Treaties for Intellectual Property Rights (IPR) protection

Introduction

According to the World Trade Organisation, intellectual property rights are those rights that are given to persons over the creation of their minds. Intellectual property rights are important rights in both the domestic and international spheres. There have been various multilateral and bilateral treaties in the field of intellectual property law to mark its international development.

Although the protection of intellectual property rights seems like a recent concept, it can be traced back to the early days when most of the writings used to happen on leaves and parchments and the need for protection was realised in terms of copyright protection and originated the printing rights protection and subsequently censorship. It finally led to the passage of the Statute of Anne which recognised the rights of the authors.

Similarly, the ancient Greeks mostly used certain kinds of symbols and marks to indicate the source of artefacts and potteries. Some symbols we used on swords as well for the differentiation. With the increase in trademarks were eventually associated with merchandise makers. When a lot of cases regarding the infringement of such marks and symbols began to see light the need for its regulation arose and subsequently Merchandise Marks Act 1862 was introduced and it allowed traders to bring actions on the basis of deceiving the owner of the mark.

Another intellectual property right which can be traced long back is patent laws. The system of guilds is one of the first which granted a certain amount of monopoly to the guilds. Then subsequently statute of monopolies was introduced.

Furthermore, with evolving society and technology, people have become more creative in terms of both innovation as well as misuse regarding such innovation which led to the need for a universal regulation regarding the protection of intellectual property rights.

The conventions are more than a hundred years old, yet they provide a vital basis for the international dimensions of the current position of intellectual property rights.

These international treaties and conventions provide international protection for intellectual property rights by creating a broad framework of protection containing certain common elements. The primary regulation of the conduct of intellectual property rights within a country emanates from domestic legislation. However, the provisions of these national laws are shaped by the obligations created by international conventions and treaties.

Let us discuss them in detail.

Intellectual property rights (IPR)

Intellectual property, being intangible property, indicates the creation of the human mind. The creation of the human mind mainly includes inventions and literary and artistic works, including symbols, names, images, and designs used in commerce.

There are three components to intellectual property rights –

It is related to the intelligence of the human mind, which is new and unique.
It is an intangible commodity that is protected. The most important difference between any other form of property and intellectual property is that intellectual property is intangible and does not qualify to be defined or identified by the medium of physical parameters.
The idea per se is not protected. The idea has to be published as a form of intellectual property, and only then is it granted protection.

The meaning and scope of intellectual property are, with time, evolving and thus are involved with the inclusion of newer forms of intellectual property in addition to its four separate and distinct types, namely, patents, trademarks, copyrights and trade secrets. In current times, the protection of geographical indication, protection of varieties of plants, the protection of semiconductors and integrated circuits and undisclosed information have been covered under the ambit of Intellectual Property Rights

Principles of the international intellectual property regime

It was with the Paris Convention for the Protection of Industrial Properties, 1883, which is commonly known as the Paris Convention, that the principles of intellectual property rights began to take shape. It was followed by the Convention for the Protection of Literary and Artistic Works, 1886 which is infamously known as the Berne Convention.

Both the above-mentioned conventions were negotiated and also re-negotiated as well as amended throughout the years, and eventually, they were finally incorporated and advanced in Trade-Related Aspects of Intellectual Property Rights (TRIPS) through the Uruguay Round of Negotiations from 1986 to 1994, which came into effect from the 1st of January 1995. Let’s understand each convention in detail.

Paris Convention, 1883

The Paris Convention covers all forms of industrial property, such as patents, trademarks, industrial designs, utility models, geographical indications, service marks, trade names, and the prevention of unfair competition.

The Paris Convention was created with two goals, which are-

first, to prevent the unforeseen loss of patent protection eligibility by publishing 81 patent applications and taking part in international exhibitions before submitting national patent applications; and
second, to some extent, harmonise the various patent laws of the various countries.

The substantive provisions of the Paris Convention can be divided into three main categories-

National treatment– As per the terms and conditions of the convention, every secretary state must ensure that the citizens of their nation and the citizens of other contracting states have an equivalent degree of protection regarding industrial property. Citizens of non-contracting states shall be entitled to national treatment under the convention in the same manner as in their own state if they reside in the contracting state or have a lawful and functioning industrial or commercial presence there.
Priority rights– It covers within its ambit industrial designs, trademarks, and utility models. This right gives the holder the ability to file an application for protection in any other contracting state within a certain amount of time, that is, 6 months for industrial designs and trademarks and 12 months for patents and utility models, based on a standard initial application that was filed in one of the contracting states. It would be assumed that these additional applications were filed on the same day as the first application. To state it otherwise, it means that they will supersede any application filed by third parties for the same invention, utility model, trademark or industrial design during the previously indicated term.

The subsequent applications would not be influenced by any subsequent event, including the publication of an invention or the sale of items bearing an industrial design or mark, because they have their foundation in the original application.

Common rules – They are as under:

Patents– Patents issued for the same invention in different Contracting States are independent of one another. A patent cannot be refused, cancelled, or terminated in any Contracting State on the grounds that it has already been so in another Contracting State, and the granting of a patent in one Contracting State does not obligate other Contracting States to do the same. The refusal to award a patent or the invalidation of a patent on the grounds that the sale of the product or of a product made using the patented technique is subject to domestic legal restrictions or limitations is not permitted.
Marks– The filing and registration requirements for marks are governed by local law in each Contracting State and are not governed by the Paris Convention. As a result, neither a registration nor a request for registration of a mark that is put forward by a citizen of any Contracting State may be denied or invalidated on the grounds that the application, registration, or renewal was unaffected in the country of origin.
Registration– A trademark’s registration in one Contracting State is unrelated to any potential registrations in other nations, including the place of origin.
Industrial Designs– Each Contracting State is required to preserve industrial designs, and protection cannot be revoked because products containing the design were not produced there.
Trade Names– Trade names must be protected in every Contracting State without being required to file or register the names.
An indication of Source– Each Contracting State is required to take action to prevent the direct or indirect use of misrepresentations regarding the origin of commodities or the identity of their producer, maker, or trader.
Unfair competition– Each Contracting State shall offer adequate safeguards against unfair competition.

Berne Convention, 1886

States began to become more interested in the potential for international cooperation on intellectual property during the nineteenth century because of increased literacy piracy. Literary pirates misrepresent someone else’s ideas as their own. This desire of such cooperation initially showed itself through bilateral agreements. Most country copyright laws were only a few decades old in 1886. The only protection offered was that provided by monopolies, or privileges granted for the publication of specific works.

Eight countries ratified the Berne Convention for the first time in 1886, namely- Belgium, France, Germany, Italy, Spain, Switzerland, Tunisia, and the United Kingdom. India has been a member of the Berne Convention since April 1928.

The Berne Convention, like the Paris Convention, was based on the idea of national treatment and stipulated a set of basic rights that all nations had to uphold. The multilateral age of global intellectual property cooperation began with the Paris and Berne Conventions.

The Berne Convention covers the rights of authors as well as the preservation of works. The treaty is founded on the below-mentioned fundamental principles and includes a number of provisions that specify the minimum level of protection that must be provided, as well as exceptional measures that developing nations may apply.

Principles Enshrined

The principles which got enshrined in the Berne Convention of 1886 and form the bedrock of intellectual property laws today are-

Principle of national treatment– According to the principle of national treatment, treatment is no less favourable than that provided to people belonging to other member countries as people of one’s own country. This principle is enshrined very much in general agreements regarding tariffs and trade. It forms one of the most important principles of the World Trade Organization structure.

The works of authors who are citizens of such States, or works first published in such States, should be accorded in each of the other Contracting States the same protection as such other Contracting States provide to the works of their own citizens.

Principle of automatic protection– The principle of automatic protection provides unconditional protection which does not require any compliance with any formalities in all the member countries.
Principle of independence of protection– This principle provides for intellectual Property Rights protection, specifically for copyright protection, to be affordable irrespective of whether the protection is given in the country of origin or not.

Protection is provided in accordance with the convention, regardless of whether there is protection in the nation where the work was created. However, if a Contracting State grants a longer period of protection than the minimum period required by the Convention and the work loses its protection in the place of origin, protection may be withdrawn.

The works and rights that must be protected, as well as the length of the protection, are addressed by the minimum requirements of protection. Each production in the literary, scientific, and creative fields must be protected, regardless of how it is expressed.

Principle of minimum standard protection– This principle concerns original works and rights to be protected. For example, for copyright, the different rights protected are transaction, adaptation and arrangement of work, performance in public, citation, communication, broadcast, reproductions, and basis of audio-visual works.
Principle of moral rights of authors– The Convention also establishes the rights pertaining to morals, i.e., “moral rights”. The moral rights include the right to claim authorship of a work as well as the right to object to any alteration of the work, mutilation, deformation, or modification. It also contains the right against derogatory actions that would be detrimental to the honour or reputation of the author.

