TRIPS AGREEMENT

The TRIPS Agreement in detail

How it all started?

As intellectual property grew more significant in commerce, the level of

protection and enforcement of these rights varied greatly throughout the
world, and these variations became a source of stress in international
economic relations. New globally agreed-upon trade standards for
intellectual property rights were considered as a method to bring greater
order and predictability to the market, as well as a more systematic
approach to resolving disputes.

The General Agreement on Tariffs and Trade (GATT) was the only
multilateral mechanism overseeing international commerce until the World
Trade Organization (WTO) was established in 1995. Under GATT, there were
eight rounds of negotiations, the first five of which were solely focused on
tariffs, while the sixth round included discussions on anti-dumping
measures, which included provisions for member nations to control the
dumping of goods into their territory by other nations that could harm their
economies.

The Uruguay Round was the last GATT round (1986-1994). It was in this
session that the first discussions on trade linked to agriculture, services, and
intellectual property rights were conducted. All 123 countries that took part
in the Uruguay Round, including India, became members of the WTO. WTO
now has 164 members, accounting for about 90% of the world’s countries.
The World Trade Organization (WTO) is in charge of negotiating and
implementing new international trade agreements. It is also responsible for
ensuring that the majority of the world’s trading nations comply with the
trade agreements they have signed. The WTO is the legal and administrative
framework for managing and growing international trade connections
between its 157 members on a multilateral basis. Its goal is to establish fair
and secure international trading arrangements in order to stimulate trade
and investment and raise global living standards.

The TRIPS Agreement is one of the most significant WTO accords. The
Agreement went into effect on January 1, 1995.
What is the TRIPS Agreement about?

The TRIPS Agreement protects intellectual property in trade-related regions

to a large extent and is regarded as a comprehensive new framework for
intellectual property standards protection. The TRIPs Agreement also has the
distinction of being the first legal agreement to address all areas of
intellectual property with a number of specific clauses.

The three main issues governed by the agreement are:

 Standard– All member states are required to provide a minimum set of

criteria for the protection of IPRs in each of the IP categories covered by
the Agreement. Each area of IP is addressed in such a way that the
major aspects of protection, such as the

 subject matter sought to be protected,

 the rights to be granted, and
 possible exceptions to such rights, as well as
 the minimum period of protection, are all explicitly stated.

 Enforcement– The second set of clauses focuses on domestic processes

and remedies for intellectual property rights enforcement. The
Agreement establishes a set of broad rules that apply to all IPR
enforcement actions. It also includes rules on

 civil and administrative processes and remedies,

 provisional measures,
 particular border requirements, and
 criminal proceedings,

all of which outline the procedures and remedies that must be provided
so that the right holders can successfully exercise their rights.

 Dispute settlement– Disputes occurring between WTO members over

responsibilities emanating from the TRIPS Agreement are subject to the
WTO’s dispute resolution processes.
The whole TRIPS Agreement is further divided into seven parts which contain
the complex provisions regarding intellectual property:
Part I- General Provisions and Basic Principles (Article 1 to Article 8)

Part II- This part covers the requirements for the availability, scope, and
application of intellectual property rights. (Article 9 to Article 40)

Part III- The enforcement of IPRs is the focus of this part. (Article 41 to
Article 61)

Part IV: This part covers the procedures for obtaining and maintaining
intellectual property rights. (Article 62)

Part V: This part deals with the prevention and resolution of conflicts
resulting from the provisions of the Agreement. (Article 63 to Article 64)

Part VI: This part is about transitional agreements. (Article 65 to Article 67)

Part VII: This part of the Agreement deals with a variety of institutional
arrangements. (Article 68 to Article 73)

