This article is written by MS SHAHEEN HIRANI, a 4th year law student of Keshav Memorial College Of Law.
As the intellectual property is not just restricted within the boundaries of a nation it goes beyond it and for the recognition of intellectual property internationally an agreement was formed named as TRIPs Agreement. TRIPs stands for Trade Related Aspects of Intellectual Property Rights.
It is an international agreement administered by the World Trade Organisation(WTO) on intellectual property rights. It was negotiated at the end of the Uruguary Round of General Agreement on Tariffs and Trade(GATT) in 1994. It introduced the concept of IP for the first time internationally and it remains the most comprehensive and inclusive international agreement on IP till date. This agreement covers most forms of intellectual property including patents, copyrights, trademarks, industrial design, trade secrets etc.
TRIPs also provides enforcement procedures, remedies, and dispute resolution procedures dealing with copyrights, patents, trademarks etc.
Any of the treaty is made for achieving a purpose which is formed by a certain negotiating body for helping the public at large and moving beyond the borders and not restricting just to a certain extent, therefore the objectives of TRIPS Agreement are:
1.To reduce all the difficulties and fix the alterations for an effective promotion of international trade and enhancing adequate protection to the intellectual property.
2.Providing a vast network connecting the rules and principles in view of international trade in counterfeit good.
3.To reach out with special needs for the under developed countries, for implementation of rules and regulations at domestic level primarily in enabling them creating sound and reliable technological base.
4.One of its very important object is to solve, regulate trade related disputes of intellectual property through multi-lateral procedures.
5.Establishing a network between World Trade Organisation and World Intellectual Property Organisation.
6.Assisting with adequate standards, and principles for scope and proper use and functioning of intellectual property rights.
Thus among all this objectives one of the most important and basic one is to lay down standards in reference to availability, scope, nature, functioning of IPs especially copyrights, trademarks, industrial design, patents etc.
The 3 major concerns governed by the agreement are Standards, Enforcement and Dispute Settlement, this could also be considered as the salient features too-
.STANDARDS- Each member states are required to protect minimum criteria for protection of IPRs in each of the Intellectual Property categorised under the agreement.
.ENFORCEMENT- It focuses on domestic processed and remedies of IPR to be enforced. It is also inscribed with rules on civil and administrative proceeding, several remedies, measures and other criminal proceedings which are outlined to be provided to exercise rights by the right holders.
.DISPUTE SETTLEMENT-Dispute between WTO and other members over subject matter of TRIPs are to be resolved here.
NEED FOR TRIPs AGREEMENT-
Intellectual Property protection was required to not only help promote technical innovation but transfer and spread of new technology for the benefit of producer and the user in maintaining social and economic well being.
In this purview the primary objective of TRIPs is to reduce trade barriers and trade related disputes by effecting appropriate protection to Intellectual Property and enforcing IPRs to not become as hurdles in the trade community.
Growing IP activities, through TRIPs centralised global trade system. As it continued to play a role in International trade in achieving objectives, focussing on core principle to benefit from innovation and creativity in global economy.
INDIA’S INCORPORATION OF TRIPS AGREEMENT-
As the World Trade Organisation(WTO), came into effect from 1st January1995, India became its member and therefore became a party under TRIPs Agreement. Many debates, negotiations, deliberations were made as Intellectual Property Rights protection was the major and specific idea with the purview of world’s intellectual property organisation and not just with WTO.
India was head strong and presented their point that the economic development should be considered while extending the intellectual property protection and this couldn’t be denied as many of the developing countries supported India throughout as it represented all the developing nations. Thus the TRIPs Agreement was adopted in India and major amendments under the heads of various intellectual properties were amended.
A first case law of India with compliance to TRIPs Agreement is
.NOVARTIS AG VS UNION OF INDIA 2007
The complainant was a Swiss Pharmaceutical Company named NOVARTIS ,which intended to patent a cancer drug ‘GLIVEC’. The patent officer denied the application made by the complainant. Therefore the complainant bought a claim before the India’s High Court of Madras, seeking a declaration that sec 3(d) of patent act 1970, as substituted by patent(amendment) act 2005, was not in regard with TRIPs Agreement and is unconstitutional and vague and offends article 14 of Constitution of India(COI).
The court found that it did not had jurisdiction to interfere with laws of parliament by taking account of test of validity of section as being incompatible with article 270 of TRIPs Agreement.
Many cases were taken into reference and however the court was of the view that sec3(d), contained ‘built-in measures’ which allows statutory authority to guide in exercise of its powers, and it was also found that no violation of article 14 of COI done.
One of the latest case with reference to TRIPs Agreement is of
.INDIA AND SOUTH AFRICA(COVID VACCINE)
As the covid-19 pandemic was on a toll when India and Africa proposed to WTO that the covid vaccine must be waived off by TRIPs, for time being to manufacture maximum amount of vaccines to reach out to people at large. If its patent protected it would be a problem for the developing and underdeveloped countries as it will be available in lesser quantities and also expensive. Even America joined with different countries so that everyone gets rid of the virus. However many pharmaceuticals company opposed it telling that developing countries aren’t capable enough in manufacturing the vaccine.
.CIPLA AND ROCHE
In 2009, Delhi High Court, rejected an injunction against cipla for manufacturing the copy cat drug named ‘Erlotoinib’, manufactured by Roche to treat lung cancer. Roche claim that it would deprive of public interest and Cipla was arguing that it would deprive the drug for a needy. Thus no discretion was passed as the drug made by cipla was way efficacious with that of Roche and was 3 times less expensive to the prior one.
TRIPs Agreement gradually impacted the world trade community and is reaching out to every other country. No doubt that developing and under developed countries are given mediocre opportunities but thus granting the fulfilments of its purpose. Formulation of TRIPs agreement has also bought amendments in various acts of Intellectual Property which enhanced the smooth functioning of the acts, also the countries has improvised its IPR standards resulting in modernisation and globalisation so far. The financial and managerial support by the developed countries to the under privileged ones also impacted the harmony and thus the innovation and creation of the owner is secured. If compared to the previous laws regarding to IPR, the evolution of TRIPs has benefitted as its constantly revised and enhancing gradual international changes and massive conceptual leap transforming not only IPR but global economic market at large.
REFERENCES
1.lawoctopus.com
2.legalservicesindia.com
3.ipleaders.in
4.wikipedia.org
5.legalbeagle.com
6.wipo.int
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