Introduction

According to the World Trade Organisation, intellectual property rights are those rights that
are given to persons over the creation of their minds. Intellectual property rights are
important rights in both the domestic and international spheres. There have been various
multilateral and bilateral treaties in the field of intellectual property law to mark its
international development.

Although the protection of intellectual property rights seems like a recent concept, it can be
traced back to the early days when most of the writings used to happen on leaves and
parchments and the need for protection was realised in terms of copyright protection and
originated the printing rights protection and subsequently censorship. It finally led to the
passage of the Statute of Anne which recognised the rights of the authors.

Similarly, the ancient Greeks mostly used certain kinds of symbols and marks to indicate the
source of artefacts and potteries. Some symbols we used on swords as well for the
differentiation. With the increase in trademarks were eventually associated with
merchandise makers. When a lot of cases regarding the infringement of such marks and
symbols began to see light the need for its regulation arose and subsequently Merchandise
Marks Act 1862 was introduced and it allowed traders to bring actions on the basis of
deceiving the owner of the mark.

Another intellectual property right which can be traced long back is patent laws. The system
of guilds is one of the first which granted a certain amount of monopoly to the guilds. Then
subsequently statute of monopolies was introduced.

Furthermore, with evolving society and technology, people have become more creative in
terms of both innovation as well as misuse regarding such innovation which led to the need
for a universal regulation regarding the protection of intellectual property rights.

The conventions are more than a hundred years old, yet they provide a vital basis for the
international dimensions of the current position of intellectual property rights.
These international treaties and conventions provide international protection for intellectual
property rights by creating a broad framework of protection containing certain common
elements. The primary regulation of the conduct of intellectual property rights within a
country emanates from domestic legislation. However, the provisions of these national laws
are shaped by the obligations created by international conventions and treaties.

Let us discuss them in detail.

Intellectual property rights (IPR)

Intellectual property, being intangible property, indicates the creation of the human mind.
The creation of the human mind mainly includes inventions and literary and artistic works,
including symbols, names, images, and designs used in commerce.

There are three components to intellectual property rights –

It is related to the intelligence of the human mind, which is new and unique.
It is an intangible commodity that is protected. The most important difference between
any other form of property and intellectual property is that intellectual property is
intangible and does not qualify to be defined or identified by the medium of physical
parameters.
The idea per se is not protected. The idea has to be published as a form of intellectual
property, and only then is it granted protection.

The meaning and scope of intellectual property are, with time, evolving and thus are
involved with the inclusion of newer forms of intellectual property in addition to its four
separate and distinct types, namely, patents, trademarks, copyrights and trade secrets. In
current times, the protection of geographical indication, protection of varieties of plants, the
protection of semiconductors and integrated circuits and undisclosed information have been
covered under the ambit of Intellectual Property Rights

Principles of the international intellectual property

regime
It was with the Paris Convention for the Protection of Industrial Properties, 1883, which is
commonly known as the Paris Convention, that the principles of intellectual property rights
began to take shape. It was followed by the Convention for the Protection of Literary and
Artistic Works, 1886 which is infamously known as the Berne Convention.

Both the above-mentioned conventions were negotiated and also re-negotiated as well as
amended throughout the years, and eventually, they were finally incorporated and advanced
in Trade-Related Aspects of Intellectual Property Rights (TRIPS) through the Uruguay Round
of Negotiations from 1986 to 1994, which came into effect from the 1st of January 1995.
Let’s understand each convention in detail.

Paris Convention, 1883

The Paris Convention covers all forms of industrial property, such as patents, trademarks,
industrial designs, utility models, geographical indications, service marks, trade names, and
the prevention of unfair competition.

The Paris Convention was created with two goals, which are-

first, to prevent the unforeseen loss of patent protection eligibility by publishing 81

patent applications and taking part in international exhibitions before submitting national
patent applications; and
second, to some extent, harmonise the various patent laws of the various countries.

