The Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS) provides for minimum norms and standards in respect
of the following categories of intellectual property rights: -
- Copyrights and related rights
- Trademarks
- Geographical Indications
- Industrial Designs
- Patents
- Lay out designs of integrated circuits
- Protection of undisclosed information (trade
secrets)
The Agreement sets out minimum standards to be adopted by the
parties, though they are free to provide higher standards of
protection. A transition period of five years is available to all
developing countries to give effect to the provisions of the TRIPS
Agreement. This period ended on 1.1.2000. No transitional period is
available, however, for grant of national treatment and
most-favoured-nation treatment. Countries that did not provide
product patents in certain areas of technology as on 1.1.1995, can
delay the grant of product patents in those areas for another five
years i.e. upto 1.1.2005.
Where a country does not make available patent protection for
pharmaceutical and agricultural chemical products as on 1.1.1995, they have to provide a means for accepting applications for such
inventions (mailbox), apply applicable priority rights and provide
exclusive marketing rights (EMRs) for such products. The EMRs have
to be provided in India only if a set of conditions have been met, i.e. where a patent application has been filed after 1.1.1995 in any
WTO Member, patent and marketing approval granted in that Member
country, an application has been filed in the mailbox in India and
marketing approval obtained in India. The EMR is available for five
years from grant or till the patent is granted or rejected, whichever is earlier. The Patent (Amendment) Act, 1999 was passed in
March 1999 to provide for mailbox and EMR facility.
The state of play of India’s obligations under TRIPS arising
as on 1.1.2000 in respect of the seven IPRs covered under TRIPS is
briefly given below.
(a) Copyrights and related rights
In the area of copyright and related rights (i.e. rights of
performers, producers of phonograms and broadcasting organizations), the Agreement requires compliance with the substantive provisions of
the Berne Convention. Computer programmes are to be protected as
literary works, the term of protection for copyrights and right of
performers and producers of phonograms is to be no less than 50
years. In case of broadcasting organisations, however, the term of
protection is to be at least 20 years. India is already a signatory
to the Berne Convention and our laws conform to the provisions of
the Convention. India’s copyright law has been amended and in
some ways exceeds the requirements of the TRIPS Agreement, for
example, on the period for copyright protection (which is 60 years
in India). The law was amended in December 1999 to grant 25-year
term of protection for neighbouring rights.
(b) Trademarks
The Trade and Merchandise Marks Act. 1958 was in its essential
features in accordance with TRIPS, except that it did not cover
service marks in its scope. This has been done by replacing it with
the Trademarks Act 1999. We are now fully compliant with our TRIPS
obligations.
(c) Geographical Indication
The Agreement contains a general obligation that parties shall
provide the legal means for interested parties to prevent the use of
any means in the designation or presentation of a good that
indicates or suggests that the good in question originates in a
geographical area other that the true place of origin of the good.
We currently provide protection to geographical indications through
passing off action in courts or through certification marks.
However, to provide better protection to geographical indications a
new law "The Geographical Indication of Goods (Registration &
Protection) Act, 1999 has since been enacted.
(d) Industrial Designs
Obligations envisaged in respect of industrial designs are that
independently created designs that are new or original shall be
protected. There in an option to exclude from protection, designs
dictated by technical or functional consideration, as against
aesthetic consideration, which constitutes the coverage of
industrial designs. The Bill to amend Industrial Design Act was
passed early this year.
(e) Patents
The basic obligation in the area of patents is that, inventions in
all fields of technology whether products or processes shall be
patentable if they meet the three tests of being novel, involving an
inventive step and being capable of industrial application. In
addition to the general security exception, which applies to the
entire TRIPS Agreement, specific exclusions are permissible from the
scope of patentability. These are available in the areas of
inventions whose commercial exploitation is to be prevented to
protect public order or morality, human, animal plant life or health
or to avoid serious prejudice to the environment. In addition, we
can exclude from patentability diagnostic, therapeutic and surgical
methods for the treatment of human and animals, plants and animals
other than microorganisms, and essentially biological process for
the production of plants and animals other than non-biological and
micro biological processes.
To meet our TRIPS obligations as on 1.1.2000, the Patents (Second
Amendment) Bill, 1999 has been introduced in the Parliament in
December 1999 and is before the Joint Committee of the Houses.
In respect of plant varieties, there is an obligation to provide
for protection either by patents or by an effective sui generis
system or by any combination thereof. The Agreement does not spell
out the elements of an effective sui generis system and it is left
to each Government to determine the elements, which could be deemed
to be providing effective protection. A decision has been taken to
put in place a sui generis system as it is perceived to be in our
national interest. A Bill in this regard is before the Joint
Committee of the Houses of the Parliament.
(f) Layout Designs of Integrated Circuits
India is a signatory to the international agreement administered by
WIPO on this subject known as the Washington Treaty. The main
obligations of the Washington Treaty are also incorporated in the
TRIPS Agreement with some enhancement and cover the protection of
the intellectual property in respect of lay-out designs that are
original in the sense of being the result of their creator's own
intellectual efforts. The obligations include national treatment to
foreign right holders and a term of protection for 10 years. A Bill
in this regard was introduced in the Parliament in December 1999 and
is awaiting passage.
(g) Protection of undisclosed information
The Agreement provides in this area that natural and legal persons
shall have the possibility of preventing information lawfully within
their control from being disclosed to, acquired by or used by others
without their consent in a manner contrary to honest commercial
practices. Further, parties are required to protect against unfair
commercial uses, undisclosed or other data obtained as a condition
of approving the marketing of pharmaceutical or of agricultural
chemical products.
In India we do not have a separate legislation dealing with trade
secrets. Common law on the subject is evolving and the courts have
provided relief where allegations of wrongful disclosure have been
proven. It is not felt necessary to have a separate legislation on
the subject.
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