Wednesday, August 28, 2019

TRIPS Agreement and Challenges

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By K A Dhananjay,

Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is a framework which brought a unified Intellectual Property standard across the globe. It is a complementary standard to the existing WTO regime, and tries to accommodate GATT principles in its text. Now, what does TRIPS protect? TRIPS protects copyright and related rights (i.e., the rights of performers, producers of sound recordings and broadcasting organisations); trademarks including service marks, Geographical Indication (G.I), industrial designs; patents including the protection of new varieties of plants, layout-designs of integrated circuits, trade secrets and test data.

When we talk about the legal aspects of TRIPS, it is necessary that we go by the fundamentals. TRIPS has two main pillars — Most Favoured Nation (MFN) principle and National Treatment principle. MFN principle states that there shall be no discrimination and reciprocity shall be binding in trade. It is rather a status given by a country to another country under a condition that the country will provide certain concessions, privileges and immunity in trade agreements. However, it allows for exceptions — preferential trade agreements and regional free trade agreements. On the other hand, National Treatment principle moots no discrimination between foreign and domestic products. It is one of the guiding principles of the TRIPS Agreement and reiterates the position taken by its complementary predecessor, GAAT.

Legally, there are many challenges to the Agreement. However, four are very pertinent to the current trends in Intellectual Property Law per se. They are: How can intellectual persona be acknowledged as a property? Where does traditional property stand? How can Article 23 (Additional Protection for Geographical Indications for Wines and Spirits) be revamped? and Where does compulsory licensing stand in TRIPS and Is it feasible?

Intellectual Property Rights (IPRs) are a new area of law which is booming across the world. Yet, intellectual property has been a debatable issue in itself. Many scholars believe that manifestations of the brain, and its allied organs though which fruitful inventions unravel, cannot be subject to law. Intellectual capacity of an individual cannot be stored or secured, rather it can only be parted, which again is disputed through IPRs. Even though it incentivises new innovations, intellectual property cannot be ascertained as a ‘property’. Left aligned thinkers and critics of IPRs and subsequently TRIPS, view IPRs as a colonial idea of aggrandising their imperial exploits through their ‘home-grown’ products over indigenous ones and a capitalist measure to outpower substitutes, mainly through excessive lobby. Hence, the very existence of TRIPS itself has a challenge, which is very objective and cannot be easily mitigated.

Another issue is traditional property. There are two concerns which are mainly debated under this heading and they are inappropriate patenting and biopiracy. Inappropriate patenting has been a real menace to curb. It involves claimed invention that is not new or does not involve an “inventive step”. This leads to complications as to the origin of the invention as well as its holder. On the other hand, biopiracy has been an ‘unequal’ step to degrade traditional indigenous knowledge belonging to certain ethnic communities. Biopiracy includes the unauthorised use of genetic resources or traditional knowledge (as laid down in the international treaty on biodiversity) without the permission of the countries or communities considered to be the rightful owners. This makes the livelihood of many ethnic communities at stake, given the outpowering tenacity of big corporations. This needs to be seriously addressed.

TRIPS Agreement does not characterise goods and articles in separate concentrations, yet Article 23 is a spot to critique. Article 23 of TRIPS Agreement gives additional protection for GI tag of wines and spirits, but draws flak for not characterising other products and articles. This is discriminating tons of products which are GI protected but do not get sufficient protection as wines and spirits do.

Next comes the most controversial debate on TRIPS — compulsory licensing. Compulsory licensing happens when the authorities license companies or individuals other than the patent owner to use the rights of the patent — to make, use, sell or import a product under patent without the permission of the patent owner. This has been protected by TRIPS and is mainly discussed in terms of medicine exports. However, compulsory licensing is only applicable to domestic markets and not to international markets. This makes it tough for poorer countries to obtain cheaper generic versions of patented medicines by setting aside a provision of the TRIPS Agreement (Article 31(f)), which could hinder exports of pharmaceuticals manufactured under compulsory licences to countries that are unable to produce them. There were many waivers to this effect, yet nothing was done to amend TRIPS. Even at times of amendment, many developed countries did not agree to it due to the powerful lobby existing in their domestic markets.

In conclusion, these challenges are very concerning due to the growing aspects of TRIPS and IPRs laws. Traditional knowledge can be protected by amending TRIPS Agreement in such a way that patent applicants are required to disclose the origin of genetic resources and any traditional knowledge used in the inventions. Governments can create a database so that communities will be provided with extra access and protection. Strict domestic laws should also be introduced to address the issue. As to giving separate protection for wines and spirits, Article 23 can be amended and be inclusive in accommodating other products as well. The best way could be to differentiate various products and characterise them with subheadings. In the case of compulsory licensing, an amendment would be a good initiative to end the deadlock — providing countries with better generic medicines at times of epidemic or a spurt in diseases. The members of TRIPS should also stop creating Anti-Counterfeiting Trade Agreements, which defeat the purpose of TRIPS and rather create a framework within the agreement so that better accountability is achieved. Hence, with the TRIPS Agreement facing these legal challenges, it would be the right time to seek consensus and decide the fate of intellectual property.

(K A Dhananjay was a Research Intern at Centre for Public Policy Research. Views expressed by the author is personal and need not reflect or represent the views of Centre for Public Policy Research)

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