Historical Perspectives of Intellectual Property Rights

Intellectual property is a legal field that refers to creations of mind such as musical
literacy, artistic work, inventions symbols, names, images, and designs used in
commerce, including copyright, trade marks, patents & related rights. Under Intellectual
Property Law the holders of one of these abstract properties have certain exclusive rights
to the creative works, commercial symbols or inventions which is covered by it.

IPR is not a modern concept; its roots can be traced to the 15th century when
invention of the printing press enabled copying of literary works. This illegitimate
copying led to the emergence of certain status to protect individual creation and
invention. That was the beginning of property rights, which has now taken a global shape
in the form of World Intellectual Property Organization (WIPO) and TRIPS agreement.
Statutory arrangements to create private ownership on innovations in the form of
‘exclusive privilege’ to facilitate exclusive economic gains from the innovations were
first introduced in Europe. The exclusive privilege eventually became a set of IPRs called
industrial property.
Depending on the nature of innovation, the subject matter involved and the
manner in which it is used for gaining economic benefit, the intellectual property is
divided into two basic groups; the industrial property and copyrights. Copyright
automatically assigns the exclusive right to the creative owner of a literary, all performing
art like dramatic, musical or artistic work, paintings, photographs, sculptures
advertisements, maps, technical drawings, cinematograph film, photography, sound or
video recording, broadcast/telecast, phonograms, a computer programme, etc to
reproduce the work, to issue copies to or perform or communicate in public, make any
translation or an adaptation of the work, offer on sale or rental and to authorize others for
doing so. The industrial property includes patents, trademarks, industrial designs, trade
secrets and geographical indications. Among these, patent assumes highest importance in
view of its impact on technological and economic aspects of peoples and nations. The
earliest patent-like system is attributed to the Roman period. Patent gained wider currency
and legal support during the period of Industrial Revolution. The earliest industrial
property act was enacted in Europe. This was followed by legislation of US Patent Act in
1793. In 1883, eleven western countries joined together to establish the Paris Convention
for the Protection of Industrial Property, which was aimed to harmonize the IPR law and
practices across member countries. Currently 169 countries are its members. Pre-Colonial
India had an IPR regime that was practiced by the Britain.

1856 The Act VI of 1856 on protection of inventions based on the British Patent Law
of 1852. Certain exclusive privileges granted to inventors of new manufacturers
for a period of 14 years.
1859 The Act Modified As ACT XV; patent monopolies called exclusive privileges
(making. Selling and using inventions in India and authorizing others to do so for
14 years from date of filing specification).
1872 The Patents & Designs Protection Act.
1883 The Protection Of Inventions Act.
1888 Consolidated as the Inventions & Designs Act.
1911 The Indian Patents & Designs Act.
1972 The Patents Act (Act 39 of 1970) came into force on 20 TH April 1972.
1999 On March 26, 1999 Patents (Amendment) ACT, (1999) came into force from 01-
01-1995.
2002 The Patents (Amendment) Act 2002 came into force from 2Oth may 2003
2005 The Patents (Amendment) Act 2005 effective from 1st January 2005

India is a signatory to the TRIPS Agreement hence it modified its patents law in
conformity with TRIPS Agreement. We should also consider the use of Information and
Communication Technology (ICT) for an effective enforcement of the Intellectual
Property Rights in India. It is desirable that more initiatives on the lines of ICT
HELPDESK must be undertaken so that contemporary International Standards can be
adopted in India too.

Types of Intellectual Property Rights and IPR Laws

Intellectual property laws are designed to protect different forms of subject matter,
although in some cases there is a degree of overlap. The IPRs are broadly classified into
two categories.
1. Orthodox or conventional IPRs: These are the conventional IPRs used by
individuals, companies, association of persons etc. They are further segregated in
different types like Copyright, Patent and Trademark

A. Copyright: Copyright is an IPR deals with expression of idea not an idea itself.
Copyright comes into existence immediately after expression and requires no formal
registration. Copyright is an expression and manner of expression. It protects original
literary works, ie books, novels, lyrics, songs, computer programmes, etc. Whenever these
are created, they become the property of the creator.

Copy right law is used in creative and artistic works (For example: books, movies,
music, paintings, photographs and software) and gives the holder the exclusive right to
control reproduction or adaptation of such works for a certain period of time (historically,
a period of between 10-30 years depending upon jurisdiction, but more recently the life of
the author, plus several decades)

B. Patents: Patent is a right exclusively used for ideas but it is of commercial use. Patents
are generally of three types viz. Novelty, non-obviousness and novel art. A patent is the
right of an individual or of a company/ organization to gain profit from a particular
invention or unique manufacturing process. A patent is an intellectual property relating to
scientific and technological inventions. It is granted by the government of the country to
the applicant and gives the inventor the right for a limited period to prevent others from
using that invention in any form without permission. Like any other form of property, a
patent can be transacted purchased, sold or even mortgaged.
Patent law protects inventions it gives the patent holder a right to prevent others
from participating and practicing the inventions without a license from the inventor for a
certain period of time. Patents can protect the functional features of a process, machine,
manufactured item, asexually reproduced plant or composition of matter. The main
Amendments to Indian Patent Act are; new chemical entity will not be treated as patent,
they must pass the test to complete patent and registration in any member country is
applicable to all members of WTO.

C. Trademark: Association of traders name with the commodity traded gives rise to
trade mark. A trademark is a distinctive sign, which is used to distinguish the products or
services of different businesses. Trade mark law protects words, phrases, logos, symbols,
sound or even smell or combinations used to distinguish one product from another, which
gives a distinct identity to a good. In circumstances where a competitor uses a protected
trademark can go to court and obtain an injunction to stop the use. Trade secret protection
helps protect the secrets of a product or work.