The substantive provisions of the Paris Convention can be divided into three main
categories-

1. National treatment– As per the terms and conditions of the convention, every secretary
state must ensure that the citizens of their nation and the citizens of other contracting
states have an equivalent degree of protection regarding industrial property. Citizens of
non-contracting states shall be entitled to national treatment under the convention in the
same manner as in their own state if they reside in the contracting state or have a lawful
and functioning industrial or commercial presence there.
2. Priority rights– It covers within its ambit industrial designs, trademarks, and utility
models. This right gives the holder the ability to file an application for protection in any
other contracting state within a certain amount of time, that is, 6 months for industrial
designs and trademarks and 12 months for patents and utility models, based on a
standard initial application that was filed in one of the contracting states. It would be
assumed that these additional applications were filed on the same day as the first
application. To state it otherwise, it means that they will supersede any application filed
by third parties for the same invention, utility model, trademark or industrial design
during the previously indicated term.

The subsequent applications would not be influenced by any subsequent event, including the
publication of an invention or the sale of items bearing an industrial design or mark,
because they have their foundation in the original application.

1. Common rules – They are as under:

Patents– Patents issued for the same invention in different Contracting States are
independent of one another. A patent cannot be refused, cancelled, or terminated in any
Contracting State on the grounds that it has already been so in another Contracting
State, and the granting of a patent in one Contracting State does not obligate other
Contracting States to do the same. The refusal to award a patent or the invalidation of a
patent on the grounds that the sale of the product or of a product made using the
patented technique is subject to domestic legal restrictions or limitations is not permitted.
Marks– The filing and registration requirements for marks are governed by local law in
each Contracting State and are not governed by the Paris Convention. As a result, neither
a registration nor a request for registration of a mark that is put forward by a citizen of
any Contracting State may be denied or invalidated on the grounds that the application,
registration, or renewal was unaffected in the country of origin.
Registration– A trademark’s registration in one Contracting State is unrelated to any
potential registrations in other nations, including the place of origin.
Industrial Designs– Each Contracting State is required to preserve industrial designs,
and protection cannot be revoked because products containing the design were not
 produced there.
Trade Names– Trade names must be protected in every Contracting State without being
required to file or register the names.
An indication of Source– Each Contracting State is required to take action to prevent
the direct or indirect use of misrepresentations regarding the origin of commodities or the
identity of their producer, maker, or trader.
Unfair competition– Each Contracting State shall offer adequate safeguards against
unfair competition.

Berne Convention, 1886

States began to become more interested in the potential for international cooperation on
intellectual property during the nineteenth century because of increased literacy piracy.
Literary pirates misrepresent someone else’s ideas as their own. This desire of such
cooperation initially showed itself through bilateral agreements. Most country copyright laws
were only a few decades old in 1886. The only protection offered was that provided by
monopolies, or privileges granted for the publication of specific works.

Eight countries ratified the Berne Convention for the first time in 1886, namely- Belgium,
France, Germany, Italy, Spain, Switzerland, Tunisia, and the United Kingdom. India has
been a member of the Berne Convention since April 1928.

The Berne Convention, like the Paris Convention, was based on the idea of national
treatment and stipulated a set of basic rights that all nations had to uphold. The multilateral
age of global intellectual property cooperation began with the Paris and Berne Conventions.

The Berne Convention covers the rights of authors as well as the preservation of works. The
treaty is founded on the below-mentioned fundamental principles and includes a number of
provisions that specify the minimum level of protection that must be provided, as well as
exceptional measures that developing nations may apply.

Principles Enshrined
The principles which got enshrined in the Berne Convention of 1886 and form the bedrock of
intellectual property laws today are-

Principle of national treatment– According to the principle of national treatment,

treatment is no less favourable than that provided to people belonging to other member
countries as people of one’s own country. This principle is enshrined very much in general
agreements regarding tariffs and trade. It forms one of the most important principles of
the World Trade Organization structure.

The works of authors who are citizens of such States, or works first published in such
States, should be accorded in each of the other Contracting States the same protection as
such other Contracting States provide to the works of their own citizens.

Principle of automatic protection– The principle of automatic protection provides

unconditional protection which does not require any compliance with any formalities in all
the member countries.
 Principle of independence of protection– This principle provides for intellectual
Property Rights protection, specifically for copyright protection, to be affordable
irrespective of whether the protection is given in the country of origin or not.

Protection is provided in accordance with the convention, regardless of whether there is

protection in the nation where the work was created. However, if a Contracting State grants
a longer period of protection than the minimum period required by the Convention and the
work loses its protection in the place of origin, protection may be withdrawn.

