April 16, 2021

Major International Instruments Relating to the Protection of Intellectual Property

Intellectual Property Rights

“In today’s economic environment, intangible assets are becoming increasingly important. These assets, which are the result of human intellectual creative activity such as invention, design, know-how, and artistic creation, are known as “intellectual property.” Some forms of Intellectual property rights are specifically entitled to legal protection such as trademarks, designs, literary works, layout designs and trade secrets. In the recent years we have seen an increase in the volume of trade of good and services relating to intellectual property.

Therefore the protection of intellectual property necessary otherwise it will lead to distort free trade. The protection regarding intellectual property has been always a narrow in most of the developing countries. Some developed countries also have problematic intellectual property regimes that, for example, openly discriminate against foreign nations, provide excessive protection, or otherwise have regimes so different from those employed by the rest of the world that its administration is discriminatory. This trade distorts were needed to be addressed and for the purpose of same the WTO decided to establish framework for the protection of intellectual property. There were number of treaties formed as a common legal framework for the protection of intellectual property right. In this article the following three of the major frameworks are discussed-

  1. Berne Convention for the protection for Artistic and Literary works.
  2. The Paris Convention for the Protection of Industrial Property
  3. TRIPS ( Agreement on the trade related aspects of intellectual property rights)

Berne convention for the protection for Artistic and Literary Works-

Global defense of copyright started on the basis of bilateral treaties at approximately mid-19th century. A number of these treaties were signed which provided for the mutual recognition of rights but they were neither adequately detailed nor uniform. The need for a standardized structure led to the Berne Convention on the Protection of Literary and Artistic works being established and adopted on 9th September 1886. The Berne convention is the oldest copyright international treaty. This treaty is open and available to all the nations in the world. The ratification process or power of this treaty lies with the World Intellectual Property Organization Director General. The preamble of Berne Convention describes the purpose of this treaty. It says that “to protect. in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works”

The convention’s three fundamental principles are –

  1. The convention convers the concept of protection independence which means that the rights granted are indented form the protection that exists in the country of origin for the work and their use.
  2. The national care provided will not be formal, i.e. automatic security is granted and there is registration formality, deposit formality, etc.
  3. The principle of ‘national treatment’ of the convention’s basis is that one of the member states must be protected by the same level of protection as these grants to works of its nationals in each of the member states.

This convention provides protection to works like any original literary, scientific and artistic production whatever, its mode of expression, is unlimited, as it is mentioned in Article 2 of the conceptions. Works based or derived or translated from already existing works like music or other literary works or artistic modification are also protected under this convention. The convention provides with the concept of folklore which means that every member states has an option to protect any unpublished work where the identity of the author is unknown but the author will be presumed by designation of nation legacy of the author to be a national of that country. This convention provides protection to the authors of works, whether they are published or unpublished, when that are the resident of the member state in accordance to the article 3 of the convention and in case they are not the residents or national so if the member stated, for the first time they need to publish their work in a member state. The section 2(6) of the conventions mentions that the convention’s defense shall operate on behalf of the author and his successors.

Some of the articles related to rights are-

Article 8- “The exclusive rights granted to authors under the Convention include the right to translate”

Article 9- “the right to reproduce in any manner or form, including any sound or visual recording”

Article 11-“the right to perform dramatic, dramatic, musical and musical works”

Article 14- “the right to broadcast and communicate to the public via wire, re-transmission, loudspeaker or any other means of communication, the right to make film adaptations and to reproduce a work.”

The Berne convention also provides with provisions which provides limitations on the application of the rules on specific exclusive rights. The purpose of these provisions is to provide a kind of counterbalance to the minimum standards of security.