2. Unorthodox or Innovative IPRs: These are the new entrants in the field of IPRs. All
due to globalization and whole world has become a single platform, so do these
gained importances. They include Industrial Design, Geographical Indications, Plant
Varieties, Semi conductor layout design (SCLD). Out of these four semi conductor
layout design is more vulnerable to copying. SCLD law was brought in reference to
agreements of TRIPs.
A design is the presentation of a product resulting from features of colour, size,
shape, texture or materials of a product or packaging. An industrial design right protects
the form of appearance, style or design of an industrial object for example: Spare parts,
Furniture, textiles etc.

Cyber Law: It is a term used to describe the legal issues related to use of
communications technology, particularly cyberspace i.e. the internet. It is an interaction
of many legal fields, including intellectual property, privacy, freedom of expression and
jurisdiction. In essence cyber laws are designed for the physical world to human activity
on the internet.

Geographical Indications of goods: In recent years, the Indian government has become
aware of the importance of GI, following the debacles related to Basmati and Turmeric
GI is a notice of a definite product have been produced in a particular place. The producer
can use this sign only for products from the specified region. Unlike a trademark however
the GI is not an individual property for use by the geographical indication of that region
which any producer may use.

Products (DVDs) are protected by patents, software (Windows) by copyright, goodwill

(the logo of Mercedes Benz) by trademarks, appearance (design of a Rolex watch) by
designs and spatial arrangements of components on a microchip (Pentium IV) by SCLD.

The specific legal issues regarding management of IPRs vary from industry to industry. In
the music and entertainment industry, copyright law is of importance. For novelty in
engineering designs, laws pertaining to industrial designs would apply, whereas for the
research driven knowledge-based industry, patents are of utmost importance.    To
understand which IPR applies to which form of intangible asset is a complex issue. Further,
the questions of how and where to apply for the protection, and thereafter with whom the
rights vest, also arise. These rights and laws vary in each country.

Organizations involved in IPR

 In India,
o The Ministry of Commerce and Industry, Ministry of Human Resource
development, Ministry of Information and Broadcasting, CII – Confederation of
Indian Industries, FICCI- Federation of Indian Chambers of Commerce and
Industries, ASSOCHAM- Associated Chambers of Commerce and Industries.
o Department of Science and Technology (TIFAC-Technical Information
Forecasting and Assessment Council)
 World Intellectual Property Organization (WIPO) of the UN, based in Geneva is the
apex intergovernmental body dealing with IPRs.

References:
Bala Ravi S., 2006. Indian IPR Regime and its Implication to Agriculture. Paper
presented at the National workshop on Indo-US Knowledge Initiative on
Agriculture. Centre forWorld Solidarity, December 8-9, 2006, Hyderabad.
NEED FOR THE INTRODUCTION OF INTELLECTUAL
PROPERTY RIGHT REGIME
Intellectual property is all about human creativity and is the property of mind.
Intellectual property rights are considered as reward for creative and skillful work in
execution of ideas. Infact it is more than a reward for conceiving and executing ideas in
the sense that intellectual property rights are a recognition given to novel intellectual
work. These rights are an incentive for creators and inventors conceiving and executing
innovative thoughts and ideas. In the business world the one possessing intellectual
property rights will have definite advantage over other competitors. In the era of
globalization when the entire world is considered as a single (global) market where there
is a stiffer competition from all the corners of the world in any given field. At this
juncture possession of intellectual property rights will give a better edge in the global
play. Thus need to be protected.

The impact of intellectual property rights has spread over to every aspect of
human life. It has got something in store for everyone ranging from philosophers,
ethicists, scientists, politicians, artists, lawmakers, entertainers, business
entrepreneurs, economists, professionals, labors, industrialists, students and
common man. The subject called intellectual property being multidisciplinary has
been drawing the attention of every one irrespective of the field or discipline they
come from. In the modern day protection and management of intellectual
property rights is a core issue. In the recent past the importance of intellectual
property rights have been universally felt and recognized. The result being the
GATT (General Agreement on Trade and Tariffs) negotiations resulting in the
formation of WTO (World Trade Organization) and the adoption of several
multilateral trade agreements including TRIPS (Trade Related aspects of
Intellectual Property Rights). The TRIPS agreement is a multilateral agreement
for the protection and regulation of intellectual property rights in the member
states.
Intellectual Property
Intellectual property is all about ideas skillfully expressed resulting in
innovative and creative works. It is the property that results out of intellectual
efforts in the practical application of innovative ideas stemming from human
intellect or ingenuity. Skillful ideas or creative thoughts capable of industrial
application come under the purview of intellectual property. Industrial property
and intellectual property are closely associated. Infact intellectual property was
considered as industrial property earlier without any distinction. Traditionally, a
number of intellectual property rights such as patents, trademarks and industrial
designs were collectively known as industrial property. The Paris convention on
industrial property intends to protect patents, trademarks and industrial designs as
industrial property. The nomenclature intellectual property right was evolved when
copyrights and geographical indications were brought under one umbrella along
with patents, trademarks and designs. The reason was that copyrights and
geographical indications couldn't be called as industrial property in the strict sense.

Need for Intellectual Property Rights

Property is nothing but proprietary rights resulted out of labor. One who
labors deserves certain reward in the form proprietary rights. In general proprietary
rights resulted out of labor is known as property. The property rights resulted out
of mental labor is known as intellectual property. Famous English jurist John
Lock's propounded labor theory states: human labor deserves certain proprietary
rights. According to the theory whoever labors deserves reward in the form of
proprietary rights. At the time when Lock propounded this theory he might not
have thought of mental labor or intellectual property rights. However, his theory
seems to have no reservations in its application restricting it only to physical labor.
Conceiving and executing ideas involves mental work, which could be considered
as mental labor. Therefore, the labor theory, which rewards the one who puts
labor, could justify reward for mental labor also. On these lines intellectual
property rights and granting exclusive rights to the owner for a period of time
seems to have justified.