The works and rights that must be protected, as well as the length of the protection, are
addressed by the minimum requirements of protection. Each production in the literary,
scientific, and creative fields must be protected, regardless of how it is expressed.

Principle of minimum standard protection– This principle concerns original works

and rights to be protected. For example, for copyright, the different rights protected are
transaction, adaptation and arrangement of work, performance in public, citation,
communication, broadcast, reproductions, and basis of audio-visual works.
Principle of moral rights of authors– The Convention also establishes the rights
pertaining to morals, i.e., “moral rights”. The moral rights include the right to claim
authorship of a work as well as the right to object to any alteration of the work,
mutilation, deformation, or modification. It also contains the right against derogatory
actions that would be detrimental to the honour or reputation of the author.

The rights recognised as exclusive rights of permission include the following, subject to any
permissible reservations, restrictions, or exceptions:

The right to translate;

the right to adapt and arrange the work;
the right to perform musical, theatrical, and dramatical-musical works in public;
the freedom to do literary readings in public;
being able to publicise the performance of such works;
the privilege of broadcasting; and
the freedom to create copies in any way or form, with the potential for a contracting
State to allow copies without permission in specific circumstances as long as they don’t
interfere with the work’s regular exploitation or unfairly damage the author’s legitimate
interests; and the potential for a Contracting State to grant the right to just
compensation for music sound recordings.

The Madrid Agreement

In 1891, the Madrid Agreement for the International Registration of Marks and the Protocol
of 1989 thereto were concluded. It was adopted in Madrid, Spain. It had 55 members as a
party to it when it was stated, which currently reached 114 members. By acquiring an
international registration that is valid in all specified Contracting Parties, this procedure
enables the protection of a mark in various nations. The agreement provides for the cases
and the manner in which seizure may be requested and affected in the case of goods
bearing a false or deceptive indication of the source. It prohibits the use, in connection with
the sale, display or offering for sale of any goods, of all indications in the nature of publicity
capable of deceiving the public as to the source of the goods. However, the agreement does
not provide for the establishment of a union, governing body or budget.
Application for trademark registration in Madrid Agreement
A natural person or legal entity with an affiliation to a Contracting Party to the Agreement or
the Protocol by establishment, domicile, or nationality may only submit an international
application for international registration of a mark.

Only marks that have already been registered with the trademark office of the contracting
member country with which the applicant has the required links, referred to as the ‘office
of origin’, are eligible to be the subject of international applications. The international
application may, however, be based solely on a registration application submitted to the
office of origin in cases where all designations are implemented in accordance with the
Protocol.

The World Intellectual Property Organization’s Overseas Bureau must receive an overseas
application through the office of origin.

One or more Contracting Parties in which protection is desired must be specified in an

application for international registration. Later, more designations may be made. Only
Contracting Parties that are signatories to the same treaty as the Contracting Party whose
office serves as the office of origin may be named. The International Bureau conducts an
examination after receiving an international application to see whether it complies with the
Agreement, the Protocol, and its Common Regulations.

An international registration, from the date of the international registration, has the same
consequences for each designated Contracting Party as if the mark had been registered
directly with that Contracting Party’s office.

The Hague Agreement

The Hague Agreement Concerning the International Registration of Industrial Designs,
1925 by submitting a single application to the International Bureau of the World Intellectual
Property Organization, permits applicants to register an industrial design. It allows the
design owners to protect their designs in multiple countries or regions with the fewest
possible formalities. Since subsequent changes can be recorded and worldwide registration
can be renewed in a single procedural step, the Hague Agreement also makes managing an
industrial design registration easier.

The Nice Agreement

A classification of products and services was established by the Nice Agreement Concerning
the International Classification of Goods and Services for the purpose of the Registration of
Marks (1957) for the purposes of registering trademarks and service marks. The trademark
offices of Contracting States are required to include the numbers of the classes of the
classification to which the goods or services for which the mark is registered belong in
official documents and publications in connection with each registration. It provides for 45
classes, out of which classes 1 to 34 are dedicated to goods and classes 35 to 45 belong to
services. The 1957 Agreement’s conclusion was followed by revisions. States that have
sanctioned the Paris Convention for the Protection of Industrial Property of 1883 are eligible
to join the Agreement.
Functions
The administrative benefits that the Nice Agreement brings about are given as follows-

It simplifies the search for and determination of whether an identical or similar mark has
previously been registered or applied for in relation to identical or similar products or
services.
It also permits the intellectual property officers to charge per class applied for, allowing
charges to be roughly proportional to the monopoly being claimed.
In addition , applications do not need to be re-classified when they enter the jurisdiction
because the majority of jurisdictions have adopted it; however, the formulation of the
specification might require change.

