Trade related Intellectual Property

Trade-related intellectual property refers to the intersection between intellectual property (IP) rights and
international trade. It encompasses the legal protections and rights granted to individuals or companies
for their creations or inventions, which may include patents, trademarks, copyrights, industrial designs,
and trade secrets.

The World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement) plays a central role in governing trade-related intellectual property. It sets
international standards for how member countries should protect and enforce intellectual property
rights, aiming to strike a balance between promoting innovation and creativity while facilitating
international trade.

The TRIPS Agreement requires WTO members to provide minimum standards of IP protection and
enforcement, covering various fields like pharmaceuticals, biotechnology, software, music, and other
creative works. It also addresses issues related to patents on new technologies, protection of
geographical indications, and other aspects of intellectual property that can impact trade.

By providing a framework for trade-related intellectual property, the TRIPS Agreement aims to foster
innovation, encourage technology transfer, and create a fair and level playing field for businesses
involved in international trade.

Trade-related intellectual property is a subject of significant international debate and negotiation.

International agreements like the TRIPS Agreement under the World Trade Organization (WTO) play a
vital role in harmonizing and establishing minimum standards for intellectual property protection
worldwide, facilitating fair trade and the protection of creators' and inventors' rights.

What are intellectual property rights?

“Intellectual Property shall include rights relating to literary, artistic, and scientific works, discoveries
throughout all areas of human endeavor, scientific advances, industrial design rights, trademarks,
service marks, and commercial names and designations, protection against unfair
competition,” states Article 2 of the WIPO (World Intellectual Property Organization) – Central
Organization for the Protection of Intellectual Property laws and the UN expert organization.

Intellectual property rights are the rights granted to individuals over the creation of their minds. For a
set period of time, they usually grant the creator exclusive rights to use his or her creation. Intellectual
property (IP) is a non-tangible asset developed by the human mind. Business organizations may use IP to
gain a competitive advantage and drive their growth. Intellectual property ownership interests, like any
other property, can be assigned, licenced, or otherwise passed to third parties.

Internationally, intellectual property rights (IPR) are valued and exchanged. The WTO’s TRIPS (Trade-
Related Aspects of Intellectual Property Rights) agreement recognises the importance of IP in
international trade. The TRIPS Agreement establishes basic requirements for member governments’ IPR
protection.

Copyrights and related rights

The Agreement states that copyright protection only applies to phrases, ideas, techniques, operating
methods, or mathematical concepts. Literary, musical, dramatic, photographic, sculptural, architectural,
choreography, graphic, motion picture, sound recording, multimedia work, computer programs, and
other works are all given copyright. For a certain amount of time, the owner of a copyright has the right
to prevent others from duplicating, distributing, making derivative works, performing, exhibiting, or
utilizing the work covered by the copyright. The essence of copyright is originality, which means that the
work was created by the copyright owner or claimant. A work of originality, on the other hand, does not
have to be innovative. In copyright law, originality does not entail innovation.

The Berne Convention protects computer programs in both source and object code, and compilations of
data in machine-readable or other formats constitute creative works due to the selection or
arrangement of their contents and are thus protected by the Agreement. In the case of computer
programs and cinematographic works, authors are granted the right to approve or restrict commercial
renting of originals or copies of protected works to the public. However, if giving rental rights leads to
widespread copying of such works, jeopardising the work’s uniqueness, member governments can
revoke such rights. The term of protection extends up to not less than 50 years as per Article 12 of the
Agreement.

Trademarks

Article 15 states that any sign, or set of signs, able to distinguish one undertaking’s products and
services from other undertakings’, shall be eligible for trademark registration, provided that it is clearly
detectable. Such signs, in particular words, characters, digits, figurative components, and colour
combinations, as well as any combination of these signs, must be acceptable for trademark registration.
According to Article 16, the trademark owner has the exclusive right to restrict third parties from using
similar or identical signs for products or services that are similar to those for which the trademark is
registered.

Geographical indications

As per Article 22, geographical indications designate a good as coming from a member’s territory, or an
area or place within that territory, where the good’s quality, reputation, or other attribute is largely due
to its geographical origin. Traditionally, some commercial items have been manufactured in a
geographically defined territory. In commercial relations, the geographical indicator becomes the
dependable “carrier” of qualifying product features when these items are accredited to certain criteria
fundamentally due to their geographical provenance. The purpose and value of geographical indications
are subsequently given to trademarks, and they are entitled to legal protection.

