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TRIPs

Submitted by
SHUBHAM PAL

Roll No.: - 164140064

Class: - B. Com LLB 5th Semester

Of
Faculty of Law

Dr Shakuntala Misra National

Rehabilitation University
Lucknow

In
10/2018

Under the guidance of

MR. SIDDHARTHA DUBEY SIR

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Mr.

SIDDHARTHA DUBEY Sir , who gave me the golden opportunity to do this

wonderful topic TRIPs, which also helped me indoing a lot of Research and I

came to know about so many new things I am really thankful to them.

SHUBHAM PAL
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TABLE OF CONTENT

SR. NO TOPIC PAGE. NO

01) INTRODUCTION 04

Intellectual property and

02) 05-06
development

TRIPS and its impact on

03) developing countries 07

04) 08-09
Doubts cast on IPR regime

05) 10
Calls to review TRIPS

06) 11-12
Features of a TRIPS Agreement

07) Provisional Relief 13

08) Bibliography 14
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TRIPS
Introduction-

The rights covered by TRIPS include copyright and related rights; trademarks;

geographical indications; industrial designs; patents; layout-designs of integrated

circuits; protection of undisclosed information (trade secrets); and control of anti-

competitive practices in contractual licences.

The standards of protection and enforcement required of WTO member states are

very high, in that they are essentially those that developed countries themselves

have only recently reached. In that sense, TRIPS marks a coming together of three

trends in international IPR law whose beginnings date back to the end of the

nineteenth century but that have become especially apparent in the last two

decades.

The first trend embodied in TRIPS has been the widening of the scope of subject

matter that can be protected, and the reduction or elimination of 'exceptions'.

Common examples of the latter, some of which are required by TRIPS, include the

extension of copyright protection to computer programs, which are now treated as

literary works, and the application of patent protection to plants, animals, micro-

organisms, DNA sequences, and pharmaceuticals. In many countries drugs had

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been excluded from patent protection on the grounds of public interest.

The second trend is the addition of new types of rights to the global IPR regime such

as plant breeders' rights, and rights to layout-designs of integrated circuits (which is

explicitly required by TRIPS).

The third is the progressive international standardisation of the basic features of

IPRs. For instance, patent regulations increasingly provide protection for a period of

20 years from the date of application. Until recently there was wide variation in

timescales between countries. Also, patent applications in almost all countries must

now be subjected to literature searches and examinations to ensure that what they

describe is genuinely new, inventive and industrially applicable. Moreover, patent

rights are now almost universally assigned to the first applicant rather than the first

inventor (except in the United States where it is the opposite).

Intellectual property and development

The precise nature of the link between IPRs and economic development is unclear.

The main issue is not whether or not IPRs can further economic development. In

fact most governments agree that they can and do. History suggests that well-

functioning IPR systems have contributed — some argue significantly — to the

industrial revolutions that took place in nineteenth century Europe, North America
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and Japan, and continue to do so today, as indicated for example by the rapid

growth of the modern pharmaceutical industry.

More controversial is the extent to which IPR systems should be allowed — as they

were prior to TRIPS — to vary according to the levels of development and

technological self-sufficiency that individual developing countries have reached. The

issue here is whether a relatively stringent IPR regime (as embodied by TRIPS) will

best encourage economic growth in all countries, or whether a more flexible one

may be more appropriate for some of them.

Developed countries and business associations, whose members benefit directly

from effective IPR regimes, tend to adopt the first position. They argue that strong

IPR legislation will enable developing countries to attract more investment — since

foreign companies will be reluctant to invest in a country where their technology

might be copied with little recompense — and will thereby gain improved access to

new technologies introduced from outside. Developing countries would also be

encouraged to generate more innovations of their own, because of the rewards to

inventors and innovators offered by the IPR system.

But many developing country governments are concerned that the legal standards

required by TRIPS, especially for patents, may simply be too high for their countries
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at the present time. For example, they worry that having to extend IPR protection to

advanced industrial fields such as biotechnology and information and

communications technology will only benefit foreign businesses, since their domestic

firms lack the capacity to innovate in this field. Being unable to freely copy such

inventions, they feel, may hinder local firms' efforts to enhance their own

technological capacity and become more innovative in the future.

TRIPS and its impact on developing

countries

Of all the agreements administered by the World Trade Organisation (WTO), the

Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) is

undoubtedly the most controversial with respect to its development-related impacts.

The agreement requires all WTO member states to establish minimum standards of

legal protection and enforcement for a number of different forms of intellectual

property rights (IPRs).

Many developing countries hold that the TRIPS agreement — which came into force

in 1995 — is unbalanced in that it favours developed countries and transnational

corporations, and at the same time is unhelpful or even harmful to their own

interests. In addition, concerns have been raised about the moves to ensure that
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developing countries accept higher standards of intellectual property protection than

the WTO requires, even before they have determined how best to implement the

TRIPS agreement in ways that support economic development and poverty

alleviation.

Non-governmental organisations have criticised TRIPS on the grounds that it

imposes various costs on developing countries — such as more expensive drugs,

agricultural inputs and foreign-owned technologies — without producing sufficient

longer-term gains in areas like trade and investment. Developed countries tend to

counter that strong IPR protection will attract investment to developing countries and

stimulate local innovation and creativity. In this way, they say, the poorer countries

have nothing to fear from TRIPS.

