An Analysis of the TRIPS Agreement in the Protection of Intellectual Property

An Analysis of the TRIPS Agreement in the Protection of Intellectual Property

Written by Virat Sagar

Abstract

[1]The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a policy that came into effect in 1995 as part of the World Trade Organization (WTO) and seeks to both create and enforce minimum standards of protection for all forms of intellectual property (IP) in all countries. This paper presents a critical appraisal of TRIPS, its advantages in the protection and promotion of IP and the effect this has on trade, economy and development in general. It considers the major components of TRIPS, such as patents, copyrights, trademarks, and geographical indications and how they impact innovation, accessibility of important products and tourism industries.

Also Read: A Study on Copyright and Neighbouring Rights

The article further highlights some of the challenges that the Agreement brings, especially the one that deals with developed and developing countries on the dotted line; especially the one that concerns health and economic issues in the developing nations. The article also highlights possible solutions offered by enforcement mechanisms such as compulsory licensing and longer periods of implementation that pregnant with balancing IP rights and development concerns. Finally, the article calls for revision on the current TRIPS structure where the aspects of equitability are decreased due to such issues as new public health, and technological growth. This analysis provides perspectives of the TRIPS Agreement in both context of opportunities and limitations as well as its evolution and current place in global intellectual property system.

Introduction

The TRIPS Agreement is one of the main pillars of the global system to manage and regulate IPRs. Formulated in 1995 under the auspices of the World Trade Organization (WTO), the treaty is an attempt to center and improve standards for protection of intellectual property rights (IPRs) globally. [2]Since IP flexible goods became critical in all transactions, business activities and all aspects of economic growth, narrowing the chances of trade and economic relations due to differences in countries’ national legal systems became a problem faced by many countries. The TRIPS Agreement is a response to those challenges in that it sets out basic norms for the protection of the IP of member countries that must be respected. This paper analyzes the opposition theory of the TRIPS Agreement, its necessity in ensuring protection of the intellectual property rights and its meaning in the world and especially developing and developed countries.

Understanding the Framework of TRIPS

The Agreement on Trade Related Aspects of Intellectual Property Rights was a conclusion on the Uruguay Round of negotiations of the General Agreement on Tariffs and Trade (GATT). [3]This can be considered an important milestone in assigning and regulating intellectual property (IP) rights around the world. Its main objective was to bring IP within the international trading system by creating a system of laws with minimum standards of protection and enforcement on the IP. The Agreement, however, is even more extensive than that as it covers various forms of IP rights which include patents, trademarks, copyright, geographical indications, industrial designs, and trade secrets.[4]

TRIPS also facilitates international trade and promotes enhancement and transfer of technology by imposing upon members of the World Trade Organization (WTO), the terms of basic minimum laws regarding intellectual property (IP). It also enhances economic relations by expanding the markets and creating a stable-expectation regime for business-entrepot activities. At the core of TRIPS is the notion of equilibrium between producers and consumers of innovation. It provides for protection of the rights of authors and inventors, and at the same time, greatly appreciates the rights of competitors and those in need of certain commodities.

There are two major rules that enhance the substantive and non-discriminatory character of TRIPS:

• National Treatment: Guarantees that member countries will not give less favorable treatment to foreign intellectual property owners to ensure competition in their markets.
• Most-Favored-Nation Treatment: Requires that any advantage given to one member shall be granted to every other member, making TRIPS a fair multilateral trading system.

Core Provisions and Their Impact

• Patents

The TRIPS Agreement stipulates that patents shall be granted in respect of any invention, in whatever form it may appear as a product or process which considered as new, involves an inventive step and is capable of industrial application. [5]This makes it possible to protect various inventions thus pushing nations to revisit their domestic legislations on the international provisions. For instance, it is ba 5827 se okiz in pharmaceutical advancements that all countries in the region will provide the corresponding patent, which will help the dispersement of innovative treatment regimens to the drug providers. Nevertheless, this provision has attracted criticism especially among developing countries paradigm of providing accessible and affordable drugs. The Agreement does, however, present the possibility of room exceptions. Article 31, for example, includes provisions for compulsory licensing, which allows a country’s government to permit the use of a patented invention without the consent of the patent owner in necessary cases like national or health security threat. [6]This provision has been put into use for fighting health problems such as HIV and AIDS, which required that medications that prolonged life were accessible.

