Author: Ananya Singh, a student at National Forensic Sciences University, Delhi
Introduction
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is an essential international treaty that sets out a minimum standards for the intellectual property (IP), uses eight forms namely, trademarks, copyrights, geographical indications, patents, industrial designs, layout designs for integrated circuits, and undisclosed information, Anti-competitive practises in contractual licences or trade secrets. All the main area of IP are covered by this agreement. It was enforced by World Trade Organisation (WTO) since 1995, TRIPS is essential for achieving a balance between innovation incentives with public interest concerns. Promoting innovation, promoting investment in research & development(R&D), and guaranteeing equal competition also depends on IPR. However, developing nations frequently face problems due to stringent intellectual property rights, especially in sectors of pharmaceuticals, biotechnology and digital technology.
Historical background
The Treaty in relation to the Trade Facilities of Intellectual Property Rights has taken up the profiles of the negotiable states of GATT, or more appropriately, that stage of negotiation called the Uruguay Round from 1986 to 1994, thereby becoming part of WTO on 1 January, 1995. Prior to the acceptance of TRIPS, countries were under the broad auspices of the Paris Convention of 1883, the Berne Convention of 1886, as bases for the protection of IP, albeit with enforcement agencies. Their fears had turned out, however, to be an overflow to ongoing talks in the Tokyo Round when counterfeit goods were included in the framework for discussion (1973-1979) and were brought to the ministerial table in Punta del Este (1986) for action. The TRIPS expanded warranties in April 1989 to cover patents, copyrights, trademarks, and other IP rights. The agreement was settled on with the Dunkel Draft (1991) and signed under the Marrakesh Agreement (1994). Later, the Doha Declaration (2001) clarified that TRIPS should be supported for public health purposes and include provisions for compulsory licensing of essential medicines.
Objective of TRIPS
The TRIPS Agreement, or the Agreement on Trade-Related Aspects of Intellectual Property Rights, seeks to establish and maintain intellectual property rights, foster fair international trade, and lay down rules for their protection, such as trade secrets, patents, and trademarks. It also sets forth minimum conditions for the civil and criminal procedures that will be available to enforce intellectual property rights. TRIPS addresses ways in which developing countries can define policies geared toward access to essential goods and services, and it fosters global cooperation on intellectual property matters without impeding innovation or environmental protection, public health, or broader public interests. The objective part is given under Article 7.
Principles of TRIPS
Members have rights that may be included in measures for public health and other public interest purposes as well as in preventing abuse of intellectual property rights, as defined within the terms of TRIPS Agreement Article 8 titled `Principles’.
Key Features of TRIPS
Standard- The TRIPS Agreement sets minimum standards for intellectual property protection in various areas, including subject-matter, rights, exceptions, and duration. It requires compliance with WIPO’s Paris Convention and Berne Convention, with all substantive provisions incorporated by reference. The TRIPS Agreement also adds additional obligations for areas where pre-existing conventions are silent or inadequate, making it referred to as a Berne and Paris-plus agreement. The agreement aims to protect the rights of intellectual property worldwide.
Copyright and related Rights- Copyright protection applies to various types of works, including literary, musical, dramatic, and computer programs. The owner has the right to prevent others from duplicating, distributing, or using the work. The Berne Convention protects computer programs and compilations of data in machine-readable formats. Authors can approve or restrict commercial renting of
originals or copies, but member governments can revoke rights if widespread copying threatens the work’s uniqueness. With a minimum protection of 50 years after death plus while living, thereby ensuring the long-term benefit of the authors and creators from their intellectual work as they see fit for eventual public access. This is given under Section 1 of TRIPS.
Trademarks- Article 15 allows for trademark registration for any sign that distinguishes one’s products or services from others, including words, characters, digits, figurative components, and colour combinations. The trademark owner has the exclusive right to prevent third parties from using similar or identical signs for similar products or services, as per Article 16. Trademark is given for a term of not less than 7 years and its registration shall be renewable indefinitely. This part is given under Section 2 of TRIPS.
Patents- The agreement defines patents as intellectual property rights (IPR) granted to inventors, allowing them to prevent others from using, selling, or importing their invention for a set period. However, patentability is subject to three exceptions: those against public good or morals, those harmful to human, animal, or plant life or the environment, and diagnostic, medicinal, and surgical procedures. The protection period is typically 20 years from the application date. Member nations can provide exemptions under Article 21 if they do not conflict with normal patent exploitation or bias the patent owner’s interests. Article 29 requires patent filings to be clear and complete for knowledgeable individuals to use. To be patentable, an invention must be novel, inventive, and useful, which effectively operates to disallow the frivolous while providing a foothold for the advancement of technology. This is given under section 5 of TRIPS.
Geographical Indications (GI) – Article 22 defines geographical indications as a good’s origin from a member’s territory, affecting its quality, reputation, or other attributes. These indications are used in commercial relations to identify qualifying product features based on geographical provenance. Geographical indications are then considered trademarks, entitled to legal protection. E.g. Darjeeling Tea, Champagne of France. It thus helps protect cultural heritage and economic value for local producers. This is under section 3 TRIPS.
The industrial designs – The agreement, based on the Paris Convention, mandates members to protect unique industrial designs for a minimum of 10 years. If used for
commercial purposes, the right holder can prohibit third parties from producing, importing, or selling items incorporating the protected design without their consent.
Layout-Designs (Topographies) of Integrated Circuits- The Agreement prohibits commercial import, sale, or distribution of secured layout designs, integrated circuits, or articles containing such circuits. The protection offered in this IP sector is at least ten years from application, with member countries limiting it to fifteen years from design development.
