India: International Regime Of Intellectual Property Laws And Its Importance In Trade

Last Updated: 10 September 2019
Article by Mridula Dalvi

Meta Description/Abstract:

Protection of intellectual property protection is done by granting the inventors the sole right to exploit their innovation, which includes the exclusion of others from the use of their creations. Consequently, it is easy to see why intellectual property rights (IPR) would  have a direct and substantial impact on industry and trade – the owner of an IPR may – while exercising his/her right – prevent the manufacture, use or sale of a product which incorporates the IPR.

Moreover, over the last two decades or so, there has been a ginormous shift in intellectual property law and policy in nearly every country. A large number of these changes that have taken place over these last few years, can be attributed to a gradual intersection of intellectual property rights with international trade. This increasing intersection can be witnessed by merely looking at the international trade agreements brought into force during this period. It can also be seen by the rapid increase in cross-border exchanges of goods, services and capital.

International Regime of Intellectual Property Laws:

Today, trade and commerce in any commodity takes place on a global platform. Intellectual property is no exception to this. Therefore before looking at intellectual property and trade, we must first understand the legal regime that governs intellectual property and the protection of this intellectual property. This regime is what acts the base for any trade, be it international or national, of intellectual property.

a) The Paris Convention on the Protection of Industrial Property-

This convention was concluded in 1883. It was the first international instrument to cover patents on industrial innovations.

b) The Berne Convention for the Protection of Literary and Artistic Works-

Three years after the Paris Convention, the Berne convention was established to cover copyright,

c) Madrid Agreement Concerning the International Registration of Marks

Having dealt with some form of international protection for patents as well as copyright, there was felt a need for the protection of trademarks at the global level as well. Accordingly, the Madrid Agreement dealing with trademarks was concluded five years after the Berne Convention.

These three agreements even today can be said to cover the major principles of protection of the principal categories of intellectual property.

d) The Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (BIRPI)

This was a larger umbrella organization, which encompassed within itself the three Conventions as mentioned above. Eventually In the year 1893; in the post-World War II era this evolved into World Intellectual Property Organization (WIPO), based in Geneva.

e) World Intellectual Property Organization (WIPO)

WIPO is the modern day international body dealing with the regulation of intellectual property. It became a formal part of the United Nations system in 1974.

Focus of WIPO

The major focus and aim of WIPO can be encapsulated into the following-

a) The establishment and development of the best intellectual property standards- The aim of WIPO is to get its member nations to agree upon norms that are of as high a standard as possible, which must also ideally be consistent and coherent.

b) The development of a balanced and effective international intellectual property (IP) system that enables innovation and creativity for the benefit of all.1

When we talk about the trade related aspect of WIPO, it has to be noted that, unfortunately, international trade concerns and issues have never been the focus of WIPO it has taken a back seat due to other agendas.

f) TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization. When it comes to trade and intellectual property, this is the most relevant and comprehensive Agreement. It came intoeffect on 1st January. The Agreement contains minimum standards in relation to intellectual property. Countries that are party to the agreement must make efforts to implement these standards, and in fact can provide more protection than is prescribed.

It is to date the most comprehensive multilateral agreement on intellectual property2 which can be gauged by the varied intellectual property by it Copyright, trademarks, geographical indications, industrial designs; patents, layout-designs of integrated circuits; andundisclosed information which covers trade secrets and test data.3

International Trade and Intellectual Property:

Intellectual property rights are extremely important to the competitiveness of the various post-industrial economies. The TRIPS Agreement for the first time led to a worldwide agreement on the issues which intersect between intellectual property and trade. Intellectual property has finally been accepted as an area to which internationally-recognized rules and disciplines apply. Protection and enforcement of these rights are critical to many global industries, including research based pharmaceuticals, whose livelihood and ability to contribute to the world depend upon innovation.

Scope of intellectual property protection as a trade issue within various industries-

Computer software:  The illegal piracy and distribution of computer software (primarily an intellectual property) worth crores of rupees is a major issue that is threatening the required heavy investment. Without this heavy investment, there is hardly any innovation.

The Pharmaceutical industry: This is again another industry which also must carry high front-end R&D expenses. However, there are so many countries with such ineffective drug protection that it becomes almost impossible to enter and sustain in those markets.