The rights recognised as exclusive rights of permission include the following, subject to any permissible reservations, restrictions, or exceptions:

The right to translate;
the right to adapt and arrange the work;
the right to perform musical, theatrical, and dramatical-musical works in public;
the freedom to do literary readings in public;
being able to publicise the performance of such works;
the privilege of broadcasting; and
the freedom to create copies in any way or form, with the potential for a contracting State to allow copies without permission in specific circumstances as long as they don’t interfere with the work’s regular exploitation or unfairly damage the author’s legitimate interests; and the potential for a Contracting State to grant the right to just compensation for music sound recordings.

The Madrid Agreement

In 1891, the Madrid Agreement for the International Registration of Marks and the Protocol of 1989 thereto were concluded. It was adopted in Madrid, Spain. It had 55 members as a party to it when it was stated, which currently reached 114 members. By acquiring an international registration that is valid in all specified Contracting Parties, this procedure enables the protection of a mark in various nations. The agreement provides for the cases and the manner in which seizure may be requested and affected in the case of goods bearing a false or deceptive indication of the source. It prohibits the use, in connection with the sale, display or offering for sale of any goods, of all indications in the nature of publicity capable of deceiving the public as to the source of the goods. However, the agreement does not provide for the establishment of a union, governing body or budget.

Application for trademark registration in Madrid Agreement

A natural person or legal entity with an affiliation to a Contracting Party to the Agreement or the Protocol by establishment, domicile, or nationality may only submit an international application for international registration of a mark.

Only marks that have already been registered with the trademark office of the contracting member country with which the applicant has the required links, referred to as the ‘office of origin’, are eligible to be the subject of international applications. The international application may, however, be based solely on a registration application submitted to the office of origin in cases where all designations are implemented in accordance with the Protocol.

The World Intellectual Property Organization’s Overseas Bureau must receive an overseas application through the office of origin.

One or more Contracting Parties in which protection is desired must be specified in an application for international registration. Later, more designations may be made. Only Contracting Parties that are signatories to the same treaty as the Contracting Party whose office serves as the office of origin may be named. The International Bureau conducts an examination after receiving an international application to see whether it complies with the Agreement, the Protocol, and its Common Regulations.

An international registration, from the date of the international registration, has the same consequences for each designated Contracting Party as if the mark had been registered directly with that Contracting Party’s office.

The Hague Agreement

The Hague Agreement Concerning the International Registration of Industrial Designs, 1925 by submitting a single application to the International Bureau of the World Intellectual Property Organization, permits applicants to register an industrial design. It allows the design owners to protect their designs in multiple countries or regions with the fewest possible formalities. Since subsequent changes can be recorded and worldwide registration can be renewed in a single procedural step, the Hague Agreement also makes managing an industrial design registration easier.

The Nice Agreement

A classification of products and services was established by the Nice Agreement Concerning the International Classification of Goods and Services for the purpose of the Registration of Marks (1957) for the purposes of registering trademarks and service marks. The trademark offices of Contracting States are required to include the numbers of the classes of the classification to which the goods or services for which the mark is registered belong in official documents and publications in connection with each registration. It provides for 45 classes, out of which classes 1 to 34 are dedicated to goods and classes 35 to 45 belong to services. The 1957 Agreement’s conclusion was followed by revisions. States that have sanctioned the Paris Convention for the Protection of Industrial Property of 1883 are eligible to join the Agreement.

Functions

The administrative benefits that the Nice Agreement brings about are given as follows-

It simplifies the search for and determination of whether an identical or similar mark has previously been registered or applied for in relation to identical or similar products or services.
It also permits the intellectual property officers to charge per class applied for, allowing charges to be roughly proportional to the monopoly being claimed.
In addition , applications do not need to be re-classified when they enter the jurisdiction because the majority of jurisdictions have adopted it; however, the formulation of the specification might require change.

The Lisbon Agreement, 1958

The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration came into force in 1958. According to this agreement, an appellation that has been registered will be protected from usurpation or imitation, even when it is used in translation or is followed by words like “kind,” “type,” or the like, and it may not be deemed to have become generic in a Contracting State as long as it is still protected in the country of origin.

Rome Convention,1961

The first international treaty to recognise the three neighbouring rights was the Rome Convention, and the rights that it recognised were Performers’ rights, rights of the broadcasting organisation, and rights of phonogram producers.

Performers’ rights

Performers receive protection from some actions that they have not authorised. These include-

broadcasting and making a live performance available to the public;
fixing a live performance; and
reproducing a fixation if the original fixation was made without the performer’s permission or if the reproduction was made for purposes other than those for which permission was granted.

Rights of the broadcasting organisation

The following are some of the actions that broadcasting organisations have the authority to permit or forbid-

the rebroadcasting of their broadcasts;
the fixing of their broadcasts;
the reproduction of such fixes; and
the communication to the public of their television broadcasts if such communication is made in locations where the public may enter by paying a fee.

Rights of phonogram producers

Producers of phonograms have the authority to allow or restrict direct or indirect replication of their phonograms. A single equitable remuneration must be paid by the user to the performers, the phonogram manufacturers, or both when a phonogram released for commercial use gives birth to secondary uses.

For phonograms and performances included therein, protection must last at least until the end of a 20-year period calculated from the end of the year in which–

the fixation was made,
the performance took place, and
the broadcast took place.

The Rome Convention permits limitations and exceptions to the afore-mentioned rights in national laws with regard to private use, the use of brief excerpts in connection with reporting current events, temporary fixation by a broadcasting organisation using its own facilities and for its own broadcasts, use exclusively for teaching or scientific research, and any other situations where national law permits exceptions to copyright in literary and artistic works.

The convention took a minimalist view of protection for these neighbouring rights, but indeed it granted protection. This narrow approach came to an end when the World Intellectual Property Organisation Performance and Phonogram Treaty, 1996 took place. The agreements stipulated a number of significant rights, which included the exclusive right to distribute to the public the original and copies of their performances recorded on phonograms through sales or other transfer of ownership or commercial rentals as well as the right to split an equitable payment with the phonogram producers for the use of recordings of their performances made for commercial purpose or broadcasting or for any other form of public communication. In addition, it acknowledges the protection of moral rights which are significant, such that the performers were granted the right of integrity and paternity.

World Intellectual Property Organization Convention

The World Intellectual Property Organization Convention, which serves as the organisation governing document, was signed in Stockholm on July 14, 1967. It went into effect in 1970 and underwent an amendment in 1979. The World Intellectual Property Organisation is an intergovernmental organisation that joined the United Nations system of organisations’ specialised agencies in 1974.

WIPO

The World Intellectual Property Organization is an agency of the United Nations that specialises in the promotion and protection of intellectual property rights throughout the world. It was established in 1967, with its headquarters in Geneva, Switzerland. It carries or mandates poster innovation economic development and creativity by providing a framework for the protection of intellectual property globally.

The primary mission of the World Intellectual Property Organisation is to encourage the use and protection of intellectual property with the aim of creating a balanced and effective international intellectual property system which facilitates innovation investment as well as technology advancement. It is one of the largest specialised agencies within the United Nations system, and its membership is open to any UN member state. It administers various International treaties and agreements which are related to intellectual property. It provides a platform on an international level for the filing of patterns, making it easy for investors as well as companies to see protection of patterns in multiple countries with just a single application.

Its Madrid system simplifies the registration and management of trademarks across multiple jurisdictions. It also supports the protection of copyright and other related rights. Furthermore, it offers various services relating to intellectual property information and capacity building, including various training programs.

The World Intellectual Property Organisation conducts research and analysis on intellectual property trends and policies across the world and publishes its report along with various valuable insights worldwide.

It offers arbitration and mediation services as a form of dispute resolution between parties without the need for costly and time-consuming litigation. It takes the initiative in bringing about development programmes across countries to build their capacity in intellectual property protection and management. It also encourages the transfer of knowledge and technology from developed to developing countries in order to promote economic growth and development, considering the development of the world as a whole.

It plays a crucial role in harmonising the facilities for global protection of intellectual property rights.

World Intellectual Property Organization’s Development

The Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works, respectively, were the founding documents of the World Intellectual Property Organisation. An “International Bureau” was to be established under both Conventions. Due to the World Intellectual Property Organisation Convention, the two bureaus were combined in 1893 and replaced by the World Intellectual Property Organisation in 1970.

The goals of the World Intellectual Property Organisation

The two main goals of the World Intellectual Property Organisation are-

to encourage the protection of intellectual property around the world; and
to ensure administrative cooperation between the intellectual property Associations established by the treaties that the World Intellectual Property Organisation oversees.

In addition to carrying out the administrative duties of the Unions, the World Intellectual Property Organisation engages in a number of activities to achieve these goals, such as

normative activities, which encompass the formation of international trees to create norms and standards for the protection and enforcement of intellectual property rights.,
programme activities, involving legal and technical assistance to States in the area of intellectual property,
international classification and standardisation activities; and
trademark and industrial design registration, as well as filing and registration services relating to foreign applications for patents on inventions.

