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THE IMPACT OF TRIPS AGREEMENT ON INDIAN INTELLECTUAL PROPERTY LAW 

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This article is written by Alfiza Borah of 2nd Year of B.A.LL.B(H) of Centre for Juridical Studies, Dibrugarh University, an intern under Legal Vidhiya

ABSTRACT 

This paper tends to examine the influence of the TRIPS Agreement on the development and amendment of the Intellectual Property Rights in India. The TRIPS Agreement acts as a set of guidelines to the member states for the development, and formulation of laws concerning the various aspects of the Intellectual Property Rights at the global forum. It also provides the specific mechanism of enforcement and management of the trade or commercial activities for economic growth and development of the member states. The paper employs the methodology of the secondary sources of data collection techniques for the analysis of the protection of intellectual property rights and promotes global economic growth and development of a nation by the transfer of trade and technology across borders. It also explains the significance and the various functions performed by the TRIPS Agreement. The present paper provides a detailed analysis of certain aspects or forms of Indian Intellectual Property Rights that had undergone several amendments in order to comply with the standards provided by the TRIPS Agreement at the international level. 

Keywords

TRIPS Agreement, economic growth, economic development, mechanism of enforcement, transfer of trade, management, intellectual property rights. 

INTRODUCTION 

The World Trade Organisation (WTO)was established in 1995. Till then all the international trade-related activities were administered by the General Agreement on Tariffs and Trades(GATT)that was established in 1947 with the sole purpose of harmonizing world trade. Subsequently,the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was established in the year 1994 by the World Trade Organisation (WTO) as a result of complex discussions and critical negotiations. The TRIPS Agreement came into effect from 1st January 1995 along with the WTO. Initially, there were 123 member states,i.e. all the nations that participated in the Uruguay Round of GATT. As of January 2022, it has 164 member states that are also the members of WTO. It resembles the global significance of the Agreement in addition to the protection of intellectual property rights in the form of copyrights and related rights, trademarks, trade secrets or test data, industrial designs, etc. It comprises a number of provisions that act as guidelines to the member states for the formulation of their laws relating to intellectual property rights. The TRIPS Council is responsible for supervising the maintenance of the standards of enforcement and the protection of the transactions within its provisions. The main objectives of the TRIPS Agreement is to eliminate distortions and obstructions in commercial activities of any form. 

PURPOSE OF STUDY 

This study aims to assess the impact of the TRIPS Agreement on the development and amendment of the Intellectual Property Rights in India. In the current global scenario, the protection of intellectual rights related to cross-border trade has become an international matter of concern and has faced rapid alterations with the advancement of technology. The main objective of this study is to analyze the modifications and variations in the Indian legislation relating to the governance of Intellectual Property Rights as a result of the enactment and compliance of the TRIPS Agreement. 

TRIPS AGREEMENT 

The TRIPS Agreement is considered to be the most comprehensive and effective international convention for the protection of intellectual property rights and promote global economic growth and development of the member nations.It provides a global platform to the member states for the development of the economy through the expansion of international trade and monetary transactions of goods and services. The TRIPS Agreement lays down the fundamental standards of implementation of various aspects of the intellectual property rights along with specific enforcement procedures. It defines the minimum standards that must be maintained by the concerned government of the nation while applying any law relating to intellectual property rights. Thus this provides a certain sense of protection and enforcement of the intellectual property rights within its field of jurisdiction to all its member nations.The element related to patents in the agreement is the most controversial one as there is a conflict in the pharmaceutical sector relating to the protection of the innovations and the right of accessibility to healthcare facilities by the common mass.

The enactment of the TRIPS Agreement provided a wide scope to the industrialized countries for various industrialized legal solutions and a number of implementation procedures at the national level. Unlike any other international treaties or agreements, the TRIPS Agreement is very powerful in terms of its enforcement mechanism. The ease of access to the global marketplace provides by the agreement opened new doors of opportunities to the various companies and commercial sectors of the nations.