Further Utilitarian theory propounded by the English jurist Bentham states

that maximum benefit of the maximum members of the society should be
guaranteed. Intellectual property rights serve the purpose of benefit to the society
being an initiative or encouragement for further innovative or creative work which
does ultimately benefit the society. The owner of the intellectual property is supposed
to work on it and make it available to public. Hence the proceeds of mental labor or
intellectual property rights ultimately reach the public. Besides, Intellectual property
rights are granted to the owner for a particular period of time after which the intellectual
work falls into the public domain and public can use it. Further, intellectual property
rights are protected only when are capable of industrial application. The purpose of
industrial application any innovative work is to make it available to the public. In this
way intellectual property right serves the purpose of maximum benefit of the maximum
members of the society. Therefore, reward for intellectual efforts in the form of
intellectual property rights and their protection could be justified.

Negative Right
Intellectual property right is a negative right in the sense it empowers the right
holder to exclude or prohibit all the others from using or exploiting the registered
intellectual property. Any inventor or author for that matter gains right to work on his
intellectual property, the moment when he conceives it. The one who conceives the
invention or idea enjoys the positive right to exploit it naturally. However, if the inventor
intends to exclude others from working on the invention in order to establish his exclusive
monopoly he needs to seek protection through registration. By registering intellectual
property one can exclude or prohibit all others from working on it. In a way it is a
negative right in prohibiting others from working on it, and hence it confers negative
rights to the owner. On the other hand, positive rights confer a right to work or use or
exploit. For instance human rights are positive rights, since are positive in allowing an
individual to enjoy those rights. But intellectual property rights do not allow one to enjoy
rights but empowers the owner to exclude or disallow others from using the intellectual
property.

Individual Rights
Intellectual property rights are individual or private rights as opposed to
societal or community rights. Individuals enjoy rights on their intellectual property
excluding or prohibiting the entire society altogether. Human rights do not prohibit
others from enjoying the same rights, but intellectual property rights do prohibit all
the others from enjoying the intellectual property. Capitalist society encourages
individual. or private rights whereas socialist or communist society does encourage
collective or community or societal rights. Intellectual property rights. goes against
the philosophy of communist or socialistic societies, but confirms the philosophies
of capitalist countries. Probably this is the reason why the moves to protect
intellectual property rights have got their roots in the capitalist countries. However,
supporters of intellectual property rights state that intellectual property rights are
granted only for a temporary period. Soon after the period of protection the
intellectual property falls into public domain and anybody can use it, and hence it
becomes property of the society or community.

Intellectual Property Rights: Different Kinds

Intellectual property rights exist in different works involving intellectual or
mental labour. Generally speaking, any intellectual efforts having commercial
value could be given protection. Intellectual efforts in the field of literature,
artistic, engineering, technology, science, manufacturing, business, agriculture, etc.
gives rise to certain intellectual property rights. Depending upon the nature of the
intellectual work and field of application intellectual property rights have been
classified into different kinds. For instance, intellectual efforts in the field of
science, technology, engineering or agriculture have been categorized to give
protection under patent system. Intellectual efforts in .the field of literature, music,
photography, arts, and paintings have been categorized as subject matter of
copyrights. Therefore, intellectual efforts in different fields have been offered
protection under different heads.

Conclusion

Whoever labors either physical or mental deserves some reward. Intellectual

property rights rewards the individual who mentally labored in producing or
inventing certain intellectual property. Ever since intellectual property rights have
been recognized as property its protection gained enormous significance. Efforts
were made to protect intellectual property since nineteenth century when patents,
trademarks, designs were considered as industrial property. Later with the,
inclusion of copyrights and geographical indications to the list of patents,
trademarks and designs to represent the same a new nomenclature intellectual
property rights was coined. Since the Paris convention till the TRIPS agreement
there adopted various international agreements to protect different kinds of
intellectual property rights. The TRIPS agreement has completely uniformed the
law on intellectual property rights in all the member states. The agreement could
be considered as the magna carta of intellectual property rights since it
restructured the intellectual property laws across the world. Today intellectual
property is more valuable than the physical property. Business entrepreneurs invest
huge amount of their funds in research and development to acquire and protect
intellectual property. Research has witnessed new merits with rewards made
available for the intellectual efforts which it involves.

IPR in Independent India

Independent India reviewed and revised its colonial IPR regime to harmonize with
socio-political and techno-economic realities and aspirations. Thus, while India
retained the Designs Act (1911), it redrafted the Copyrights Act in 1957, the Trade
and Merchandise Marks Act in 1958, and the Patent Act in 1970.Indian patent
regime defined by these legislations was not in level with the industrial property
standards set by the international agreements such as Paris Convention, Bern
Convention, Berne Convention, Madrid Agreement, and Budapest Treaty. Hence,
India like many other developing countries stayed out of these Conventions. Patent
Act (1970) facilitated India in making substantial advancements in domestic
capacity in many areas, in particular healthcare and agriculture. The growth
achieved in many sectors of Indian science and technology also could partly be
attributed to this patent regime. This national IPR scenario underwent a sea change
with India’s joining the World Trade Organisation (WTO) and becoming a party to
the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS).
TRIPS required all WTO Member countries to enforce a minimum level in IPR
regime, which in content andcoverage is Paris Convention plus.

