"WAIT A MINUTE... WHO ARE YOU?" RUSSIA'S RESPONSE TO UNFAVOURABLE NATIONS: SHOULD THE INTERNATIONAL IP ENFORCEMENT SYSTEM BE RECONSIDERED?
"The last thing the public wants at this point is a patent holder holding out his test, vaccine, or cure"
- Kalyan C. Kankanala
A person who follows the world news is well versed in the ongoing war between Russia and Ukraine, and the developments going on in regard to it. Though the war may be between Russia and Ukraine, but it isn't only these two countries who are directly and adversely affected by it. Many nations amid the war tried to put sanctions on Russia in their own way, some banned oil imports from Russia, while some put bans on the export of luxury goods. But it did not stop Russia, they fight back. Russia on 10th March 2022 decided to target the unfavourable nations (nations who put sanctions on it), and allowed infringement of patents of anyone associated with these nations. This clearly came as a shock to all the patent holders and other intellectual property holders got worried.
Intellectual Property & International Law- A friend or foe?
To protect intellectual property in their national jurisdiction different countries had passed various enactments from time to time.
In the 19th century, the various policies framed by the different states for the protection of IP have always found themselves centring around the economic self-interest of that particular state.1 These policies were blatantly allowing intellectual property infringement in the name of economic and public interest. The practice of piracy for the sake of the general interest of the public was common,2 one such example can be the Statue of Anne which excluded works written in foreign languages from the ambit of copyright protection.
But as time passed the states realised the need to protect IP overseas and by the end of the 19th century, most states realised that for the protection and enforcement of IP, there is a need for some type of international corporation.
Though as time passed various agreements and treaties have been incorporated to globally protect IP rights. The first ones in the picture were bilateral agreements. The bilateral agreements resulted in the creation of a complex and exhaustive network of legal arrangements. Though bilateral agreements were a huge step forward but gravely insufficient in the matter, the reason being their failure to deal with problems of interstate trade.
This made the need for IP conventions more necessary than ever, and the major ones were the Paris Convention for the Protection of Industrial Property, 1883 and the Berne Convention for the Protection of Literary and Artistic Property, 1886. But the most prominent of them was the Trade Related Aspects of Intellectual Property Rights Agreement 1994 (TRIPS Agreement).
TRIPS Agreement imposes an obligation on the part of member states to grant protection of intellectual property in a similar sense as it grants to its nationals.3 Further in regards to patents shall be available for any new invention or one including inventive step, and rights regarding the same shall be enjoyed by parties without any discrimination on the place of invention.4 The agreement provides for an exception to rights conferred on the condition that the exception does not prejudice the normal interest of the patent owner 5 or is in conflict with the normal exploitation of the same.6
Article 41 (1) of the TRIPS Agreement provides that member states shall incorporate effective procedures to curb any act of infringement of intellectual property. But the catch here is in clause 5 of the article which states that this part i.e., Part III of the agreement does not create an obligation to set up a different judicial enforcement system for intellectual property than that of general law.
WTO's Dispute Resolution Procedure is it enough?
Part V of the TRIPS Agreement talks about dispute prevention and settlement under Article 64 states that for consultation and settlement of disputes, the WTO Agreement's integrated dispute settlement procedure shall apply. Thus, a question arose is the said dispute resolution system effective to be followed in modern times?
To measure the effectiveness of any dispute resolution system, one of the many pointers is the number of cases pending before them. According to World Trade Organisation, from 1995 to 2021, the number of cases concerning the TRIPS Agreement, in WTO Dispute Settlement Body is only 48. And if we go through chronologically the number of cases raised in front of the Dispute Settlement Body (DSB), the highest ever was 50 in the year 1997 and only 20 in 2019 and merely 05 in 2020. These depleting numbers clearly show the fleeting trust of parties in the DSB.
But it's still too early to conclude whether DSB is effective or not. Let us shift to the average time taken by DSB in settling a dispute. For each stage of the litigation procedure, the WTO Dispute Settlement Body (DSB) lays forth strict deadlines. WTO dispute resolution adhered closely to these deadlines in its early years. Many of those periods have been dropped for several reasons. During its initial years, WTO DSB used to take generally 226 to 455 days. But on taking a look at today's picture the average time taken is double than initial years ranging from 365 to 1,117 days. Thus, it is not wrong to say that WTO DSB has been hit with a delay, even though in its initial year it served as a ray of hope in resolving disputes speedily.
The next pointer is punishment and remedy. Punishing or sanctioning a member was never the key feature of the WTO system, as there is nothing regarding punishing the wrongdoers.7 There is the possibility of seeking compensation or getting permission to retaliate.8 In a way, those are sanctions. But rather than penalising the respondent, they are more concerned with offering the complaint some sort of reparation. However, there are no true parallels to compensating remedies that result from contract violation.9
What does the author believe?
From all the discussions done above, it is quite evident that there is a need to change the way intellectual property disputes are resolved. It is established by the author that the prevailing DSB is not quite effective as it used to be and lacks proper remedial measures. One way to tackle this problem is to introduce a dispute resolution system in which both the party submits to hold that system's decision as final and binding, like International Arbitration Systems. Also, there is a look again into the provision of Article 73 (b) (iii) of TRIPS which allows the member to deviate from the TRIPS agreement in times of war. But this provision is quite wide in the respect that it applies to all members and not only those against which one member is at war. It is due to the presence of this provision that the act of Russia is legally valid. With all the problems it is high time that a new dispute resolution system is adopted.
Though the TRIPS agreement was the greatest agreement regarding international protection of IP rights, with changing times it is time to introduce changes in the agreement too. This may be by way of introducing a new dispute resolution system or amending prevailing provisions, but it is undeniable fact that the need is there. And if nothing is done soon enough, then every member may, after waging a war respond as "wait a minute..., who are you?"
1 Justine Pila & Paul Torremans, European Intellectual Property Law, (OUP 2016) 30
3 Art. 3 TRIPS
4 Art. 27 (1), TRIPS
5 Art. 30, TRIPS
7 Donald McRae, Measuring the Effectiveness of the WTO Dispute Settlement System. Asian Journal of WTO & International Health Law and Policy, 2008, 3(1), 1.
8 Understanding on rules and procedures governing the settlement of disputes, Arts. 21-22.
9 Supra note 7.
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