TRIPS And IPR Regime In India

    The TRIPS regime has been developed as a fundamental instrument for assessing intellectual property rights worldwide. This is not the universal constant of intellectual property. Yet, it offers a fundamental structure that each member state of the World Trade Organization should incorporate within it’s domestic laws. 

    Introduction

    The TRIPS agreement came into effect on January 1, 1995. The TRIPS agreement, i.e. Agreement on Trade Related Aspects of Intellectual Property Rights, includes various categories of intellectual property that are patents, trademarks, copyrights, industrial designs, trade secrets, etc. The privileges granted to individuals and organizations for their originality and advancements are a form of intellectual property. Within a certain amount of time, such rights typically offer the producer an exclusive privilege to use his or her invention. Throughout all levels-statutory, bureaucratic and judicial-the value of intellectual property in India is quite well known. This sets up minimal rules for the treatment and promotion of the rights in the member States that, with a view to reduce distortions and hindrances to world commerce, are expected to facilitate effective and consistent protection of intellectual property. The responsibilities resulting from the TRIPS Agreement correspond to the establishment of basic requirements of security within the legal structures and procedures of the Member States.

    Laws Conforming With The TRIPS Agreement

    Following are the three laws brought into the Intellectual Property Rights regime of India in consonance with the TRIPS Agreement:

    The Copyright Act, 1957

    Like the title suggests, copyright law is the fundamental concept that indicates that if someone makes anything, they own it and then they can decide the outcome. The purpose of this copyright law is essentially twofold: first to guarantee the right of their original expression to writers, composers, musicians, creators and other creative minds who risk their resources in bringing their products well before world, and secondly to enable others to openly expand on the skills and theories expressed by a work. 

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    Works which are not established in a concrete form of speech under copyright law, such as a compositional work that is not registered or recorded in any form, titles, list of items, methods, principles, proposals, etc., really aren’t qualified for copyright law protections. In conjunction, creations consisting of knowledge widely accessible to all and absent of any actual writings are also not covered, such as schedules, height/weight graphs that can be obtained from relevant documentation and other common forms, etc.

    The Trademarks Act, 1999

    A trademark is a word, a string of words, a logo or a mixture thereof which separates one rival’s goods from those of other competitors in the industry. It must be special, distinctive and worthy of becoming visually depicted. In addition, a name can be licensed under trademark law and therefore should be able to differentiate the products or services of one seller from those of another. It preserves and assists in the development of a brand that is extremely critical for the development of a business. 

    The Act provides a full description of the word infringement that is often used. It offers sanctions and penalties for perpetrators under the Trademark Act. Where the registration of a trademark is legitimate, the registered owner shall have an exclusive privilege to use the trademarks in relation to the products and services in consideration of which the trademark is registered and also to claim compensation for the misuse of the trademark. 

    The Patent Act, 1970

    Among the most significant intellectual property rights that serve as an opportunity for companies to innovate is the patent. Not only do they help the developer earn money, they benefit the community in which the patented invention is produced. It gives the nation a push in terms of economic performance. It is essentially giving a monopoly offer to the creator through which the inventor regulates and governs the general accessibility of the innovation. 

    There are two categories of patents, namely product patents and process patents, under the Patents Act 1970. The product patent is the final outcome or creation of a product and the process patent is the direction of the development of a patent. Under the Patent Act, all methods and goods, if they are new, require an innovative phase and are worthy of practical use are qualified to register as inventions. For e.g., Tylenol pills can be treated as a product patent, whereas the process patent is the production of the pills. In a District Court with jurisdiction to prosecute the suit, a patentee has the option to initiate litigation for breach of the patent. 

    Impact Of TRIPS Agreement

    The agreement brought in radical alteration to the Intellectual Property Regime in India. In addition, developments in the area of agriculture, pharmaceutical companies and non-natural and genetic modification living organisms have also been included into the scope of the patentable innovation, given that the discoveries illustrate attributes such as ingenuity, imaginative phase, usefulness and detailed descriptive definition. India was granted a waiver from the enforcement of patents for pharmaceutical and agrochemical products until 2005, but India was forced to introduce a ‘Mailbox’ clause throughout this conversion era to allocate a processing deadline to every request submitted throughout that implementation period. India was also obliged to award Exclusive Marketing Rights (EMR) in respect of certain patent claims in the mailbox. 

    However, the 2005 Indian Patent Amendment was not exempted from its dissensions, this involved clauses defining some of the  matters as non-patentable, added a new meaning of ‘inventive step’ and also established a framework for the patent application before and after grant. Regulations underneath the copyright rules have been modified which included software programs under Article 10 of the deal there under copyright rules, these were altered to offer the copyright rules to the digital world. This also decided to grant the rightful claim of the commercial rental of computer software to the copyright owner, thereby recognizing that computer software not only have copyright, but also a commercial element.[1] Within trademarks, well-known trademarks, collective marks and service marks are included within their context, and the framework of trademarks has been expanded to also include symbolic features such as form, packaging and color variations.