The Lisbon Agreement, 1958

The Lisbon Agreement for the Protection of Appellations of Origin and their International
Registration came into force in 1958. According to this agreement, an appellation that has
been registered will be protected from usurpation or imitation, even when it is used in
translation or is followed by words like “kind,” “type,” or the like, and it may not be deemed
to have become generic in a Contracting State as long as it is still protected in the country
of origin.

Rome Convention,1961
The first international treaty to recognise the three neighbouring rights was the Rome
Convention, and the rights that it recognised were Performers’ rights, rights of the
broadcasting organisation, and rights of phonogram producers.

Performers’ rights
Performers receive protection from some actions that they have not authorised. These
include-

broadcasting and making a live performance available to the public;

fixing a live performance; and
reproducing a fixation if the original fixation was made without the performer’s
permission or if the reproduction was made for purposes other than those for which
permission was granted.

Rights of the broadcasting organisation

The following are some of the actions that broadcasting organisations have the authority to
permit or forbid-

the rebroadcasting of their broadcasts;

the fixing of their broadcasts;
 the reproduction of such fixes; and
the communication to the public of their television broadcasts if such communication is
made in locations where the public may enter by paying a fee.

Rights of phonogram producers

Producers of phonograms have the authority to allow or restrict direct or indirect replication
of their phonograms. A single equitable remuneration must be paid by the user to the
performers, the phonogram manufacturers, or both when a phonogram released for
commercial use gives birth to secondary uses.

For phonograms and performances included therein, protection must last at least until the
end of a 20-year period calculated from the end of the year in which–

1. the fixation was made,

2. the performance took place, and
3. the broadcast took place.

The Rome Convention permits limitations and exceptions to the afore-mentioned rights in
national laws with regard to private use, the use of brief excerpts in connection with
reporting current events, temporary fixation by a broadcasting organisation using its own
facilities and for its own broadcasts, use exclusively for teaching or scientific research, and
any other situations where national law permits exceptions to copyright in literary and
artistic works.

The convention took a minimalist view of protection for these neighbouring rights, but
indeed it granted protection. This narrow approach came to an end when the World
Intellectual Property Organisation Performance and Phonogram Treaty, 1996 took place. The
agreements stipulated a number of significant rights, which included the exclusive right to
distribute to the public the original and copies of their performances recorded on
phonograms through sales or other transfer of ownership or commercial rentals as well as
the right to split an equitable payment with the phonogram producers for the use of
recordings of their performances made for commercial purpose or broadcasting or for any
other form of public communication. In addition, it acknowledges the protection of moral
rights which are significant, such that the performers were granted the right of integrity and
paternity.

World Intellectual Property Organization Convention

The World Intellectual Property Organization Convention, which serves as the organisation
governing document, was signed in Stockholm on July 14, 1967. It went into effect in 1970
and underwent an amendment in 1979. The World Intellectual Property Organisation is an
intergovernmental organisation that joined the United Nations system of organisations’
specialised agencies in 1974.

WIPO
The World Intellectual Property Organization is an agency of the United Nations that
specialises in the promotion and protection of intellectual property rights throughout the
world. It was established in 1967, with its headquarters in Geneva, Switzerland. It carries or
mandates poster innovation economic development and creativity by providing a framework
for the protection of intellectual property globally.

The primary mission of the World Intellectual Property Organisation is to encourage the use
and protection of intellectual property with the aim of creating a balanced and effective
international intellectual property system which facilitates innovation investment as well as
technology advancement. It is one of the largest specialised agencies within the United
Nations system, and its membership is open to any UN member state. It administers various
International treaties and agreements which are related to intellectual property. It provides
a platform on an international level for the filing of patterns, making it easy for investors as
well as companies to see protection of patterns in multiple countries with just a single
application.

