In a rapidly globalizing world, Intellectual Property (IP) has transcended national boundaries. The nature of IP has led to the establishment of various international treaties and agreements to harmonize the protection of IP rights across borders. International treaties serve as the legal framework to bridge a gap between national jurisdiction and globalized IP. These treaties establish uniform standards for IP protection consistently across the globe. As intellectual properties are not constrained by national borders, it is essential that the rights of the IP owners are also not constrained by national borders and that these rights receive uniform protection in all legal jurisdictions. However, enforcing IP treaties at the national level has many challenges. The main challenge seen is the contradiction of international treaties with national laws, conflict with local norms and customs, and lack of harmonization. This may significantly impact the rights of IP owners. Failure to enforceIP rights at the national level may leave IP owners vulnerable to infringement, piracy, and counterfeiting on a global scale and unequal protection, undermining the IP owner’s rights in some countries.
I. LEGAL FRAMEWORK
A. International Frameworks
The protections, administration, and enforcement of intellectual property (IP rights) globally are governed by various international conventions, treaties, and organizations collectively referred to as International Frameworks of IP rights. These frameworks aim to establish uniform rules and practices to facilitate global recognition of IP property and ensure global protection of IP rights. Some significant international frameworks of IP rights are:
i. World Intellectual Property Organization (WIPO)
World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations established on July 14, 1967, and entered into force in 1970 which promotes and protects Intellectual Property Rights worldwide. The organization provides a framework for cooperation and dialogue among its member states to create and update international IP treaties and agreements. It helps to promote the dissemination of knowledge and technology across borders, protecting intellectual property around the globe.
ii. WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS):
The TRIPS Agreement was negotiated as a part of GATT (General Agreement on Tariffs and Trade), during the Uruguay Round which introduced minimum standards that all WTO member states are required to implement, ensuring that intellectual property rights are respected and enforced equally and consistently around the globe. It establishes international standards for the protection of various forms of intellectual property like copyrights, trademarks, patents, and more. It also addresses issues related to enforcement and dispute settlement.
iii. Paris Convention for the Protection of Industrial Property
Paris Convention for the Protection of Industrial Property, is an international treaty established to protect and promote intellectual property rights, which applies to property in widest range including patent, trademarks, industrial designs, utility models, service marks, trade names, geographical indications and repression of fair competition. in the field of patents, trademarks, and industrial design. It was established in 1883 in Paris, France and has undergone several amendments over the years to adapt to changing technological and legal landscape.
iv. Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention, originally created in 1886 is an international Treaty which establishes the important principles regarding copyright protection for literary and artistic works. It evolved over the past years and accommodated the needs of both developed and less developed countries, establishing principles such as national treatment, minimum protection standards and recognition of moral rights for creators to protect and promote international intellectual property rights.
v. Madrid Agreement
The Madrid Agreement was established in 1891. It is an international treaty that facilitates the international registration of trademarks. It provides a simplified process for trademark owners to protect their trademarks across the globe. It provides trademark owners with centralized and cost-effective protection in member countries with one single application. One of the key objectives of the Madrid Agreement is that it is a centralized system for international registration and subsequent designation which provides a single registration and single renewal facility.
vi. Patent Cooperation Treaty
The Patent Cooperation Treaty established in 1970 is an international treaty that was adopted by the World Intellectual Property Organization (WIPO) to simplify patent protection in various countries. It makes the process of seeking patent protection easier by providing a single international patent application that can be filed through a centralized process. It provides a consistent and standardized process for evaluating patentability in multiple countries.
vii. Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks.
The Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks was established in 1957 to provide a standardized and internationally recognized system for the classification of goods and services in trademark registrations. It provides a standardized framework for classifying goods and services, of goods in 34 classes, and a list of services in 11 classes to manage trademarks on a global scale as it provides clear and uniform categories.
II. IP Owner’s Rights in the Globalizing World
The IP protection provided by a nation varies significantly based on their level of development. The level of development of a nation is directly proportional to resources. Developed nations generally have well-established legal systems and enforcement not at the disposal of lesser developed nations. A lack of harmonization between international treaties and national laws can severely affect the IP owner’s rights hindering the consistent protection of intellectual property rights globally. It will create a gap in IP protection, leaving IP owners vulnerable to infringement and piracy in certain jurisdictions due to inconsistent enforcement of international IP treaties. When international treaties clash with national laws, it often creates a legal and jurisdictional conflict that can be difficult to overcome which may create confusion and ambiguity resulting in disputes and uncertainty for individuals and businesses involved in cross-border businesses and making IP owners vulnerable to infringements.
A. Developed Nations
United States
The U.S. is a leader in introducing laws for IP protection. Some of the legislations enacted by the U.S. Congress for IP rights protection are the Patent Act of 1790, the Trademarks Act of 1870, the Copyright Act of 1909, the Digital Millennium Copyright Act of 1998, the Copyright Act of Small-Claims Act of 2020. Since the 18th century, the U.S. has worked towards the protection of IP holders’ rights, and this has helped to accelerate the U.S. economy and remain a global leader in the aspect of innovation and technological development.
When it comes to IP protection, innovators, IP creators, and businesses find the U.S. to be the most attractive destination for protecting and safeguarding their IP assets due to the unique advantages it offers. The U.S. is the global IP hub, and the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office are the supreme institutions that are known for being reliable and efficient in granting IP protection. The U.S. has a robust and well-established legal framework for IP regulation. Specialized IP courts, such as the U.S. International Trade Commission and district courts specially dedicated to hearing IP-related matters with deep IP knowledge and a high level of efficiency.
