • Undisclosed information including trade secrets and test data

Part II of this agreement also provide the provision for the control of anti competitive practices which can be done while providing contractual licences.

c)    Enforcement

Part III of this agreement dealt with the procedure which should be followed domestically and remedies are also available for the enforcement of intellectual property rights. These provision are being specifically provided so that right holders can access their rights and safeguard them from any abuse.

d)    Certain Other Matters

  • Part IV of this agreement contains procedure for applying for Intellectual Rights protection and kinds of appeal or Review available to the affected party.
  • Part V of this agreement deals with dispute preventions and settlement and also provides procedure for settlement.
  • Part VI contains provisions on transition periods, transfer of technology and technical cooperation.
  • Part VII deals with institutional arrangements and certain cross-cutting matters and other matter also.

Linkage between TRIPS, WTO AND WIPO

Intellectual property rights (IPRs) have their genesis in the Paris Convention for the Protection of industrial Property in 1883 which protected property that is Patents and Trade mark and the Berne Convention for the protection of literacy and Artistic Works in 1886 for copyrights and related rights.

World Intellectual Property Organisation (WIPO) which had began his work on Protection of Intellectual Properties Right in 1967 and these works were being administered by the agencies under the United Nation.

Intellectual Property Rights (IPR) conventions and treaties create the international standards in protection of IPRs as according to World Trade Organisation “ The Intellectual Property” should be protected when trade is involved. 

Indian’s approach to the TRIPS Negotiations

There was three distinct phases, each guided by dominant economic policies followed by the country at that time

1.     The first phases was from the Punta del Este mandate of September 1986 until the meeting of the Trade Negotiations Committee(TNC) OF THE World Trade Organisation in Geneva in April 1989i

India was being stuck to position until April 1898 that substantive norms and standards for the protection and enforcement of IPRs went beyond the scope and therefore could not be considered by TRIPS Negotiation Group. There were two Indian- specific reason that prompted it to adopt this stand

  1. The insular and inward-looking economics policies
  2. The growth and achievement of the domestic pharmaceuticals  industry under the Patents Act 1970

Even after Paris Convention allowed considerable discretion to parties in framing their patent laws and had no worthwhile enforcement mechanism against transgression, even after that also India was opposed to joining it as to be reasoned that it will diminish freedom to formulate  and implement its own Patent law.

 

2.     The second phase was from April1989 until the issue of the so-called Dunkel Draft in December 1991

There were several silver linings in the Brussels text that proved useful in Dunkel Draft, as they gave policy for developing countries to attenuate the adverse effects of protection of IPRs. 

  1. First stands out – it relates to compulsory licences (Article 34 of the Brussels text and Article 31 in the TRIPS Agreement).
  2. Second, in the case not only of public non-commercial use by the government but also of a national emergency or other circumstance of extreme urgency, a compulsory licence could be granted without prior negotiation with the right holder provided under (Article 34(b) and (o) of the Brussels text and Article 31(b) of the TRIPS Agreement).

Along with the support of some developed and developing countries, the Indian negotiators were able to get these important provisions included in the article on compulsory licences.

3.     The third phase was after the issue of the Dunkel Draft

Pharmaceutical patents were introduced to India by the British as they were ruling at that time. But the Patent Act 1970 changed the course prohibiting product patents on medicines. At that time  drug prices  were very high The Act served as a big boost of growth in the domestic pharmaceutical industry. Although the law permitted process of patents related to medicines but they were very limited in scope. The law thus created significant space for the entry of local pharmaceutical firms which started producing active pharmaceutical ingredients (APIs). 

Indian pharmaceutical companies became skilled in reverse engineering and developing new processes for drug production and gradually drug prices were amongst the lowest in the world. In 1995 India finally joined the WTO and the TRIPS Agreement. TRIPS altered the terrain of international Intellectual property law.

In each of these phases , there were shifts in India’s stand based on its own examination of what changes it would have to make in its laws 

Indian present approach to Intellectual Property Rights

The TRIPS Agreement is no longer as emotive and explosive an issue in India as it was at the time of its negotiation. The main reason behind this change is the increasing outward orientation of India’s economic policies and the growing strength and confidence of its economy. 

 At present, economic reforms are being given a further hard push in India in order to raise steeply the levels of investment and economic growth. Foreign investment and technology are being actively and openly courted under programmes with titles such as “Make in India”, “Skilled India”, “Digital India”, “Smart Cities”, “Clean Energy Development” and the like.

One of its recommendations is the setting up of a National Institute of Excellence on IPRs for enhancing the awareness of IPRs among all stakeholders, including, in particular, domestic innovators and creators of IP.

In this changed scenario, the TRIPS Agreement has almost become a blessing in disguise for India. Having become a signatory to it, and having a good track record of abiding by international agreements it has entered into, India can now confidently assure foreign investors and technology suppliers that their IPRs will be protected in accordance with internationally accepted standards as embodied in the TRIPS Agreement. The TRIPS Agreement can also help India avoid unnecessary trade frictions with other countries by suggesting that a grievance over protection of IP can be resolved through the dispute settlement mechanism of the WTO.

Conclusion

The TRIPS Agreement was unusually contentious right from the beginning of the Uruguay Round negotiations and until their conclusion on the basis of the Dunkel Draft, especially with respect to the area of patents. Although the developed countries had internal differences in their positions on certain issues, there was a sharp cleavage on the fundamental issues of protection between developed and developing countries, more than under any other agreement of the negotiations, including the Agreement on Agriculture, the GATS and the Agreement on Trade Related Investment Measures (TRIMS).

The technological changes that are taking place so swiftly and so sweepingly in almost every field may soon render these concerns obsolete and may throw up new concerns requiring a paradigm shift in the approach to deal with IPRs 

REERENCE:

  1. https://www.wto.org/english/res_e/booksp_e/trips_agree_e/chapter_11_e.pdf
  2. https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/modules1_e.pdf
  3. https://rajdeepandjoyeeta.com/trips-and-india/
  4. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1595&context=njilb
  5. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

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