1. Introduction
The global nature of Intellectual Property (IP) has led to the establishment of various international treaties and agreements to harmonize the protection of IP rights across borders in different jurisdictions. Among these organizations, the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) stand as pillars in shaping global IP rights and fostering innovation through the regulation and protection of IP rights and businesses. These organizations not only facilitate the creation of standardized norms and policies but also ensure that such standards are reflected within the domestic laws of their member countries.
WTO through the Trade-Related Aspects of Intellectual Property Rights (TRIPS), sets minimum standards for intellectual property protection that member states must comply with. Domestic laws have been significantly reformed to conform to international standards set by TRIPS. Similarly, WIPO plays a major role in the administration of international treaties concerning IP and provides a platform for negotiations and cooperation between states to foster a balanced and effective international IP system.
i. International Framework for IP Rights
The protections, administration, and enforcement of intellectual property rights at the global scale 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:
a. 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 negotiations 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. The U.S. and India are parties to WIPO, along with other 190 member states.
b. Paris Convention for the Protection of Industrial Property
The 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 the widest range including patents, 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. The convention was initially signed by 11 countries in 1883 in Paris, France. Since then the convention has undergone several amendments to adapt to changing technological and legal landscape. It protects the intellectual property of individuals, businesses and organizations globally. It guides the process of protecting intellectual property globally. Innovators, creators who wish to disclose their inventions to international audiences and businesses who operate globally rely on the Paris Convention to secure their Intellectual property in the global market.
c. Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention, adopted in 1886 is an international Treaty establishing the important principles regarding copyright protection for literary and artistic works. It evolved to accommodate the needs of developed and least 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. Some of the main principles of the Berne Conventions are the national treatment principle that requires each member country to treat the work of authors from other member countries as if they were the work of their nationals, the minimum standards principle which sets the minimum standards for copyright protection that member states must meet, automatic protection where the copyright is granted automatic protection upon creation without the need for formal registration or notice. It is widely adopted around the world.
The literary and artistic works of creators are protected by the Berne Convention and Universal Copyright Convention (1952). The Universal Copyright Conventions 1952 is administered through UNESCO. India is a party to both the conventions.
d. Madrid Agreement
The Madrid Agreement was signed 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 a 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.
e. Patent Cooperation Treaty
The Patent Cooperation Treaty adopted on 1970 is an international treaty adopted by the World Intellectual Property Organization (WIPO) to simplify patent protection in various countries. It makes seeking the patent protection process easier by providing a single international patent application that can be filed through a centralized process. It provides a consistent and standardized method for evaluating patentability in multiple countries. Instead of filing separate patent applications in various countries, this treaty allows the inventor or creator to file a single international patent application, with their national or regional patent office to gain protection in all member countries. The Patent Cooperation Treaty does not grant international patents. Instead, it provides a mechanism for an efficient and coordinated process for pursuing patent protection in member countries.
f. 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 to protect various forms of intellectual property like copyrights, trademarks, patents, and more. It also addresses issues related to enforcement and dispute settlement. However, developing countries compromised when they entered into TRIPS because they wanted to participate in global trade but did not want strict enforcement of IP laws. At the same time, IP-generating countries, i.e., the U.S. and countries in the EU thought that the protection provided by TRIPS was not enough. To overcome this problem developed countries came up with TRIPS+ which comprises a set of bilateral trade agreements with developing countries. TRIPS+ consists of stricter IP compliance requirements such as a minimum 20-year grant of patent registration or longer, leading to artificially inflated drug prices in pharmaceutical industries.
ii. Basic principles of the TRIPS Agreement
· National Treatment
Article 3 of the TRIPS states that all members must treat the citizens of other member countries as they would treat their nationals. The national treatment principle states that IP owners of a member country should be given equal or greater protection and enforcement rights when compared to domestic nationals. Further, the application of this principle extends to all forms of intellectual property and goes beyond the subject of the Paris and Berne Conventions.
· Most Favoured National Treatment
Article 4 of the TRIPS mandates that if a member country provides exclusive favourable treatment such as immunity, advantage, immunity, or privilege to any member nation, then such favourable condition shall automatically extend to all member states, hence every member will gain the equal level of favourable treatment. This principle was also a part of GATT however, the scope of its application did not extend to IP.
· Exhaustion of IP Rights
Article 6 of the TRIPS explicitly refrained from dealing with the exhaustion of IPR. This is because of every member state’s extreme differences in opinion on the issue. Therefore, WTO left this issue to be dealt with internally by each member. The doctrine of exhaustion states that an IP owner exhausts their IP right after an IP owner or the authorized seller sells the product to a customer. Also known as the first sell doctrine, this doctrine remains the core of the highly debatable parallel import of genuine products issue.
