What does the TRIPS Agreement say about trade secrets or undisclosed information?

What does the TRIPS Agreement say about trade secrets or undisclosed information?
What does the TRIPS Agreement say about trade secrets or undisclosed information?

Undisclosed information, or trade secrets have been provided protection by the TRIPS agreement for the first time in public international law. This explicitly requires undisclosed information- trade secrets or know-how – to benefit from protection.

The protection is applied to information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret.

The Agreement does not demand that undisclosed information should be treated as a form of property, but it does stipulate that a person lawfully in control of such information must have the possibility of preventing it from being disclosed to, acquired by, or used by others without his or her consent in a manner contrary to honest commercial practices.

Intellectual property rights can be defined as the rights given to people over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time.

What are the future issues under consideration relating to TRIPS?

What are the future issues under consideration relating to TRIPS?
What are the future issues under consideration relating to TRIPS?

Some of the issues that are under debate relating to TRIPS are –

• The effectiveness of the 2003 “waiver” in the 2001 Doha Declaration on TRIPS and Public Health. The waiver in Doha Declaration removes a requirement that generics produced under compulsory license should be mainly for the domestic market. This would hinder their export to countries that cannot make the medicines. The TRIPS Agreement has been amended in 2005 to include these provisions in it, but the amendment has not come into force as most Members have not ratified it so far. In addition, the mechanism established in the 2003 waiver for providing affordable medicines to poor countries does not seem to have worked as only one case of its use exists (where Rwanda obtained medicines from Canada), and that too has not been very successful. WTO members are reviewing this provision.

• The TRIPS Agreement has a built in review of the provisions relating to patenting of life forms. The current provision obliges members not to exclude from their patent regime microorganisms and nonbiological and microbiological processes. It also obliges Members to protect plant varieties either through patents or through a sui generis system (of its own kind) or a combination thereof. This review has not been concluded even though it started in 1999.

• Protection of the innovations of indigenous and local farming communities and the continuation of the traditional farming practices including the right to save, exchange seeds, and sell their harvest

• Protection of the rights of indigenous communities and prevent any private monopolistic intellectual property claims over their traditional knowledge.

• Grant of the same level of protection of geographical indications in other products as is granted to wines and spirits.

Why TRIPS plus provisions are important in FTAs and what are the consequences of this inclusion?

Why TRIPS plus provisions are important in FTAs and what are the consequences of this inclusion?
Why TRIPS plus provisions are important in FTAs and what are the consequences of this inclusion?

By entering into FTAs with the developed countries, developing countries see some advantages in tariff reductions on agricultural, clothing and other products. In return, developed countries seek better market access and investment opportunities for products and services of their interest.

In addition, developed countries also seek to raise the minimum levels of protection for IPRs as they have a comparative advantage in technology products and services. At the same time, developing countries find it difficult to put forward the issues of their concern through the FTA negotiations including the harmonisation of TRIPS and CBD, access to medicines, and protection against the bio-piracy of their biological genetic resources, farmers’ rights and associated traditional knowledge, ability of their farmers to continue their subsistence and livelihood related farming practices and getting the same level of protection for their geographical indications as for wines and spirits of developed countries.

As a consequence, FTAs create an imbalanced set of rights and obligations in favour of developed countries by ratcheting up the levels of IPR protection. While it can be argued that there is no bar on developing countries in walking away from unequal agreements, it can also be argued that owing to unequal negotiating strengths, many bilateral agreements do turn out to be unequal. If the immediate need to benefit from reduced tariffs, etc. is high then a developing country can be guided into making concessions in areas of longer term impact such as IPRs

What are TRIPS plus provisions?

What are TRIPS plus provisions?
What are TRIPS plus provisions?

IPRs are territorial rights and can be acquired in the territory of the country having an IPR law. That is, IPR acquired in one country cannot be enforced in another country. The TRIPS Agreement lays down only certain minimum standards of protection and enforcement of IPRs by its Members through enactment of such national laws and regulations.

The TRIPS Agreement, however, allows Members to have higher levels of protection than the minimum standards laid down in it, thus leaving the flexibility to Members to have ‘TRIPS plus’ laws and regulations. The developed countries are moving toward higher, enhanced standards of IPR protection to evolve TRIPS-plus regime. These higher standards are now making an appearance in various free trade agreements (FTA) that these countries are negotiating and entering into with their trading partners.

Since these provisions go beyond minimum standards established under TRIPS, they may take away the flexibilities (for example the ability to issue compulsory licenses for medicines required in public health emergencies) that exist in the TRIPS Agreement. These negotiate rules and commitments in bilateral, sub regional and regional agreements that go beyond the multilateral level in WTO.

What is the importance of the Doha Declaration on Public Health, why was this necessary?

What is the importance of the Doha Declaration on Public Health, why was this necessary?
What is the importance of the Doha Declaration on Public Health, why was this necessary?

The framework of stringent intellectual property rights established by the TRIPS Agreement enables pharmaceutical manufacturers to charge prices above marginal cost of production. This affects the ability of governments to monitor and protect public health because of their obligations to protect IPRs of the manufacturers.

This means that Governments may find their capacity to ensure affordable access to medications restricted. In 2001, in response to concerns of developing countries regarding limited or no access to medicines at affordable prices, the WTO members agreed to issue the Doha Declaration to clarify the TRIPS Agreement in the context of Public Health.

The declaration states that the TRIPS Agreement would not prevent members from taking steps to protect public health and makes clear that each member has the right to create certain exceptions to its IPR laws to enable it to grant compulsory licenses for manufacture of essential goods such as life-saving drugs even if the consent of the holder of the IPR is not forthcoming.

Each member would be required to determine the grounds on which such compulsory licenses can be granted and shall have the right to determine what constitutes a national emergency.