Its Madrid system simplifies the registration and management of trademarks across multiple
jurisdictions. It also supports the protection of copyright and other related rights.
Furthermore, it offers various services relating to intellectual property information and
capacity building, including various training programs.

The World Intellectual Property Organisation conducts research and analysis on intellectual
property trends and policies across the world and publishes its report along with various
valuable insights worldwide.

It offers arbitration and mediation services as a form of dispute resolution between parties
without the need for costly and time-consuming litigation. It takes the initiative in bringing
about development programmes across countries to build their capacity in intellectual
property protection and management. It also encourages the transfer of knowledge and
technology from developed to developing countries in order to promote economic growth
and development, considering the development of the world as a whole.

It plays a crucial role in harmonising the facilities for global protection of intellectual
property rights.

World Intellectual Property Organization’s Development

The Paris Convention for the Protection of Industrial Property and the Berne Convention for
the Protection of Literary and Artistic Works, respectively, were the founding documents of
the World Intellectual Property Organisation. An “International Bureau” was to be
established under both Conventions. Due to the World Intellectual Property Organisation
Convention, the two bureaus were combined in 1893 and replaced by the World Intellectual
Property Organisation in 1970.

The goals of the World Intellectual Property Organisation

The two main goals of the World Intellectual Property Organisation are-

1. to encourage the protection of intellectual property around the world; and

2. to ensure administrative cooperation between the intellectual property Associations
established by the treaties that the World Intellectual Property Organisation oversees.

In addition to carrying out the administrative duties of the Unions, the World Intellectual
Property Organisation engages in a number of activities to achieve these goals, such as

normative activities, which encompass the formation of international trees to create

norms and standards for the protection and enforcement of intellectual property rights.,
programme activities, involving legal and technical assistance to States in the area of
intellectual property,
international classification and standardisation activities; and
trademark and industrial design registration, as well as filing and registration services
relating to foreign applications for patents on inventions.

Membership in the World Intellectual Property Organisation

Any country that satisfies the following requirements is eligible to join the World Intellectual
Property Organisation-

Must be a member of the United Nations, any of the specialised agencies associated with
the United Nations, or the International Atomic Energy Agency,
Must be a party to the Statute of the International Court of Justice; or
Must have received an invitation from the General Assembly.

Membership in the World Intellectual Property Organisation does not impose any duties on a
party with regard to other treaties that it manages. To become a member of the World
Intellectual Property Organisation, an instrument of admission to the convention must be
filed with the director general of the organisation.
Locarno Agreement
A classification system for industrial designs is defined by the Locarno Agreement
Establishing an International Classification for Industrial Designs in 1968. The contracting
state should designate the classes and sub-classes of the classification to which the products
containing the design belong. Any publication that the offices provide on the submission or
registration of an industrial design must also include such information. A committee of
experts is established under the agreement, and it is their duty to update the classification
on a regular basis depending on the requirement. The categorisation system is also used by
other international organisations.

In 1979, the Locarno Agreement of 1968 was modified. There is an assembly in the union
created by this Agreement, and there is one delegate from each of the states of the union in
this assembly. One of the most important responsibilities of the assembly is to adopt the
yearly program and budget of the union.

The Patent Cooperation Treaty

According to the Patent Cooperation Treaty of 1970, by submitting an international patent
application, an invention can receive simultaneous patent protection in several different
countries. An application may be submitted by any citizen or resident of a contracting
member state. After meeting the connection through establishment requirement, it can
typically be filed with the national patent of the contracting member state where the
applicant resides or is a citizen, or, at the applicant’s option, to the World Intellectual
Property Organisation’s Geneva-based International Bureau as well as its regional offices.

The treaty regulates in considerable detail the formal requirements that must be fulfilled by
international applications. All contracting states that are parties to the treaty as of the
international filing date are automatically identified upon submission of an application under
the patent cooperation treaty. On the international application, a global search is carried
out. Such a search is carried out by one of the authorised international search authorities in
accordance with the provisions of the Patent Cooperation Treaty. In light of the search
report’s result, a preliminary and non-binding written opinion is also offered about whether
the invention seems to meet the standards of patentability. After receiving the written
opinion and international search report, the applicant may choose to modify the clauses of
the application or withdraw it altogether, especially if the content of the report and opinion
suggest that patent issuance is unlikely. The overseas bureau publishes the foreign
application and the findings of the worldwide search if it is not withdrawn.

