- Article 2 of the World Intellectual Property Organization (WIPO) - Central Organization for the Protection of Intellectual Property laws and the UN expert organization states. The rights to literary, artistic, and scientific works; discoveries made in all fields of human endeavor; scientific advancements; industrial design rights; trademarks, service marks, and commercial names and designations; and protection from unfair competition are all considered to be part of intellectual property.
- For the protection and enforcement of different types of intellectual property, such as patents, trademarks, copyrights, industrial designs, and trade secrets, TRIPS establishes minimum requirements. These norms must be followed by all member nations.
- Intellectual property rights (IPR) are exchanged and valued globally. The significance of intellectual property in global trade is acknowledged by the WTO's TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement. Basic requirements for member governments' IPR protection are established by the TRIPS Agreement.
- The IPR regime, as defined by TRIPS, gives creators and inventors temporary exclusive rights in an effort to promote innovation. Due to the exclusivity, which guarantees financial gains for innovators, research and development expenditures are encouraged.
In force since January 1, 1995, is the TRIPS agreement. Trade secrets, patents, trademarks, copyrights, industrial designs, and other forms of intellectual property are all included in the TRIPS agreement, which stands for the Agreement on Trade Related Aspects of Intellectual Property Rights. Intellectual property refers to the rights that organizations and individuals are awarded for their innovations and achievements. These kinds of rights usually give the producer the sole right to use their invention for a predetermined period of time. India has a well-established recognition of the importance of intellectual property at all governmental, administrative, and legal levels. This establishes the bare minimum guidelines for the treatment and advancement of intellectual property rights in the member states, which should enable more efficient and uniform protection of intellectual property while reducing distortions and obstacles to global trade. The obligations arising from the TRIPS Agreement relate to the establishment of fundamental security requirements within the Member States' legal frameworks and protocols.
Member states of TRIPS are obliged to set up and uphold particular minimum standards for the protection of intellectual property on their soil. In an effort to balance the rights of creators and the public interest, this agreement lays out rules for granting patents and trademarks, defending copyrights, and stopping unfair competition.
By giving authors and inventors the exclusive right to use their creations for a predetermined amount of time, the intellectual property system outlined in the TRIPS Agreement seeks to encourage innovation. The goal of this exclusivity is to promote research and development spending while guaranteeing that these innovations enter the public domain after the protection period ends, thereby advancing society as a whole.
Additionally, the agreement creates procedures for member states to settle disputes pertaining to intellectual property rights. It also promotes technology transfer between developed and developing countries with the goal of making necessary technologies and medications more accessible, particularly for economically challenged nations.
In general, the TRIPS Agreement is essential to global trade because it promotes innovation, safeguards intellectual property, and strikes a balance between the interests of the general public and rights holders.
LAWS CONFORMING WITH THE TRIPS AGREEMENT
The three laws listed below were added to India's intellectual property rights framework in compliance with the TRIPS Agreement:
THE COPYRIGHT ACT, 1957
As the name implies, copyright law is the underlying theory that states that anyone who creates something has the right to own it and determine how it is used. This copyright law serves essentially two purposes: first, it protects writers, composers, musicians, artists, and other creative minds who risk financial ruin to bring their works to market well in advance of others, and second, it allows others to freely build upon the ideas and skills presented in a work.
Copyright law really does not apply to works that are not established in a concrete form of speech. Examples of such works include compositions that are not registered or recorded in any way, titles, lists of items, methods, principles, proposals, etc. These types of works are not eligible for copyright law protections. Furthermore, works that are composed of information that is publicly available to everyone and does not require any written works to be consulted, such as timetables, weight/height charts that are obtainable from pertinent records and other standard forms, etc., are also not included.
THE TRADEMARKS ACT, 1999
A trademark is a word, phrase, logo, or combination of these that distinguishes the products of one rival from those of other rivals in the market. It must be unique, exceptional, and deserving of being portrayed visually. Furthermore, a name should be able to distinguish the goods or services of one seller from those of another because it can be licensed under trademark law. It protects and fosters the growth of a brand, which is vital to the expansion of an enterprise.
The commonly used word "infringement" is fully defined in the Act. In accordance with the Trademark Act, it provides offenders with sanctions and penalties. If a trademark is legitimately registered, the registered owner will have the exclusive right to use the trademark in connection with the goods and services for which it is registered, as well as the right to compensation for trademark misuse.
THE PATENT ACT, 1970
The patent is one of the most important intellectual property rights that gives businesses the chance to innovate. They not only increase the developer's income but also improve the community where the patented invention is made. It boosts economic performance across the country. In essence, the inventor is granted a monopoly through which to control and direct how widely accessible the innovation is.
The Patents Act of 1970 divided patents into two categories: product patents and process patents. A process patent describes the path taken in the development of a patent, whereas a product patent is the result or creation of a product. All products and processes that are novel, need an innovative stage, and have potential applications are eligible to be registered as inventions under the Patent Act. For example, the manufacturing of Tylenol pills is the process patent, but the pills themselves can be considered a product. A patentee may file a lawsuit for patent infringement in a District Court that has the authority to hear the case.
