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TRIPS

 TRIPS 


  • There was a need for TRIPS because in former conventions there was no obligations on states to become a member of it. TRIPS was proposed in Uruguay round of GATT and was agreed in 1994 at the ministerial meeting in Morocco and came to force in 1995. It was obligatory for all the WTO members to become a member of TRIPS. 


  • TRIPS tried to ensure some kind of standardisation which was not present in Paris and Berne Convention. One of the most important standardisations is related to product patent regime. India before TRIPS has process patent regime, which allowed Indian pharmaceutical giants to reverse engineer the existing pharmaceutical and chemical combinations.  


  • TRIPS under the disguise of trade agreement holistically changed the dimension of IPR regime globally. 


  • It contained minimum protection period, provisions with respect to subject matter, a dispute resolution mechanism and product patent regime. 


  • It gave a mandate to member states to give exclusive market rights to pharmaceutical and chemical compositions where product patent regime does not exist. The EMR was given without any examination.    


  • Differences in national legal system were taken into account and a transition period was given to underdeveloped and developing countries. India got transition period till 2000. 


  • There is an obligation on the countries to create laws within their domestic legislation for technology transfer i.e. transfer of technology, skill and procedure from owner to market place to ensure further development for betterment of the society. 


  • TRIPS only provides minimum obligations and leaves it upon the member states to adopt more extensive protection.  


  • It also has the provision of national treatment and Most Favoured Nation.

  • TRIPS did not overrule the former conventions, it has taken references from the same. 


  • For the purpose of dispute resolution, the issue of exhaustion of IPR shall not be addressed i.e. once the IP is sold to someone with consent of the IPR holder, the IP right of the owner is said to be exhausted and cannot be exercised by the owner. It is also called first sale doctrine (Article 6). Here, the physical right is lost not the intellectual property right. 


  • Article 7: By protecting IPR, there should be promotion of technological invention and technology transfer to the mutual benefit of producers and users. This transfer and dissemination of technology should be conducive to social economic welfare. 


  • Article 8: It is the obligation of the member states to ensure than when amending laws and regulations, they must adopt measures to protect public health and nutrition. Through provisions like compulsory licensing, public interest is also maintained such that any particular sector does not lose out on the growth without a particular technology.


  • There also needs to be appropriate measures to prevent abuse of IPR by right holders and any practices of the right holders should not unreasonably restrict the trade. Eg: In Standard Essential Patents i.e. patents which are considered to be an industry’s standards, mandatorily at subsidies rates licenses have to be given to people. There are set by a private entity Standard Setting Organisation. This provision ensures that monopoly is not exerted which leads to restraint of trade or abuse of IPR. It is nowhere mentioned in our legislation and if it is not there, compulsory licensing will have to be done. SEPs also help in identification of growth of economy.


  • TRIPS also focuses on international transfer of technology. 


  • Article 9: Copyright protection extends to expression and not ideas. It will not be given to procedure, method of operation or a mathematical concept either.  


  • Article 10: Copyright protects original work. However, compilation of data can also be copyrighted. Here, the data is not getting copyrighted but the arrangement is.


  • Article 12: The TRIPS agreement provides that a work, other than a photographic work or a work of applied art, created by a legal person shall be protected for not less than 50 years from the end of the calendar year of publication. If the work is not published, then 50 years from the end of the calendar year of making.
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