A union was established with an assembly as a consequence of the Patent Co-operation

Treaty. Every state that has ratified the Patent Cooperation Treaty is a member of that
assembly. Adopting the biennial agenda and budget of the union, updating the regulations
issued under the Patent Cooperation Treaty and changing some costs associated with
utilising the system are among the key goals of this assembly.

Strasbourg Agreement
The Strasbourg Agreement Concerning the International Patent Classification of
1971 created the international patent classification. It is essential for retrieving patent
papers while looking for “prior art.” Such retrieval is necessary for prospective investors,
research and development organisations, and other parties interested in the use of
technology.

All the states that ratified the agreement became members of the committee of experts. The
union with the assembly was founded by this agreement. One of the most important
responsibilities of the assembly is to adopt the yearly programme and budget of the union.
In 1979, an amendment was made to the 1971 Agreement, which is commonly referred to
as the International Patent Classification Agreement.

The Geneva Convention

The Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms (1971) is also referred to as the Phonograms Convention.
According to this convention, each of the Contracting States is required to defend and
safeguard the producer of phonograms belonging to another Contracting State from copies
being made without his or her permission

Additionally, it offers a defence against the importation of such copies where production or
importation is done with the intention of public distribution. After the first fixation or first
publication of the phonogram, protection must extend for at least 20 years. The same
restrictions that are stipulated with respect to the protection of writers are permitted by the
Convention. There are restrictions on when non-voluntary licences can be granted.

Vienna Agreement
The Vienna Agreement establishing an International Categorization of the Figurative
Elements of Marks, (1973) established a categorisation for marks that are composed of or
contain figurative components. The numbers of the categories, divisions, and sections of the
classification to which the figurative elements of such marks belong must be indicated in
official documents and publications connected to the registration and renewal of marks.

The Industrial Property Offices of at least 30 additional States, in addition to the other
international organisations, apply the Classification even though only 31 States are party to
the Vienna Agreement. An Assembly was established under the Vienna Agreement to govern
the Union. The Assembly is comprised of representatives from each State that is a part of
the Union.

Brussels Convention
The Brussels Convention Relating to the Distribution of Programme-Carrying Signals
Transmitted by Satellite, which is also referred to as the Satellites Convention, was adopted
in 1974. Each Contracting State is required by the convention to take reasonable
precautions to prevent the unauthorised dissemination of any satellite-transmitted program-
carrying signal on or from its territory. If a distribution has not been approved by the
organisation—typically a broadcasting organisation—that made the program’s content
decisions, it is deemed to be illegal. The organisations belonging to the Contracting States
are subjected to such rules dutifully. The Convention allows it in the form of protection
restrictions.
The distribution of signals that carry programmes by unauthorised individuals is allowed if
the signals contain brief excerpts of current event reports, brief quotations from the
programmes carried by the emitted signals, or, in the case of developing nations, if the
programmes are distributed solely for educational purposes, including adult education or
scientific research. However, where the distribution of signals is done through a direct
broadcasting satellite, the terms of this Convention do not apply.

The Convention does not specify the duration of protection, leaving that up to national law.

Budapest Treaty
The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for
the Purposes of Patent Procedure, 1977 is a landmark for its central provision that any
Contracting State that permits or mandates the deposit of microorganisms for the purposes
of patent procedure shall recognise, for such purposes, the deposit of a microorganism with
any “international depositary authority,” regardless of whether that authority is on or outside
the territory of the said State.

In actual usage, the phrase “microorganism” is defined broadly to include any biological
material that must be deposited for disclosure reasons, particularly in the case of inventions
in the food and pharmaceutical industries.

The innovation must be disclosed in order for a patent to be granted. A written description is
typically used to reveal an invention. When an invention involves the use of a microbe that
is not generally available to the public, disclosure cannot be made in writing and must
instead be accomplished by depositing a sample of the microorganism with a specialised
institution.

Nairobi Treaty
All nations that have sanctioned the Nairobi Treaty on the Protection of the Olympic Symbol
(1981) are required to prevent the five interlocking rings that represent the Olympic Games
from being used for commercial gain in signs, merchandise, or other contexts without the
IOC’s consent.