Doubts cast on IPR regime

In 2001, the UK government established a Commission on Intellectual Property

Rights to look at how IPRs might work better for poor people and developing

countries. The Commission's report "Integrating intellectual property rights and

development policy" was published in September 2002, and covers the following

areas: intellectual property and development; health; agriculture and genetic

resources; traditional knowledge, access and benefit sharing and geographical

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indications; copyright, software and the Internet; and patent reform. The document

contains some quite far-reaching recommendations directed at the global IPR

system including the institutions within it (such as the WTO and the World

Intellectual Property Organisation), and national IPR policy-making.

Overall, the Commission expresses serious doubts that the international IPR regime

in its present form, and current processes to further strengthen IPR protection, are in

the interests of the poor. It also considers that the TRIPS agreement imposes

onerous costs on most developing countries. The Commission presents well-

documented historical evidence to support the view that at certain stages of

development, weak levels of IPR protection are more likely to stimulate economic

development and poverty alleviation than strong levels. Present-day empirical data

is, as the Commission reveals, somewhat lacking. But what there is, points to the

same conclusion.

Due to their different scientific and technological capacities and social and economic

structures, an optimal IPR system is bound to vary widely from one developing

country to another. For example, those countries with relatively advanced scientific

and technological capacities like India and China may well benefit from high levels of

IPR protection in some areas, whereas the least-developed countries almost

certainly will not.

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Calls to review TRIPS

The case against TRIPS is currently being promoted by several public interest

groups including Oxfam, Medécins sans Frontières, and Third World Network, which

have particularly highlighted agricultural and public health issues. As a result, there

is currently strong pressure coming from some of these groups — together with a

number of developing country governments — for TRIPS to be revised.

In recent years several developing countries have indicated an interest in lowering

some of the agreed standards. For example, some African countries such as Kenya

have proposed to the WTO that both the ability to patent plants and animals (which

is optional at present, although allowed in the United States, Europe and Japan) and

micro-organisms (which is obligatory) be prohibited. In addition, a number of Latin

American countries — including Peru and Bolivia — have proposed that the WTO

establish new IPR regulations aimed at protecting traditional knowledge to further

their specific development priorities.

TRIPS stipulates that reviews of the agreement itself must be carried out every two

years by a body set up within the WTO — known as the Council for TRIPS — that is

open to all member states. Any revisions of the text of TRIPS can take place either

immediately following one of these reviews or, more likely, at the conclusion of a
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new round of trade negotiations. So far there have been no revisions at all.

Nonetheless, given the growing attention being given to the issues that the

agreement raises, future reviews are likely to become even more contentious.

Features of a TRIPS Agreement

A TRIPs, or Trade Related Aspects of Intellectual Property Rights, agreement is a

contract between countries that engage in international trade. The World Trade

Organization regulates trade agreements between many nations and establishes rules

for the protection of intellectual property rights. Features of a TRIPs agreement protect

the work of inventors and provide creators with an incentive to create future works.

Registration

A TRIPs agreement removes the necessity for an intellectual property holder to register

ownership rights in each nation that signs the treaty. According to the Department of

Commerce, members of the World Trade Organization and signatories to the Berne

Convention must recognize rights such as patents, copyrights or trademarks if they are

validly registered in another nation that has ratified these agreements. This saves the

intellectual property holder the time and expense of registering their intellectual property

in many different nations. The copyright holder also does not have to provide notice to
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enforcement agencies in other nations to receive legal protection.

Geographic Indicators

Geographic indicators are a part of TRIPs agreements. For example, French

winemakers wish to ensure that only wineries in Champagne can label their wine

Champagne. American winemakers in Napa want the right to exclusive use of the Napa

wine label. According to the Department of Commerce, a geographic indicator applies

to a product when the product has connotations of quality and reputation because of the

region where it is manufactured.

Punishment
Punishment for violation of intellectual property rights is part of a TRIPs agreement.

When a nation signs this contract, it assumes the responsibility to punish counterfeiters

and other violators of the rights of other nations. According to the United States

Treasury, China has a responsibility under the TRIPs agreement to punish large-scale

pirating and counterfeiting operations that create fake versions of products which United

States companies hold the intellectual rights to produce. The United States is claiming

that China does not legislate criminal penalties for copyright infringement, and that this

is a violation of the TRIPs agreement.

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Provisional Relief
A TRIPs agreement includes the option of provisional relief. Provisional relief, or a

preliminary injunction, allows a court to block the sale of a product without going through

the entire judicial process first. For example, an intellectual property holder wants to

block the sale of counterfeit goods as soon as possible. According to the Department of

Commerce, this includes the ability for law enforcement to seize and destroy suspected

counterfeit products without notifying the alleged infringer, preventing the counterfeit

goods from reaching the market.

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BIBLIOGRAPHY

1)
https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&htt
psredir=1&article=1456&context=facscholar

2)
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195390124.001.0001/acpro
f-9780195390124-chapter-3

3) INTELLECTUAL PROPERTY RIGHTS IN INDIA –VIRENDRA KUMAR AHUJA