· Linkage of the TRIPS with other International IP Conventions
The Paris Convention and Berne Convention are deeply linked to the TRIPS agreement, so much so that TRIPS is sometimes referred to as the Berne and Paris-plus agreement. Regardless of their accession to the Paris Convention and Berne Convention (“Conventions”) the member states mandatorily comply with the substantive provisions in the conventions, except the moral rights provided in the Berne Convention. Further, all disputes relating to the cases of non-compliance to the substantive provisions of the Conventions are resolved through the WTO dispute resolution mechanism.
iii. Impact of WIPO Conventions and TRIPS Agreement on the Indian IP Laws
The main objective of WIPO was to promote IP and foster coordination among the union members. Joining WIPO did not immediately bring about revolutionary changes to the Indian IP laws, nonetheless, it does mark a remarkable start towards a modern era of IP rights in India. After all later, the major WIPO conventions, Paris and Berene became essential to the TRIPS agreement. India wanted to create an international alliance for IP rights as it became a member of numerous conventions. Yet, it was difficult to overlook the internal demands of a large recovering economy like India. The linkage between WTO membership and the TRIPS agreement made it impossible for developing nations like India, China, and Brazil to bypass stringent IP protection measures that countries must adhere to.
Developing countries were given 10 years of transitional time to amend laws, and put administrative, and judicial systems in place to protect IP rights. Under this requirement, India amended its Patent law in 1999, 2002, 2005, and 2006, although there have also been subsequent amendments. India extended the term of protection from 14 to 20 years and granted product patents for all technologies issued within the territory of India. However, unlike other IP laws, only patent law underwent radical changes while pursuing WTO membership. It was a strategic step for encouraging foreign direct investments and improving the overall technological innovation level of the nation.
The Copyright Act of 1957, was updated to increase the protection period, and scope of copyrightable material. A more elaborate Trademark Act, of 1999 was introduced which allowed the registration of collective marks, service marks, and certification marks and provided a more efficient protection mechanism against infringement. The Geographical Indication of Goods (Registration and Protection) Act, of 1999, Design Act, 2000, and Plant Varieties and Farmers’ Rights Act, 2001 were also introduced to ensure compliance with TRIPS standards.
iv. Impact of WIPO Conventions and TRIPS Agreement on the U.S. IP Laws
The U.S. joined WIPO IN 1988, before that it had already enacted the Patent Act, 1970, and Copyright Act, 1970, and the Lanham Act, 1946 to protect patents, copyrights, and trademarks. The U.S. opened up to international harmonisation of IP laws by participating in the Paris Convention for the Protection of Industrial Property (1833). Even though the WIPO membership did not trigger massive reformations to IP laws, it influenced the U.S. to align its IP laws more closely with international standards established by WIPO treaties, participate in discussions and negotiations on new international agreements, and make use of WIPO services for international IP registration e.g. the Madrid Protocol; for trademarks.
One of the major impacts of WIPO membership on IP rights in the U.S. is the restoration of copyright protection for foreign works which was not previously granted in the U.S. Additionally, in 2003 after the U.S. joined the Madrid Protocol, the process of filing trademark applications internationally became streamlined for U.S. companies.
The U.S. and the European Union were the biggest advocates for the TRIPS agreement. With TRIPS the IP laws entered from the international to the global era, and the U.S. as a founding member was a major reason for this. The U.S. is a major producer and exporter of IP and needs strong protection to ensure American companies are protected, and well-compensated for their efforts. Thus, rather than developing IP laws, TRIPS was introduced to ensure that U.S. IPs are protected internationally and can be commercialised without fear of infringement in other countries.
v. Comparative Analysis Between the Development of Indian and U.S. IP Laws
India and the U.S. amended their laws to adhere to the international standards set by WIPO and TRIPS. This led to well-rounded IP protection in both countries and helped to facilitate international relations globally. While the U.S. already had a robust set of IP laws compared to India, India got the push that it needed to prioritise IP protection.
The two countries came from different sides of the IP ecosystem. The U.S. needed protection for the creators and innovators while India had to ensure access to those creations and innovations to support its large population. One hotly debated topic during the formulation and negotiation of TRIPS was that of compulsory licensing, mentioned in Article 31. To comply with TRIPS India agreed to grant product patents for those issued in India. Additionally, India and other developing nations also negotiated flexibility in compulsory licensing provisions so they could give access to certain IPs such as access to meditation and copyrighted materials.
Another controversial topic during TRIPS negotiation was Geographical Indications (G.I.). India and other developing countries have many products created after a long lineage of cultural and traditional practices. Therefore, they demanded stringent G.I. provisions to ensure the international commercialisation of G.I.-qualified products without infringement. While the U.S., New Zealand, Canada, and Australia strongly opposed the extension of G.I. protection beyond wines and spirits. Finally, a basic level of G.I. protection is granted to all qualified products. However, only wines and spirits received stronger protection. India, the EU, and Switzerland along with producers of other G.I. products heavily criticised impartiality.
vi. Conclusion
While the U.S. already had strong IP protection, India underwent significant reforms to comply with international standards. The article highlights the tension between protecting business, innovations, commercialization of IP and ensuring access to knowledge, and innovations, particularly in developing countries. Lastly, although WIPO and TRIPS have shaped the global IP landscape, challenges remain, especially regarding access to medicine and protection of traditional knowledge and G.I.