TRIPS and Changed IPR Regime in India

TRIPS distinguished eight different kinds of IPRs and required member countries
to institute a defined minimum legal standards and enforcement of laws pertaining
to these IPRs. The eight kinds of IPRs and associate subjects specified by the
TRIPS are (1) patents, (2) copyrights and related rights, (3)trademarks, (4)
industrial designs, (5) geographical indications, (6) layout designs (topographies)
of integrated circuits, (7) protection of undisclosed information, and (8) control of
anti-competitive practices in contractual licenses.
The IPR regimes, which existed in India when it became a party to TRIPS and the
one that India is required to introduce in compliance with TRIPS had major
differences, some of them deeply impacting public interest and national economic
policies. The TRIPS compliant changes required under the patent law created
considerable debate, public opposition and even protests. The government chose a
cautious approach to bring in these changes rather slowly and incrementally
through three patent amendments passed by the Parliament in 1999, 2002 and 2005
and two Ordinances issued on 31 December of 1994and 2004. Developing
countries like India, which had a patent regime and patent administration lower
than the TRIPS benchmark were given a grace period of ten years, in two phases,
to establish new patent laws and rigorous implementation system. These deadlines
were 31 December 1999 and 2004.During this period, India amended its Patent
Act, 1970 as mentioned and other IPR laws such as the Copyrights Act and the
Trademarks Act in 1999, the Design Act in 2000 and established three new IPR
laws on geographical indications in 1999, plant variety protection in 2001 and the
semiconductor integrated circuits layout design in 2000.
The major changes in Indian Patent regime due to TRIPS are the requirement to
provide patents to any invention, whether process or product, in all fields of
technology including ‘inventions’ in life forms on satisfaction of novelty,
involvement of an innovative step and usefulness. Under this basic framework, the
following three subject matters are exempted from patentability under TRIPS:(a) a
subject matter, exploitation of which may cause public disorder, challenge to
morality or endanger human, animal or plant life or environment,(b) diagnostic,
therapeutic or surgical methods for the treatment of human or animal, and(c) plants
and animals other than microorganisms and essentially biological processes for the
production of plants and animals other than non-biological and non-
microbiological processes. However, plant varieties are to be protected either by
patents, or by an effective sui generis system, or by a combination of both. The
resulting scope of patentable subject matter virtually became Paris Convention plus
with the inclusion of life forms and life processes.

India vs. USA in IPR regime

An analysis of the IPR implications of Indo-US knowledge initiative in agriculture
(KIA), requires not only understanding on the IPR regime in India, but also that of
the USA. Unlike in India, all life forms except humans, including plants and
animals and their parts like organs, tissues, cell lines, their genetic material
including expressed gene sequences, single nucleotide polymorphisms and human
cell lines are patentable in USA. These differences in the patent regimes has
profound implications on the proposed biotechnology research involving exchange
of biological material. Again, USA has not yet ratified the Convention on
Biological Diversity and hence not bound to accept the national sovereignty
principle on the biological material of another country.
USA is not enthused or satisfied with the Indian PPVFR Act for its FRs and RRs.
USA, on the contrary follows patent to plant varieties and double protection under
the UPOV-1991. Similarly, USA has no domestic law on GI and its IPR policies
are not conducive to the GI. For example, the Basmati rice
varieties were patented in USA by Rice Tec, a private company. These differences
in the IPR regimes of USA and India are summarised in Table 1.

These extreme divergences in the country domain IPR regimes of India and USA
have large potential to create very complex and uneasy situations on IPR issues
arising from this collaborative research inb iotechnology between these countries,
unless the matter is unambiguously sorted out in advance.

TRIPS AND VARIOUS PROVISIONS IN TRIPS AGREEMENT

The TRIPS founded upon the principle of territoriality and national treatment and
its far-reaching effects is spread to all states who are the members of the multilateral
trading system. TRIPS is applicable to the following areas as recognized by Paris
convention. The TRIPS Agreement, which came into effect on 1 January 1995, is to date
the most comprehensive multilateral agreement on intellectual property.

The areas of intellectual property that it covers or eight types of IPRs have been
discussed in the TRIPs are:

1. Copyright and related rights (i.e. the rights of performers, producers of sound
recordings and broadcasting organizations);
2. Trademarks including service marks;
3. Geographical indications including appellations of origin;
4. Industrial designs;
5. Patents including the protection of new varieties of plants;
6. the layout-designs of integrated circuits; and
7. Protection undisclosed information including trade secrets and test data.
8. Control of anti-competitive practices in contractual licenses

The three main features of the Agreement are:

 Standards. In respect of each of the main areas of intellectual property covered

by the TRIPS Agreement, the Agreement sets out the minimum standards of
protection to be provided by each Member. Each of the main elements of
protection is defined, namely the subject-matter to be protected, the rights to be
conferred and permissible exceptions to those rights, and the minimum duration of
protection. The Agreement sets these standards by requiring, first, that the
substantive obligations of the main conventions of the WIPO, the Paris
Convention for the Protection of Industrial Property (Paris Convention) and the
Berne Convention for the Protection of Literary and Artistic Works (Berne
Convention) in their most recent versions, must be complied with. With the
exception of the provisions of the Berne Convention on moral rights, all the main
substantive provisions of these conventions are incorporated by reference and thus
become obligations under the TRIPS Agreement between TRIPS Member
countries. The relevant provisions are to be found in Articles 2.1 and 9.1 of the
TRIPS Agreement, which relate, respectively, to the Paris Convention and to the
Berne Convention. Secondly, the TRIPS Agreement adds a substantial number of
additional obligations on matters where the pre-existing conventions are silent or
were seen as being inadequate. The TRIPS Agreement is thus sometimes
referred to as a Berne and Paris-plus agreement.

 Enforcement. The second main set of provisions deals with domestic procedures
and remedies for the enforcement of intellectual property rights. The Agreement
 lays down certain general principles applicable to all IPR enforcement procedures.
In addition, it contains provisions on civil and administrative procedures and
remedies, provisional measures, special requirements related to border measures
and criminal procedures, which specify, in a certain amount of detail, the
procedures and remedies that must be available so that right holders can
effectively enforce their rights.

 Dispute settlement. The Agreement makes disputes between WTO Members

about the respect of the TRIPS obligations subject to the WTO's dispute
settlement procedures.

In addition the Agreement provides for certain basic principles, such as national and
most-favoured-nation treatment, and some general rules to ensure that procedural
difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that
should flow from the Agreement. The obligations under the Agreement will apply equally
to all Member countries, but developing countries will have a longer period to phase them
in. Special transition arrangements operate in the situation where a developing country
does not presently provide product patent protection in the area of pharmaceuticals.

The TRIPS Agreement is a minimum standards agreement, which allows Members to

provide more extensive protection of intellectual property if they so wish. Members are
left free to determine the appropriate method of implementing the provisions of the
Agreement within their own legal system and practice.