Undisclosed information- Trade secrets are undisclosed information that member states must protect under the Agreement’s provisions. TRIPS mandates national legislation to prevent third parties from using undisclosed information without consent, in line with fair trade practices. Information must be confidential, have commercial value, and have been kept hidden to be granted protection.
Anti-competitive practises in contractual licences- The TRIPS Agreement aims to address issues of intellectual property rights (IPR) restrictions that may negatively impact trade and technological transfer. It allows for government discussions in cases of infringements that negatively affect competition. The pact might further exempt some of the criteria that include compulsory patent licenses for any anti-competitive actions. The next important step to ensuring fair and healthy competition.
Enforcement- Second to the aforementioned, this part of the provisions addresses domestic procedures and remedies for enforcement of intellectual property rights at the level of the Agreement. This agreement obliges the member country to implement IPR in a way that does not allow infringing and provides to its citizens fair or equitable methodology. The same considers for court examination, administrative verdicts, and appeals. Brilliant case scenarios include provisions in relation to evidence acquisition, interim measures, injunctions, damages, and penalties.
Dispute settlement- In case of disputes among WTO Members about adherence to all TRIPS obligations, it should be subject to the dispute settlement procedure of the WTO itself. The
TRIPS Agreement outlines basic principles, including national and most-favoured- nation treatment, and general rules to prevent procedural difficulties in acquiring or
maintaining intellectual property rights (IPRs). It applies equally to all Member countries, with developing countries having a longer period to phase in. Special transition arrangements exist for developing countries lacking pharmaceutical product patent protection. The Agreement is a minimum standards agreement, allowing Members to provide more extensive protection.
Advantages of the TRIPS Agreement:
Harmonization of IP Rights: TRIPS set forth common minimum standards for the protection and enforcement of various intellectual property forms, including copyright, trademarks, patents, and geographical indications. It has helped to reduce the difference in the IP laws of countries to facilitate smoother international trade and investment by removing many uncertainties from international dealings.
Reduction in trade conflicts: TRIPS would provide a clearer and more rules- consistent framework for IP protection and thereby limit trade disputes on intellectual property issues, as well as towards creating a more predictable environment for world trade activities.
Encouragement of Innovation: The agreement brings the creator or inventor recognition and a possible financial return for his work, encouraging advancement in technology and creativity.
Disadvantages of the TRIPS Agreement
Challenges for Developing Countries: The process of implementing and enforcing such strict IP standards as mandated by TRIPS could be a very resource-hungry affair: it can also be very problematic for developing nations with small administrative and financial capacity. This could well become a disadvantage to these countries in their benefit from the global IP system.
Implication of Access to Vital Medicines: Most important patents under TRIPS have aggravated the costs of pharmaceutical commodities while making them fly out of reach for many ill people in developing countries, creating public health priorities in a very dramatic way.
Prospective Cultural and Economic Disparities: Protection of IP rights has a tendency to favor affiliates mostly based in developed countries; this therefore results
in the indigenous knowledge and cultural expressions from developing countries being ignored and it would create further economic deprivation and non-recognition of indigenous innovations.
Conclusion
The most important input in the context of developing global intellectual property laws in the TRIPS agreement is to provide minimum standards and safeguard a fair balance between innovation and the public interest. Even while strengthening intellectual property rights and stoking the flames of investment in research and development, so far, it poses further challenges for the developing countries, which still have to fight against the access to essential medicines, technologies, and traditional knowledge. It is observed that this agreement has changed over the years through amendments and flexibilities to fit countries’ different economic and social needs into the field of intellectual property law. There is, and will remain, an ever-increasing need for an approach that ensures both advancing the promotion of innovation and protecting the public interest as globalization rolls out.
FAQS
Q1. What is the TRIPS Agreement?
The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) is a WTO-administered treaty that sets minimum standards for the protection and enforcement of intellectual property rights such as patents, trademarks, copyrights, and geographical indications. It came into force in 1995.
Q2. Why was the TRIPS Agreement introduced?
It was introduced to create a uniform global standard for intellectual property protection, reduce trade conflicts, encourage innovation, and ensure that IP laws did not act as barriers to international trade.
Q3. What areas of intellectual property does TRIPS cover?
TRIPS covers eight key areas: copyright and related rights, trademarks, patents, geographical indications, industrial designs, layout designs for integrated circuits, undisclosed information (trade secrets), and anti-competitive practices in licensing.
Q4. How does TRIPS balance public interest with private rights?
TRIPS allows for flexibilities such as compulsory licensing, exceptions for public health, and transition periods for developing countries. This ensures that while innovators are rewarded, the public still has access to essential goods like medicines.
Q5. What is the Doha Declaration and why is it important?
The Doha Declaration (2001) clarified that TRIPS should not prevent member states from protecting public health. It confirmed that countries can issue compulsory licenses for essential medicines, making life-saving drugs more affordable in developing nations.
Q6. What are the advantages of TRIPS for developing countries?
It provides clearer rules for IP protection, fosters foreign investment, and encourages domestic innovation. It also integrates them into the global trading system.
Q7. What challenges do developing countries face under TRIPS?
Strict patent rules can make essential medicines and technologies unaffordable. Developing countries often lack resources to implement and enforce complex IP laws, and their indigenous knowledge may not get adequate protection.
Q8. How long does patent protection last under TRIPS?
Generally, TRIPS requires patents to last for 20 years from the filing date, provided the invention is novel, useful, and non-obvious.
Q9. Can countries provide stronger protection than what TRIPS requires?
Yes. TRIPS sets minimum standards, but member countries are free to adopt higher levels of protection if they wish.
Q10. Why is TRIPS still debated today?
Because it reflects the tension between rewarding innovation and ensuring access. While it supports R&D and trade, critics argue it heavily favors developed nations and global corporations, often at the expense of poorer countries and public welfare.