Publication, production etc.: Inadequate protection of copyright rights leads to a definite chilling effect on publishers, producers, composers, and authors who see their material infringed without repercussions.

This is also applicable to retailers who end up losing a lot of valuable business to the pirates.

The threats of inadequate protection: Due to inadequate protection of intellectual property such as trademarks in a number of countries, the fraudulent marketing of substandard and dangerous counterfeit items like automobile replacement parts, agricultural chemicals etc.is encouraged,

The products and services that should be protected by intellectual property law account for a significant portion of trade, and inadequate protection today plays a major distorting role in world trade. This is all the more troublesome at a time when trade imbalances are already threatening existing open marketplaces.

Therefore, we can see that there is an intricate relationship between trade and intellectual property.

Importance of Intellectual Property in Trade:

"I oppose piracy and want to see intellectual property protected because that is what fosters and rewards innovation."

Intellectual property protection is crucial in fostering international trade. International trade refers to the exchange of goods and services across borders. This increasing exchange of goods across the world has led to the emergence of a virtual global market which comprises of almost all countries, and survives on a robust trade system and friendly trade relations between nations. For obvious reasons, businesses are eager to tap into this market, which has led to it becoming extremely competitive. Access to new markets has become easier now than it ever was. In order for businesses to survive in this cutthroat environment, an extremely strong domestic and international regime for the protection of all kinds of intellectual property becomes essential.

Considering intellectual property while trading has many benefits. It ensures that you maintain exclusivity for your products and provides an opportunity to stop imitators. It also helps in avoiding infringement upon other's Intellectual Property rights.

Case study:4

A European company selling advanced knitting machinery to manufacturers in China discovered that a local competitor was selling a competing product not under the company's European trademark. The dimensions, exterior covering, colors of the product was the same. Even the brochures and website photos of the original product was copied by this local product.

Apart from this, even the product specifications of the original product were given even though the local product did not meet those specifications. As an obvious result of this, the customers were misled. However, the company did not have any patents registered in China. It could only rely on claims of copyright infringement on their brochure artwork and infringement of the Anti‐Unfair Competition Law in relation to the false claims on the brochure. The company then engaged a local law firm to send a warning letter to the competitor which led the competitor to change the photographs and some of contents of the brochure. The company was left with but no legal basis to force them to change the appearance of their product

Therefore, we can clearly see that the importance of intellectual property when it comes to trade cannot be undermined.

Conclusion and Suggestions:

After looking at the various aspects of trade and intellectual property, it is made clear that there are still a few lacunae when it comes to trade and Intellectual Property. There are many ways in which the international regime could be altered to ensure better cohesion between intellectual property and international trade.

Some important things that can be done to improve the situation are as follows:

A rigid enforcement system:

Unfortunately, the regime that has been established by TRIPS is not sufficient to face the modern day challenges facing trade and intellectual property.  One of the major drawbacks of the TRIPS Agreement is that it does not lay a strong international enforcement procedure.  Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their local system and practice. The TRIPS therefore becomes a kind of toothless mechanism, which does put any strong obligations upon its members.

A combination of these factors has ensured that where trade is involved, the enforcement of intellectual property rights standards and norms has taken place mainly at the national level through national laws put in place by various countries, and not at the international level.

Therefore the major need of the hour is the development of a proper international mechanism for the enforcement of the rights and obligations of the parties.

Global Consensus on the importance of trade and international trade:

Although the TRIPS Agreement is 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 to a better protection of the rights of the inventors.

Footnotes

1.https://www.wipo.int/about-wipo/en/

2.https://www.wto.org/english/

3.https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

4.https://www.wipo.int/edocs/mdocs/sme/en/wipo_smes_waw_10/wipo_smes_waw_10_ref_theme_11_01.pdf

5. V.K. Ahuja, Law relating to Intellectual Property Rights, 3rd Edn. (2017)

 6. Christopher M. Kalanje, Role of Intellectual Property in Innovation and New Product Development

7. Kenneth W. Dam, The Growing Importance of International Protection of Intellectual Property

8. Gerald J. Mossinghoff, The Importance of Intellectual Property Protection in International Trade

9. John M. Curtis, Intellectual Property Rights and International Trade: An Overview

10. https://indiankanoon.org/

11. http://www.scconline.com

12. http://www.manupatra.com

13. https://www.wipo.int

14. https://www.wto.org/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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