General provisions  

As in the main pre-existing intellectual property conventions, the basic obligation

on each Member country is to accord the treatment in regard to the protection of
intellectual property provided for under the Agreement to the persons of other Members.
Article 1.3 defines who these persons are. These persons are referred to as “nationals” but
include persons, natural or legal, who have a close attachment to other Members without
necessarily being nationals. The criteria for determining which persons must thus benefit
from the treatment provided for under the Agreement are those laid down for this purpose
in the main pre-existing intellectual property conventions of WIPO, applied of course
with respect to all WTO Members whether or not they are party to those conventions.
These conventions are the Paris Convention, the Berne Convention, International
Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations (Rome Convention), and the Treaty on Intellectual Property in Respect of
Integrated Circuits (IPIC Treaty).

Articles 3, 4 and 5 include the fundamental rules on national and most-favoured-

nation treatment of foreign nationals, which are common to all categories of intellectual
property covered by the Agreement. These obligations cover not only the substantive
standards of protection but also matters affecting the availability, acquisition, scope,
maintenance and enforcement of intellectual property rights as well as those matters
affecting the use of intellectual property rights specifically addressed in the Agreement.
While the national treatment clause forbids discrimination between a Member's own
nationals and the nationals of other Members, the most-favoured-nation treatment clause
forbids discrimination between the nationals of other Members. In respect of the national
treatment obligation, the exceptions allowed under the pre-existing intellectual property
conventions of WIPO are also allowed under TRIPS. Where these exceptions allow
material reciprocity, a consequential exception to MFN treatment is also permitted (e.g.
comparison of terms for copyright protection in excess of the minimum term required by
the TRIPS Agreement as provided under Article 7(8) of the Berne Convention as
incorporated into the TRIPS Agreement). Certain other limited exceptions to the MFN
obligation are also provided for.

The general goals of the TRIPS Agreement are contained in the Preamble of the
Agreement, which reproduces the basic Uruguay Round negotiating objectives
established in the TRIPS area by the 1986 Punta del Este Declaration and the 1988/89
Mid-Term Review. These objectives include the reduction of distortions and impediments
to international trade, promotion of effective and adequate protection of intellectual
property rights, and ensuring that measures and procedures to enforce intellectual
property rights do not themselves become barriers to legitimate trade. These objectives
should be read in conjunction with Article 7, entitled “Objectives”, according to which
the protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technological knowledge
and in a manner conducive to social and economic welfare, and to a balance of rights and
obligations. Article 8, entitled “Principles”, recognizes the rights of Members to adopt
measures for public health and other public interest reasons and to prevent the abuse of
intellectual property rights, provided that such measures are consistent with the provisions
of the TRIPS Agreement.

1. Copyright

Exclusive rights of the creators of original literary, scientific and artistic works,
which are created, without formalities, with the creation of the work, and last (as a
general rule) for the life of the creator plus 50 years (70 years in the US and EU). It
prevents unauthorized reproduction, public performance, recording, broadcasting,
translation, or adaptation, and allows the collection of royalties for authorized use.

During the Uruguay Round negotiations, it was recognized that the Berne
Convention already, for the most part, provided adequate basic standards of copyright
protection. Thus it was agreed that the point of departure should be the existing level of
protection under the latest Act, the Paris Act of 1971, of that Convention. The point of
departure is expressed in Article 9.1 under which Members are obliged to comply with
the substantive provisions of the Paris Act of 1971 of the Berne Convention, i.e. Articles
1 through 21 of the Berne Convention (1971) and the Appendix thereto. However,
Members do not have rights or obligations under the TRIPS Agreement in respect of the
rights conferred under Article 6bis of that Convention, i.e. the moral rights (the right to
claim authorship and to object to any derogatory action in relation to a work, which
would be prejudicial to the author's honour or reputation), or of the rights derived there
from. The provisions of the Berne Convention referred to deal with questions such as
subject-matter to be protected, minimum term of protection, and rights to be conferred
and permissible limitations to those rights. The Appendix allows developing countries,
under certain conditions, to make some limitations to the right of translation and the right
of reproduction.
 In addition to requiring compliance with the basic standards of the Berne
Convention, the TRIPS Agreement clarifies and adds certain specific points.

Article 9.2 confirms that copyright protection shall extend to expressions and not
to ideas, procedures, methods of operation or mathematical concepts as such.

Article 10.1 provides that computer programs, whether in source or object code,
shall be protected as literary works under the Berne Convention (1971). This provision
confirms that computer programs must be protected under copyright and that those
provisions of the Berne Convention that apply to literary works shall be applied also to
them. It confirms further, that the form in which a program is, whether in source or object
code, does not affect the protection. The obligation to protect computer programs as
literary works means e.g. that only those limitations that are applicable to literary works
may be applied to computer programs. It also confirms that the general term of protection
of 50 years applies to computer programs. Possible shorter terms applicable to
photographic works and works of applied art may not be applied.

Article 10.2 clarifies that databases and other compilations of data or other
material shall be protected as such under copyright even where the databases include data
that as such are not protected under copyright. Databases are eligible for copyright
protection provided that they by reason of the selection or arrangement of their contents
constitute intellectual creations. The provision also confirms that databases have to be
protected regardless of which form they are in, whether machine readable or other form.
Furthermore, the provision clarifies that such protection shall not extend to the data or
material itself, and that it shall be without prejudice to any copyright subsisting in the data
or material itself.

Article 11 provides that authors shall have in respect of at least computer

programs and, in certain circumstances, of cinematographic works the right to authorize
or to prohibit the commercial rental to the public of originals or copies of their copyright
works. With respect to cinematographic works, the exclusive rental right is subject to the
so-called impairment test: a Member is excepted from the obligation unless such rental
has led to widespread copying of such works which is materially impairing the exclusive
right of reproduction conferred in that Member on authors and their successors in title. In
respect of computer programs, the obligation does not apply to rentals where the program
itself is not the essential object of the rental.

