International Business Law

Copyright and TRIPS

Contents

Introduction

What are Intellectual Property Rights

What is Copyright

TRIPS

Copyrights under the WTO

Conclusion

References

Introduction to Intellectual Property Property rights define the capability of individuals and firms to own buy , sell and use capital goods and other property in an economy . These property rights are enforced through legal frameworks . The laws and the legal system in any country need to be efficient in to ensure these rights . And an acceptable legal system includes a clear definition of property rights

, laws relating to their administration , laws of contract and a workable system of adjudicating disputes . All forms of intellectual property rights are intangible rights . They are rights the owner has over his or her own creations , inventions or forms of expression (Rapp Rozek , 1990 . These types of property are unique because they are intended for public use . Intellectual property has also been defined as information with commercial value . Common forms of intellectual property are copyrights , patents , trademarks and industrial designs

Sherwood (1990 ) analyses the concept of infrastructure and argues that an intellectual property system protects innovation and creative expression , and therefore , is a helpful precondition for creation and use of new technology . Hence , the largely invisible intellectual property protection mechanism , can be considered a valuable part of a country 's infrastructure

What are Intellectual Property Rights

In traditional economics , one issue that had for long been ignored was the value of information and knowledge (Guida , 1989 . But with increased globalisation and flow of information across bs , this issue has become an important subject matter . And in the recent past , there has been considerable work done on the value of knowledge . As the commercial importance of information flows gained currency , protection of intellectual property gained eminence and resulted in the TRIPS agreement . The tort law helps people protect their intellectual property and disallows others from trespass . Common law also has certain provisions where property owners can sue in case of any infringement Various other statutes help protect intellectual property rights Protection becomes important when one sees the extent of loss to the industry due to infringements in IPRs . In the US alone , according to Government estimates , counterfeit and fraudulent use of intellectual property costs business more than 60 billion in losses per year

Intellectual property rights confer upon owners monopoly power over their creations . The argument for this is that adequate economic benefits will accrue only when this monopoly power is granted for at least some time (Aoki , 1994 . It is also argued that creative activities and inventions will not be generated in adequate measure if economic incentives are not provided . These ideas and inventions , which are of great public use , need to be incessantly generated . The inventor or artist will not be motivated to continue his or her efforts in the absence of monetary benefits . The romantic ideal of art for art 's sake generates only a limited amount of useful knowledge . Nowadays , when inventions are largely the result of large-scale corporate effort involving hundreds of scientists and millions of dollars , commercial interests become important and need to be encouraged through strong economic benefits

Therefore it is obvious that intellectual property right protection is meant to (a ) defend rights to past endeavours (b ) encourage continuing innovativeness and creativity and (c ) assure to the public a flow of useful informative and intellectually desirable works . It is towards these ends that the state must grant IPRs . The Hegelian idea of property is that people through their works , transform nature into an expression of personality (Powell Di Maggio , 1991 . And in doing so , perfect the natural world . A poet or a painter takes words or forms in an arbitrary and arranges these into a work of art . The artist has invested his personality in natural objects and thus the transformation . Thus the need to protect the right of ownership over the endeavour . All art is an expression and an investment of individual personality , effort and creativity . And if this is the case with art , then so is the case with science . Defending rights to past endeavours is essential in to solve the free rider problem associated with industry . With the advent of new ideas , most people would want to have access to a new idea in to benefit from it . However , if the inventor does not see any way of recovering costs , he or she does not want to supply the goods or the ideas . The inventor has only two options then . Either not to invent or create , or not to disclose what has been learnt . And thus a lot of useful and creative information can go to the grave

One important change seen on the knowledge horizon has been the shift from individual inventors to corporate research . Knowledge has intensified . The family mode of production has been replaced by the factory mode . And now large firms rather than individual scientists are seeking more and more protection . Thus , there are greater stakes involved . Another distinguishing feature of contemporary markets is the shift from the selling concept to the marketing concept . Even fifty years ago , most products manufactured , if price competitive , would sell However , selling now is governed more through product differentiation than through price levels alone . Therefore the importance of unique designs and sole selling propositions . And therefore the need for protecting IPRs (Roberts Rowlands , 1991

