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EQUITABLE INTELLECTUAL PROPERTY RIGHTS REGIME - NEED OF THE HOUR

Prof. D.S.N.Somayajulu*

Since 1960 the world’s wealth has increased eight times.  But half of the world’s population lives on less than $2 a day, a quarter on less than $1 a day, one third has no access to electricity, a fifth has no access to clean drinking water, one sixth is illiterate, and one in seven adults and one in five children suffers from malnutrition.
 
But most of the poor people are living in developing countries.  Hence, the conflicting interests of Developed and Developing Countries in international trade provide conflicting issues before the W.T.O.  Being a developing country, India has its own agenda with its constitutional commitment to welfare economics, socio-economic justice and a just social order.  Naturally the Indian interests in world trade must be in those lines in tune with constitutional spirit.

The world merchandise trade today is over $ 3800 billions of which Indian share is only $ 21 billions.  Moreover liberalization was not an end in itself.  It should not be mere dollerisation.  It is a means to an end.  One of the ends is meeting the needs of the developing countries.  However, India has an interest in remaining a member of the world trading system.

In this backdrop one should understand trade related intellectual property rights and their impact on the economy of developing countries in general and Indian economy in particular.

Intellectual Property Rights – Conceptual Clarification

Now let us examine what is intellectual property. Intellectual property essentially includes the products of creations of the mind, and intellectual property laws aim at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited rights (intellectual property rights) to control the use made of those productions’.  The convention establishing the World Intellectual Property Organization (WIPO) concluded in Stockholm on July 14, 1967 provide that “Intellectual Property” shall include rights relating to:

  1. Literary, artistic and scientific works
  2. Performances of performing artists, phonograms and broadcasts
  3. Inventions in all fields of human endeavour
  4. Scientific discoveries
  5. Industrial designs
  6. Trademarks, service marks and commercial names and designations.
  7. Protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Intellectual property like any other form of conventional forms of property is an asset.  Just like real and personal property the intellectual property can also be bought, sold, licensed, exchanged or gratuitously given away.  Intellectual property owner has also the right to prevent the unauthorized use or sale of the property.  The most striking difference between intellectual property and other form of property is that it is intangible, that it cannot be defined or identified by its own physical parameters.  So intellectual property must be expressed in some discernible way for enabling it to be protected.  Unlike a physical object, an intellectual property like an idea for invention, a piece of music or a trademark cannot be protected against other person’s use of them by simply possessing the object.  Hence there arises the necessity of enacting intellectual property laws distinct from conventional laws protecting personal property.

Thus the subject of intellectual property rights is very complex.  The evolving global economic intellectual property regime is whether to profit for developed countries only or for fair and equitable sharing of benefits for social good and providing harmonized legal structures to encourage continues flow of innovation to fuel a vibrant global economy.  It depends upon the utility of Intellectual property in eradicating poverty.

Anyhow the protection of IPR has become a central issue in economic development, scientific and technological knowledge and scientific and economic cooperation between industrialized and developing countries.

The Agreement on Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS).

The TRIPS agreement, which "is binding on all WTO members, came into force on January, 1, 1995.  The agreement is based on negotiations held during the Uruguay Round of multilateral trade negotiations on aspects of intellectual property rights.  Which impacted an international trade. The Uruguay Round of negotiations was concluded on December 15, 1993.  The TRIPS agreement is contained in an annex to the WTO Agreement establishing the World Trade Organization (WTO), which began to work on January 1, 1995.  The TRIPS agreement is often described as one of the three 'pillars' of the WTO – the other two are trade in goods and trade in services.  The TRIPS Agreement makes protection of intellectual property rights an integral part of the multilateral trading system as embodied in WTO.

The term 'intellectual property' in TRIPS Agreement refers to copyright and neighboring rights, trademarks, geographical indicators, industrial designs, patent, layout designs (topographies) of integrated circuits and undisclosed information.

The TRIPS Agreement says that member countries of WTO must comply with the substantive obligation of the Paris Convention on Industrial property and the Berne Convention on copyright (except the provisions on moral rights) in their most versions.  All the substantive provisions of these two main conventions are incorporated by reference.  WTO member countries under TRIPS Agreement are not only required to apply these main provisions, but also to apply them individuals and companies of other WTO member countries.  In addition to these main provisions TRIPS, Agreement has introduced additional obligations in areas not addressed or inadequately addressed by these Conventions.  For this reason the TRIPS Agreement is sometimes referred to as "Beme and Paris-Plus" Agreement.

Recent Amendments to Patents Act, 1970

With the establishment of WTO TRIP's Agreement have come into force w.e.f. 1.1.1995.   India being a founder member is under obligation to implement the provisions of TRIP'S Agreement.  One of the requirements under this Agreement is to make necessary mechanism to facilitate the applicant to file the applications for pharmaceutical and agro-chemicals where Member Country does not grant patent protection for such products.  This mechanism has been provided under Article 70.9 of the said Agreement.  Pursuant to these provisions, the Government of India promulgated an Ordinance dated 31.12.1994 to amend the Patents Act, 1970 and later on a Bill relating thereto was passed in 1995 in Lok Sabha but could not be presented in Rajya Sabha and referred to Select Committee.  However, in the year 1999 the Government successfully got passed the Patents (Amendment) Act, 1999 in Parliament and the President of India gave his assent on 26.3.1999.

Exclusive Marketing Rights (EMR)

According to the Patent (amendment) Act, 1999 the provisions of section 5 have been amended by adding sub-section (2) for the grant of patent for pharmaceutical products which facilitate the applicants to file their applications for the grant of exclusive marketing rights (EMR) up to 31-12-2004.

