This article has been written by Mr. Srivatsan Ananth, a II-year LLB student of IFIM law school, Bangalore.

ABSTRACT: 

Intellectual property, in simple words, refers to creations of the mind. IPR is a protective tool which protects the creator who has invested his or her time, money and effort for such creation. IPR, Intellectual Property Rights, are the exclusive rights given to people over their creations or inventions, of their own minds. The person who creates the subject matter has the right over the use of his or her invention for certain period. 

The laws regulating intellectual property differ from one country to another. When two countries have non-similar intellectual property laws and regulations, there can be several consequences. In order to negate any difficulties that arise out of such differences between the IPR laws and regulations of the member countries, SAARC has taken certain efforts. This article provides an overview of the efforts and initiatives taken by SAARC, and the need for such efforts in relation to harmonizing IPR regulations among member states.

INTRODUCTION:

What is intellectual property? IP refers to creations of the mind. It can be a creation or an invention, a unique design and symbols, a brand name or a logo, artistic works, names and images.(I) Here, the need for intellectual property rights arises. IP is protected by certain laws and regulations. The intellectual property rights are vested upon the creators which protects the creator, enables the person to get recognition and financial benefit from their creation. There are different types of intellectual property rights such as patents, copyrights, trademarks, industrial designs, geographical indications. 

Each IPR is protected by a unique set of laws and regulations. The law of each country differs from the other when it comes to Intellectual property rights. For instance, the law that governs patents is referred to as the patent law or the Patent Act. The law in India is known as The Patent Act of 1970, whereas the law in Bangladesh is known as Bangladesh Patents Act of 2022. There is no consistency among the laws of intellectual property of different countries. The difference in between raises certain difficulties in the domain of intellectual property. 

There are organisations that aim at promoting intellectual property protection and encourage creative activity. World Intellectual Property Organisation (WIPO) is an agency of United Nations, a global forum which strives to develop and establish an effective and balanced international intellectual property system. The WIPO has 193 member states. The Madrid System or Madrid Protocol allows a trademark owner to obtain protection in any or all member states. It is an international trademark protection which was introduced by WIPO.

CONSEQUENCES OF DIFFERENCES:

 In the context of intellectual property rights protection and international trade, there can arise several consequences when two countries have different laws of intellectual property. Some of them are;

• Cross-border enforcement-

Different IPR regulations & laws can make it difficult and complicated to enforce intellectual property rights across the borders. There will be differences in the legal procedures, enforcement mechanisms and penalties for infringement. 

• Inconsistent protection- 

The IPR protection in one country might be stronger while in another country it might be weaker. This results in an inconsistent playing field.

• Market Accesses-

Inconsistency in IPR laws can affect market access for businesses. Companies will be hesitant to enter markets with weaker IP protection, limiting their expansion opportunities. 

• Possibility of trade disputes- 

There is always a strong possibility for the disputes over intellectual property rights to escalate into trade disputes between countries.

• Complexity, Cost and burden- 

People of businesses operating in multiple countries must navigate different legal systems, hire legal professionals to file separate applications for patents, trademarks and copyrights in the respective countries. This will be complex and costly, ultimately leading to a hassle situation.

UNIFORM SYSTEM OF IP:

A uniform system of intellectual property (IP) refers to a standardized legal framework and set of regulations that apply consistently across multiple countries. Such a system is designed to harmonize and streamline the protection of intellectual property rights (IPR) among the different countries. 

The question that arises when such uniform system is prescribed is, “does a uniform intellectual property system make sense for the world?” Whether such uniform system causes benefits or harm to the countries. It is clearly held that the benefits outweigh the harm. 

Standardization, clarity and predictability, effective enforcement and cooperation are some of the benefits of a uniform IP law system.

The center of attention is given to “what will happen when such a system comes into being?”. The consequences are more to be looked at than the system’s elements. According to Robert M. Sherwood, there are certain characteristics for a uniform IP system. 