Industrial designs

Articles 25 and 26 of the agreement says members must ensure that fresh or unique industrial designs
generated independently are protected. The Agreement, which is based on the Paris Convention but
goes much beyond it, promises to preserve industrial designs for a minimum of 10 years. When such
activities are conducted for commercial objectives, the right holder can ban third parties who do not
have the holder’s agreement from producing, importing or selling items that incorporate the protected
design.

Patents

According to Article 27 of the agreement, a patent is an intellectual property right (IPR) awarded to
inventors. The inventor, as the patent owner, has the right to prevent anybody else from creating, using,
selling, or importing the patent-protected invention in a specified region for a set length of time.

The basic criterion of patentability is subject to three exceptions. One is for innovations that are against
the public good or morals- this includes inventions that are harmful to human, animal, or plant life or
health, or that are substantially harmful to the environment.

Members may also exclude diagnostic, medicinal, and surgical procedures for the treatment of people
and animals from patentability.

The length of protection is normally 20 years from the date of filing of the patent application. Member
nations could provide specific exemptions to exclusive rights conferred by a patent under Article 21 of
the Agreement, given that such exclusions do not unreasonably conflict with a normal exploitation of
the patent and therefore do not unreasonably bias the patent owner’s legitimate interests, taking into
consideration the legitimate interests of third parties. Furthermore, Article 29 mandates that the patent
filing discloses the innovation in a manner that is explicitly clear and complete for a person
knowledgeable in the art to carry out the invention. Article 31 of the Agreement contains provisions that
allow the government of a member nation to award a compulsory licence for medicines without the
patentee’s approval, subject to specific circumstances.

Layout-Designs (Topographies) of Integrated Circuits

Importing, selling, or distributing (for commercial reasons) a secured layout design, an integrated circuit
where a secured layout design is implemented, or an article including such a circuit is prohibited under
Article 36 of the Agreement. From the date of filing an application for layout designs, the protection
offered in this sector of IP is at least ten years. According to Article 37, member countries may limit the
length of protection to fifteen years from the date of development of the layout design.
Protection of undisclosed information

The information which is undisclosed is referred to as a trade secret. Article 39 of the Agreement
requires member states to provide trade secret protection in accordance with the Agreement’s
provisions. TRIPS mandates that member countries should create national legislation to prevent such
information from being revealed to, obtained by, or used by third parties without the agreement of the
person who is lawfully in possession of it, in a manner that is inconsistent with fair trade practises. Such
information must be confidential, have commercial value as a result of its confidentiality, and have been
subjected to reasonable efforts to keep it hidden in order to be granted protection.

Why was TRIPS included in WTO negotiation?

The inclusion of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement in the
negotiations of the World Trade Organization (WTO) was driven by several key factors:

1. Trade and Intellectual Property Linkage: The Uruguay Round of trade negotiations, which led to the
establishment of the WTO, aimed to address various trade-related issues comprehensively. Intellectual
property had increasingly become a crucial element of international trade, impacting industries like
pharmaceuticals, software, entertainment, and technology. Including TRIPS in the negotiations
recognized the interconnectedness of trade and intellectual property rights.

2. Harmonization of Intellectual Property Standards: Before the WTO, there was no uniform international
framework for the protection and enforcement of intellectual property rights. This lack of harmonization
led to disparities and complexities in IP regulations across countries. The TRIPS Agreement sought to
establish minimum standards for intellectual property protection that member countries had to adhere
to, creating a more consistent global IP system.

3. Encouragement of Investment and Innovation: The WTO negotiations aimed to create an environment
conducive to international trade, investment, and economic growth. By providing stronger intellectual
property protection, the TRIPS Agreement sought to incentivize innovation and creativity while giving
inventors and creators the confidence to invest in research and development.

4. Resolving Disputes: The inclusion of TRIPS in the WTO negotiations allowed for the establishment of a
robust dispute settlement mechanism. This provided a platform for resolving conflicts related to
intellectual property rights among member countries, ensuring fair and transparent proceedings.

5. Addressing Global Challenges: Intellectual property issues were becoming increasingly important in
addressing global challenges, such as public health (e.g., access to affordable medicines), technology
transfer, and the protection of traditional knowledge and biodiversity. The TRIPS negotiations provided
an opportunity to discuss and address these challenges on an international platform.