• Copyright and Related Rights

The TRIPS Agreement provision on copyright is implemented for a minimum period of 50 years post-mortem of the author on the works of literature, art, and science. In addition, computer programs and databases are also part of the agreement owing to the advancement and globalization of trade. [7]The intended effect of the TRIPS agreement is to harmonize the copyright regulations of all countries of the World to create an environment less hostile to the growth of copyright dependent industries. Nevertheless, some critics have observed that the benefits of the expansion of copyright terms are accrued mostly by the developed countries where the creative industries are already well established at the expense of the availability of educational and cultural materials in the poorer countries. [8]More importantly, these provisions of the Agreement have elicited concern on the moral dilemmas posed by the aggressive protection of copyright in the cyberspace.

• Trademarks and Geographical Indications

Among the things that TRIPS agrees on and provides growth over are the trademarks that serve as a point of distinction for various goods and services.[9] Its provision prevents practices such as misappropriation or replication, thus fortifying the brand image. Additional focus is given to Geographical indications (GIs) for the demarcation of sparkling wine made in France as “Champagne”, etc. Such provisions serve in guarding the socio- economic value of specific products that are closely associated with a place.[10] Though developed countries have been the major beneficiaries of such geographical indication protection in the past decades, other countries like India and Colombia have also started to use geographical indications to protect the unique teas or coffees grown in their respective countries, such as Darjeeling tea or coffee beans from Colombia. However, the practicality in the implementation of GIs remains a challenge in most countries where the GIs’ ownership is weak and the administrative apparatus is thin.

• Dispute Settlement and Enforcement

A key characteristic of TRIPS is that this agreement forms a part of the dispute settlement system of the WTO which implies that any breaches will be repaired through compulsory adjudication. [11]This has also enhanced the global application of IP laws, thereby, reducing risks associated with trade. Nevertheless, the apparatus has its shortcomings in that it presents a bias toward countries with economic prowess and the ability to wage disputes. Many poor countries find it difficult to work with international arbitration processes and as a result, are unable to protect their interests. In addition, TRIPS insist that its signatories set up effective domestic mechanisms for control and punishment of violations . For most of the developing countries, this is an additional deployment of resources which would entail selective adherence and implementation in different parts of the globe. Addressing such issues is important and requires more joint efforts and more capacity-building activities.

The Way Forward: Reforming TRIPS for a Balanced Approach

The TRIPS Agreement without any shadow of doubt has transformed the international community by ensuring the comprehensive and inclusive protection of Intellectual Property Rights. On the other hand, the enforcement of the agreement has adverse consequences, which clarify the need for amendment. There is the need to strike a better balance between IP interests and the other socio-economic considerations. Demanding changes seemed extreme in the developing countries and developing countries called for squaring up contributions to the development of technology with existing economic development level. The issue regarding the suspension of TRIPS with regard to the COVID-19 vaccines and other therapeutics of the virus explains that there are issues that should be addressed for further rearrangement.[12] Besides, some of the emerging technologies like Artificial intelligence and Blockchain have additional implications on the existing IP regime. Adjustments to TRIPS are necessary to meet these challenges, to prevent the global IP structure from becoming outdated with current trends.[13]

Conclusion

The TRIPS Agreement is a conservationist stance for the world in regards to the enforcement of intellectual property rights. It has created a more optimal framework for innovation and economic development by setting baseline standards of practices and including IP in the World Trading System. However, as scrutiny goes, it’s diagonal structure and the effects it causes to member states are not a panacea. For instance, at this period, when the entire world is facing issues like tsunamis of pandemics, or of rapid technology transformations, TRIPS should evolve in order to facilitate that intellectual property does not only protect rights of the creators but also supports sustainable development and social justice.

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[1] Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C (1994) 1869 UNTS 299 (TRIPS Agreement).

[2] WTO, Overview: The TRIPS Agreement https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

[3] WTO, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (CUP 1999) 321-323.

[4] Peter Drahos, Global Intellectual Property Rights: Knowledge, Access and Development (Palgrave Macmillan 2002) 74-80.

[5] TRIPS Agreement, art 27.

[6] Carlos M Correa, ‘Compulsory Licensing: Global Trends and Policy Guidelines’ (South Centre Research Paper 2011) 8 https://www.southcentre.int/research-paper-45-april-2012/

[7] TRIPS Agreement, art 11.

[8] Ruth L. Okediji, ‘The International Copyright System: Limitations, Exceptions, and Public Interest Considerations for Developing Countries’ (UNCTAD-ICTSD Project on IPRs and Sustainable Development 2006)

[9] TRIPS Agreement, arts 22-23.

[10] Dev Gangjee, Relocating the Law of Geographical Indications (CUP 2012) 123-130.

[11] TRIPS Agreement, art 64.

[12] WTO, ‘COVID-19: IP, Compulsory Licensing and the TRIPS Agreement’

[13] Daniele Archibugi and Andrea Filippetti, Innovation and Economic Crisis: Lessons and Prospects from the Economic Downturn (Routledge 2013) 19.