The key areas of research in the years following the Second World War have been in electronics and biotechnology (Granovetter McGuire 1998 . In the area of electronics and computers , the world has seen breathtaking discoveries and inventions . And an interesting aspect in this area is the ease with which these techniques can be disseminated read and copied . Pirated versions are very difficult to spot . It costs virtually nothing to make and use copies . Similar is the case with films and music . In biotechnology , research has been going on at breakneck speed . The vast potential that exists here is now clearly understood Especially in the areas of food and health . And coupled with the fact that most innovations get disseminated fast and can be re-engineered with ease , it is natural that inventors will insist on better protection . In to provide protection to these innovations , patents are awarded

What is Copyright

Copy right is a right given to or derived from works and it is not a right in novelty of idea or ideas . Copy right subsists only in material form to which the ideas are translated . In to secure copyright protection what is required is that the author must have bestowed upon the work sufficient judgment , skill , labor or capital . It is immaterial whether the work is wise or foolish , accurate or inaccurate or whether it has any literary merit or not . The copy right protects the skill and labor employed by the author in the production of his work

The owner of a copyright has no monopoly in the subject matter and others are at liberty to produce the same results from the common source provided they do so independently and their work is original . Another person may create another work in the same original form provided he does so from his own resources and makes the work he so originates a work of his own by his own labor and industry

Works in which copyright subsists

Literary Work includes computer programme , tables , and compilations including computer databases . It also includes abridgment of literary work , translation of literary work is entitled to copyright protection if it is original and author has expended sufficient labor and skill on it

It has been held that the conversion of the source code in a computer programme , often written in hand , into the object code or machine language is a translation and hence is entitled to copyright

Head notes of law reports are subject of copyright protection

Historical facts are not entitled to copyright protection , as historical facts are in public domain but the peculiar way of presentation being unique is entitled to copyright protection

Lectures written prior to address , speeches and sermon including those given by mechanical instrument or broadcast

Questionnaire for collecting statistical information since involves sufficient skill , judgment and labor so as to constitute literary work is entitled to copyright protection

Catalogue of items sold by a trader , or a catalogue of manufacturers listing their product , is also capable of copyright protection

Television programmes

Pocket diaries , calendars etc code words for cabling purposes

Question s set for examination and research thesis and dissertation are subject to copyright protection

Who is the author and in whom does the ownership of copyright subsists

The act provides that when a work is created at the instance of another for a valuable consideration the ownership of the product belongs to the provider of such valuable consideration . Examples of such commissioned work are persons writing a report on a subject as part of a research project being conducted by the company , a composer composing a song for a film company , a painter drawing a portrait at the instance of another for a valuable consideration What does joint authorship entail

A work may be crated by a single author or by more than one author and therefore joint authorship can also claim copyright . In absence of agreement to the contrary , each of the joint owner owns equal undivided share in the copyright . One joint author cannot lawfully reproduce the work himself or grant licenses to others to reproduce it , without the consent of other author or authors

Is the copyright assignable

The copyright is an assignable right . The copyright may be assigned for whole of the rights or part of the rights only . It can be for a full term of copy right or for a limited period of time . Assignment may be on a territorial basis i .e . for particular country or place

TRIPs

Traditionally , IPRs have been divided into two streams . The first stream consists of copyrights and related rights . Copyrights are rights granted to authors of literary and artistic works (like books or other writings , musical compositions , paintings , sculpture , computer programmes or films . There are other rights that are linked to copyrights . These are known as neighbouring rights . Examples are the rights of performers (actors , singers , musicians ) or those of broadcasting organizations . Traditionally , the second stream of IPRs is protection granted to industrial property . For instance , distinctive signs that differentiate one particular firm 's good or service from that produced by other firms is called trademark