According to the general rule contained in Article 7(1) of the Berne Convention as
incorporated into the TRIPS Agreement, the term of protection shall be the life of the
author and 50 years after his death. Paragraphs 2 through 4 of that Article specifically
allow shorter terms in certain cases. These provisions are supplemented by Article 12 of
the TRIPS Agreement, which provides that whenever the term of protection of a work,
other than a photographic work or a work of applied art, is calculated on a basis other
than the life of a natural person, such term shall be no less than 50 years from the end of
the calendar year of authorized publication, or, failing such authorized publication within
50 years from the making of the work, 50 years from the end of the calendar year of
making.

Article 13 requires Members to confine limitations or exceptions to exclusive

rights to certain special cases which do not conflict with a normal exploitation of the
work and do not unreasonably prejudice the legitimate interests of the right holder. This is
a horizontal provision that applies to all limitations and exceptions permitted under the
provisions of the Berne Convention and the Appendix thereto as incorporated into the
TRIPS Agreement. The application of these limitations is permitted also under the TRIPS
Agreement, but the provision makes it clear that they must be applied in a manner that
does not prejudice the legitimate interests of the right holder.

Related rights  

The provisions on protection of performers, producers of phonograms and

broadcasting organizations are included in Article 14. According to Article 14.1,
performers shall have the possibility of preventing the unauthorized fixation of their
performance on a phonogram (e.g. the recording of a live musical performance). The
fixation right covers only aural, not audiovisual fixations. Performers must also be in
position to prevent the reproduction of such fixations. They shall also have the possibility
of preventing the unauthorized broadcasting by wireless means and the communication to
the public of their live performance.

In accordance with Article 14.2, Members have to grant producers of phonograms

an exclusive reproduction right. In addition to this, they have to grant, in accordance with
Article 14.4, an exclusive rental right at least to producers of phonograms. The provisions
on rental rights apply also to any other right holders in phonograms as determined in
national law. This right has the same scope as the rental right in respect of computer
programs. Therefore it is not subject to the impairment test as in respect of
cinematographic works. However, it is limited by a so-called grand-fathering clause,
according to which a Member, which on 15 April 1994, i.e. the date of the signature of
the Marrakesh Agreement, had in force a system of equitable remuneration of right
holders in respect of the rental of phonograms, may maintain such system provided that
the commercial rental of phonograms is not giving rise to the material impairment of the
exclusive rights of reproduction of right holders.

Broadcasting organizations shall have, in accordance with Article 14.3, the right
to prohibit the unauthorized fixation, the reproduction of fixations, and the rebroadcasting
by wireless means of broadcasts, as well as the communication to the public of their
television broadcasts. However, it is not necessary to grant such rights to broadcasting
organizations, if owners of copyright in the subject-matter of broadcasts are provided
with the possibility of preventing these acts, subject to the provisions of the Berne
Convention.

The term of protection is at least 50 years for performers and producers of

phonograms, and 20 years for broadcasting organizations (Article 14.5).

Article 14.6 provides that any Member may, in relation to the protection of
performers, producers of phonograms and broadcasting organizations, provide for
conditions, limitations, exceptions and reservations to the extent permitted by the Rome
Convention.

Copyright is a right, which is available for creating an original literary, dramatic,

musical or artistic work.
Coverage provided by copyright

• Literary, dramatic and musical work. Computer programs/ software are covered
within the definition of literary work.

• Artistic work

• Cinematographic films (sound track and video films)

• Recording on any disc, tape, perforated roll or other device

2. Trademarks

A trademark is a distinctive sign, which identifies certain goods or services as

those produced or provided by a specific person or enterprise (Trademarks may be one or
combination of words, letters, numerals, drawings, symbols, three dimensional signs)

The basic rule contained in Article 15 is that any sign, or any combination of
signs, capable of distinguishing the goods and services of one undertaking from those of
other undertakings, must be eligible for registration as a trademark, provided that it is
visually perceptible. Such signs, in particular words including personal names, letters,
numerals, figurative elements and combinations of colours as well as any combination of
such signs, must be eligible for registration as trademarks.

Where signs are not inherently capable of distinguishing the relevant goods or
services, Member countries are allowed to require, as an additional condition for
eligibility for registration as a trademark, that distinctiveness has been acquired through
use. Members are free to determine whether to allow the registration of signs that are not
visually perceptible (e.g. sound or smell marks).

Members may make registrability depend on use. However, actual use of a

trademark shall not be permitted as a condition for filing an application for registration,
and at least three years must have passed after that filing date before failure to realize an
intent to use is allowed as the ground for refusing the application (Article 14.3).

The Agreement requires service marks to be protected in the same way as marks
distinguishing goods (see e.g. Articles 15.1, 16.2 and 62.3).

The owner of a registered trademark must be granted the exclusive right to

prevent all third parties not having the owner's consent from using in the course of trade
identical or similar signs for goods or services which are identical or similar to those in
respect of which the trademark is registered where such use would result in a likelihood
of confusion. In case of the use of an identical sign for identical goods or services, a
likelihood of confusion must be presumed (Article 16.1).

The TRIPS Agreement contains certain provisions on well-known marks, which

supplement the protection required by Article 6bis of the Paris Convention, as
incorporated by reference into the TRIPS Agreement, which obliges Members to refuse
or to cancel the registration, and to prohibit the use of a mark conflicting with a mark
which is well known. First, the provisions of that Article must be applied also to services.
Second, it is required that knowledge in the relevant sector of the public acquired not only
as a result of the use of the mark but also by other means, including as a result of its
promotion, be taken into account. Furthermore, the protection of registered well-known
marks must extend to goods or services which are not similar to those in respect of which
the trademark has been registered, provided that its use would indicate a connection
between those goods or services and the owner of the registered trademark, and the
interests of the owner are likely to be damaged by such use (Articles 16.2 and 3).