One significant outcome of the Treaty is that, in the event that the International Olympic
Committee grants permission to use the Olympic symbol in a State party to the Treaty, the
National Olympic Committee of that State is entitled to a portion of any revenue the
International Olympic Committee generates as a result of the said authorisation.

Trademark Law Treaty, 1994

The Trademark Law Treaty aims to harmonise and simplify processes for regional and
national trademark registration. This is accomplished by streamlining and harmonising a few
aspects of those processes, which makes the administration of trademark registrations
across several countries and the filing of trademark applications less complicated and more
predictable. The majority of the Trademark Law Treaty’s provisions are related to the
application for registration, amendments made after registration, and renewal phases of the
process before a trademark office. Additionally, each Contracting Party must permit
applications to relate to products and/or services from different Nice Classification classes.
A Contracting Party cannot demand that the applicants produce, for instance, an extract
from a register of commerce, evidence of a specific commercial activity, or proof that the
mark has been registered in the trademark register of another country because the list of
permitted requirements is exhaustive. A power of attorney may also be related to several
applications or registrations made by the same person or entity, according to the Trademark
Law Treaty.

For use by applicants, a Contracting Party may also create its own Individualised
International Form, provided that it does not call for any mandatory components outside of
those mentioned in the associated Model International Forms. A necessity for the
attestation, notarization, authentication, legalisation, or certification of any signature is
specifically prohibited under the Trademark Law Treaty, except for when a registration is
being surrendered.

Trade-Related Aspects of Intellectual Property Rights

(TRIPS)
International intellectual property laws developed in the 20th century. Numerous changes
were also made to the Paris and Berne Conventions. International organisational structures
developed together with the signing of intellectual property treaties. International bureaux
were established as a result of the Paris and Berne Conventions, and they united to become
the United International Bureaux for the Protection of Intellectual Property in 1893. A new
organisation, the World Intellectual Property Organisation, replaced it in 1967. The
international intellectual property community, which was governed by the United
International Bureaux for the Protection of Intellectual Property and later the World
Intellectual Property Organisation, was governed by a set of guiding principles, the most
significant of which was the concept of national treatment.

It was not, however, a world where technical regulations were standardised. States
maintained a great deal of sovereign flexibility in establishing intellectual property rules.

Intellectual property was added as a negotiating topic at the Ministerial Meeting in Punta del
Este in September 1986, the meeting that launched the Uruguay Round of trade
negotiations. With the signing of the Final Act Embodying the Results of the Uruguay Round
of Multilateral Trade Negotiations on April 15, 1994, the Uruguay Round came to an end in
Marrakech. The Final Act was ratified by more than 100 nations. It included a number of
accords, notably the Trade-related aspects of the Intellectual Property Rights Agreement and
the Agreement Establishing the World Trade Organisation. There was no way for a state to
avoid the TRIPS Agreement if they wanted to join or stay in the multilateral trade system.

Structure of Trade-Related Aspects of Intellectual Property Rights

The TRIPS Agreement is regarded as a comprehensive new framework defining norms of
intellectual property protection and addresses the protection of intellectual property in
trade-related industries to a major extent. The TRIPS Agreement also holds the distinction
of being the first global agreement that covers all forms of intellectual property and includes
a wide range of substantive provisions.

The TRIPS Agreement is a comprehensive and in-depth agreement with 73 Articles broken
down into 7 Parts. General regulations and fundamental principles are included in Part I. The
TRIPS Agreement, which defines “intellectual property” as “all categories of intellectual
property that are the subject of Sections 1 to 7 of Part II” of the Agreement, requires
member countries to implement domestic legislation to give effect to its provisions.
Additionally, the TRIPS Agreement mandates that Members honour their commitments to
uphold their obligations related to intellectual property rights under existing agreements.

The Paris Convention for the Protection of Industrial Property, the Berne Convention for the
Protection of Literary and Artistic Works, the Rome Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting Organisations, and the Treaty on
Intellectual Property in Respect of Integrated Circuits are among the treaties that must be
complied with. Both national treatment and most-favorable-nation treatment were
stipulated as fundamental concepts in the TRIPS Agreement. The TRIPS Agreement’s Part II
sets rules for the accessibility, scope, and application of intellectual property rights.