Alternatively , geographical indications (GIs ) can differentiate goods that originate in a geographical area from those that originate in other geographical areas . This kind of IPR protection enables consumers to make informed choices . This kind of protection to the industrial property stream is somewhat more tangible in the sense that a specific object is being granted the protection . A relatively more intangible subset of this industrial property stream is when protection is granted to stimulate innovation . Instances are patents , industrial designs or trade secrets . One must of course remember that protection granted to creators is not without limitations and exceptions . More specifically the TRIPs agreement covers seven forms of intellectual property - (a copyrights and related rights (b ) trademarks , including service marks or marks for services (c ) geographical indications (d ) industrial designs (e ) patents (f ) layout designs (topographies ) of integrated circuits and (g ) undisclosed information (including trade secrets and test data

Had there not been a TRIPs agreement , individual countries would have been free to protect IPRs in whatever form they saw fit . The protection , as well as the enforcement , would have varied and there would have been no standardization , not even in the sense of minimum standards . And in the case of disputes among countries , there wouldn 't have been a common forum where these could have been resolved (Aoki 1998 . The idea behind the TRIPs agreement is thus to set minimum standards of protection . These are minimum standards , and individual countries can have higher or stiffer norms , if they so wish . Minimum principles of enforcement are also stipulated . The Uruguay Round agreement entered into force on 1st January 1995 , which is when the historical GATT was also subsumed under the WTO . But this doesn 't mean that the better standards of IPR protection had to be achieved from 1st January 1995

A period of transition is allowed . Hence , the TRIPs agreement also has provisions on transitional arrangements . All disputes go through the WTO 's standard dispute resolution mechanism . The entire GATT /WTO system operates on the basis of two building blocks . The first of these is known as national treatment , which simply means that foreign nationals must be treated in exactly the same way that domestic nationals are treated . No discrimination is permissible . The second building block is known as the most-favoured nation (MFN ) principle which means that all WTO members must be treated in exactly the same way . No discrimination between members is permitted . The TRIPs agreement follows these two principles

Copyrights under the WTO

The WTO (World Trade Organization ) is not the only forum for IPR agreements . The World Intellectual Property Organization (WIPO ) has been around since 1967 , when a convention in Stockholm established it WIPO became functional in 1970 and has been a specialized agency of the United Nations since 1974 . The Paris Convention of 1883 and the Berne Union of 1886 had their respective secretariats and these were merged in 1893 to form the United International Bureau for the Protection of Intellectual Property (BIRPI , which is the French acronym (Commonwealth Secretariat ,1996 . BIRPI eventually became WIPO . WIPO , headquartered in Geneva , now administers more than twenty international IPR treaties Obviously , not every country is signatory to every treaty

In addition , following the Uruguay Round (1986-94 ) and the establishment of WTO in January 1995 , WTO has an IPR agreement , known as the agreement on trade-related intellectual property rights (TRIPs When the agenda for the Uruguay Round was being determined in the mid-1980s , there was some resistance to the idea of TRIPs being included . Two main arguments were advanced against such inclusion First , IPR has nothing to do with trade . At a superficial level , this may seem to be true . But a little reflection will show that this is not the case . If the United States exports pharmaceutical products to another country , one cannot argue that protection granted to pharmaceutical products has nothing to do with trade . Trade is driven by investments . Besides , the difference between trade issues and non-trade issues is increasingly getting blurred (United States International Trade Commission , 1988

The second argument against inclusion of IPR in a trade agenda is slightly different . The WIPO already exists . The WIPO already has agreements on IPR . Why do we then need GATT or the WTO to discuss IPR Why won 't the WIPO do ? The WIPO is not good enough for a variety of related reasons . At the last count , the WTO has 148 members . In contrast , very few countries are signatories to various WIPO conventions or treaties . Think of a country that is not a signatory to such a WIPO convention or treaty . That country does not have the law to protect IPR . Or even if it has the law , it does not bother to enforce the law There is not much that can be done about that country (Perelman , 2002 In contrast , bringing IPR into the WTO fold has several advantages . Not only are more countries members of the WTO , the WTO provides a dispute resolution mechanism and this can be invoked against countries that don 't protect IPR . Following a dispute , retaliatory action can be taken against a country that doesn 't protect IPR . The WTO 's threat system is thus far more credible , which is why IPR was brought into the WTO