Overall, by including TRIPS in the WTO negotiations, the member countries aimed to strike a balance
between promoting innovation, providing protection to intellectual property rights, and ensuring access
to technology and knowledge for development purposes. The TRIPS Agreement became a landmark
agreement in the field of intellectual property, shaping international trade and influencing domestic
intellectual property laws in member countries.

North South Debate in TRIPS Agreement

The North-South debate in the context of the TRIPS (Trade-Related Aspects of Intellectual Property
Rights) Agreement refers to the differing views and interests of developed (North) and developing
(South) countries regarding the protection and enforcement of intellectual property rights.

During the negotiations of the TRIPS Agreement, developed countries, which are primarily located in the
northern hemisphere, generally pushed for stronger intellectual property protection. They argued that
robust IP rights would incentivize innovation, attract foreign investment, and foster economic growth.
Developed nations also sought to protect their industries and technologies from unauthorized use and
counterfeiting.

On the other hand, developing countries, primarily located in the southern hemisphere, had a more
cautious approach toward intellectual property protection. They were concerned that stringent IP
regulations could hinder their access to essential medicines, technologies, and knowledge. Many
developing countries faced challenges in building their domestic capacities and were worried that strict
IP enforcement might impede their socio-economic development.

The North-South debate revolved around several key issues:

1. Access to Medicines: Developing countries were concerned about the potential impact of patent
protection on the availability and affordability of life-saving medicines. They argued for safeguards and
flexibilities that would allow them to produce or import generic versions of patented drugs at lower
costs.

2. Technology Transfer: Developing countries emphasized the need for technology transfer from
developed nations to help them build their domestic industries and capabilities.

3. Protection of Traditional Knowledge: Many developing countries possess rich traditional knowledge
and biodiversity, and they sought provisions to protect their traditional knowledge from
misappropriation and exploitation.

4. Cost of Compliance: Developing countries expressed concerns about the costs associated with
implementing and enforcing stronger intellectual property protection, especially for small and least-
developed economies.

The North-South divide was a significant challenge during the TRIPS negotiations, with developed and
developing countries often having divergent positions and interests. In the final agreement, certain
flexibilities and transition periods were included to accommodate some of the concerns raised by
developing countries. The Doha Declaration on TRIPS and Public Health, adopted in 2001, was a notable
outcome that reaffirmed the flexibility of TRIPS provisions to safeguard public health and access to
medicines.

While the TRIPS Agreement aimed to strike a balance between protecting intellectual property rights
and promoting access to knowledge and technology, the North-South debate remains an ongoing and
evolving issue, particularly as the global landscape of innovation, trade, and development continues to
change.

Implication of TRIPS

TRIPS (Trade-Related Aspects of Intellectual Property Rights) is an international agreement administered

by the World Trade Organization (WTO). It has significant implications for various sectors, including
agriculture, health, pharmacy, and technology transfer:

1. Agriculture: TRIPS can impact agriculture by granting intellectual property protection to plant varieties
and biotechnological innovations. This may lead to increased control by corporations over genetically
modified seeds and agricultural technologies, potentially affecting farmers' rights and access to
affordable seeds.

2. Health: TRIPS has been a subject of debate in the context of public health, particularly in developing
countries. The agreement's provisions on pharmaceutical patents have implications for access to
essential medicines. Patents can restrict generic drug production, making medicines more expensive and
less accessible, especially in countries with limited resources.

3. Pharmacy: TRIPS strengthens patent protection for pharmaceutical products and processes, leading to
longer exclusivity periods for innovative drugs. This can impact competition and hinder the availability of
more affordable generic medicines, affecting both patients and healthcare systems.

4. Technology Transfer: TRIPS aims to promote technology transfer between developed and developing
countries. However, concerns have been raised that strong intellectual property protection may
discourage technology transfer due to fears of infringement litigation. This can hinder the diffusion of
vital technologies to developing nations.

Overall, TRIPS has complex implications on these sectors, and finding the right balance between
intellectual property protection and ensuring access to essential goods like medicines and technologies
remains a challenge. Countries often navigate flexibilities within TRIPS to safeguard public health and
promote innovation while complying with their international obligations.