General provisions and basic principles

The essential principles on the national and most-favored-nation treatment

of foreign persons are found in Articles 3, 4, and 5, and they apply to all
kinds of intellectual property covered by the Agreement. These obligations
apply not only to substantive standards of protection, but also to issues
relating to the availability, acquisition, scope, maintenance, and enforcement
of intellectual property rights, as well as issues relating to the use of
intellectual property rights that are specifically addressed in the Agreement.
While the national treatment provision prohibits discrimination between a
member’s own nationals and those of other members, the ‘most-favored-
nation’ treatment clause prohibits discrimination between other members’
nationals. The exclusions authorised under the pre-existing WIPO intellectual
property treaties are likewise available under TRIPS in terms of the national
treatment commitment. Furthermore, governments have the authority to
enact legislation to prohibit right holders from abusing IPR or to challenge
practises that unfairly restrict commerce or impede the international transfer
of technology, all in [‘;?>accordance with the Agreement’s provisions.

Types of intellectual properties

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
utilising 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.

Control of anti-competitive practises in contractual licences

Members of the Agreement believe that some licensing arrangements or

restrictions relating to IPR that restrict competition may have a negative
impact on trade and impede technological transfer and dissemination. The
clause allows for government discussions in cases where there is an
infringement of intellectual property rights that has a negative impact on
competition. On some occasions, the TRIPS Agreement waives some of the
requirements necessary for a compulsory licence of a patent, such as when
the government gives the compulsory licence to correct an anti-competitive
activity.

Enforcement

Governments must guarantee that IPR can be implemented to prevent or

discourage infringement, according to the Agreement. The methods must be
just and equal, as well as not overly cumbersome or expensive. They shall
not impose unreasonable deadlines or unjustified delays. People concerned
must be allowed to request a court review, an administrative decision or
appeal a lower court’s judgement. The TRIPS agreement goes into great
detail about how to defend intellectual property rights, including
requirements for gathering evidence, interim measures, injunctions,
damages, and other penalties. It states that courts must have the authority
to compel the disposal or destruction of objects that infringe on intellectual
property rights under specified situations. On a commercial scale, wilful
trademark counterfeiting or copyright infringement must be prosecuted as a
crime. Governments must also ensure that holders of intellectual property
rights can get assistance from customs authorities to prevent the import of
counterfeit and pirated goods.

Prevention and resolution of conflicts resulting from the provision of

the TRIPS Agreement

The TRIPS Council is in charge of the provisions relating to dispute resolution

and prevention. The common register, which contains a compilation of laws
and regulations, final judicial decisions, and other information pertaining to
the Agreement, should be established, Article 63 establishes an obligation to
notify laws and regulations to the TRIPS Council or the WIPO. Article 64 of
the Agreement outlines processes for preventing and resolving disputes. For
this aim, the WTO Agreement’s integrated dispute settlement procedure will
apply to TRIPS issues.

Transitional agreements

The TRIPS agreement allowed countries to delay the implementation of its

terms for various lengths of time. These timeframes specify the period
between when the agreement entered into force (on January 1, 1995) and
when it got implemented in member countries. The following are the major
transition periods:

1. Developed countries were given a one-year transition period

following the WTO Agreement’s entry into force, i.e. until January 1,
1996.
2. Developing nations were given an extra four years (until January 1,
2000) to implement the agreement’s provisions, with the exception
of Articles 3, 4, and 5, which deal with broad principles like non-
discrimination.
3. Transition economies, i.e. countries in the process of transitioning
from centrally planned to market economies, could also benefit from
the same postponement (until January 1, 2000) if they fulfilled
specific additional criteria.
4. Least-developed nations were given an additional eleven-year
transition time (until January 1, 2006), with the option of an
extension. The transition period has been prolonged three times, and
now continues until July 1, 2034, or until a member no longer
qualifies as a Least Developed Country (LDC), whichever comes first.

Institutional arrangements

Article 68 of the TRIPS Agreement establishes The TRIPS Council. The TRIPS
Council oversees the administration of this Agreement, including members’
compliance with their duties under it, and provides members with the
opportunity to consult on trade-related aspects of intellectual property
rights. It carries out any other obligations that the members delegate to it,
including providing any help sought by them in the context of dispute
resolution procedures. The TRIPS Council may consult with and obtain
information from any source it finds relevant in carrying out its tasks.