Developing countries have till 2005 for patents (Many countries only allowed process patents . Product patents will also have to be allowed now ) After WTO 's Fourth Ministerial Meeting in Doha in 2001 , LDCs (least developed countries ) have till 2016 to implement higher norms Other than product patents in addition to process patents , the duration of patent protection has to be uniformly twenty years . And compulsory licensing provisions have been tightened up . These provisions are used when a patent is not worked . The government can then instruct that the patent-holder has to compulsorily execute a license in favour of another manufacturer

TRIPs also has the following additional stipulations . First , national treatment must be observed . The national treatment clause is one of the building blocks of the GATT /WTO system and implies that nationals of other WTO members must be treated in exactly the same way that nationals of the home country are treated . No discrimination is possible Second , most favoured nation (MFN ) treatment must be followed . The MFN clause is another building block of the GATT /WTO system and implies that discrimination among different WTO members is not possible . Each WTO member must be given the treatment that is given to the country that is most favoured . These two guiding principles , national treatment and MFN , must therefore also apply to IPR . Third , norms given in the TRIPs agreement are minimum standards of protection . Countries can have higher standards . Fourth , Articles 7 and 8 of TRIPs need to be mentioned Article 7 says that TRIPs must ensure technology transfer and among other things , Article 8 says that measures to prevent abuse of IPRs can be introduced

Conclusion

In the development context , there is enough empirical evidence to note that free access to foreign technology has led to a great deal of complacency on the part of domestic industry . The industrial policy of import substitution had envisaged a great deal of effort and investments in innovativeness . But free access to foreign technology , in the face of poor IPR implementation , has enabled industry to succumb to the temptation of using foreign technology , tinkering with it and adapting it with minor changes . There is a popular impression that through the Uruguay Round agreement , the developing countries have had to grant and enormous lot in the area of intellectual property rights . There is also an impression that these countries have no tradition or legislation of protecting intellectual property . As the above sections indicate , both of these propositions are inaccurate . In any process of multilateral trade negotiations , there is an element of quid pro quo . There are both costs and benefits and one has to trade off the benefits against the costs References

Aoki , K (1998 : `Neocolonialism , anticommons property , and biopiracy in the not-so-brave new world of international intellectual property protection , Indiana Journal of Global Legal Studies , Vol . 6

Aoki , K (1994 . `Authors , Inventors and Trademark Owners : Private Intellectual Property and the Public Domain ' Columbia VLA Journal of the Law and Arts18 : 191

Commonwealth Secretariat (1996 , Business Guide to the Uruguay Round Commonwealth Secretariat and International Trade Centre , Geneva

Granovetter , M . and McGuire ,

(1998 . `The Making of an Industry Electricity in the United States ' In Callon , M (Ed , The Law of Markets , Blackwell , Oxford

Guida , RA (1989 ) The costs of free information Public Interest . 97 (3 87-95

Perelman , M (2002 . Steal This Idea : Intellectual Property Rights and the Corporate Confiscation of Creativity . New York : Palgrave Publications

Powell , W .W . and DiMaggio ,

.J (1991 . The New Institutionalism in Organizational Analysis . Chicago : The University of Chicago Press

Rapp , R Rozek , 1990 . Benefits and Costs of Intellectual Property Protection in Developing Countries . SNERA (National Economic Research Associates , Working 3 , 1990

Roberts , S and Rowlands , I (1991 ) Freedom of information : a practical perspective Policy Studies12 (2 ) 40-51

Sherwood , R .M (1990 , Intellectual Property and Economic Development Westview Press , Boulder

United States International Trade Commission , Foreign Protection of Intellectual Property Rights and the Effect on U .S . Industry and Trade February , 1988

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