Membership in the World Intellectual Property Organisation

Any country that satisfies the following requirements is eligible to join the World Intellectual Property Organisation-

Must be a member of the United Nations, any of the specialised agencies associated with the United Nations, or the International Atomic Energy Agency,
Must be a party to the Statute of the International Court of Justice; or
Must have received an invitation from the General Assembly.

Membership in the World Intellectual Property Organisation does not impose any duties on a party with regard to other treaties that it manages. To become a member of the World Intellectual Property Organisation, an instrument of admission to the convention must be filed with the director general of the organisation.

Locarno Agreement

A classification system for industrial designs is defined by the Locarno Agreement Establishing an International Classification for Industrial Designs in 1968. The contracting state should designate the classes and sub-classes of the classification to which the products containing the design belong. Any publication that the offices provide on the submission or registration of an industrial design must also include such information. A committee of experts is established under the agreement, and it is their duty to update the classification on a regular basis depending on the requirement. The categorisation system is also used by other international organisations.

In 1979, the Locarno Agreement of 1968 was modified. There is an assembly in the union created by this Agreement, and there is one delegate from each of the states of the union in this assembly. One of the most important responsibilities of the assembly is to adopt the yearly program and budget of the union.

The Patent Cooperation Treaty

According to the Patent Cooperation Treaty of 1970, by submitting an international patent application, an invention can receive simultaneous patent protection in several different countries. An application may be submitted by any citizen or resident of a contracting member state. After meeting the connection through establishment requirement, it can typically be filed with the national patent of the contracting member state where the applicant resides or is a citizen, or, at the applicant’s option, to the World Intellectual Property Organisation’s Geneva-based International Bureau as well as its regional offices.

The treaty regulates in considerable detail the formal requirements that must be fulfilled by international applications. All contracting states that are parties to the treaty as of the international filing date are automatically identified upon submission of an application under the patent cooperation treaty. On the international application, a global search is carried out. Such a search is carried out by one of the authorised international search authorities in accordance with the provisions of the Patent Cooperation Treaty. In light of the search report’s result, a preliminary and non-binding written opinion is also offered about whether the invention seems to meet the standards of patentability. After receiving the written opinion and international search report, the applicant may choose to modify the clauses of the application or withdraw it altogether, especially if the content of the report and opinion suggest that patent issuance is unlikely. The overseas bureau publishes the foreign application and the findings of the worldwide search if it is not withdrawn.

A union was established with an assembly as a consequence of the Patent Co-operation Treaty. Every state that has ratified the Patent Cooperation Treaty is a member of that assembly. Adopting the biennial agenda and budget of the union, updating the regulations issued under the Patent Cooperation Treaty and changing some costs associated with utilising the system are among the key goals of this assembly.

Strasbourg Agreement

The Strasbourg Agreement Concerning the International Patent Classification of 1971 created the international patent classification. It is essential for retrieving patent papers while looking for “prior art.” Such retrieval is necessary for prospective investors, research and development organisations, and other parties interested in the use of technology.

All the states that ratified the agreement became members of the committee of experts. The union with the assembly was founded by this agreement. One of the most important responsibilities of the assembly is to adopt the yearly programme and budget of the union. In 1979, an amendment was made to the 1971 Agreement, which is commonly referred to as the International Patent Classification Agreement.

The Geneva Convention

The Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (1971) is also referred to as the Phonograms Convention. According to this convention, each of the Contracting States is required to defend and safeguard the producer of phonograms belonging to another Contracting State from copies being made without his or her permission

Additionally, it offers a defence against the importation of such copies where production or importation is done with the intention of public distribution. After the first fixation or first publication of the phonogram, protection must extend for at least 20 years. The same restrictions that are stipulated with respect to the protection of writers are permitted by the Convention. There are restrictions on when non-voluntary licences can be granted.

Vienna Agreement

The Vienna Agreement establishing an International Categorization of the Figurative Elements of Marks, (1973) established a categorisation for marks that are composed of or contain figurative components. The numbers of the categories, divisions, and sections of the classification to which the figurative elements of such marks belong must be indicated in official documents and publications connected to the registration and renewal of marks.

The Industrial Property Offices of at least 30 additional States, in addition to the other international organisations, apply the Classification even though only 31 States are party to the Vienna Agreement. An Assembly was established under the Vienna Agreement to govern the Union. The Assembly is comprised of representatives from each State that is a part of the Union.

Brussels Convention

The Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, which is also referred to as the Satellites Convention, was adopted in 1974. Each Contracting State is required by the convention to take reasonable precautions to prevent the unauthorised dissemination of any satellite-transmitted program-carrying signal on or from its territory. If a distribution has not been approved by the organisation—typically a broadcasting organisation—that made the program’s content decisions, it is deemed to be illegal. The organisations belonging to the Contracting States are subjected to such rules dutifully. The Convention allows it in the form of protection restrictions.

The distribution of signals that carry programmes by unauthorised individuals is allowed if the signals contain brief excerpts of current event reports, brief quotations from the programmes carried by the emitted signals, or, in the case of developing nations, if the programmes are distributed solely for educational purposes, including adult education or scientific research. However, where the distribution of signals is done through a direct broadcasting satellite, the terms of this Convention do not apply.

The Convention does not specify the duration of protection, leaving that up to national law.

Budapest Treaty

The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, 1977 is a landmark for its central provision that any Contracting State that permits or mandates the deposit of microorganisms for the purposes of patent procedure shall recognise, for such purposes, the deposit of a microorganism with any “international depositary authority,” regardless of whether that authority is on or outside the territory of the said State.

In actual usage, the phrase “microorganism” is defined broadly to include any biological material that must be deposited for disclosure reasons, particularly in the case of inventions in the food and pharmaceutical industries.

The innovation must be disclosed in order for a patent to be granted. A written description is typically used to reveal an invention. When an invention involves the use of a microbe that is not generally available to the public, disclosure cannot be made in writing and must instead be accomplished by depositing a sample of the microorganism with a specialised institution.

Nairobi Treaty

All nations that have sanctioned the Nairobi Treaty on the Protection of the Olympic Symbol (1981) are required to prevent the five interlocking rings that represent the Olympic Games from being used for commercial gain in signs, merchandise, or other contexts without the IOC’s consent.

One significant outcome of the Treaty is that, in the event that the International Olympic Committee grants permission to use the Olympic symbol in a State party to the Treaty, the National Olympic Committee of that State is entitled to a portion of any revenue the International Olympic Committee generates as a result of the said authorisation.

Trademark Law Treaty, 1994

The Trademark Law Treaty aims to harmonise and simplify processes for regional and national trademark registration. This is accomplished by streamlining and harmonising a few aspects of those processes, which makes the administration of trademark registrations across several countries and the filing of trademark applications less complicated and more predictable. The majority of the Trademark Law Treaty’s provisions are related to the application for registration, amendments made after registration, and renewal phases of the process before a trademark office. Additionally, each Contracting Party must permit applications to relate to products and/or services from different Nice Classification classes.

A Contracting Party cannot demand that the applicants produce, for instance, an extract from a register of commerce, evidence of a specific commercial activity, or proof that the mark has been registered in the trademark register of another country because the list of permitted requirements is exhaustive. A power of attorney may also be related to several applications or registrations made by the same person or entity, according to the Trademark Law Treaty.

For use by applicants, a Contracting Party may also create its own Individualised International Form, provided that it does not call for any mandatory components outside of those mentioned in the associated Model International Forms. A necessity for the attestation, notarization, authentication, legalisation, or certification of any signature is specifically prohibited under the Trademark Law Treaty, except for when a registration is being surrendered.

Trade-Related Aspects of Intellectual Property Rights (TRIPS)

International intellectual property laws developed in the 20th century. Numerous changes were also made to the Paris and Berne Conventions. International organisational structures developed together with the signing of intellectual property treaties. International bureaux were established as a result of the Paris and Berne Conventions, and they united to become the United International Bureaux for the Protection of Intellectual Property in 1893. A new organisation, the World Intellectual Property Organisation, replaced it in 1967. The international intellectual property community, which was governed by the United International Bureaux for the Protection of Intellectual Property and later the World Intellectual Property Organisation, was governed by a set of guiding principles, the most significant of which was the concept of national treatment.

It was not, however, a world where technical regulations were standardised. States maintained a great deal of sovereign flexibility in establishing intellectual property rules.

Intellectual property was added as a negotiating topic at the Ministerial Meeting in Punta del Este in September 1986, the meeting that launched the Uruguay Round of trade negotiations. With the signing of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations on April 15, 1994, the Uruguay Round came to an end in Marrakech. The Final Act was ratified by more than 100 nations. It included a number of accords, notably the Trade-related aspects of the Intellectual Property Rights Agreement and the Agreement Establishing the World Trade Organisation. There was no way for a state to avoid the TRIPS Agreement if they wanted to join or stay in the multilateral trade system.

Structure of Trade-Related Aspects of Intellectual Property Rights

The TRIPS Agreement is regarded as a comprehensive new framework defining norms of intellectual property protection and addresses the protection of intellectual property in trade-related industries to a major extent. The TRIPS Agreement also holds the distinction of being the first global agreement that covers all forms of intellectual property and includes a wide range of substantive provisions.