Need for the TRIPS Agreement

IP protection was supposed to help not only promote technical innovation

but also the transfer and spread of new technology in a way that benefits
both its producers and users while maintaining a balance of rights and
duties, all with the purpose of increasing social and economic wellbeing. As a
result, the TRIPS Agreement’s primary objectives included reducing trade
distortions and obstructions by supporting effective and appropriate
protection of IPRs, as well as ensuring that measures and processes for
enforcing IPRs do not become hurdles to legitimate trade.

Currently, the rise in IP legislative activity, as well as the quick adoption of

TRIPS-covered IP rights, demonstrated the TRIPS Agreement’s centrality in
the global trade system. The TRIPS Agreement continues to play a key role
in facilitating international trade in knowledge, resolving trade issues over
IP, and guaranteeing WTO members the latitude to achieve their domestic
objectives, while IP is at the core of attempts to obtain benefits from
innovation and creativity in today’s global economy.

Advantages and disadvantages of the TRIPS Agreement

Advantages of the TRIPS Agreement

 Transparency in IP policy was brought to the world’s attention.

 WIPO’s existing international legal system, which was designed and
controlled by them, was greatly enhanced by this agreement.
 Trade conflicts over intellectual property concerns were reduced by
establishing a clear, rules-based framework for resolving disputes.
 It has aided in the acquisition and exercise of intellectual property
rights, as well as providing a solid platform for the trade in
knowledge products.
 In developing countries, the number of patent applications is increased

Disadvantages of the TRIPS Agreement

 TRIPS mandates high levels of patent protection.

 Fertilisers, insecticides, pharmaceutical items, and procedures were
not protected by patents, resulting in low-cost food and drugs.
 Education and technology transfer were fostered by the lack of
copyright protection for informational products.
 Jobs in the local imitative industries were lost.
 In general, increased prices resulted in significant deadweight losses,
with minimal stimulation of local innovation.
 Traditional knowledge is not protected in any way.
TRIPS Agreement : a boon or bane for developing countries

The agreement imposes essential and obligatory requirements on signatory

member nations to implement basic levels of intellectual property right
protection in all of its elements. However, this Agreement has far-reaching
implications for developing nations, as rigid intellectual property restrictions
stifle the growth of indigenous enterprises in these areas. Intellectual
property rights, although vital, must be implemented with caution in
developing nations since they can harm the economy, public health, and so
on. The principal consequences of the patent protection regime have a
deterring effect on the expansion of local sectors, such as pharmaceuticals.

Intellectual property should not be used to thwart the interests of developing

nations, such as public health, which is already being harmed. As a result, a
re-evaluation is necessary. In addition, when the situation demands them,
the exceptions to the intellectual property rights shall be implemented
effectively and strictly.

The TRIPS Agreement has had a considerable impact on IPR protection in

poor nations but has had a little discernible impact on IPR protection in
developed countries. This outcome is consistent with the TRIPS Agreements’
requirements being established to be as near as possible to IPR protection
systems already in existence in many developed nations. To comply with the
TRIPS Agreement, developed nations did not need to make significant
changes to their policies. And also the Nations that rely heavily on exports to
countries that advocated for the TRIPS Agreement’s inclusion in the WTO
(i.e. developed countries) may take the possibility of retaliatory trade
penalties seriously since they stand to lose a lot of money in lost exports.
This demonstrates the TRIPS Agreement’s effectiveness as a coercive threat
in international economic negotiations.

Numerous objections have been leveled against the TRIPS Agreement’s

validity and efficacy, particularly in relation to poor nations. Even famous
free-trade proponents like Martin Wolf have criticised TRIPS for its
“hypocrisy” viewing it as a rent-seeking device from many poor nations, with
potentially disastrous consequences for education, public health, and
economic growth. Even among nations that appear to benefit the most from
the agreement, gains may only go to certain segments of society, implying
that the actual beneficiaries from TRIPS are not developed nations, but
rather the major businesses that pushed for its adoption. TRIPS has also
failed to address policymakers’ concerns, since trade balances have
continued to deteriorate, and the current emphasis on private rights may, in
the long run, contribute to stifling innovation and knowledge dissemination
in developed nations. While Archibugi & Filippetti warned against
misrepresenting TRIPS’ impact, it is clear that the agreement does not work
as intended. It would have been better to establish a tiered structure that
provided more meaningful special and differential treatment based on
nations’ developmental requirements. Given that TRIPS is already firmly
established inside the WTO system, it is unclear if major revision of the
agreement is possible for the sake of developing nations.

