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Intellectual Property Rights is a direction field where the multilateral and bilateral agreements are intersecting and harmonising them in national laws. It has become an increasingly important and often litigated field, particularly in the areas of patent, copyright, and trademarks. In the last century, due to the complexity of national legislation, it was difficult to obtain protection of intellectual property rights in different countries before any international agreement existed in the field of intellectual property. In fact, patent applications in all countries had to be submitted approximately at the same time to prevent publication in one country destroying the novelty of the invention in other countries. Via World Intellectual Property Organization (WIPO), the cutting edge problems of intellectual property are discussed on an international basis. The movement towards globalisation in the trading field, along with modern ways of security, had a significant influence on the harmonisation of national laws. Also, through the World Trade Organization (WTO) and international trade organisation.` For understanding the intricate relation between the international conventions and the growth of Intellectual Property Rights the article is divided into two parts. The first part talks about the history behind the formation of the International conventions and the article finally culminates into the brief understanding of leading international bodies concerning IPR.
History of the Growth of IPR Governing Bodies
The roots of intellectual property rights can be traced back to ancient days when the Byzantine Empire had monopolies. Ancient Greeks and later Roman Empire started to exhibit Intellectual Property Rights production characteristics. The Senate of Venice undertook the first proper development of bodies relating to IPR in and around 1432. The Vienna Congress organised by the Austria-Hungarian Empire in 1873 can be regarded as the cornerstone of the development of International Human Rights and its governing bodies. It elaborated a range of principles on which a valuable and efficient patent should be based and urged governments “to bring about as soon as possible an international consensus for Intellectual Property Rights security“. In 1878, an International Conference on Industrial Property held at Paris as a follow-up to the Congress of Vienna. The main take away of that was a decision that one of the governments should be asked to convene an international diplomatic conference with “the task of determining the basis of uniform intellectual dispute legislation“
International Treaties and Conventions on Intellectual Property
- World Intellectual Property Organization (WIPO)
The World Intellectual Property Organization (WIPO) is an international body that defends the interests of creators and proprietors of intellectual property worldwide. It was adopted at Stockholm on 14 July 1967 and enforced on 26 April 1970. On 1 May 1975 India became an official WIPO member. The origin of the WIPO dates back to 1884 when the Paris Convention entered into force with 14 Member States establishing an International Bureau for the performance of administrative tasks, such as organising Member States’ meetings.
Structure of World Intellectual Property Organization
General Assembly, consisting of the State Party to the WIPO Convention, who are representatives of the Unions; WIPO carries out its duties and programs through four bodies. The primary one is convention consisting of a State Party to the Legislature, whether or not they belong to either of the Unions. Coordinating Committee consists of a State Party to the convention which is a member of the Paris Union Executive Committee or of both. International Bureau, it is the organization’s Secretariat. The Director-General shall direct it, assisted by two or more Deputy Director General. The Director General is WIPO’s chief executive, and is named for a fixed period not less than six years. The DG reflects, communicates and conforms to the organisation General Assembly guidance on the internal and external affairs of the organising. In addition to these four institutions, the WIPO has recently established a World Wide Academy for the dissemination of information and knowledge related to IPR throughout the world.
Aim and Objectives of WIPO
WIPO came into existence with two main objectives, namely for the advancement of intellectual property rights worldwide and to safeguard administrative cooperation between the intellectual property Unions defined by the WIPO-administered Treaties. The aims of the WIPO are to:
- Encourage the defence of intellectual property rights by supporting new treaties;
- To help in the modernisation of domestic legislation;
- Gather and provide technical assistance and information
- Ensure cooperation between member countries by centralising the management of accords.
- The Paris Convention for the Protection of Industrial Property
The Paris Convention applies to commercial matters land in the broadest sense, including patents, trademarks, product designs, utility models (a type of ‘small-scale patent‘ laid down by the laws of some countries), service marks, trade names (indications of manufacturing or commercial activity), geographical indications (indications of source and designations of origin).
The Salient features of the Paris Convention
- The relevant provisions related to National Treatment are contained in Articles 2 and 3 of the Convention. Under National Treatment Provisions, the convention provides for this in respect of Industrial property security, for each Contracting State shall grant nationals of other Contracting States the same protection it grants to its own nationals. Non-Contracting States nationals are only approved to seek national care under the convention should they be domiciled or have a true and successful commercial or industrial establishment in a Contracting State;
- The “right of priority” means that, in the light of a common application for an industrial property right submitted by the individual applicant in one of the Member States, the same applicant, or his successor in title, may seek protection in all other Member States within a defined period of time (six or 12 months). Those subsequent requests are deemed to have been filed on the same day. Article 4 of the convention contains the “Right to Priority” clause.
- Article 4b(5) provides for a special feature of the patent independence principle for invention. The provisions require that a patent issued in respect of an application stating the priority of one or more international applications should be granted the same period as would have been granted under national legislation if no priorities had beenasserted.