Members may provide limited exceptions to the rights conferred by a trademark,

such as fair use of descriptive terms, provided that such exceptions take account of the
legitimate interests of the owner of the trademark and of third parties (Article 17).

Initial registration, and each renewal of registration, of a trademark shall be for a

term of no less than seven years. The registration of a trademark shall be renewable
indefinitely (Article 18).

Cancellation of a mark on the grounds of non-use cannot take place before three
years of uninterrupted non-use has elapsed unless valid reasons based on the existence of
obstacles to such use are shown by the trademark owner. Circumstances arising
independently of the will of the owner of the trademark, such as import restrictions or
other government restrictions, shall be recognized as valid reasons of non-use. Use of a
trademark by another person, when subject to the control of its owner, must be recognized
as use of the trademark for the purpose of maintaining the registration (Article 19).

It is further required that use of the trademark in the course of trade shall not be
unjustifiably encumbered by special requirements, such as use with another trademark,
use in a special form, or use in a manner detrimental to its capability to distinguish the
goods or services (Article 20).

3. Geographical indications

Geographical indications are defined, for the purposes of the 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 (Article 22.1). Thus, this
definition specifies that the quality, reputation or other characteristics of a good can each
be a sufficient basis for eligibility as a geographical indication, where they are essentially
attributable to the geographical origin of the good.

In respect of all geographical indications, interested parties must have legal means
to prevent use of indications which mislead the public as to the geographical origin of the
good, and use which constitutes an act of unfair competition within the meaning of
Article 10bis of the Paris Convention (Article 22.2).

The registration of a trademark which uses a geographical indication in a way that

misleads the public as to the true place of origin must be refused or invalidated ex officio
if the legislation so permits or at the request of an interested party (Article 22.3).

Article 23 provides that interested parties must have the legal means to prevent the
use of a geographical indication identifying wines for wines not originating in the place
indicated by the geographical indication. This applies even where the public is not being
misled, there is no unfair competition and the true origin of the good is indicated or the
geographical indication is accompanied be expressions such as “kind”, “type”, “style”,
“imitation” or the like. Similar protection must be given to geographical indications
identifying spirits when used on spirits. Protection against registration of a trademark
must be provided accordingly.

Article 24 contains a number of exceptions to the protection of geographical

indications. These exceptions are of particular relevance in respect of the additional
protection for geographical indications for wines and spirits. For example, Members are
not obliged to bring a geographical indication under protection, where it has become a
generic term for describing the product in question (paragraph 6). Measures to implement
these provisions shall not prejudice prior trademark rights that have been acquired in
good faith (paragraph 5). Under certain circumstances, continued use of a geographical
indication for wines or spirits may be allowed on a scale and nature as before (paragraph
4). Members availing themselves of the use of these exceptions must be willing to enter
into negotiations about their continued application to individual geographical indications
(paragraph 1). The exceptions cannot be used to diminish the protection of geographical
indications that existed prior to the entry into force of the TRIPS Agreement (paragraph
3). The TRIPS Council shall keep under review the application of the provisions on the
protection of geographical indications (paragraph 2).

4. Industrial designs

TRIPS Agreement obliges (Article 25.1) Members to provide for the protection of
independently created industrial designs that are new or original. Members may provide
that designs are not, new or original if they do not significantly differ from known designs
or combinations of known design features. Members may provide that such protection
shall not extend to designs dictated essentially by technical or functional considerations.

Article 25.2 contains a special provision aimed at taking into account the short life
cycle and sheer number of new designs in the textile sector: requirements for securing
protection of such designs, in particular in regard to any cost, examination or publication,
must not unreasonably impair the opportunity to seek and obtain such protection.
Members are free to meet this obligation through industrial design law or through
copyright law.

Article 26.1 requires Members to grant the owner of a protected industrial design
the right to prevent third parties not having the owner's consent from making, selling or
importing articles bearing or embodying a design which is a copy, or substantially a copy,
of the protected design, when such acts are undertaken for commercial purposes.

Article 26.2 allows Members to provide limited exceptions to the protection of

industrial designs, provided that such exceptions do not unreasonably conflict with the
normal exploitation of protected industrial designs and do not unreasonably prejudice the
legitimate interests of the owner of the protected design, taking account of the legitimate
interests of third parties.
 The duration of protection available shall amount to at least 10 years (Article
26.3). The wording “amount to” allows the term to be divided into, for example, two
periods of five years.

5. Patents  

An exclusive right awarded to an inventor to prevent others from making, selling,

distributing, importing or using their invention, without licence or authorisation, for a
fixed period of time. In return, society requires that the patentee discloses the invention in
the public.

The TRIPS Agreement requires Member countries to make patents available for
any inventions, whether products or processes, in all fields of technology without
discrimination, subject to the normal tests of novelty, inventiveness and industrial
applicability. It is also required that patents be available and patent rights enjoyable
without discrimination as to the place of invention and whether products are imported or
locally produced (Article 27.1).

There are three permissible exceptions to the basic rule on patentability. One is for
inventions contrary to ordre public or morality; this explicitly includes inventions
dangerous to human, animal or plant life or health or seriously prejudicial to the
environment. The use of this exception is subject to the condition that the commercial
exploitation of the invention must also be prevented and this prevention must be
necessary for the protection of ordre public or morality (Article 27.2).

The second exception is that Members may exclude from patentability diagnostic,
therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a)).

The third is that Members may exclude plants and animals other than micro-
organisms and essentially biological processes for the production of plants or animals
other than non-biological and microbiological processes. However, any country excluding
plant varieties from patent protection must provide an effective sui generis system of
protection. Moreover, the whole provision is subject to review four years after entry into
force of the Agreement (Article 27.3(b)).

The exclusive rights that must be conferred by a product patent are the ones of
making, using, offering for sale, selling, and importing for these purposes. Process patent
protection must give rights not only over use of the process but also over products
obtained directly by the process. Patent owners shall also have the right to assign, or
transfer by succession, the patent and to conclude licensing contracts (Article 28).