The Paris Convention for the protection of industrial property

There was no recognition of protection for industrial property rights existed due to the diversity of laws. It was also difficult to protection for industrial property rights in various countries. In almost all countries the patent application had to be made nearly concurrently to prevent a publication in one count4ry losing the invention’s novelty in their country. With the passage of time it became important to provide protection IPR laws in both patent and the trademark. The way to di this was by creating a more internationally oriented technical stream and growing international trade. In 1883 a Diplomatic Conference was held in Par5is and the Paris convention for the protection or defense of industrial property was given the final approval and signature. The Paris convention only had 11 states signatures initially but it increased its membership very significantly during the first quarter of the 20th century.

“The provisions of the Paris Convention can be subdivided into four main categories: firstly, the rules of substantive law which guarantee in each Member State a fundamental right known as the right to national treatment, secondly, a basic right is known as a right is known as a right of priority; a 3rd category shall describe a number of common rules in the field of substantive law which shall include either rules establishing natural and legal persons’ rights and obligations or rules requiring the Member States to legislate or permit them to enact legislation pursuant to those rules; the fourth category encompasses the institutional structure for the application of the Convention and includes the Convention’s final clauses.” The right of priority provides that if the same applicant of his successor his applying he may seek protection in all other member states within a specified period of time.

““National treatment” means that each country party to the Paris Convention must give nationals from the other Member States the same level of protection as it provides to its own nationals with regard to the protection of industrial property.  Articles 2 and 3 of the Convention provide for the relevant provisions. The law on national treatment not only ensures the rights of foreigners but also the absence of any discrimination towards them.”

  • Independence Of Patents-

Inventions granted to nationals or residents of the member states in the member states shall be treated as indented from invention patents obtained in other countire4s, including non-member countries, in respect of the same invention.  The rule regarding the indented of the invention patents is mentioned in Article 4 of the convention. The grant of a patent for invention for a given invention does not impose a compulsory patent for the same invention on any other Member State. His rule would, for example, be violated by a provision in the national legislation which starts with the invention patent from (foreign) the priority date and not with the filing date of the application in the country. The inventor must have the right to be mentioned in the patent for invention as such, according to a general rule. Article 4 stipulates this.

Article 4bis(5) contains a special feature of the principle of patent independence for invention.  The provisions require that, if no priorities had been claimed, a patent granted in respect of an application claiming the priority of one or more foreign applications should be given the same duration as would have been granted under national law.  In other words, the priority period shall not be deducted from the duration of a patent invoking the first application’s priority.”

  • Use of Trademarks

Article 5C regulates the criteria for the use of registered trademarks (1). Some countries which provide for the registration of a trademark also require that trademarks be used after registration within a certain time period. If this use is not complied with, the label may be expunged from the register

Usage usually implies the selling of marked items even though the use of the label may be limited more widely by national laws. “Use” means the selling of goods labelled. The Convention protects ‘well-known trademarks’ in Article 6bis. This Article obliges a Member State to deny or cancel registration by prohibiting the use in that Member State of a mark which may cause confusion with another mark which is already well-known..The provisions of this Article the aim of the article is to extend protection to a trademark which, although not registered in or used in a Member State, is well known in that Member State. Isle 5 of the Paris Convention covers industrial designs.  This provision simply stipulates the obligation to protect industrial designs by all Member States.

There is no mention of how to provide the defense. Consequently, the Member States can comply with this duty by enacting special legislation on the safety of industrial designs. However, they can also fulfill this duty by granting such rights in compliance with copyright or unfair competition legislation.

Entry to the Paris Convention shall be made by depositing an instrument of accession with the Director-General of the WIPO, as provided for in Article 21. The Convention enters into force three months after accession with respect to a nation that has such a country.

Thus, it adhered to the Convention and was informed by the Director-General of WIPO to all the governments of the Member States.  Consequently, accession only requires unilateral action by the country concerned and requires no decision by the competent authorities of the Union.

