The Tribune - Spectrum

Sunday, October 7, 2001

How to avoid tripping on TRIPS
Review by P.K. Vasudeva

Intellectual Property Rights in the WTO and Developing Countries
by Jayashree Watal. Oxford University Press, New Delhi. Pages 305. Rs 675.

THE debate on the intellectual property protection, especially the patents, has intensified because of the expanding frontiers of global economy. Intellectual property can be defined as the creation of the human mind and human intellect which include patents (including micro-organisms and plant varieties), copyright and related rights, trademarks, industrial designs, integrated circuits, trade secrets and geographical appellations.

Technology was increasingly becoming valuable commercial or tradable asset, and a dominant factor in determining international competitiveness. Even as the industrialised world was losing its ground in traditional manufacturing to low-cost competitors, its strength was rapidly shifting to knowledge-based industries and "intellectual goods". They had a clear and decisive lead in new and frontier technologies such as information, communication and biotechnology which were witnessing dramatic advancements. Investment cost in research and development was also rising rapidly with the growing standards in health and environmental protection.


On top of all this was the clamour of their industry, especially in pharmaceutical, chemical, film and computer software sectors, that the "piracy" of their intellectual property as they perceived it was causing them huge loss of sales in the world market.

This is the main reason that the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement was part of the Uruguay Round of multilateral trade negotiations and was a major landmark of the international relations. All signatory countries in the World Trade Organisation (WTO) after January 1, 1995, have adopted the TRIPS agreement. All WTO members were generally given one year, up to January 1, 1996, to include the proposed changes in their IPR or other laws and regulations. Developing and other countries-in-transition were given an additional four years up to January 1 2000 and the least developed country 10 years up to January 1, 2006, to do so. A further period of five years up to 2005 was given to the developing countries to introduce product patents in the fields of food, pharmaceutical and agriculture, chemicals excluded thus far in the patent laws.

This volume provides a detailed overview of the differing interpretations on TRIPS while referring the reader to further reading, including some useful websites. It is based on a decade of research on some of the crucial, controversial and bitter negotiations between the developed and the developing countries. The author tries to address and analyse questions such as, how did this agreement come about, what stand did developing countries take during the negotiations, what was their contribution to the TRIPS text, is there more than one way of implementing the provisions of this agreement, what is the real options available to the developing countries,what options have they already selected and what are the new issues since the TRIPS agreement.

The book has been divided into 12 chapters. The first chapter introduces intellectual property rights. The World Intellectual Property Organisation (WIPO,) out which the TRIPS has been derived, finds due consideration.

The second chapter broadly surveys the TRIPS negotiations process (1986-94), describes the role of the developing nations and attempts to draw lessons from this experience for new issues or for further negotiations on IPRs. It also explains how the developing counties including India got a raw deal from the developed nations owing to the lack of unity among them. The US effectively used Section 301 and other bilateral means to obtain essential concessions and win silence from the major developing countries participating in the negotiations of TRIPS.

The third chapter discusses complex issues involved in patenting of plants, animals and genes, describing the developments in the USA, EU and limited samples of other developed and developing countries. It also describes the interplay of protection of plant varieties, biological inventions and biodiversity. The author gives the solution to these problems to the developing countries.

The next chapter reviews the protection of undisclosed information trade secrets and test data and examines the unresolved issues in these areas, drawing upon the negotiating history and newly available material from recent reviews of legislation in the TRIPS Council.l.

There is a chapter on copyright and related rights in TRIPS and in the relevant provisions in the Berne Convention. It also includes a discussion on new WIPO treaties and the unresolved issues on databases and audiovisual works.

The next chapter extends the distinction to distinctive signs such as trademarks and geographical indications and interprets the provisions of TRIPS in relation to the pre-existing standards in the Paris Convention and national laws. It also includes a discussion on issues for future negotiations in this area. The ninth chapter briefly reviews industrial designs and layout designs of integrated circuits.

The next two chapters explain the limits on IPR under TRIPS and the domestic enforcement of IPRs respectively. The concluding chapter gives some suggestions on future negotiations on IPRs in the WTO and WIPO, drawing upon previous chapters and discusses the role of these negotiations. This and the 10th chapter summarise the whole book for the ease of understanding for the readers.

The book is useful for those dealing with IPRs, especially for those filing for patents.