The TRIPS Agreement is a comprehensive and in-depth agreement with 73 Articles broken down into 7 Parts. General regulations and fundamental principles are included in Part I. The TRIPS Agreement, which defines “intellectual property” as “all categories of intellectual property that are the subject of Sections 1 to 7 of Part II” of the Agreement, requires member countries to implement domestic legislation to give effect to its provisions. Additionally, the TRIPS Agreement mandates that Members honour their commitments to uphold their obligations related to intellectual property rights under existing agreements.

The Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, and the Treaty on Intellectual Property in Respect of Integrated Circuits are among the treaties that must be complied with. Both national treatment and most-favorable-nation treatment were stipulated as fundamental concepts in the TRIPS Agreement. The TRIPS Agreement’s Part II sets rules for the accessibility, scope, and application of intellectual property rights.

Purpose of Trade-Related Aspects of Intellectual Property Rights Agreement

The preamble of The Trade-Related Aspects of Intellectual Property Rights agreement along with Article 7 clearly lists out the purposes for the TRIPS agreement-

To reduce distortion and impediment to international trade.
To promote effective and adequate protection of intellectual property rights.
To ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.

Article 7 of the TRIPS agreement gives its objective, which is that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and the transfer and dissemination of technology, to the mutual advantage of producers and users of technology, and in a manner conducive to social and economic welfare as well as to balance the rights and obligations.

Features of Trade-Related Aspects of Intellectual Property Rights Agreement

The three main features of the TRIPS agreement are-

Standards– it sets the minimum standard of protection for the intellectual properties provided by each member country.
Enforcement– it entails domestic legislation, procedures, and remedies provided by member countries for the enforcement of intellectual property rights.
Dispute settlement– it is a unique feature of the World Trade Organisation which provides for a complex system of dispute settlement through dispute settlement understanding.

Trade-Related Aspects of Intellectual Property Rights about several intellectual property rights

The Paris Convention for the Protection of Industrial Property has been included in the TRIPS Agreement, and it stipulates that Members shall abide by its substantive requirements even if they are not parties to the Convention. The Agreement on TRIPS has been reported to have adopted a “Paris Plus” approach as an outcome. The ‘Berne Convention for the Protection of Literary and Artistic Works’ is also included in the TRIPS Agreement, and it is stated that Members must abide by its substantive requirements even if they are not parties to the Convention. The TRIPS Agreement is supposed to take a “Berne Plus” approach as a result. The level of protection for writers’ moral rights under the TRIPS Agreement is, however, less than it is under Article 6bis of the Berne Convention because it is not included in the TRIPS Agreement.

The Berne Convention is the fundamental international agreement that safeguards copyright. The TRIPS Agreement further elevates and widens the levels of protection to include application of the law of the forum, automatic protection, and national treatment, in addition to making compliance with the standards of protection under the Berne Convention a fundamental condition for Members. Applying the law of the forum means that the country where protection for the work is sought, not the country of the author’s nationality or the place of origin of the work, will determine how the work is protected.

When a work is automatically protected, it means that no formalities are required and the rights attached to the work are established as soon as the work is created. As a result, by virtue of the act of creating the work, the author automatically acquires the copyright.

The following is outlined for the duration of copyright protection-

The author’s life, and fifty years after his passing,
Cinematographic works,
Works with anonymous or fictitious names: fifty years after the work has been properly made public, and
Photographic works and works of applied art that are protected as artistic works are subject to the laws of each country, but the duration of the protection must be at least 25 years from the day the work was created.

The TRIPS Agreement allows for the licencing or prohibition of the commercial rental of phonograms, and it grants rental rights to phonogram manufacturers and any other phonogram right holders as established by a Member’s law.

Trademarks

According to the TRIPS Agreement, “any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark.” As a result, the TRIPS Agreement treats service markings that identify services as well as trademarks related to goods, and Members are now required to set up a service mark registration system. The TRIPS Agreement also states that “signs, in particular words, including personal names, letters, numerals, figurative elements, and combinations of colours, as well as any combination of such signs, shall be eligible for registration as trademarks.”

The TRIPS Agreement also acknowledges that Members may make the need for registration that a sign be visually recognizable in situations when the sign is not inherently able to distinguish the relevant products or services, or base registrability on distinctiveness obtained through use.

Although a Member may enable the registration of a trademark due to use under the terms of the TRIPS Agreement, it is specified that-

actual use of a trademark shall not be a requirement for filing an application for registration; and
an application shall not be refused solely on the basis that the intended use has not occurred prior to the passing of a period of three years from the date of application.

In addition, the TRIPS Agreement mandates that Members shall publish each trademark either before it is registered or right away after it has been registered. They also must provide a platform for opposition to a trademark’s registration, as well as petitions to cancel the registration.

According to Article 16(1) of the TRIPS Agreement, the owner of a registered trademark has the exclusive right to prevent any third parties from using identical or similar signs for goods or services that are identical to or similar to those for which the trademark is registered. This prohibition extends to all third parties without the owner’s consent. It has also been acknowledged that certain rights are protected under the Paris Convention.

Geographical Indications

With regard to wines and spirits, the TRIPS Agreement offers more comprehensive protection. Geographical indications are defined by the TRIPS Agreement as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin.” Regarding the preservation of geographical indications, the TRIPS Agreement also lists a few restrictions.

The geographical indicators of wines and spirits are further protected under the TRIPS Agreements. It includes exclusions from the enhanced protection for wine and spirit geographical indicators. The TRIPS Agreement also calls for the creation of a multinational framework, which strengthens protection.

Industrial Designs

Both the requirements for protection and the protection of industrial designs themselves are covered by the TRIPS Agreement. The TRIPS Agreement specifies that Members may protect industrial designs under either system, since some nations use the registration approach to protect industrial designs in the same manner as patents and other nations protect them as creative works in the same way as copyright.

According to the TRIPS Agreement-

Members must protect independently created industrial designs that are new or original,
Members may specify that this protection does not apply to designs that are not new or original because they do not significantly differ from existing designs or combinations of existing design elements.

This clause was created to cover both the copyright technique and the patent strategy that are employed in various jurisdictions. The TRIPS Agreement further stipulates that the conditions for acquiring protection for textile or clothing designs shall not unreasonably limit the ability to apply for and get such protection.

This aims to guarantee that registration is completed quickly for Members using the patent strategy for registering industrial designs which have a limited lifecycle, such as textiles or clothing.

Patents

In terms of patentable subject matter, the TRIPS Agreement stipulates that-

patents shall be available for all inventions, whether products or processes, in all technological fields, provided that they are novel, inventive, and capable of industrial application, and
patents shall be available and patent rights enjoyed without regard to the location of the invention, the technological field, or whether products are imported or produced locally.

However, the TRIPS Agreement specifies the following restrictions on what constitutes patentable subject matter – Members may exclude from patentability plants and animals other than microorganisms, diagnostic, therapeutic and surgical methods for treating humans and animals, as well as essential biological processes for producing plants or animals other than microorganisms. Members may do this in order to upload morality or public order, including to safeguard the health or well-being of people, animals, or plants or to prevent grave environmental harm.

The TRIPS Agreement further states that Members must take steps to safeguard unique plant varieties using patents, an efficient sui generis system, or any combination of the two.

Apart from a few specific exceptions, the TRIPS Agreement forbids Members from making unreasonable exceptions to the patentable subject matter and establishes the general rule that any invention—be it a product or a process—in any area of technology should be eligible for patent protection if it satisfies the patent requirements. Thus, provisions that in the past had been passed specifically in the laws of developing countries, excluding inventions in specific fields from being patentable subject matter, such as pharmaceuticals, chemicals, and foods, conflicting with the TRIPS Agreement, give rise to the expectation that protection of inventions in developing countries will be improved.

Additionally, as will be discussed later, the TRIPS Agreement recognises a 10-year grace period for developing nations to establish a product patent system if they did not already have one at the time the World Trade Organisation Agreement entered into force. However, even in relation to these nations, when a member party does not provide patent protection for the pharmaceutical and agricultural chemical products as of the World Trade Organisation Agreement’s entry into force date, they are required to put in place measures that are equivalent to recognising patent applications for these inventions as of the World Trade Organisation Agreement’s entry into force date.

In addition, the TRIPS Agreement has clauses that categorically forbid discrimination, including-

discrimination based on the country of invention,
discrimination based on the technical sector, and
discrimination based on whether a product is imported or made domestically.

According to the TRIPS Agreement, a patent grants its owner the following exclusive rights:

The acts of making, using, offering for sale, selling, or importing that product for these purposes when a patent’s subject matter is a product, and
The acts of using, offering for sale, selling, or importing at least the 30 products obtained directly by that process when a patent’s subject matter is a process.

The TRIPS Agreement further affirms that the owner of a patent may enter into licencing agreements and that patent rights may be licenced or passed through succession.