The U.S. is a signatory to the Paris Convention, TRIPS, Berne Convention, Madrid Protocol, and the Patent Cooperation Treaty, however, the U.S. is not a party to the Hague Convention. Paris Convention allows IP asset holders to seek patent and trademark protection in other member states’ jurisdictions and receive national treatment. The Berne Convention offers equal treatment to copyright holders based on the jurisdiction of other member states. Similar to the Patent Cooperation Treaty for Patents, the Madrid Protocol works as a central system that provides a mechanism that allows one application to get a “bundle” of national trademark registration in several jurisdictions at the same time. The Copyright Act of 1976 introduced the doctrine of fair use, which allows limited use of copyrighted work without the permission or payment of the copyright owner.
The European Union
The EU law shapes the evolution of IP regulation within the EU Member States. It creates various unified IP rights and harmonizes them with the national IP laws of the member states. In addition to substantive laws, the EU also provides a framework for procedural law as well. EU institutions such as the Europe Patent Office, and the European Intellectual Property Office are well recognized for being effective and efficient in granting IP rights. The EU’s harmonized framework includes specialized courts such as the Unified Patent Court, and other regional tribunals.
Companies that are particularly interested in technology and creativity are drawn to the EU to safeguard their IP assets. The reason for this is the EU’s strong participation in international organizations, its adherence to numerous IP treaties, and the unitary nature of some IP rights such as the European Union Trademark (EUTM), which creates a very secure and comfortable environment for IP holders in the EU. The European Union has also signed international agreements such as the Berne Convention, and TRIPS agreement, which extends equal protection to IP holders across the member states. The EU is a leader in introducing laws in new domains in the IP world, its EU Copyright Directive includes provisions to accommodate new-age problems brought into existence by digital technology.
Developing and Least Developed Nations
While the discussion on the Global West is heavily occupied with drafting laws relating to intellectual property, the Global South still struggles with the enforcement of basic IP laws. The cases of IP infringement increase as one moves from west to south. Cases of counterfeiting, copyright infringement, and patent infringement plague the global south.
India
The protection of IP is a very complicated process in India. Laws like the Indian Patents Act, 1970, attempt to strike a balance between innovators’ interests and public interest. IP protection laws have come a long way in India, however, there are still a number of issues that still plague the Indian IP system. One of the main issues is the lengthy and cumbersome process of obtaining trademarks and patents in India. The average time to receive a patent grant in India is 2-3 years and 1.5 years if expedited. The patent office’s backlog and delays make it extremely difficult to acquire timely IP protection in India, causing slow economic growth and deterring investors from bringing foreign investment to India.
Similar to the U.S. and the EU, India is party to several international IP treaties, such as TRIPS, Paris Convention. However, there is heavy criticism and backlash as to how their treaty commitments are being disregarded due to misaligned interpretation and application.
Concerning the copyright sector, the Indian Copyright system has come under fire for both enforcement and piracy, even though the system generally complies with international norms. The rampant piracy of different types of products such as software, movies, and books are a persistent challenge, with concerns being raised about inadequate measures for the protection of a creator’s rights. Although the Indian IP system has gone under major reforms, it still faces challenges of counterfeiting and piracy, and the need for a more effective dispute resolution system.
Nepal
Enforcement of IP rights is still a major worry in Nepal. Although the nation has become a party to the TRIPS Agreement, it faces criticisms regarding its implementation. The lack of resources, experts, and a robust legal system has held Nepal back from development in the IP sector. The prevalence of piracy and counterfeiting particularly in the textile, pharmaceuticals, and consumer goods industries has discouraged many innovators and creatives in Nepal. The IP laws and regulations need to be updated, made more effective, and uniformly implemented. Proper training and understanding of the sector need to be provided to the enforcement officials, along with strict anti-corruption measures. The challenges in Nepal compared to that of the U.S., EU, and India is very different. Nepal is still trying to set up a strong foundation while the U.S. and EU are struggling with the challenges of accommodating modern challenges, and India is still trying to catch up with the global west.
Given the difference in the scenario of the discussed jurisdiction, an IP owner’s same asset will avail different levels of protection in different jurisdictions, and thus, the level of justice for the same subject matter will also vary accordingly. Although the major international IP treaties have been created to consolidate and universalize the laws, to us it seems that the idea is utopian as long as the challenges faced by different jurisdictions differ.
III. CONCLUSION
Due to globalization and the use of Intellectual Property globally, it has become important to protect intellectual property globally. For the protection of intellectual property globally, various international intellectual property treaties have been established to ensure equal protection by applying consistent IP rights globally. However, enforcing these international intellectual property treaties on a national level is challenging due to the conflict and contradiction of these international intellectual property treaties with local laws. The level of development in a country also affects how the countries handle their IP rights, with developed nations focusing on local protection and innovation, while less-developed nations focus on attracting investment and adapting protection to their needs. Developing nations often struggle to enforce IP rights and may need help to meet international obligations.
In globalized world, the realm of Intellectual Property rights is intricately connected to broader issues of law and justice. Creativity knows no boundary, and the result produced by every person engaging in creative pursuits should be protected globally, and the creator should be given the due credit. The creation of Intellectual Property is a direct exercise of a person’s fundamental rights such as the right to expression, and the right to property which all human beings have been granted. International treaties and agreements have been established to bridge the gap between national law and international commitments. The variation in IP protection levels across different jurisdictions poses a multifaceted challenge to achieving a sense of justice that is consistent and equitable for IP owners around the world.