The Impact of TRIPS Agreement on Indian Economy


The TRIPS Agreement stipulates domestic procedures and remedies for the enforcement of intellectual property right.  Besides laying down certain general principles applicable to all IPR enforcement procedures, it sets out provisions and civil and administrative procedure and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify in certain amount of detail the procedures and remedies that must be available so that the right holders may effectively protect their rights.

TRIPS Agreement makes disputes between WTO members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.

The TRIPS Agreement provides certain basic principles, such as national and most favoured-nation treatment.  It also provides some general rules to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement.

Intellectual property rights are being worldwide.  As per the obligation under the Trade Related Intellectual Property Systems (TRIPS) agreement, developing countries are now implementing national systems of intellectual property rights following an agreed set of minimum standards, such as twenty years if patent protection; the least developed countries have an extra 11 years to do so.  One of the third world concerns is that while a fully harmonized system of IPR is being advocated, today's advanced economies had refused to grant patents throughout the 19th and early 20th centuries.  They formalized the enforced intellectual property rights gradually as they shifted from being net users of intellectual property to bring net producers.  Indeed, France, Germany and Switzerland, who are leading developed countries today completed, what is now standard protection, only in the 1960s and 1970s.

Further there is a feeling that without good advice on creating national legislation that makes the most of the what TRIPS allows, and under pressure to introduce legislation beyond that required by TRIPS, many countries have legislated themselves into a force inmost developing countries in 2000; the least developed countries have time until 2006.  With implementation still under way and industries still adjusting, little empirical evidence is available on the effects of the legislative change.

In the developing world, the impact TRIPS will vary according to each country's economic and technological development.  Middle-income countries like Brazil and Malaysia are likely to benefit from the spur to local innovation.  Countries like India and China which are endowed with a large intellectual infrastructure, can gain in the long term by stronger IPR protection.  However, least developed countries, where formal innovation is minimal, are likely to face higher costs without the offsetting benefits.

Problem of Transfer of Technology

Facilitating the access of the third world countries to technologies required by the constituents one of the key elements in accelerating the pace of the their economic and social development.  Such access is generally the result of licenses and technology transfer agreements.  The fact of the matter is that the prospective technology seekers in developing countries face serous difficulties in their commercial dealings with technology holders on the developed countries.  These difficulties arise for a variety of reasons.  Some arise from the imperfections of the market for technology.  Some are attributed to the relative lack of experience and skill of enterprises and institutions in developing countries in concluding adequate legal arrangements for the acquisition of technology.  Some arise due to government practices, both legislative and administrative, in both developed and developing countries, which influence the implementation of national policies and procedures designed to encourage the flow of technology to, and its acquisition by developing countries.

Most of the countries give legal protection to inventions through patents.  However, in a few countries the protection to inventions may also be given by means other than patents.  A patent is a property right granted by the State to a patentee, excluding others, for a limited period, from using the patented invention without the proper authorization of owner of the patented invention.  An invention without a patent is not necessarily a property right.  After the expiry of the term of the patent, the invention passes into the public domain.  The purpose of a patent is to provide an incentive to the inventor/investor so as to promote inventive activity and commercialization of invention.  Another purpose is to encourage the disclosure of the invention.

Protecting Indian Interest – The Primary Concern

          India is a mega bio diverse  region of the world.  In India like any other developing or relatively poor country, the poor depend directly on the natural resource environment for their livelihood.   Agriculture, Forestry, Fisheries and Mining have a fairly good share of Gross Domestic Product (GDP) in India. 

How can we withstand and give competition in world market with poverty?  Laws on I.P.R. are about providing a framework for protection to the creator of the intellectual property.  The total process of the regulation is complex and far from the reach of rural masses.  Here the danger of violating the Human Rights of the poor is pertinent.  The Human face of I.P.R. needs to be strengthened to overcome this danger.  As most of the poor people live on agriculture, it should be protected.  The antidumping laws are to be implemented to save the domestic products.  Some have apprehensions that India’s agreement with W.T.O on agriculture would severely affect agriculture and pave the way for the import of rice, vegetables, fruits and so on.  It will play havoc with our economy.

All is not well with the science and technology sector with even a decline in the expenditure on research and development over the past decade in India.  Food security and  livelihood concern are the core areas to be protected from the impact of globalization.   In trade related intellectual property rights protection of the traditional knowledge and extension of the protection for geographical indications to additional products such as Basmati rice and Darjeeling tea are to be effectively ensured.

The inequalities between developed and developing countries must be meaningfully addressed to protect the human rights of the poor.  Reorienting India’s labour laws in the wake of decline in the employment growth in organization sector and simultaneous increase in casual work in the past decade is an important pointer to what economic restructuring to the labour market in a labour surplus economy.  Enforceable   fundamental rights must be made available to citizens against private firms and individuals in view of privatization  and the role of the state being receded and reduced to a mere facilitator.

            W.T.O. was no doubt designed to protect the developed countries economic interest in general and Multinational Corporations interest in particular.  M.N.C’s interests are protected and promoted through W.T.O. which is an instrument for Globalization for individual benefit but the need of the hour is it should be individual effort for Global village.  Now W.T.O. is emerging more powerful than I.M.F. and World Bank.  There is according a strong need to make it more democratic.  Even though Indian voice is not that much powerful before W.T.O., we can keep on making the noise in protecting our economic interest. 
 
 
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