The TRIPS Agreement states that regarding a patent owner’s obligations when applying for a patent, applicants must efficiently disclose their innovations and members must also ask them to specify the best way to implement their invention. The reason for this is to acknowledge that patent rights are exclusive once which are given in exchange for disclosing the innovation to the public. The TRIPS Agreement also stipulates that data related to international patent applications must be submitted.

According to the TRIPS Agreement, Members may grant limited exceptions to the rights granted by a patent as long as those exceptions do not unreasonably conflict with a patent’s normal exploitation and do not unreasonably adversely harm the legitimate interests of the patent owner while also taking into account the legitimate interests of third parties. This clause replicates the requirements of many nations’ patent laws pertaining to activities including-

using a patented invention for testing-related research and
prescription medicine dispensing by medical professionals.

Standard essential patents refer to a breed of patents where compliance to a standard is absolutely essential and there is no non-infringing alternative to the patent if the third party wishes to comply with the technological standards. Each of the technology standards is formulated from a consensual mechanism by a standard-setting organisation.

The manner in which the owner of the standard essential patent is expected to conduct in order to ensure the fair adoption of standards from all third parties and fair and reasonable access to technology standards to all third parties affects the enforcement of such patents.

There were attempts to include a small number of definite exceptions to patent rights in the TRIPS Agreement, but it was ultimately decided to instead include an umbrella clause that clearly outlined the requirements for exceptions and took into consideration, both, the interests of the patent owner and third parties.

The Doha Declaration, 2001 on the TRIPS agreement highlighted and stressed that individual governments have the ability to grant compulsory licences in circumstances of public emergencies. The TRIPS Agreement has clear and comprehensive provisions regarding compulsory licences.

The Doha Declaration makes reference to a number of TRIPS provisions, including the freedom to establish the regime of exhaustion of intellectual property rights, the freedom to establish what constitutes a national emergency and circumstances of extreme urgency, the freedom to grant compulsory licences and the freedom to determine the grounds upon which licences are granted. By defining these provisions, the Doha Declaration clarifies the conditions under which licences may be granted.

Trade Secrets

The TRIPS Agreement protects information that has been provided to governments or governmental agencies as well as information that has been kept hidden, such as know-how and trade secrets. The TRIPS Agreement has the additional feature of including rules for the intellectual property rights enforceability. The TRIPS Agreement includes measures for the acquisition and upkeep of intellectual property rights, as well as related inter-party processes for dispute prevention and resolution, temporary arrangements, institutional arrangements, and final provisions.

Members are required to establish basic standards of protection under the TRIPS Agreement. The term “minimum standards” refers to-

minimum requirements that must be consistently met by all Members; and
the freedom for Members to enact more comprehensive protection in their legal systems than what is mandated by the TRIPS Agreement.

Utility Models

The so-called minor patents are protected by the utility model systems. However, there are no restrictions pertaining to utility models in the TRIPS Agreement. As a result, there are no requirements for utility model systems under the TRIPS Agreement, and each country is free to design its own unique utility model system. Utility model systems are currently used in numerous nations, and this number is rising. Systems for protecting utility models vary from nation to nation, depending on factors like the length of the protection and whether or not registration should be subject to inspection. It is clear that each nation uses the utility model system to safeguard and expand its industries.

Enforcement of intellectual property rights

If rights cannot be effectively enforced in response to infringements, there is no use in implementing intellectual property rules and regulations. As a result, rules relating to the protection of intellectual property rights are included in the TRIPS Agreement. Since a country’s legal system is determined by its Constitution, many of the rules in the TRIPS Agreement regulating the enforcement of IP rights are restricted to broad and abstract terms. However, the enforcement of IP rights involves not just IP law but also civil and criminal law. However, the fact that a global agreement was established on the enforcement of intellectual property rights is quite significant.

According to the TRIPS Agreement, members must make sure that legal enforcement processes are accessible to them in order to take action against any violation of intellectual property rights. Members may handle cases of intellectual property rights violations using their regular legal systems, and this provision does not require Members to establish a unique judicial system for the enforcement of intellectual property rights. The TRIPS Agreement further stipulates that processes for enforcing intellectual property rights must be just and equitable. They must not be overly complicated, involve arbitrary deadlines, or cause unneeded delays.

The TRIPS Agreement mandates that Members publish their internal rules and regulations and notify the Council for TRIPS of them in order to prevent disputes from forming between nations as much as possible and to ensure the openness of domestic laws.

According to the TRIPS Agreement, Members must use the new World Trade Organisation dispute resolution procedures to resolve any actual disputes that emerge about the application of the TRIPS Agreement and must refrain from acting unilaterally.

Trade-Related Aspects of Intellectual Property Rights regarding anti-competitive practices

Certain contractual licences could have provisions that limit competition, like grant-back clauses that give the licensor an exclusive licence over an improved invention made by the licensee. The TRIPS Agreement addresses these issues by stating that-

Clauses that restrict competition may have negative effects on trade and may obstruct the transfer and dissemination of technology,
Members have the right to specify and control anti-competitive practices,
If anti-competitive practices are used with regard to a Member country, that country may request consultations with the country of the intellectual property right owner, and
The country of the intellectual property right owner may request consultations with the country that has imposed the regulations.

Criticism of Trade-Related Aspects of Intellectual Property Rights

Although the TRIPS agreement sets fundamental and compulsory obligations on signature member states to implement the bare minimum standards of IP protection in all of its components, the agreement is not free from criticism.

TRIPS effectively have little to do with trade directly and have instead led to trade being negatively impacted and restricted, which goes against the ideologies of the World Trade Organisation.
Intellectual property rights are domestic and territorial. They are governed by domestic laws and regulations. There is no worldwide patent.
The approach of ‘one size fits all’ is inappropriate for countries that are in their developing stage, and have not yet been developed completely.
Companies doing ‘generic’ are not doing something innovative and have gotten unwarranted rights and protections on them.
The rationale for the TRIPS agreement was trans-border and not domestic, but domestic rights and protection of intellectual property have proliferated over the years. There is nothing trans-border in it.

Patent Law Treaty, 2000

The Patent Law Treaty of 2000 aims to harmonize, simplify, and make more user-friendly formal processes relating to national and regional patent applications and patents.

The Patent Law Treaty specifies the maximum set of conditions that the office of a Contracting Party may impose, with the notable exception of filing date restrictions. This means that while a Contracting Party is permitted to establish standards that are more lenient towards applicants and owners, the Patent Law Treaty’s requirements are necessary with regard to the imposition of as many conditions as an office may demand of applicants or owners. To reduce the chances that applicants would unintentionally lose the filing date, which is crucial to the patent process, the Treaty includes standards for acquiring a filing date.

The Patent Law Treaty mandates that upon satisfaction of three straightforward formal requirements (mentioned below), the office of any Contracting Party shall award a filing date to an application. A Contracting Party is permitted to require indications on both the identification and the contact of the applicant. The formalities are given below-

An indication that the elements received by the office are meant to be a patent application for an invention.
A statement indicating the information received by the office is intended to constitute a patent application for an invention.
Indications that would enable the office to locate or get in touch with the applicant. A Contracting Party may, however, demand indications on both, and

A component that seems to be an inventive description. A filing date cannot be assigned based on any additional criteria. For instance, a Contracting Party is not allowed to incorporate a filing fee or one or more claims in a filing date requirement. As was previously stated, these requirements are absolute requirements, rather than maximum requirements, and a Contracting Party would not be permitted to grant a filing date until all of those requirements are met.

The Patent Law Treaty outlines procedures to follow in order to prevent substantive rights from unintentionally being lost due to formality violations or missed deadlines. These include the requirement that offices give applicants or other concerned parties notice, extensions of deadlines, ongoing processing, restoration of rights, and limitations on revocation or invalidation of a patent for formal flaws in cases where they were not discovered by the office during the application stage.

World Intellectual Property Organization Performances and Phonograms Treaty

There are certain types of commercial rights in their phonograms allowed to the creators of phonograms by the World Intellectual Property Organization’s Performances and Phonograms Treaty (1996).

With the exception of nations that, as of April 15, 1994, have a system in place for equitable remuneration of such rental, all Contracting Parties have the following rights:

The right of reproduction, which authorises direct or indirect reproduction of and copies of the phonogram as determined by national law, and
The right to authorize the release of a phonogram to the public by wire or wireless methods in tales granting the public access to the phonogram at a time and place of their choice. The interactive, on-demand services offered by the Internet are explicitly covered under this right.

Subject to certain restrictions and exclusions, each of the rights described above is an exclusive right. The Treaty requires each Contracting Party to treat nationals of other Contracting Parties with the same treatment it gives to its own nationals with regard to the specifically granted rights in the Treaty, subject to various exceptions and limitations in terms of both performers and phonogram producers. The Treaty further states that phonogram performers and producers are entitled to a single equitable payment for any direct or indirect usage of phonograms that are broadcast or communicated to the general public for commercial reasons.

However, if a Contracting Party submits a reservation to the Treaty, it may limit or deny this power. The other Contracting Parties are allowed to withhold national treatment from the reserving Contracting Party in the event and to the extent of such a reservation by a Contracting Party.