SIGNIFICANCE OF THE TRIPS AGREEMENT 

The TRIPS Agreement is exceptionally significant for the protection of intellectual property rights and encouragement of balance between new ideas of innovation and technological transfer among the nations. The Agreement plays a significant role in the settlement of disputes among the member states relating to any interpretation or application of any other international trade agreement or treaty. It also provides assistance in the form of guidelines and procedures to the developing or underdeveloped nations for framing their intellectual property rights and it provides them a global platform to the member states for the development of the economy through the expansion of international trade and monetary transactions between the countries for the purpose of fulfilling needs of goods or services.The agreement significantly benefits the developing nations in terms of their increased economic growth and development. Some of the most essential functions performed by the TRIPS Agreement are mentioned below-

  1. Enforcement of the agreements and treaties related to trade or business transactions which are entered into by the countries.
  2. Encouragement of effective and adequate protection of intellectual property rights. 
  3. Elimination of the disputes occurring among the member states affecting the trade or commercial activities 
  4. Provide assistance to the developing or underdeveloped nations for the formulation and implementation of laws relating to the intellectual property rights 

INTELLECTUAL PROPERTY RIGHTS 

The intellectual property rights refer to the legal rights of the inventor, designer or author to protect, control, display, sell or distribute their products or services or any creation through the utilization of their intellect or the mind. There are numerous spheres of Intellectual Property Rights in India some of these are in the form of copyrights, patents, geographical indications, trademarks, trade secrets,etc. These rights protect the rights of the inventor and the consumer as well by ensuring the protection of their inventions or ideas and the quality of the products and services, respectively. 

ALIGNMENT OF INDIAN INTELLECTUAL PROPERTY LAW WITH TRIPS AGREEMENT 

The TRIPS Agreement had a great influence on the Indian Intellectual Property Laws.During the time of enactment of the TRIPS Agreement in India,many of its provisions were inconsistent with the recognized intellectual property laws. For instance, Article 27 of the Agreement was in contravention to the Indian Patents Act, 1970. Thus India being a signatory to the TRIPS Agreement several provisions of the Indian Intellectual Property Rights were amended in order to comply with the agreement to meet the global standards. The most significant one was the introduction of product protection for pharmaceuticals. The agreement brought various changes in the Intellectual Property Laws by creating a harmonious balance between the field of innovation and the promotion of accessibility to basic requirements of the people. In India,the TRIPS Agreement has changed the system of compulsory licensing and the license of right provisions that limit patent protection. 

Some of the various aspects of intellectual property rights in India that are significantly amendment in order to comply with the standards of enforcement provided under the TRIPS Agreement are listed below-