Based on a decision taken by the WTO in 2003, Member states may also grant a compulsory license for limited export and import of medicines where the receiving country lacks manufacturing capacity.

 

What is the link between TRIPS, WTO and WIPO?

What is the link between TRIPS, WTO and WIPO?
What is the link between TRIPS, WTO and WIPO?

Intellectual Property Rights (IPRs) at a multilateral level have their genesis in the Paris Convention for the Protection of Industrial Property in 1883 which protected industrial property i.e. Patents and trademarks and the Berne Convention for the Protection of Literary and Artistic Works in 1886 for copyrights and related rights.

World Intellectual Property Organization (WIPO) which began its work in 1967 taking over from the Bureau for the Protection of Intellectual Property that had been working since 1893, is the international agency under the United Nations that administers the work of these conventions.

The WIPO administers many other international conventions on IPRs also. While the IPR Conventions and treaties create the international standards in protection of IPRs which are to be followed by the member countries, substantive trade related disciplines on IPRs under these international conventions have been adopted by reference into the WTO through the TRIPS Agreement.

This means that the Agreement provides rules for trade and investment in ideas and creativity by incorporating standards laid down in certain exact provisions of the major IPR conventions. The WTO provides that “intellectual property” should be protected when trade is involved.

Thus, through the TRIPS, the WTO makes it mandatory for all its member countries to follow basic minimum standards of IPR provided for under TRIPS and bring about a degree of harmonization of domestic laws in this field.

Which IPRs are covered under TRIPS?

Which IPRs are covered under TRIPS?
Which IPRs are covered under TRIPS?

The IPRs covered by the TRIPS Agreement are:

  1. Copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations)
  2. Trademarks, including service marks
  3. Geographical indications including appellations of origin
  4. Industrial designs
  5. Patents including the protection of new varieties of plants
  6. Layout-designs (topographies) of integrated circuits
  7. Undisclosed information, including trade secrets and test data.

Intellectual Property Rights are statutory rights once granted allows the creator(s) or owner(s) of the intellectual property to exclude others from exploiting the same commercially for a given period of time. It allows the creator(s)/owner(s) to have the benefits from their work when these are exploited commercially. IPR are granted to an inventor or creator, designer in lieu of the discloser of his/her knowledge.

Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and such rights of the public in access to those creations.

The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair-trading, which would contribute to economic and social development in view of the immense commercial value of intellectual property.

Why was TRIPS included in WTO?

Why was TRIPS included in WTO?
Why was TRIPS included in WTO?

The precursor to the WTO was the General Agreement on Tariffs and Trade (GATT) which sought to address issues related to international trade in goods. The operation of the GATT over the years resulted in lowering of tariffs in general in international trade.

As a result, increasingly, other domestic policies of nations came into focus of the trading nations. The developed countries, including the United States started facing increasing competition in manufactured exports from Newly Industrializing Countries (NICs) of Asia. For intellectual property issues in general, the negotiators were required to “clarify GATT provisions and elaborate as appropriate new rules and disciplines” in order to reduce distortions and impediments to international trade.

As technology became more important in goods and commodities, having higher proportion of invention and design (intellectual creativity) in their value, IPR became important in international trade. As a result, in the Uruguay Round negotiations, the intellectual property rights dominated the discussions.

What is TRIPS?

What is TRIPS?
What is TRIPS?

The Agreement on Trade related Aspects of Intellectual Property Rights of the WTO is commonly known as the TRIPS Agreement or simply TRIPS. TRIPS is one of the main agreements comprising the World Trade Organisation (WTO) Agreement.

This Agreement was negotiated as part of the eighth round of multilateral trade negotiations in the period 1986-94 under General Agreement on Tariffs and Trade (GATT) commonly referred to as the Uruguay Round extending from 1986 to 1994. It appears as Annex 1 C of the Marrakesh Agreement which is the name for the main WTO Agreement. The Uruguay Round introduced intellectual property rights into the multilateral trading system for the first time through a set of comprehensive disciplines.

The TRIPS Agreement is part of the “single undertaking” resulting from the Uruguay Round negotiations. This implies that the TRIPS Agreement applies to all WTO members, mandatorily. It also means that the provisions of the agreement are subject to WTO dispute settlement mechanism which is contained in the Dispute Settlement Understanding (the “Understanding on Rules and Procedures Governing the Settlement of Disputes”). The TRIPS Agreement is one of the most important agreements of the WTO.

How many sectors and sub-sectors are covered in the services agreement and what are the services covered and excluded?

How many sectors and sub-sectors are covered in the services agreement and what are the services covered and excluded?
How many sectors and sub-sectors are covered in the services agreement and what are the services covered and excluded?

There are broadly 11 sectors and 72 sub- sectors included in the agreement. The sectoral commitments of the agreement covers Business services, Communication Services, Construction And Related Engineering Services, Distribution Services, Educational Services , Environmental Services ,Health Related And Social Services, Tourism And Travel Related Services, Recreational, Cultural And Sporting Services, Transport Services,Other Services (Skills Training Services ). Both India and Malaysia have agreed not to include any additional commitment in Financial Services.

Patent – A patent in an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusivity of right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder. This right is available only for a limited period of time.

However, the use or exploitation of a patent may be affected by other laws of the country which has awarded the patent. These laws may relate to health, safety, food, security etc. Further, existing patents in similar area may also come in the way. A patent in the law is a property right and hence, can be gifted, inherited, assigned, sold or licensed. As the right is conferred by the State, it can be revoked by the State under very special circumstances even if the patent has been sold or licensed or manufactured or marketed in the meantime.

The patent right is territorial in nature and inventors/their assignees will have to file separate patent applications in countries of their interest, along with necessary fees, for obtaining patents in those countries.