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TRIPS Agreement explained – Will US support India at WTO on TRIPS Agreement?

TRIPS Agreement explained – Will US support India at WTO on TRIPS Agreement?

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  • GS 3 || Economy || External Sector || World Trade Organisation

Why in the news?

Recently, a group of lawmakers in the US have urged President Joe Biden to support the move by India and South Africa before the WTO for emergency temporary waiver of some TRIPS rules to enable greater production and supply of Covid-19 vaccines, treatments, and diagnostic tests.

What is ‘Intellectual Property’?

  • Intellectual property (IP) refers to creations of the mind, such as
    • inventions
    • literary and artistic works
    • designs, and
    • symbols, names and images used in commerce.
  • IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create.
  • The challenge is to strike the right balance between the interests of innovators and the wider public interest, in order to foster an environment in which creativity and innovation can flourish.

Types of Intellectual Properties:

  • Copyrights: The rights of authors of literary and artistic works such as books and other writings, musical compositions, paintings, sculpture, computer programs and films are protected by copyright, for a minimum period of 50 years after the death of the author.
  • Trademarks distinguish the goods or services of one undertaking from those of other undertakings.
  • Patents: A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.
  • Geographical Indications (GIs) help identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin. Darjeeling Tea is the first product in India to be awarded with GI tag.
  • Industrial designs and trade secrets: Trade secrets are intellectual property (IP) rights on confidential information which may be sold or licensed. The unauthorised acquisition, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.

Significance of Intellectual Property Rights (IPR):

  • The IPRs are of enormous socio-economic significance. Before the arrival of WIPO, the importance of IPRs were well recognised in two important conventions-
    • Paris Convention for the Protection of Industrial Property (1883)
    • Berne Convention for the Protection of Literary & Artistic Works (1886)
  • Now both are international conventions administered by the World Intellectual Property Organization (WIPO).
  • These rights have also been outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.

Some of the significance of IP protection can be highlighted as following:

  • Foster innovation: The legal protection of new creations encourages the commitment of additional resources for further innovation.
  • Prerequisite for economic growth: The promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life.
  • Moral obligations to safeguard the rights of creators: IPR is required to safeguard creators and other producers of their intellectual commodity, goods and services by granting them certain time-limited rights to control the use made of the manufactured goods.
  • Ease of doing business: IPRs promote innovation and creativity and ensure ease of doing business.
  • Transfer of technology: It facilitates the transfer of technology in the form of foreign direct investment, joint ventures and licensing.

WIPO:

  • World Intellectual Property Organization (‘WIPO’) is a specialised agency that ensures the rights of inventors/artists/creators and intellectual property owners are not subject to infringement.
  • Its responsibility consists of the administration of many multilateral treaties that look after the administrative and legal factors of IPR.
  • WIPO is one of the 17 special agencies of the United Nations (UN).
  • Its role is to promote the protection and encourage the creation of intellectual properties, which greatly benefits the economy.

What is ‘TRIPS’?

  • Trade-Related Aspects of Intellectual Property Rights Agreement, also popularly known as (TRIPS), is a comprehensive multilateral agreement on intellectual property.
  • TRIPS was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1986–1994. It came into effect on 1 January 1995.
  • After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization.
  • And because ratification of TRIPS is a compulsory requirement of World Trade Organization membership, any country seeking to obtain hard access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS.
  • The agreement comprehensively covers all aspects of intellectual properties.
  • The obligations under TRIPS apply equally to all member states, however developing countries were allowed extra time to implement the applicable changes to their national laws, in two tiers of transition according to their level of development.
  • The transition period for developing countries expired in 2005.
  • The transition period for least developed countries to implement TRIPS was extended to 2013, and until 1 January 2016 for pharmaceutical patents, with the possibility of further extension

Salient features of TRIPS:

  • Setting minimum standards: TRIPS sets out the minimum standards of IPR protection to be provided by each Member of the agreement.
    • All substantive provisions of the pre-WIPO era conventions such as Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), etc. became obligations under the TRIPS Agreement between TRIPS Member countries.
    • The TRIPS Agreement specifically mentions that software and databases are protected by copyright, subject to originality requirement
  • Enforcement: TRIPS also has provisions which 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.
    • It also contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify the procedures and remedies that must be available so that right holders can effectively enforce their rights.
  • Dispute Resolution: TRIPS agreement settles disputes between WTO member countries concerning TRIPS obligations on every member country, provided that it is subject to the WTO’s settlement of dispute procedures.