The treaty mandates that the contracting member countries provide legal remedies against the infringement of technology safeguards such as encryption used by performers or phonogram producers in the course of exercising their rights, as well as against the removal or alteration of information like indication of specific data that identify the performance, producer of the phonograph and the phonogram required for management such as collection, distribution and licencing.

Each Contracting Party is required by the Treaty to take the steps necessary to ensure that the Treaty is applied in line with its own legal framework.

The Treaty creates an Assembly of Contracting Parties, whose major responsibility is to discuss issues pertaining to the upkeep and development of the Treaty. It assigns the administrative responsibilities for the Treaty to the World Intellectual Property Organization Secretariat. The Treaty was signed in 1996, and on May 20, 2002, it became operative.

The European Community and States that are the World Intellectual Property Organization members are eligible to sign the Treaty. Other international organizations may be permitted to join the Assembly established by the Treaty.

World Intellectual Property Organization Copyright Treaty

Under the Berne Convention, the World Intellectual Property Organization Copyright Treaty, 1996, is a special agreement. Any Contracting Party shall adhere to the substantive terms of the 1971 Act of the Berne Convention for the Protection of Literary and Artistic Works, 1886, even if that party is not bound by the Berne Convention.

Additionally, the treaty lists items that are protected by copyright:

computer programs, regardless of the way they are expressed, and
collections of data or other materials, in any format, that are considered intellectual creations because of the way their contents have been chosen or arranged.

The Treaty addresses three rights related to writers’ rights:

(i) The right of distribution is the authority to permit the sale of or other transfer of ownership that makes the original and copies of a work available to the public.

(ii) The right to rent is the legal authority to permit the original and copies of three different types of works to be commercially rented to the general public, they are-

Computer programs, with the exception of situations where the computer program itself is not the primary object of the rental,
Cinematographic Works, but only in situations where commercial rental has led to widespread copying of such works, materially impairing the exclusive right of reproduction, and
Works incorporated in phonograms as defined in the national law of contracting parties.

(iii) The right to communicate with the public involves making works accessible to the public in a way that allows users to access the work from a location and at a time of their choice. This covers any wired or wireless public communication. It must be noted that interactive and on-demand communication over the internet is referred to.

According to this treaty, Contracting Parties must offer legal recourse for the management of authors’ rights against the removal or alteration of information, including specific data that identifies works or their authors, and against the evasion of technological safeguards used by authors in connection with the exercise of their rights.

Each Contracting Party is required by the Treaty to take the steps necessary to ensure that the Treaty is applied, in conformity with its own legal framework. To enable effective action against any act infringing on rights protected by the Treaty, each Contracting Party shall guarantee that enforcement measures are accessible under its law.

Such action must include quick fixes to stop infringement and fixes that operate as a deterrent to future infringement. The Treaty creates an Assembly of Contracting Parties, whose major responsibility is to discuss issues pertaining to the upkeep and development of the Treaty. It assigns the administrative responsibilities for the Treaty to the World Intellectual Property Organisation Secretariat.

The Treaty was finalised in 1996, and on March 6, 2002, it became operative. The European Community and States that are World Intellectual Property Organisation members are eligible to sign the Treaty. Other international organisations may be permitted to join the Assembly established by the Treaty.

Singapore Treaty on the Law of Trademarks

A modern and dynamic worldwide framework for the harmonisation of administrative trademark registration procedures is what the Singapore Treaty on the Law of Trademarks (2006) aims to achieve. Expanding upon the trademark law treaty of 1994, the Singapore treaty is more comprehensive and incorporates new developments in communication technology.

The Singapore treaty applies to every type of mark that can be registered under the laws of specific contracting parties. The contracting parties may choose to use any method of communication, including electronic messaging and communication, to communicate with their offices. The creation of the assembly of the contracting party is a company by the introduction of regulations governing the documentation of trademark licence and time constants alleviation.

Unlike the trademark law treaty, the Singapore treaty covers all marks that might be registered under a contracting party’s legal system. Above all, this is the first worldwide trademark law to officially identify non-traditional trademarks. The treaty includes all types of markings, including intangible ones like sound, smell, taste and feel, as well as ones that aren’t usually visible, like holograms, three-dimensional marks, colours, location and movement marks. The regulations allow for the use of non-graphic or photographic copies of these marks in applications.

Beijing Treaty on Audiovisual Performances

The Beijing Treaty on Audiovisual Performances of 2012 is the most recent agreement pertaining to copyright. It is the first to be ratified following the passing of the World Intellectual Property Organisations Performance and Phonograms Treaty in 1996 and the Copyright Treaty.

The agreement was approved during the Beijing Diplomatic Conference on the Protection of Audiovisual Performances which took place in the month of June 2012.

There were 155 countries present at the diplomatic conference, including the member states of the European Union, six inter-government mental health organisations, and 45 non-governmental organisations.

The performers who include their performances in audio-visual fixation are not protected in any way by the World Intellectual Property Organisation Performances and Phonograms Treaty of 1996.

The audio-visual performers are actors and other performers whose performances are featured in the audio-visual work.

There were also new international rules that were formed through this convention. These rules aided in appropriately handling the problems brought by social, technical and other likewise factors.

The acknowledgement of the impact of the development and convergence of information and communication technology on the production and reception of audio-visual performances was another endeavour undertaken under this significant treaty.

This agreement was primarily motivated by the need to preserve a balance between the rights of performers over their audio-visual performances and the interests of the general public, which include access to information, research and education.

Rights allowed for the performers

The performer is permitted to use their moral and pecuniary rights according to the contract.

The category of moral rights includes the right to integrity as well as authorship.

In reference to the economic rights, it stipulates-

The freedom to focus on the unscheduled performances of the artist and the freedom to share those performances with the public by broadcast unless they have previously been shared on the same through any medium, and
The freedom to broadcast and make public those scheduled performances as well as the rights to copy, distribute, rent and have them available.

The treaty also allows National legislatures to either do nothing at all or restrict or reserve the rights of performers to broadcast and distribute recordings of their scheduled performances. The two essential rights that have been mentioned above will be protected among all the signatory countries to the treaty.

Significance of the treaty

There are several reasons why the newly discussed treaty is a major development. A few of them are stated below-

It gives a long overdue update on international audio-visual performer protection and modernises it by acknowledging the rights of performers in today’s digital environment.
It is the result of considerable international collaboration, and it demonstrates that uniform copyright guidelines may be advanced and established in multilateral forums.
Many of the recommendations that were discussed during the diplomatic conference were given by Nations from all around the world and by this important treaty, they were acknowledged and received substance.
This treaty also acknowledges that copyright protection benefits all countries, whether is established or at a developing stage. Further, it is advantageous, especially when it comes to the development of their own talent and industries. A few examples of nations that have a booming audio-visual industry globally are China India Brazil and Nigeria.

Theoretical justification for Intellectual Property Rights (IPR)

Intellectual property rights theory plays a vital role in helping people understand the rights that are available and why they are available. A few significant theories are discussed below-

The utilitarian theory

John Stuart Mill espoused the utilitarian theory of property. He said that an act is said to be good if it results in the greatest good for the greatest number of people. Consequently, it was Jeremy Bentham who actually started with this theory, but Mill eventually modified and formulated the concept. He said that one has to count the amount of happiness and a particular act that causes it, as well as the amount of harm that is caused, to understand stability or to determine right and wrong. If one weighs the harm against the happiness, and if the happiness outweighs the harm, then such an act would be a good act; otherwise, it is a bad act.

The intellectual property right mainly works as an incentive system. For instance, in patents, the monopoly is granted to the investors for a period of 20 years.

Utilitarians would say that the end result of granting patents would actually be good for society. Providing protection for innovation or any new creation would encourage people to openly disclose their innovation without any fear. If no monopoly is granted, then any person who actually comes up with innovation will basically not come forward to announce his invention in public, and it will make room for replication and the time, money and labour of the person would go to waste. However, if the patent is granted, the innovators enjoy protection for a certain period of time wherein they can actually practice their innovation, disclose how it was created, and at the same time recoup the money during the monopoly period.

Mill agreed that patent monopolies are appropriate compared to earlier practices of rewards or privileges granted by the monarchy or the government because they actually reward a person who has worked on a new invention which is unique.

A number of companies have secret formulas that are secret because it is thought that the moment they are actually disclosed and if there is no protection granted, others will use it and compete in the market, which would reduce profit margins. But if protection is granted, then a number of innovators will disclose such formulas, which can enable the public to learn about new innovations, and also allow downstream innovators to come up with notifications about a new technology.

Utilitarian theory is also used to justify the trademark law. If there is no trademark protection at all then there will be confusion as to which product is sold by which manufacturer. If protected, then it would largely help consumers avoid search costs and would ensure that there is no deception from a manufacturer’s perspective. It is a good kind of incentive for them to maintain the quality and ensure that their products throughout are of particular quality because the moment the consumer identifies the mark with a certain quality, he is likely to keep buying the same product time after time.