Conclusion

This article might be concluded by stating that, despite the importance of

the TRIPS Agreement, the developing countries have highlighted a number
of concerns and flaws in the treaty. Despite these issues, the TRIPS
Agreement is often regarded as the most comprehensive mechanism for
protecting intellectual property rights. It enhances and manifests the
previous IPR conventions, the most important of which were first drafted at
the end of the nineteenth century. Certainly, these agreements were revised
on a regular basis, to permit a gradual international control of intellectual
property and copyrights. However, in comparison to the results of previous
revision exercises, the TRIPS Agreement constitutes a tremendous
conceptual leap that profoundly transforms not only how IPRs are seen
internally, but also how they are implemented and disputes are resolved.

TRIPS Agreement in India:

India became an associate of the WTO and thus a participant in the TRIPS
Agreement in 1995. Before the adoption of TRIPS, India had a well-
established intellectual property outline with its laws, such as the Patents
Act, Copyright Act, and Trademarks Act and the TRIPS Agreement presented
certain changes and obligations that required India to modify its prevailing
intellectual property laws to comply with the international values set by the
agreement.

India has made efforts to comply with TRIPS obligations while also utilizing
gives to safeguard public health and encourage access to affordable
medicines. India continues to navigate the difficulties of intellectual property
protection, seeking constancy between innovation, public health, and
traditional knowledge preservation. Member states are grateful to create
applicable national laws to implement the requirements of the TRIPS.

The TRIPS Agreement establishes minimum standards, but members may

choose to provide better intellectual property protection if they so choose
and this agreement founds the minimum requirements for intellectual
property protection and the implementation of intellectual property rights.

It also includes provisions for legal and administrative processes, temporary

solutions, financial consequences and other penalties along with border
controls and also this agreement gives member nations the option to
excepted energetic biological procedures that are being used in the
production of food or medicines as well as plants and animals from
patentability.

This agreement embraces requirements for the enforcement of intellectual

property rights too, the protection of geographical indications, and the
protection of confidential information i.e., trade secrets. It also offers
instructions on how to make sure the agreement is tailed and that
intellectual property rights are properly obligatory. The TRIPS Agreement
has a dispute resolution process, making it easier for member nations to
move the agreement.

It is a crucial part of the system for protecting intellectual property around

the world and it offers a uniform method for enforcing these rights and sees
that all member nations have satisfactory protection for their intellectual
property rights. TRIPS govern intellectual property rights in separate areas,
including patents, copyrights, and geographical indications.

Importance of TRIPS

The Trade-Related Aspects of Intellectual Property Rights or simply TRIPS is

an agreement between all WTO member countries having the same goal of
precautionary intellectual property rights and this agreement has put
minimum necessities for the protection of intellectual property rights, which
includes those to patents, copyrights, trademarks, industrial designs, trade
secrets, and combined circuits.

All WTO member countries are required to offer protection under TRIPS that
is of a similar level and also gives an agenda for the enforcement of the
intellectual property rights act as an assurance that innovators, creators,
and inventors obtain the protection & incentives they require to progress
their concepts and inventions, the TRIPS Agreement is of great importance.

This promotes more innovation which results in a rise in the economy and
the formation of many new jobs, the legal framework for the implementation
of intellectual property rights is given by TRIPS too, serving in the protection
of innovators, creators, and inventors from the unlawful use of their
creations as this helps to fight in contradiction of piracy and counterfeiting
and this helps to safeguard the rights of innovators and promote additional
innovation. The TRIPS agreement helps to ensure a free and reasonable
international trading system by giving all members of WTO an even playing
arena in terms of intellectual property rights.