TRIPS ( Agreement on the trade related aspects of Intellectual Property Rights)

The Uruguay Round of multilateral trade negotiations under the General Tariff and Trade Agreement(‘GATT ‘) came to an end on 15 December 1993. The Agreement creating the World Trade Organization (the “WTO Agreement”) was signed on 15 April 1994. These talks involved, for the first time, debates on international trade-related aspects of intellectual property rights within the GATT. The agreement was the result of these talks. The WTO agreement, including the TRIPS agreement, was concluded on 1 January 1995 (which shall be binding on all WTO members). In the earlier agreement, a new organisation, the World Trade Organization, was formed and starts its activities on 1st januray 1995.

As regards the essence and extent of the TRIPS obligations, the basic principle is that the members should apply the provisions of the Agreement and give the care provided for in the Agreement to the nationals of other members. A ‘national’ means natural or legal persons liable for immunity where all the members of the World Trade Organization are also bound by the conventions of Paris, Berne and Rome and, with regard to the Integrated Circuits, by the Washington Treaty on Intellectual Property.

National Treatment- In accordance with the provisions of the Paris, the Berne, the Rome Convention and the IPIC Treaty, the TRIPS lays down the principle of national treatment which requires a Member to grant treatment to nationals of other Members specified by the Memorandum of Understanding (Memorandum of Understanding). This principle applies to all rights as regards industrial property and copyright.  As far as rights are concerned, the obligations only apply in respect of those rights provided under the Convention in the case of actors, phonogram producers and broadcasting organizations.

MFN- The TRIPS Agreement covers the most-favoured-nation concept, which has not historically been formulated in the sense of multilateral intellectual property rights. This principle specifies that the nationality of all other Members shall be consistent with the nationality of the other Members. As is the case with national processing, the procedure for acquisitions or maintenance of intellectual property rights provided for in multilateral agreements concluded under the auspices of the WIPO is excluded from this principle.

Protection of Existing Subject Matter- The TRIPS Agreement includes unique clauses relating to the effect of the Intellectual Property Rights Agreement on the Member on the date of implementation of the Agreement. While the Agreement does not give rise for the Member in question to obligations with respect to acts occurring before the date of application of the Agreement (Article 70.1), the Agreement gives rise, in relation to all subject matter to obligations existing and protected on the day the Agreement is applied or which then or then meet the criteria for protection.

Part II of the TRIPS Agreement sets out minimum standards for availability, scope and use of rights of intellectual property. It covers eight parts relating to copyright, trademarks, geographical indications, industrial designs, patents, designs for integrated circuits, defense of undisclosed knowledge and enforcement of anti-competitive practices in the field of contract licensing.

  • Section 1- Copyright and related rights;
  • Section 2-  Trademark
  • Section 3- Geographical indications
  • Section 4 Industrial Designs
  • Section 5- Patents
  • Section 6- Topographies or layouts of Integrated Circuits

The TRIPS Agreement includes procedures for the protection of intellectual property rights to permit effective action to be taken against any infringement of the intellectual property rights protected by the Agreement, including swift remedies for the prevention of infringements. The procedures should be applied in such a way as to prevent and safeguard valid trade barriers against their violation. Regulation processes should be reasonable and fair, not overly difficult or costly, nor unjustified deadlines or delays.

Conclusion-

The aim of these agreements was not only to provide for, but also to provide for, a minimum standard for the security of the IPR. These agreements establish a basic requirement for IPR compliance that allows right holders to, by civil court or administrative proceedings, defend their legitimate interests. The responsibilities of Member States to create administrative and judicial processes by which IPR holders may seek effective protection of their interests are laid down in Part III of the Agreement on Implementation of IPR. The general obligation of the Member States to provide compliance mechanisms requires that, under their national law, the enforcement process be available to enable effective action to be taken against any act of infringement of the IPR protected by those agreements, including the inclusion of immediate measures to avoid infringements and remedies. Member countries are expected to ensure that compliance procedures are “fair and equitable” and “not unnecessarily complex or expensive, or to avoid unreasonable deadlines or unreasonable delays.”


Author Details: Anavi Parnami [Student; Symbiosis Law school, Hyderabad]

Instagram

Leave a Reply