Members may provide limited exceptions to the exclusive rights conferred by a

patent, provided that such exceptions do not unreasonably conflict with a normal
exploitation of the patent and do not unreasonably prejudice the legitimate interests of the
patent owner, taking account of the legitimate interests of third parties (Article 30).

The term of protection available shall not end before the expiration of a period of
20 years counted from the filing date (Article 33).
 Members shall require that an applicant for a patent shall disclose the invention in
a manner sufficiently clear and complete for the invention to be carried out by a person
skilled in the art and may require the applicant to indicate the best mode for carrying out
the invention known to the inventor at the filing date or, where priority is claimed, at the
priority date of the application (Article 29.1).

If the subject-matter of a patent is a process for obtaining a product, the judicial

authorities shall have the authority to order the defendant to prove that the process to
obtain an identical product is different from the patented process, where certain
conditions indicating a likelihood that the protected process was used are met (Article
34).

Compulsory licensing and government use without the authorization of the right
holder are allowed, but are made subject to conditions aimed at protecting the legitimate
interests of the right holder. The conditions are mainly contained in Article 31. These
include the obligation, as a general rule, to grant such licences only if an unsuccessful
attempt has been made to acquire a voluntary licence on reasonable terms and conditions
within a reasonable period of time; the requirement to pay adequate remuneration in the
circumstances of each case, taking into account the economic value of the licence; and a
requirement that decisions be subject to judicial or other independent review by a distinct
higher authority. Certain of these conditions are relaxed where compulsory licences are
employed to remedy practices that have been established as anticompetitive by a legal
process. These conditions should be read together with the related provisions of
Article 27.1, which require that patent rights shall be enjoyable without discrimination as
to the field of technology, and whether products are imported or locally produced.

6. Layout-designs of integrated circuits  

Article 35 of the TRIPS Agreement requires Member countries to protect the

layout-designs of integrated circuits in accordance with the provisions of the IPIC Treaty
(the Treaty on Intellectual Property in Respect of Integrated Circuits), negotiated under
the auspices of WIPO in 1989. These provisions deal with, inter alia, the definitions of
“integrated circuit” and “layout-design (topography)”, requirements for protection,
exclusive rights, and limitations, as well as exploitation, registration and disclosure. An
“integrated circuit” means a product, in its final form or an intermediate form, in which
the elements, at least one of which is an active element, and some or all of the
interconnections are integrally formed in and/or on a piece of material and which is
intended to perform an electronic function. A “layout-design (topography)” is defined as
the three-dimensional disposition, however expressed, of the elements, at least one of
which is an active element, and of some or all of the interconnections of an integrated
circuit, or such a three-dimensional disposition prepared for an integrated circuit intended
for manufacture. The obligation to protect layout-designs applies to such layout-designs
that are original in the sense that they are the result of their creators' own intellectual
effort and are not commonplace among creators of layout-designs and manufacturers of
integrated circuits at the time of their creation. The exclusive rights include the right of
reproduction and the right of importation, sale and other distribution for commercial
purposes. Certain limitations to these rights are provided for.

In addition to requiring Member countries to protect the layout-designs of

integrated circuits in accordance with the provisions of the IPIC Treaty, the TRIPS
Agreement clarifies and/or builds on four points. These points relate to the term of
protection (ten years instead of eight, Article 38), the applicability of the protection to
articles containing infringing integrated circuits (last sub clause of Article 36) and the
treatment of innocent infringers (Article 37.1). The conditions in Article 31 of the TRIPS
Agreement apply mutatis mutandis to compulsory or non-voluntary licensing of a layout-
design or to its use by or for the government without the authorization of the right holder,
instead of the provisions of the IPIC Treaty on compulsory licensing (Article 37.2).

7. Protection of undisclosed information  

The TRIPS Agreement requires undisclosed information -- trade secrets or know-

how -- to benefit from protection. According to Article 39.2, the protection must apply to
information that is secret, that has commercial value because it is secret and that has been
subject to reasonable steps to keep it secret. The Agreement does not require undisclosed
information to be treated as a form of property, but it does require that a person lawfully
in control of such information must have the possibility of preventing it from being
disclosed to, acquired by, or used by others without his or her consent in a manner
contrary to honest commercial practices. “Manner contrary to honest commercial
practices” includes breach of contract, breach of confidence and inducement to breach, as
well as the acquisition of undisclosed information by third parties who knew, or were
grossly negligent in failing to know, that such practices were involved in the acquisition.

The Agreement also contains provisions on undisclosed test data and other data
whose submission is required by governments as a condition of approving the marketing
of pharmaceutical or agricultural chemical products which use new chemical entities. In
such a situation the Member government concerned must protect the data against unfair
commercial use. In addition, Members must protect such data against disclosure, except
where necessary to protect the public, or unless steps are taken to ensure that the data are
protected against unfair commercial use.

8. Control of anti-competitive practices in contractual licenses  

Article 40 of the TRIPS Agreement recognizes that some licensing practices or

conditions pertaining to intellectual property rights which restrain competition may have
adverse effects on trade and may impede the transfer and dissemination of technology
(paragraph 1). Member countries may adopt, consistently with the other provisions of the
Agreement, appropriate measures to prevent or control practices in the licensing of
intellectual property rights which are abusive and anti-competitive (paragraph 2). The
Agreement provides for a mechanism whereby a country seeking to take action against
such practices involving the companies of another Member country can enter into
consultations with that other Member and exchange publicly available non-confidential
information of relevance to the matter in question and of other information available to
that Member, subject to domestic law and to the conclusion of mutually satisfactory
agreements concerning the safeguarding of its confidentiality by the requesting Member
(paragraph 3). Similarly, a country whose companies are subject to such action in another
Member can enter into consultations with that Member (paragraph 4).

References:
World Trade Organization, rue de Lausanne 154, CH-1211 Geneva 21, Switzerland
http://www.wto.org
Sreenivasulu N.S., Intellectual Property Rights. (Ed) 2007: Regal Publications. New
Delhi.