Common Rules under the Paris Convention
- Article 5C(1) provides for the obligation of the use of registered trademarks. Any of the countries allowing for the registration of a trademark often allow the use of trademarks within a certain time period once licensed. Unless the usage is not complied with, the label may be expunged from the registry. “Using” usually means the selling of marked products even though national laws can govern how the label is to be used more broadly. “Usage” means selling of the products labelled.
- The Paris Convention does not prescribe the requirements for filing and recording marks, which are decided by domestic law in each Contracting State. Consequently, no request to sign a mark lodged by a national of a contracting State should not be rejected, nor will it on the court, registration shall be invalidated it has not been filed, registered or renewed in the country of origin. A trademark approval received in acontracting States is independent of their possible enrollment in some other state, including the country of origin; consequently, the lapse or cancelation in one Contracting State of the registration of a mark shall not affect the validity of the registration in other contracting States.
- In each Contracting State industrial designs must be covered, and security cannot be forfeited on the ground that articles containing the model are not created in that State. Each Contracting State shall take steps against the direct or indirect use of a false indication of the origins of the products, or the name of the maker, seller or broker. Each Purchase State must safeguard adequately to fight unfair competition.
- The Berne Convention for the Protection of Literary and Artistic Works
International copyright enforcement started in the middle of the nineteenth century, on the basis of bilateral treaties. The need for a standardised structure led to the Berne Convention for the Protection of Literary and Artistic Works being drafted and adopted on 9 September 1886. The Berne Convention represents the oldest legal copyright treaty. The purpose of the Berne Convention, as indicated in its preamble, is “to protect the rights of authors in their literary and artistic works in the most efficient and consistent way possible.” Article 1 stipulates that the countries to which the convention applies constitute a Union for the protection of authors’ rights in their literary and artistic works.
The basic principles of the Berne Convention for the Protection of Literary and Artistic Works
- There is the concept of “national treatment,” according to which works originating in one of the Member States are to be given the same rights in each of the Member States as these are given to works of their own nationals. Research rooted in a Contract States (that is, the founder of which works is a territorial of or works first in that State published in the State concerned) shall be provided same protection in one another contracted states.
- “Automatic protection” exists to the extent that such national care does not rely on any formality. In other words, protection is automatically given, and is not subject to registration formality, deposit or the like. However, if a Contracting State allows for a longer protection period than the minimum laid down in the convention and the job fails to be covered in the country of origin, protection may be refused until protection fails in the country of origin.
- One of the important provisions is the one that covers works or expressions of what is called “folklore.”Without mentioning the word, the convention provides that any member country may give protection to unpublished works where the identity of the author is unknown, but where there is every ground to presume that the author is a national of that country, by designating, through the national legislation, the competent authority which should represent the author of unknown identity and protect and enforce his rights in the countries party to the convention.
The Berne Convention allows for certain economic rights limitations and exceptions, that is, the cases where works can be covered and used without Owner’s permission license, and with no indemnity bill. Commonly, these limitations are called ‘free uses’ of protected works.These are provided for in Article 9(2) (reproduction), in some special cases, Article 10 (quotations anduse of plays as reference for instruction Purpose), Article 10bis (newspaper reproduction or similar articles, and use of works for attempt to monitor current events) and Article 11b (3) (ephemeral recordings for broadcasting purposes).
- The Patent Corporation Treaty (PCT)
The Treaty on Patent Cooperation is an agreement for international patent cooperation. The most critical development in international collaboration in this area after the adoption of the Paris Convention itself is also spoken of as being. The PCT does not allow for the grant of “international patents”. The duty and responsibility for granting patents remains solely in the hands of the patent offices of the countries in which protection is obtained (the “designated offices”). The PCT is not conflicting with, but is simply complementing the Paris Convention. Indeed, under the Paris Convention, it is a special agreement open only to States that are already parties to that convention.
The Features of The Patent Corporation Treaty (PCT) are the following:
- The act establishes an international structure allowing a single application (the “international application“) to be lodged with a single Patent Office (the “receiving Office”) in one language in each of the countries party to the PCT designated by the applicant (“designates“) in its submission.For the smooth running of the procedures, the act provides for systematic review by a single Patent Agency, the receiving Agency, of the foreign application.
- The Patent Corporation Treaty refers each international application to an international search resulting in a report referencing the applicable prior art (mainly published patent records relating to previous inventions) which may have to be taken into consideration when determining if the invention is patentable. The art also provides for centralised international publication and correspondence to specified offices of international applications with relevant international search reports.
- One of the most critical checks in this act is that if it provides an opportunity for an international preliminary review of the international application, which provides the applicant and ultimately the offices which have to determine whether or not to issue the patent, with an opinion as to whether the asserted invention satisfies certain international patentability requirements.
- Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The Uruguay Round of multilateral trade negotiations under the General Tariff and Trade Agreement (GATT) was concluded on 15 December 1993. The agreement creating the World Trade Organization (WTO Agreement) was implemented in Marrakech on 15 April 1994. The negotiations involved, for the first time, debates within the GATT on aspects of foreign trade’s intellectual property rights. The outcome of those agreements, set out in an appendix to the WTO Agreement, was the Trade-Related Aspects Agreement on Intellectual Property Rights (TRIPS). Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the most detailed and important international IPR agreement. The agreement is automatically binding on WTO member countries. The agreement includes most forms of intellectual property, such as patents, copyrights, trademarks, trade secrets, geographical indications, industrial designs.
The Basic Principles of the Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The TRIPS Agreement provides that, for the purposes of the agreement, the term ‘intellectual property’ applies to all types of intellectual property protected by Sections 1 to 7 of Part II of the TRIPS Convention, including copyright and related rights. The fundamental principle regarding the existence and scope of TRIPS responsibilities is that the members should apply the provisions of the agreement and extend the care provided for in the agreement to the nationals of other members. A ‘national’ means natural or legal persons liable for immunity where all members of the World Trade Organization are also bound by the Paris, Berne and Rome Conventions and the Washington Treaty on Intellectual Property in relation to the integrated circuits.
- National Treatment – In accordance with the provisions of the Paris, Berne, Rome Convention and the IPIC Treaty, TRIPS sets out the concept of national treatment which requires the Member to grant care to nationals of other Member States, the latter specified, as provided for in the agreement.Exceptions provided for in the applicable treaties are to be followed under the TRIPS Agreement. The definition extends to both intellectual property and copyright protection. As regards freedoms, the responsibilities extend only in the case of performers, phonogram manufacturers and broadcasting organisations in respect of those rights provided for under the convention
- Most Favoured Nations- TRIPS Agreement introduces the concept of the most favoured nation historically not defined in the sense of multilateral intellectual property rights. This principle stipulates that the nationality of all other Members shall be granted immediately and unconditionally, with certain specified exceptions, to any benefit, privilege or immunity granted by the member to another National. As is the case with national procurement, from this definition is removed the method for the acquisition or protection of intellectual property rights provided for in multilateral agreements concluded under the auspices of WIPO.
- Protection of Existing Subject Matter- the TRIPS Agreement includes clear rules on the impact on the Member of the Agreement on the issue of intellectual property rights on the date the agreement was implemented. While the agreement does not give rise to obligations for the Member concerned with regard to acts occurring prior to the date of application of the Agreement (Article 70.1), the agreement gives rise to obligations existing and protected on the date of application of the agreement or fulfilling the criteria for protection thereafter in relation to all the subject matter.Part II of the TRIPS Agreement sets basic requirements about the availability, scope, and usage of intellectual property rights. This Section covers eight parts relating to copyright, trademarks, geographical indications, industrial designs, patents, and integrated circuit layout designs, defence of confidential knowledge and enforcement of anti-competitive practices in contract licences, respectively.
General Obligations under the Act for the enforcement of IPR
General obligations are a collection of principles for justice, accountability, due process and balance which apply to all civil and administrative compliance procedures covered by the TRIPS Agreement for IP rights.
- Civil and Administrative Procedures and Remedies- The TRIPS Agreement provides that a right holder must be in a position to launch equal and equitable civil legal action against an IP rights infringer protected by the Agreement. It also contains disciplines concerning facts, the defendant’s right to know and compensation
- Provisional Measures- WTO members are expected to enforce provisional compliance quickly and efficiently in two situations: One to avoid infringement of IP rights, in particular to avoid products from accessing distribution networks, including infringing products upon importation immediately after customs clearance. Two, to preserve relevant evidence relating to the alleged infringement.
- Cross-Border Measures- The conditions of the TRIPS Border Measures Agreement enable holders of IP rights to receive cooperation from customs administrations to seize infringing goods at the border and to avoid the release into circulation of such goods. The criteria are only mandatory when imports of falsified marks or pirated copyright products are involved.
- Criminal Procedures- the TRIPS Agreement, criminal prosecutions and penalties are only compulsory in cases of knowingly committed wilful counterfeiting of trademarks or copyright infringement. Members can, but are not obliged to, allow for the implementation of criminal proceedings in certain cases of violation of IP rights, in particular where those are wilfully violated and on a commercial scale.
The aim of these agreements was not only to provide a minimum standard for IPR security but also to provide for the intent of the agreement.which is precisely to develop the suitable envioronment for the growth of IPR Laws. Such agreements provide a minimum standard for implementing IPR which allows right holders to protect their legitimate interests through civil or administrative proceedings. Although the various convention and International bodies are a starting point, there needs to be more consensus and open debate which would lead to a better understanding of what the problems are as well as may lead to effective and workable solutions. Therefore, with the help of a few improvements, the law dealing with intellectual property and International trade could lead tobetter protection of the rights of the inventors.