    The Doha Declaration

    Through bringing pharmaceutical drugs underneath the range of patentable innovations, major pharmaceutical firms hurried to register patents in the lowest advanced and emerging nations, these being the regions that have the biggest demand for their products, the TRIPS agreement had a significant influence on the society and the drug industry. It was a major area of problem for developing countries, the consequence of the TRIPS deal on drug costs, it was the period where illnesses such as typhoid, malaria and tuberculosis were widespread. In foreign and national politics, pharmaceutical firms do seem to have an influence. Throughout the functions that these pharmaceutical companies do, they are accountable for raising the average life expectancy rates of the whole planet and are thus always progressing to fight against nature’s order and organisms that carry these diseases. The Doha Declaration recognized that all countries also had the responsibility to maintain population health through using processes such as mandatory licensing, the rights to choose the criteria upon which authorization will be issued, and to expand coverage for underdeveloped nations to medication. 

    The Provision of Trips Plus

    Although emerging nations are still coming to terms with the TRIPS agreement, by means of free trade deals, developed economies already are setting the stakes for Intellectual property rights security. The leader here is nothing but the United States of America. These clauses allowing for better enforcement of intellectual property rights are being called the regulations of TRIPS plus. Another dimension of TRIPS plus agreements is the growing market for database exclusivity by emerging economies for security. In order to show the security, consistency and effectiveness of a new drug, data confidentiality clause intended to safeguard the medical performance data presented to the regulatory body. This will help discourage generic drug producers from depending on these details through their own request and then focusing upon these data when filing for licenses.[2] A booming market from the developing countries which typically does not fall within TRIPs seems to be the need for the security of exclusive content that has high economic value. Such a step sparks a much greater controversy here between exclusive rights of the creator and the principle of appropriate use for social benefit. India, as a developing economy, also managed to fight the introduction of TRIPS plus norms and has often stressed the requirement to find an  equilibrium between both the creator’s own privilege and social welfare. And that’s apparent from the FTA negotiations between India and countries such as Japan. 

    Drawbacks Of TRIPS Agreement In India

    The removal of the cultural heritage system could theoretically be detrimental to the status of India. The reason for it is that, for decades, agricultural practices have indeed been expanding around the globe, making it hard to know the sources of a plant and even to trace its original inhabitants for redress. This condition is aggravated by the fact that several assets have been gathered and stored in international gene banks over the ages. Anyone seeking to have entry would therefore have to compromise with a variety of nations, and therefore would note that they are not the only providers. The status of India is not merely that of a supplier. India will also need to deal for resources needed to fulfil its requirements as a source of genetic information from many other nations. Thus, it will appear to be a huge and  massive task to the total legal and financial costs incurred on monitoring and prosecuting proceedings for Intellectual Property Rights.

    Public suspects that the product patent could lead to higher prices, rendering medications prohibitively expensive to the impoverished. The creator would continue to increase his gain with the implementation of product patents and thus the product cost is higher if there would be no patents. Consequently, the drug’s intake would be less. This reflects an implicit deterioration of benefits for Indian customers’ high prices regarding the implementation of patents for products.

    Partnership with international companies is the rule throughout the area of research and development, without any Indian pharmaceutical industry qualified to take a prospective product from the experimental way to the end product initiation stage, leading to prejudices in the preference of patient groups regarding lifestyle related diseases.[3] In developing nations like India, such diseases kill thousands of individuals every year.  Instead of proceeding with all of those medicines previously created by industrialized nations in the past, the reform in intellectual property laws could enable many companies in India to carry out research than to develop more products.

    The prospects for global drug manufacturers to operate in or partner with research and innovation units located in developing countries are not likely to be improved by TRIPS. This is clearly non likely to occur, but this does not happen because of some of the challenges involved with providing infrastructure, rapidly obtaining accurate data to ensure adherence to agreements.

    Conclusion

    In addition to the trade related elements of intellectual property, the new TRIPS agreement encompasses the entire framework of the intellectual property regime. Via the Doha Declarations, the developing countries articulated their fears and were active in safeguarding the global health element of pharmaceutical patents. Because industrialized nations need greater levels of security for intellectual property than any of those embodied in the TRIPS agreement, developing countries are now again experiencing extreme pressure. Nevertheless, developing countries such as India do have a chance to guarantee that their rights are secured. Countries like India have enormous manpower and labor and an even enormous foundation for intellectual growth. Emerging economies also require participating significantly in growing their nation’s skilled workforce.

    References:

    [1] TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994).

    [2] Sandeep Mittal, “Effect of TRIPS plus provisions in International Trade Agreements upon access to medicines in Developing Countries”, JIPR, Vol 22 pp 295-302.

    [3] Jha Ravinder, Options for Indian Pharmaceutical Industry in the Changing Environment- Review of industrial Management- VOL 42.

    BY- TVISHA GUPTA | BENNETT UNIVERSITY

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