Mill’s theory works well to justify the existence of the copyright regime as well. If a certain Monopoly period is not allowed for the author of a book, then others can actually replicate the book and earn revenue out of it but if a certain period of protection is granted, then it will allow him to actually come forward with a work, publish it and also recoup the cost and earn royalties by himself.

Criticism

Utilitarian theory, in effect, says that the protection of all three different kinds of intellectual property rights would, in the end, result in maximum happiness for the maximum number of people. However, the theory has been criticised because it has not been able to evenly balance private and public interests. Private intellectual property restricts the use of ideas. A patent regime based on an incentive system restricts people other than the first person to register the idea from freely using the idea.

If a person who has come up with new technology and a patent is granted, then no one else can use that technology for a period of 20 years unless the person secures the licence from the patent holder. That means no modification can be made to such an innovation until the expiration of the monopoly. If any addition or modification has to be made to a new technology, then it will be expensive for society.

Granting property rights to intangible ideas actually impedes the flow of knowledge and also prevents or delays downstream innovation.

Though there is a system of disclosure and the patent system, it provides exclusive ownership to the person who owns the patents. Today, the owner of the invention can restrict others from freely using it for a certain period of time. Had it been there when wheels were invented, then it would have seriously restricted the development of mankind as many inventions with the small or big or improvements immediately followed after the invention of the wheel. Thus, Intellectual Property Rights do not actually allow the free flow of ideas and restrict the diffusion of technology, in a way impedes innovation based on original patents.

There is also a negative effect it tends to have on the market. A certain period of monopoly eliminates competitors in the market, creating a monopoly situation that prevents others from entering the industry itself. This leads to the patent holders controlling the price of the product in the market. For instance, in the pharmaceutical industry, a manufacturer of life-saving drugs generally, when he had obtained a patent, would not allow others to enter the market.

Locke’s labour theory

John Locke, in his Two Treatises of Government, mentions that a person deserves the fruits of his labour. The above-mentioned belief is one of the most powerful bases for justifying intellectual property rights. Locke asserts that all that is in nature is provided by God, and it is available to all men as it is held in common for the benefit of all.

He therefore believes that nothing should be monopolized or held as property by a particular individual. In fact, it should be allowed for everyone to enjoy what is given to all of us by God. He says that an individual can have prior claim over substances that are available in nature, as it is meant for the enjoyment of the entire humanity.

He asserts that when an individual exerts his labour over resources, he can claim it as his property because he has added value through his labour to it. For instance, while digging ground someone finds gold, then, according to him, that will become his property as he actually used his labour to dig and as a result he found gold.

Locke’s version of this labour justification is based on the assumption that each individual has prior property rights in one’s body. According to him, labour exerted by an individual is his own property, as he is the owner of his body. It is impossible to separate labour and its product. Once the labour is mixed with something existing in nature and transformed, then it becomes difficult to differentiate. Only the person’s effort is relevant, no less to others as a pre-condition for property acquisition. Thus, anything an individual mixes his labour with becomes his property. No one has a superior or conflicting claim over it.

Locke would readily grant patent rights if an individual exerts labour to come up with an innovative product or a machine that is useful. For instance, James Watt used his labour to develop and improve steam engines that could be used in locomotives. That invention added value and spurred the growth of the economy. This labour theory can be used to justify patent protection in the light of the above statement as even though steam engine had been made, labour contributed to develop new technology.

As per Locke, an author, painter, photographer or musician who has exerted his labour to express his original thoughts in the form of books, paintings, photos, or a music album should readily be granted copyright, but he also brings in a sufficiency provision saying that property rights can be allowed only if it does not deny the others of resources existing in nature. If there are enough resources available in nature, then property rights can be claimed over resources when a person exerts labour over them.

He expresses concern that if a particular substance is not available in abundance, then property rights over it would deny others access to that scarce resource. When such circumstances occur, an individual who exerted his labour over the scarce resource cannot claim property rights over it. Thus, Locke would have a responsibility if natural phenomena or natural resources like genes were monopolised, even if an individual had exerted labour to identify or discover their existence, as it would prevent others from using it for a certain period of time.

Criticism

According to Robert Nozick, fruits of labour are usually valuable, and property rights enable the labourers to appropriate this value. He clarifies that Locke allowed private property rights only if there was enough left for others from the common pool of resources. He explained that Locke only allowed private property rights if it did not cause harm to others and left enough for others.

Locke suggests that 99% of the value is created when labour is mixed with a naturally existing substance to create an object. However, this is not plausible when labour is mixed with a naturally existing substance, it does not result in the transformation of the substance.

It is also criticised as it fails to take into account the value added to the production by contributions made by others in the evolution of the product. For instance, the steam engine would not have been invented by James Watt alone, but he was definitely involved in improving the technology.

Hegel’s personality theory

Hegel’s theory of personality has been used to justify intellectual property rights. According to this theory, any work or any invention would be long to its author or inventor because it is the manifestation of the creator or inventor’s personality.

George Wilhelm Friedrick Hegel states in his book Elements of Philosophy of Rights that the individual’s will, should be given more importance as compared to other elements that make up an individual. He identifies the personality as the will’s struggle to actualise itself. He gives prominence to the will compared to external properties, which are manifestations of the will. Property according to him becomes an expression of the will. He gives that society except the external manifestation of an individual’s personality as a property.

When an individual expresses himself through his work, it is nothing but an external manifestation of his own personality. Property rights are vested in the external object purely because it is the resultant manifestation of the will of an individual. Labour is the means by which the will of an individual occupies the object.

Hegel believes that this external manifestation, which is seen as property, cannot be alienated at any point in time as it is the reflection of the self.

This theory can be used to justify claims by authors, musicians, artists, sculptures, photographers, etc in their world. An author’s personality is manifested through his or her work. Books written by authors are external objects through which there is a personality, that is, their feelings, emotions, experiences, and imaginations are manifested. For instance, J.K. Rowling manifested herself when she wrote Harry Potter.

Innovative technology is a manifestation of the inventor’s will and, as such, merits of property rights.

Criticism

The theory is not without criticism. The question is whether there is a personality, taking in the particular object, which is the external manifestation of the will, or not.

Hegel’s preposition is that works are external manifestations of the personality, which possesses problems within the realm of intellectual property rights.

A person copying someone’s work would also be manifesting his personality, regardless of the fact that he is boring to someone else. Thus, this would be protected as per this theory, but it would be counter-productive to an intellectual property regime as it does not recognise the emitter as a property rights holder.

Intellectual Property Rights (IPR) and fundamental freedoms

The doctrine of the idea-expression dichotomy

The doctrine of idea expression dichotomy is indeed paramount to the very existence of copyright. The idea is that one who creates a particular work is entitled to his contribution of expression and not the underlying idea.

Dichotomy serves two purposes-

It ensures that the extent of ideas remains constant or can be built on further, but are never diminished.
Copyright law is a mechanism to stop somebody else from copying what you have contributed.

The purpose of this doctrine is to keep ideas in the public domain and outside the purview of the copyright monopoly.

In the case of Indian Express Newspapers v. Union of India and Ors. (1994), the Bombay High Court stated that an unfortunate incident involving the rape of a woman was subsequently made into a film by Mundra. The newspaper claimed copyright over the newspaper report regarding the incident and alleged Jagan Mohan Mundra to have used it while making his film. The honourable High Court has rejected the argument, stating that, in respect of the facts present in the public domain, there cannot be a copyright.

The doctrine is particularly important because the standard of skill and judgement required for copyright protection is extremely low, and the law has to, therefore, look elsewhere to prevent the overreach. As a result, copyright protection is extended only to the actual expression and not the idea underlying it.

The merger doctrine

The merger doctrine is connected with the idea-expression of dichotomy. It applies in situations where there is a unique or core idea and there are limited ways to express it.

The essence of this doctrine was used by the Delhi High Court in Emergent Genetics India Pvt. Ltd v. Shailendra Shivam And Ors (2011) famously known as the Emerging Genetics Case, where the seed manufacturing company alleged that some of its former employees had virtually used its data to reproduce the same kind of seeds. The copyright here was of genotypic information, which is generated due to the DNA structure of the seeds.

The Delhi High Court held that nobody could claim a copyright monopoly over a piece of genotypic information for the simple reason that the Deoxyribonucleic acid or DNA structure was something found in nature, and even if it was altered, the alteration was something that was found existing in nature, and it was inevitably a biological product. Therefore, granting a monopoly over such biological products would in effect stop anybody else from recreating or reproducing the product. The court applied the merger doctrine, saying that in cases like this where there are very limited ways or probably one way of expressing it, there cannot be a copyright monopoly. The rationale behind the doctrine is to prevent monopoly over the idea through indirect means in special cases where forms of expressing the idea are limited.

Fair use doctrine

The doctrine of fair use allows limited use of copyrighted material without the permission of the copyright holder. The intent behind the doctrine was to provide a balance between the rights of the copyright owner and the public interest in using such copyrighted work for the purpose of commentary, criticism, education, research, or news reporting.