IMPACT OF TRIPS AGREEMENT
India's intellectual property laws underwent a significant change as a result of the agreement. Additionally, since the discoveries demonstrate qualities like inventiveness, inventive phase, usefulness, and comprehensive descriptive definition, developments in the fields of agriculture, pharmaceutical companies, and non-natural and genetically modified living organisms have also been included into the scope of the patentable innovation. Up until 2005, India was given a waiver from the enforcement of patents on pharmaceutical and agrochemical products. However, during this conversion period, India was compelled to impose a "Mailbox" clause, which assigned a processing deadline for each request submitted during that implementation period. Additionally, India was required to grant Exclusive Marketing Rights (EMR) for a number of the patent claims in the mailbox.
Nonetheless, there were disagreements over the 2005 Indian Patent Amendment, which included provisions designating certain topics as non-patentable, giving a new definition to "inventive step," and creating a structure for patent applications both before and after they were granted. In order to bring the copyright laws to the digital sphere, regulations pertaining to the copyright rules have been updated. These regulations include software programs covered by Article 10 of the agreement.
Additionally, this determined to award the copyright owner's legitimate claim of commercial software rental, thereby acknowledging that computer software possesses both a commercial and copyright element. Symbolic elements like form, packaging, and color variations have been added to the framework of trademarks, and well-known trademarks, collective marks, and service marks are all included within their context.
THE DOHA DECLARATION
The TRIPS agreement had a significant impact on society and the drug industry by placing pharmaceutical drugs below the category of patentable innovations. As a result, major pharmaceutical firms rushed to register patents in the least developed and emerging nations, which are the regions with the highest demand for their products. The impact of the TRIPS agreement on drug prices was a significant issue for developing nations during a time when diseases like typhoid, malaria, and tuberculosis was common. It appears that pharmaceutical companies have a say in both domestic and international politics.
As a result of their constant efforts to combat the forces of nature and the organisms that spread these diseases, pharmaceutical companies are held responsible for increasing the average life expectancy rates on the planet. The Doha Declaration acknowledged that all nations also had a duty to protect the health of their citizens by implementing procedures like required licensing, the freedom to determine the standards by which authorization is granted, and expanding access to medication for less developed countries.
THE PROVISION OF TRIPS PLUS
Developed economies are already raising the stakes for the security of intellectual property rights through free trade agreements, even though developing countries are still coming to terms with the TRIPS agreement. The United States of America is the only entity in charge here. The TRIPS plus regulations are these sections that permit improved protection of intellectual property rights. The expanding market for database exclusivity by emerging economies for security is another aspect of TRIPS plus agreements. Data confidentiality clauses were designed to protect the medical performance data submitted to the regulatory body in order to demonstrate the security, consistency, and efficacy of a new medication.
This will serve as a deterrent to generic drug manufacturers relying on these details at their own request and using them as the basis for their license applications. The need to secure exclusive content with high economic value appears to be a growing market from developing nations that are normally outside of TRIPs. This action ignites a much larger debate between the creator's exclusive rights and the idea of fair use for social good. India, a developing nation, successfully resisted the implementation of TRIPS plus regulations and has consistently emphasized the need to strike a balance between the rights of the creator and the interests of society. And the FTA talks between India and other countries such as Japan make that clear.
DRAWBACKS OF TRIPS AGREEMENT IN INDIA
Theoretically, India's standing could suffer if the cultural heritage system is abolished. The reason for this is that agricultural practices have been spreading throughout the world for decades, making it difficult to identify a plant's origins or even to locate its original occupants in order to seek justice. The fact that numerous assets have been amassed and kept in foreign gene banks over time exacerbates this condition. As a result, anyone attempting to gain entry would have to make concessions to multiple countries and acknowledge that they are not the sole suppliers. India's position extends beyond that of a supplier. India will also have to deal with the resources required to meet its needs as a supplier of genetic data from numerous other countries. Because of this, the entire task of tracking and pursuing intellectual property rights cases will seem overwhelming in terms of both legal fees and financial outlay.
The general public fears that the product patent may result in price increases, making prescription drugs unaffordable for those in poverty. If there were no product patents, the creator would continue to increase his profit, which would result in a higher product cost. As a result, less drug would be consumed. This illustrates an implicit decline in benefits for the expensive prices Indian consumers pay for the use of product patents.
In the realm of research and development, collaboration with foreign firms is the norm. The absence of qualified Indian pharmaceutical industry members to advance a potential product from the experimental phase to the launch stage results in biases in patient preferences with regard to diseases associated with lifestyle choices. These diseases claim thousands of lives annually in developing countries like India. The revision of intellectual property laws may allow numerous Indian companies to conduct research rather than continue producing more products, as opposed to continuing with the creation of all the medications that industrialized nations had previously produced.
TRIPS is unlikely to enhance the opportunities for multinational pharmaceutical companies to conduct business in developing nations or collaborate with research and innovation centers there. This is obviously unlikely to happen, but it doesn't because of some of the difficulties in delivering infrastructure and quickly obtaining correct data to guarantee agreement adherence.
The comprehensive intellectual property regime is covered by the new TRIPS agreement, in addition to its trade-related components. The developing nations expressed their concerns and actively worked to protect the pharmaceutical industry's contribution to global health through the Doha Declarations. Developing countries are once again under tremendous pressure, as industrialized nations require higher standards of intellectual property security than any contained in the TRIPS agreement. However, developing nations like India do have an opportunity to ensure that their rights are upheld. Nations such as India possess copious amounts of labour and manpower, along with an even greater reservoir of intellectual capital. Emerging economies must also play a major role in increasing the number of skilled workers in their country.