The unique aspect of the TRIPS Agreement in India

One unique aspect of the TRIPS Agreement in India is its utilization of the
"mailbox" provision for patent applications related to pharmaceuticals as this
provision allowed India to accede to the examination and granting of product
patents for pharmaceuticals until 2005, even nevertheless the TRIPS
Agreement required immediate acquiescence.

This exceptional transitional period allowed India to maintain its earlier

practice of yielding only process patents for pharmaceuticals, providing an
extended period for the production and convenience of affordable generic
medicines this approach helped ensure access to vital medicines for the
Indian population and played a vital role in addressing public health
challenges, such as HIV/AIDS, by allowing the manufacture of profitable
generic antiretroviral drugs and this mailbox provision and its impact in India
prove a creative and practical approach to balancing intellectual property
rights with public health priorities.

Protection of Traditional Knowledge and Geographical Indications:

The TRIPS Agreement recognizes the importance of protecting traditional

knowledge and geographical indications (GIs) and it inspires member
countries to develop appropriate legal frameworks to safeguard traditional
knowledge and avert the misappropriation of GIs. In India, the TRIPS
Agreement has prejudiced the introduction of legislation and policies for the
protection of traditional knowledge and the recognition and registration of
GIs, such as the Geographical Indications of Goods (Registration and
Protection) Act, 1999.

Challenges and Future Directions:

While the TRIPS Agreement has significantly shaped India's intellectual

property rights, it has also presented trials. Balancing the protection of
intellectual property rights with the need for reasonably priced access to
essential goods, including medicines, has been an ongoing challenge.
Additionally, there have been debates on the understanding and
employment of TRIPS provisions, particularly regarding flexibilities,
patentability criteria, and enforcement measures.

In recent years, India has continued to engage in discussions and

negotiations at the international level to address issues related to the TRIPS
Agreement and it has been dynamically participating in opportunities such as
the WTO's TRIPS Council to speak its concerns and advocate for the
protection of public health, access to medicines, and the protection of
traditional information.

Case Law: Bayer Corporation v. Union of India (2012)

The Bayer case involves a patent dispute regarding the pharmaceutical drug
Sorafenib Tosylate, marketed under the product Nexavar, used to treat
kidney and liver cancers. Bayer Corporation had obtained a patent for the
drug in India and therefore, Natco Pharma, an Indian generic pharmaceutical
company, filed an application seeking a compulsory license to manufacture
and sell a generic version of Nexavar, citing high prices and limited access.

Issue:

The main issue was whether Natco Pharma should be decided a compulsory
license, allowing them to produce and sell a generic version of Nexavar
without the consent of the patent holder, Bayer Corporation and this raised
interrogations about access to affordable medicines, balancing patent rights,
and addressing public health concerns.

Decision:

The Controller of Patents and the Intellectual Property Appellate Board

(IPAB) granted Natco Pharma a compulsory license to produce and sell a
generic version of Nexavar. The decision was based because Bayer
Corporation's pricing of the drug made it high-priced for the majority of
patients, and Natco Pharma had established the ability to supply the drug at
a significantly lower cost.

Impact:

The Bayer case marked a significant development in India's approach to

compulsory licensing and access to affordable medicines. It set a precedent
for granting compulsory licenses founded on affordability and public health
concerns. The decision highlighted the importance of balancing patent rights
with the need to promote access to life-saving medicines at reasonable
prices, particularly in an emerging country like India with a large population
in need of affordable healthcare solutions.

The case highlighted India's commitment to utilizing gives within the TRIPS
Agreement, such as compulsory licensing, to safeguard access to essential
medicines for its population. It also underscored India's exertions to address
public health concerns, particularly in cases where patented drugs are priced
out of reach for numerous patients. The Bayer case contributed to the
constant dialogue surrounding intellectual property rights, access to
medicines, and the balance between innovation and public health in India.