  1. Trademarks- It refer to the sign, symbol or logo, name, expression, slogan or tagline, design, etc. that are used for the identification or recognition of particular goods or services from others in the marketplace. The laws relating to trademarks are governed by the Trademarks Act,1999 along with the Trade Marks Rules,2017, earlier was governed through in accordance with the Trade and Merchandise Act,1958. It is extremely essential to protect the identity of the product and reduce any kind of confusion among consumers. The agreement provides certain standards that require a number of improvements in the laws relating to trademarks in India. In compliance with the provisions of the agreement, India strengthened its trademark laws and provided protection for trademarks both of registered or unregistered in nature. It also made the procedure of registration for trademarks more convenient. An application for registration of a trademark can be easily filed under section 18 of the Trademarks Act, 1999. This made the process of registration for trademarks more easier and transparent as it also reduced the cost and time and misuse of resources thus ensuring a transparent and accurate process of registration. A registered trademark is valid for a duration of 10 years and can be further extended by renewal. After the registration of the trademark, it provides a set of exclusive rights to the owner to use the trademark in relation to the goods or services. In case of infringement of rights of the owner relating to trademarks, civil as well as criminal remedies are available to the aggrieved party. Thus through the alignment of the trademark laws in India with the provisions of the TRIPS Agreement, it provided international significance and recognition to the persons or entities at the global marketplace. 
  2. Copyrights- It refers to the legal protection granted to the owner of literary, musical, dramatic or artistic works or any other such works relating to the computer software program like photography, audio or video recordings, sculpture and other creative works.It provides the legitimate authority the exclusive rights to control the use, manufacture, sell or distribute their works by others without any permission of the actual owner. It prevents others from copying, using or selling the work without any permission of the owner. The laws related to the copyrights are governed under the Copyrights Act, 1957 and also along with the Copyrights Rules,2013 as of subsequent amendments made after the enactment of the TRIPS Agreement. The copyright protection is granted for a period of 60 years following the death of the author. In addition, the copyright protection does not require to be registered for the work. It thus provides a range of various rights for the innovations and creations of their work.
  3. Patents- It is a form of intellectual property rights that provides the exclusive legal rights to the owner to protect the invention or discovery from others to utilize, manufacture, sell or distribute for gaining any economic benefits without the permission of the legitimate owner for a specific period of time. In India, all the matters related to patents are governed in accordance with the Patents Act, 1970. The main objective of granting patents is to encourage the scope for new innovation and secure the invention for any unauthorized use. It thus provides a sort of monopoly to the utilization of the patented goods or services to the legitimate authority. The legislation governing the patent laws have undergone many changes in order to comply with the international standards provided by the TRIPS Agreement. Earlier in India only process patents were granted in the field of pharmaceuticals that allowed the manufacturing of the product through the utilization of various methods of manufacturing. However, after the improvement in the patent laws, India has made changes to grant product patents to the pharmaceutical sector as well in order to align with international norms. In order to comply with the agreement, the validity of the patents are extended to a duration of 20 years from the date of filing the patent. The criteria for granting patents are broadly categorized into varied subject matter for the purpose of aligning with the provisions laid by the TRIPS Agreement. However, there is an increasing threat to the accessibility of health care to the poorer section of the society and the scope for new innovation. The patent provisions are protected through a series of legal remedies and relief such as confiscation or seizure of infringing goods, compensation to the aggrieved party, imprisonment of the infringers, etc.

Apart from the aforementioned aspects of intellectual property rights, there are numerous other forms of intellectual property rights that provide commercial benefits to the desired person or entity. The TRIPS Agreement had made a tremendous change in the age of intellectual property rights in India. In order to comply with the prescribed standards of enforcement of the TRIPS Agreement, several modifications and variations were done in the Indian laws regulating Intellectual Property Rights. 

CONCLUSION 

Thereby intellectual property rights protected a varied range of protection to intangible assets such as innovations, trade secrets, intellectual works relating to art , music, literature, etc, and many more. This paper provides a detailed analysis of the various aspects of intellectual property rights and its other forms primarily focusing on the improvisations brought in the Indian legislations concerning the Intellectual Property Rights after the enforcement of the TRIPS Agreement. A number of changes were brought in the Indian Intellectual Laws in order to comply with the standards provided by the TRIPS Agreement for the protection and enforcement of intellectual rights. Thus it serves the purpose of fulfilling the balance between the protection of intellectual property rights and promote global economic growth and development that in turn contributes to the raise in the standards of living through the facilitation of the basic needs of advanced knowledge, accessibility to health care, enrichment of cultural freedom, promotion of economic development, etc.

 REFERENCES

  1. Dessemontet. F,. Protection of trade secrets and confidential information., Intellectual Property and International Trade: The TRIPS Agreement, (1998)
  2. Aldermen. J.M,. Baldia. S., Prospects and limits of the patent provision in the TRIPS Agreement: the case of India., Vand.J.Transnat’l L.29, no.507 (1996 )
  3. Correa. C,. Trade-related aspects of intellectual property rights:A commentary on the TRIPS Agreement., Oxford University Press (2020)
  4. Kabiraj. T,. Intellectual property rights, TRIPS and technology transfer., Economic and political weekly, no. 2990-2998,(1994)

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