Intellectual Property Rights

INTELLECTUAL PROPERTY RIGHTS: BOON OR BANE Theme Paper: Technical Session III Dr. C. Ganesh Professor Department of Commerce University of Kerala Thiruvananthapuram – 695 034 The agreement on trade related aspects of Intellectual Property Rights was one of the most important outcomes of seven years of negotiations from September 1986 to December 1993 as part of the Uruguay Round of Multilateral Trade Negotiations of the General Agreement on Tariffs and Trade (GATT). Its inclusion was the culmination of a programme of intense lobbying by the United States, supported by the European Union, Japan and other developed nations.The inclusion of Intellectual Property Rights in the Uruguay Round agenda largely resulted from the concerns of developed countries against inadequate protection for intellectual creations . The developing countries, however, were against such a proposal on the ground that such protection would strengthen the monopoly power of multinational companies and adversely affect the poor by the rampant increase in the prices of food and medicines. Similarly, these countries were also concerned about the limited access to information and transfer of technology as a result of stronger IPR. But the developed countries claimed that the stronger protection of IPR would serve to stimulate research which in the long run would be beneficial to the developing countries. After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. Because ratification of TRIPS is a compulsory requirement of World Trade Organization membership, any country seeking to obtain easy access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS. For this reason, TRIPS is the most important multilateral instrument for the globalization of intellectual property laws. States like Russia and China that were very unlikely to join the Berne Convention have found the prospect of WTO membership a powerful enticement

Since TRIPS came into force it has received a growing level of criticism from developing countries, academics, and non-governmental organisations.The irony of the TRIPS agreement lies in the fact that when it provides stronger protection to creators of intellectual property it fails to address the concerns of developing countries and common man. This becomes most evident in case of patents provided for agriculture and pharmaceuticals. Patenting in agriculture would provide seed companies a monopoly and the power to control which varieties are cultivated leading to piling up of enormous assets for these companies. When the companies get patents for different seeds or plant varieties, it prevents others from using it. The patent owners would be interested in research and development of only those varieties which have huge profit potential. This, in turn, would lead to loss of bio-diversity. Similarly, some companies may carry out field research among indigenous people and acquire necessary information on the use of various medicinal plants. These are then commercially developed into products, then patented and marketed. The common man is thus deprived of his own resources, prohibited from further use of such plants and added to it he does not get any fruits of commercialization eventhough he is the real founder of such medicinal formula. It is also argued that product patents would lead to higher health cost for public health programmes and put essential medicines out of the reach of the people who need it most. Against this backdrop, articles both theoretical/conceptual and research oriented, are invited on the following aspects of IPR covered under the TRIPS agreement 1 2 3 4 6 7 8

Patents Copyrights Geographical indications Industrial designs Trademarks Layout designs of integrated circuits Protection of undisclosed information

The articles following issues:

can

also

be

1 Life patenting and bio-piracy

oriented

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address

the

2 3 4 5 6 7

TRIPS and public health Geographical indications registration system Protection for plants and animal inventions Traditional knowledge and bio-diversity Non-violation complaints Technology transfer

The areas identified above are only indicative and not exhaustive. Articles on related areas that fit into the broad theme of the technical session are also quite welcome.

It is interesting to note here that the term ‘intellectual property’ itself is a matter of controversy. Some argue that the use of the term ‘property’ in this context is itself misleading. Some characterise intellectual property as intellectual protectionism. Furthermore, due to the nonrivalrous nature of intellectual property, comparing the unauthorized use of intellectual property to the crime of theft presents its own unique problems. The common law theft requires deprivation of the rightful owner of his or her rights to posses, use or destroy property. Since intellectual property as so easily reproduced, no such deprivation to the owner occurs. The TRIPS agreement is builr upon the following important features: A The agreement includes processes and products for methods of agriculture and horticulture, technological processes and nuclear energy B the agreement provides for the granting of product patent to food, medicine, drugs and chemical products C under the agreement both for product patent and process patent, the duration of patents will be 20 years

D Under the TRIPS agreement, there is no specific provision for license or revocation of patents E the agreement also provides for ‘protection of plant variety’ and discretionis given to individual countries to have an effective generic system of their own It will not be an exaggeration if it is said that many issues originates from the features of TRIPS agreement itself. When a patent protection is provided for a long period of 20 years, it has no specific provision for revocation of patents in case of abuse. Similarly the practice of ‘ever-greening’ (the practice of prolonging the duration of patents by making insignificant changes to an already existing patented product.) is on rise, especially among pharmaceutical companies, due to the legislative provisions and loopholes that exists in the IPR law.

IPRs covered under the TRIPS agreement are If any seed company manages to get patents over the seed varities it will force the farmers to buy their seeds every year giving rise to fincancial issues.. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) treaty in 1994. http://www.icaindia.net/Intellectual_Property_Rights.doc queries could you tell about: what much duration provided for presentation? How I know? what is exact time & date for me?