Doha Declaration on TRIPs (2001):

  • In November 2001, WTO members adopted the Doha Declaration on the TRIPS Agreement and Public Health, which is categorical that every member has the right to grant compulsory licences (CLs) and the freedom to determine the grounds upon which such licences are granted.
  • The Doha Declaration did not require any amendment to the text of the TRIPS accord because the grounds for CLs were listed in the original text. The Declaration merely served to reinforce that logic.
  • India, as the leader of the developing world has done tremendously well in making full use of these provisions.
  • It was these flexibilities due to which it has become the ‘Phama house of the world’
  • India has also assisted developing and lesser developed countries in devising policies utilising maximum of the flexibilities in the Doha round.

Criticism of TRIPs:

  • Excessive focus on IP protection has led to a drain of wealth from poorer countries to wealthy countries.
  • While the TRIPS system has strengthened the IP protection, it did not have any concrete provision to ensure the legitimate technology transfer in the wider interests.
  • TRIPS has not led to a demonstrable acceleration of investment to low-income countries, though it may have done so for middle-income countries.
  • The importance of TRIPS in the process of generation and diffusion of knowledge and innovation has been overestimated by its supporters. To demonstrate this fact, United Nations findings indicating many countries with weak protection routinely benefit from strong levels of foreign direct investment (FDI).
  • The poor domestic manufacturing capacity and non-access to technology have prevented the developing countries from getting full benefits of flexibilities such as Compulsory Licensing (CL)  which was introduced in the Doha round.

TRIPS+:

  • In addition to the baseline intellectual property standards created by the TRIPS agreement, many nations have engaged in bilateral agreements to adopt a higher standard of protection.
  • TRIPS+ are mainly being devised between two or more developed countries.
  • These collection of standards, known as TRIPS+ or TRIPS-Plus, can take many forms which includes:
    • More stringent restrictions on compulsory licenses for patents.
    • More aggressive patent enforcement.
    • The creation of anti-circumvention laws to protect Digital Rights Management

Recent conflict on the access of life-saving Covid-19 vaccines:

  • In 2020, conflicts re-emerged, over patents, copyrights and trade secrets related to COVID-19 vaccines, diagnostics and treatments.
  • South Africa and India proposed that WTO grant a temporary waiver to enable more widespread production of the vaccines, since suppressing the virus as quickly as possible benefits the entire world.
  • This waiver has been asked in addition to the existing flexibility, called “Compulsory Licensing”.
  • Over 100 developing nations supported the waiver.

Recent National Initiatives to strengthen domestic IP protection:

  • National IPR Policy, 2016: The National Intellectual Property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision document to guide future development of IPRs in the country. It’s clarion call is “Creative India; Innovative India”. The policy aims to create an enabling ecosystem for fostering IP protection as well as to balance the national interests.
  • Patent (Amendment) Rules, 2020: The Patent (Amended) Rules 2020 have come into force on October 20, 2020. By way of the Amended Rules, certain amendments have been made to Form 27. Form 27 is the form prescribed for patentees and licensees to furnish statements regarding working of their patent in India. The information required to be furnished under Form 27 has been a matter of debate for some time now.
  • KAPILA Initiative: KAPILA is an acronym for Kalam Program for IP (Intellectual Property) Literacy and Awareness. Under this campaign, students pursuing education in higher educational institutions will get information about the correct system of the application process for patenting their invention and they will be aware of their rights.

Model Mains Question:

  1. In the context of Covid-19 pandemic, discuss the need to balance between national interest and the significance of protection of Intellectual Property Rights (IPRs).