It permits the use of such material under particular circumstances, which would amount to infringement of the copyright owner’s exclusive right otherwise, and the factors that it takes into account for determining such circumstances are-

Whether the use of such copyrighted material is for the purpose of commentary, criticism, news reporting or for educational or research purposes which are likely to be considered fair. Such use of copyrighted material, which is transformative in nature that they are used in a unique or creative way, is often seen as acceptable.
Works such as non-fictional or factual are more amenable to fair use than highly creative and original works like novels or music.
When a very small or a non-crucial portion of the copyrighted material is used, it is considered to be fairer than using the substantial or core part of that work.
However, the most important factor is taking into account the potential market harm that can be caused to the copyright owner. If the use of such material washes away the market for the original work, then such circumstances are considered not fair for the use of the copyrighted work.

Sweat of the brow doctrine

The sweat of the brow doctrine is the traditional approach to copyright protection. This test recognises the labour put in by an author or compiler into the making of a work. According to this doctrine, irrespective of any creativity or judgement on the part of the author, if it can be proved that the author has expanded considerable labour and expenses over the making of his work, he is liable to get his work protected by copyright.

The landmark case of Walter v. Lane (1900), which was pronounced by Lord Halsbury, is said to be a paradigmatic sweat of the brow doctrine. In this case, several public speeches were reported in the Times newspaper on various occasions. Later, the defendant published a book containing them all and in addition, he added short notes on them. It was also admitted by the defendant that these speeches were taken from the reports in the Times. The Times sued for copyright infringement of the speeches they published. Lord Halsbury laid down that there is considerable labour involved in reproducing spoken words into writing or print and first publishing it as a book. And so if a telephone directory can be protected by copyright, so can a verbatim report of the public. Thus, the House of Lords decided that the speeches published by the Times were protected under the copyright legislation.

This doctrine can be thought to be one which does not distinguish between an author and a publisher. According to it, they equally are entitled to the copyright in a work.

It emphasizes the fact that the objective of copyright law is less to protect authorship and more to prevent others from misappropriating others’ labour.

The doctrine of creative standards

The doctrine of creative standards maintains that a work must be creative to be original and thus protected by copyright. A major landmark case that glorified this doctrine in the United States is Financial Information Incorporation v. Moody’s Investors Service (1984) which involved a daily use issue of 4 inches v/s 6 inches of index cards printed with information concerning current municipal bonds being called for redemption.

Typically, the information consisted of the identity of the issuing authority, the series of bonds being redeemed, the date and price of the redemption, and the name of the trustee or paying agent to whom the bond should be presented for payment. According to the plaintiff, they had extended considerable effort and money to compile such pieces of information. The second circuit on appeal while rejecting the copyrightability of the bond cards and remanding it back affirmed that a compilation may receive a valid copyright only if something has been added to the data, the authorship of the compiler in making the requisite selection, coordination or arrangement of the data.

In Fiest Publications v. Rural Telephones Services Company (1991), the situation of copyrightability of a directory listing the names, towns and telephone numbers of a large number of people in a certain area arose. On the question of copyrightability of compilations, the Supreme Court of the United States empathetically laid down-

The author is the one to whom anything owes its origin. He is, therefore, the originator or the maker.
Facts do not owe their origin to an act of authorship. The first person to find and report a particular fact has not created that fact. He or she has merely discovered its existence.
The choices undertaken by the compiler as to the selection and arrangement, as long as they are made independently by him or her and entail a minimal degree of creativity, are copyrightable. In plain words, it means that copyright protection may extend only to those components of the work that are original to the author.
Originality is not a stringent standard. It does not require the facts to be presented in an innovative or surprising way. It is equally true, however, that the selection and arrangement of the facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist.
The copyright statute does not support the sweat of the brow doctrine, as it requires the selection, coordination and arrangement of facts in such a way that it as a whole constitutes an original work of authorship.

The American Court concluded that the impugned directory was copyrightable because of its originality in alphabetically arranging the same.

Intellectual Property Rights (IPR) Regime in India

In the past 20 years, India’s economy has continued to grow at one of the fastest rates in the world, and the game of entrepreneurship and industry has played a significant role in this remarkable expansion. A structured system of IP protection aids in the growth and development of enterprises in a hassle-free environment, while businesses and their successful operation are crucial to the expansion of the economy. With a systemized legal system to handle IP protection, India is now in line with international practices. The Department of Promotion of Industry and Internal Trade, commonly referred to as DPIIT is one such department of the Indian government which inter alia manages the intellectual property rights-related chores in India.

In India, intellectual property rights were governed by the Copyright Act of 1957, the Patents Act of 1970, the Trade and Merchandise Marks Act of 1958, and the Patents and Designs Act of 1911.

In reaction to the establishment of the World Trade Organisation and the nation’s participation in the Agreement on TRIPS, India passed a number of new pieces of legislation for the protection of intellectual property rights. India became a party to TRIPS and the World Trade Organisation in April 1994 and January 1995, respectively.

These included the Trade Mark Act of 1999, the Designs Act of 2000, which superseded the Designs Act of 1911, the Copyright (Amendment) Act of 2012, which was the most recent change to the Copyright Act of 1957, and the Patents (Amendment) Act of 2005.

Additionally, new laws pertaining to plant species and geographic indications were approved and adopted. The Protection of Plant Varieties Act of 1999, the Farmers Rights Act of 2001 and the Geographical Indications of Goods (registration and protection) Act of 1999 are these new laws.

Over the past fifteen years intellectual property rights have become increasingly important to the expansion of the world economy. In the 1990’s numerous countries unilaterally strengthened this section of their laws and regulations and many more were willing to do the same.

The successful multilateral conclusion of the agreement on TRIPS by the World Trade Organisation raised the protection and enforcement of intellectual property rights to the status of a significant International commitment.

A more globally competitive market with stronger Intellectual Property Rights protection is required to increase incentives for research and to enhance returns on foreign technology transfer. Regarding Intellectual Property Rights in particular, the trade policy forums working group on intellectual property remains in touch with India.

In 2016, India released its extensive National Intellectual Property Rights policy which emphasized public awareness and administrative capacity building.

Copyright and semiconductors are currently under the jurisdiction of the Department of Industrial Policy and Promotion under the Ministry of Commerce of India.

The newly formed cell of intellectual property promotion and management is in charge of inter-agency cooperation and the execution of intellectual property rights policies.

In order to combat the threat of online piracy, the state of Telangana established India’s first intellectual property crime unit in 2016. Subsequently, commercial courts opened for business in India and the industry started to witness some favourable decisions pertaining to patents.

The United States Government hosted two workshops one on trade secrets and the other one on copyright with the Government of India as part of their growing engagement.

The patents rule and the trademark rules have also underground modifications. The copyright board and the intellectual property appellate board were merged. 458 examiners engaged by the Indian patent office to handle the backlog of patent and trademark applications.

Conclusion

In summary, the time frame for the emergence of intellectual property rights was established by the 18th century. Through the trade-related Intellectual Property Rights agreement, the World Intellectual Property Organisation and the World Trade Organisation played a crucial role in bringing intellectual property rights to a worldwide scale after the end of the 19th century and during the start of the 20th century. The utmost nature of intellectual property rights was its national territory, and the international development that has been discussed above states that the scope has been widened to international protection as well.

The development demanded the adoption of the same treatment to the foreigners as is awarded to the nationals. Also, the unprecedented level of degree of universal harmonisation of intellectual property rights has been increased. In special reference, developing countries are bound to incorporate standards of basic protection and accord with those that are in force in the industrial countries.

Frequently Asked Questions (FAQs)

What is the meaning of bilateral and multilateral treaties?

A bilateral treaty is a treaty between two States, that is, the treaty would have the two participating States as its signatory or contracting states.

A bilateral treaty may take the form of a multilateral treaty when more than two states get involved, making the contracting states more than two for the particular treaty.

What is the personhood theory?

The personhood theory states that whenever a person puts his efforts and works on anything, he expresses his personality on that subject, leaving a mark of his efforts there. As humans, they can put in labour and hard work and bring themselves in such a position by extension of their efforts that they should also be the owners of the subjects or objects they have worked on as their work becomes an extension of their own personality.

What is the theory of the democratic paradigm?

Copyright has also been looked upon from three different functions, that is, it serves production function expressive function and structural function.

One of the main uses of copyright is that it puts in many more works out there it increases the volume of creative works, making the expression function one of the most important functions of all, this is known as the theory of democratic paradigm.

What is the Doha Declaration?

The Doha Declaration on the TRIPS Agreement and Public Health was a result of the TRIPS Agreement. It was a declaration where specifically a compulsory licence meant for export purposes could be granted. It was primarily to avoid or to remedy the legal impairments created by the existing provisions.

What is the incentive theory of intellectual property?

According to the incentive theory of intellectual property, as an incentive for the author of a certain work to continue their intellectual work, intellectual property rights do include copyright. It must be noted that it is not intellectual work to copy someone else’s work after researching.

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