1. The specific intellectual property systems of the individual countries need not be identical. It is not necessary to have the systems of the individual countries to be identical in order to get the benefits of the uniform IP system. Harmonization of laws, procedures, and rules in every country is not called for. The uniform system is not a system with a single court of appeals, or a single international intellectual property court, although that might someday prove useful. Nor does it call for a single patent or copyright office or a single worldwide patent or copyright, however cost-efficient that might be.
2. The next characteristic would be congruence (i.e.,) harmony and compatibility. If there are some similarities between the outcomes of different countries, rather than identical statutory provisions, it would be sufficient enough. When such congruence is achieved, those who make investment decisions, conduct research, or invent and move technology from place to place will be able to go about their business without having to think about differences between the intellectual property systems (laws & regulation) of different countries.
3. The third characteristic is stimulation. People involved in the process of invention, scientific and technical advancement, and creative expression will be stimulated by confidence that the outcome of their efforts and vision can be safeguarded from misappropriation and unauthorized copying, no matter which country becomes the location of their activity.

SAARC AND ITS EFFORTS:

The South Asian Association For Regional Cooperation has 8 member countries at present, namely Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka.

Inorder to harmonize the different IP regulations between nations, there have been several elements and treaties like TRIPS (The Agreement on Trade-Related Aspects of Intellectual Property Rights) agreement of WTO, WIPO, etc. SAARC aims to implement the elements of such treaties. The members of SAARC do not have a uniform IP system. But it has become mandatory that an applicant, in order to register any IP in the mentioned member nations, must follow the nation’s IP law in addition to filing an application in accordance with the international IPR treaty.

The trademarks are filed, registered and protected in SAARC nations as per the nation’s laws and regulations, and in accordance with the TRIPS agreement of WTO and the MADRID protocol of WIPO. TRIPS is an international IP rights agreement. TRIPS sets the framework for IP protection and enforcement. It also ensures that the member nations adhere to certain standards. Fair and secure international trading arrangements are aimed for. The Madrid System or Madrid Protocol allows a trademark owner to obtain protection in any or all member states. It is an international trademark protection which was introduced by WIPO.

When it comes to patents, SAARC mandates the registration of patents to be made in accordance with the individual nation’s law and regulation, which are also in consistency with the Patent Cooperation Treaty (PCT) of the World Intellectual property organization (WIPO), and the TRIPS agreement of WTO. Therefore, if a person must register a patent for a product in one of the SAARC countries, he must file an application through one of these international treaties and then proceed with the registration of the proposed patent in accordance with the said nation’s patent law. For example, the Patents Act of 1970. 

SAARC also enables the registration and protection of industrial designs, which are done as per the nation’s law as well as the Hague Agreement of WIPO. So, for example, if a person wants to file an application of registration of industrial design in India, it must be done in accordance with the Designs Act of 2000 and the international treaties. The Hague Agreement deals with the international registration of industrial designs. Just like the Madrid system introduced by the World Intellectual Property Organistaion (WIPO), the Hague System is another effort introduced by WIPO. The Hague Agreement allows applicants to register an industrial design by filing a single application with the International Bureau of WIPO, enabling design owners to protect their designs with minimum formalities in multiple countries. It provides protection for a period of five years, which could be renewed for another period of 5 years. The Hague Agreement also simplifies the management of an industrial design registration, since it is possible to record subsequent changes and to renew the international registration through a single procedural step.

In 2010, SAARC adopted the SATIS framework, which aimed to facilitate trade in services among member states. This framework included discussions on intellectual property rights as part of the trade in services negotiations. 

Harmonizing IPR regulations among SAARC member states faced several challenges. These challenges included differences in the level of economic development, legal and administrative systems, and varying levels of awareness about the importance of intellectual property rights. The treaties and systems introduced by World Intellectual Property Organistaion, World Trade organisation assisted in harmonizing the IPR laws and regulations between nations.

REFERENCES:

1. Chapter: 3, Why a Uniform Intellectual Property System Makes Sense or the World, Global Dimensions of Intellectual Property Rights in Science and technology, Robert M. Sherwood. 1993.
2. https://www.wipo.int/portal/en/index.html
3. https://www.wipo.int/treaties/en/registration/hague/summary_hague.html
4. https://www.wto.org/english/tratop_e/trips_e/trips_e.htm
5. https://www.trademarksindia.net/intellectual-property-ip-law-in-saarc-countries.