Purpose of Trade-Related Aspects of Intellectual Property Rights

Agreement
The preamble of The Trade-Related Aspects of Intellectual Property Rights agreement along
with Article 7 clearly lists out the purposes for the TRIPS agreement-

1. To reduce distortion and impediment to international trade.

2. To promote effective and adequate protection of intellectual property rights.
3. To ensure that measures and procedures to enforce intellectual property rights do not
themselves become barriers to legitimate trade.

Article 7 of the TRIPS agreement gives its objective, which is that the protection and
enforcement of intellectual property rights should contribute to the promotion of
technological innovation and the transfer and dissemination of technology, to the mutual
advantage of producers and users of technology, and in a manner conducive to social and
economic welfare as well as to balance the rights and obligations.

Features of Trade-Related Aspects of Intellectual Property Rights

Agreement
The three main features of the TRIPS agreement are-

1. Standards– it sets the minimum standard of protection for the intellectual properties
provided by each member country.
2. Enforcement– it entails domestic legislation, procedures, and remedies provided by
member countries for the enforcement of intellectual property rights.
3. Dispute settlement– it is a unique feature of the World Trade Organisation which
provides for a complex system of dispute settlement through dispute settlement
understanding.

Trade-Related Aspects of Intellectual Property Rights about several

intellectual property rights
The Paris Convention for the Protection of Industrial Property has been included in the TRIPS
Agreement, and it stipulates that Members shall abide by its substantive requirements even
if they are not parties to the Convention. The Agreement on TRIPS has been reported to
have adopted a “Paris Plus” approach as an outcome. The ‘Berne Convention for the
Protection of Literary and Artistic Works’ is also included in the TRIPS Agreement, and it is
stated that Members must abide by its substantive requirements even if they are not parties
to the Convention. The TRIPS Agreement is supposed to take a “Berne Plus” approach as a
result. The level of protection for writers’ moral rights under the TRIPS Agreement is,
however, less than it is under Article 6bis of the Berne Convention because it is not included
in the TRIPS Agreement.

Copyright
The Berne Convention is the fundamental international agreement that safeguards
copyright. The TRIPS Agreement further elevates and widens the levels of protection to
include application of the law of the forum, automatic protection, and national treatment, in
addition to making compliance with the standards of protection under the Berne Convention
a fundamental condition for Members. Applying the law of the forum means that the country
where protection for the work is sought, not the country of the author’s nationality or the
place of origin of the work, will determine how the work is protected.

When a work is automatically protected, it means that no formalities are required and the
rights attached to the work are established as soon as the work is created. As a result, by
virtue of the act of creating the work, the author automatically acquires the copyright.

The following is outlined for the duration of copyright protection-

The author’s life, and fifty years after his passing,

Cinematographic works,
Works with anonymous or fictitious names: fifty years after the work has been properly
made public, and
Photographic works and works of applied art that are protected as artistic works are
subject to the laws of each country, but the duration of the protection must be at least 25
years from the day the work was created.

The TRIPS Agreement allows for the licencing or prohibition of the commercial rental of
phonograms, and it grants rental rights to phonogram manufacturers and any other
phonogram right holders as established by a Member’s law.

Trademarks
According to the TRIPS Agreement, “any sign, or any combination of signs, capable of
distinguishing the goods or services of one undertaking from those of other undertakings,
shall be capable of constituting a trademark.” As a result, the TRIPS Agreement treats
service markings that identify services as well as trademarks related to goods, and Members
are now required to set up a service mark registration system. The TRIPS Agreement also
states that “signs, in particular words, including personal names, letters, numerals,
figurative elements, and combinations of colours, as well as any combination of such signs,
shall be eligible for registration as trademarks.”

The TRIPS Agreement also acknowledges that Members may make the need for registration
that a sign be visually recognizable in situations when the sign is not inherently able to
distinguish the relevant products or services, or base registrability on distinctiveness
obtained through use.
Although a Member may enable the registration of a trademark due to use under the terms
of the TRIPS Agreement, it is specified that-

actual use of a trademark shall not be a requirement for filing an application for
registration; and
an application shall not be refused solely on the basis that the intended use has not
occurred prior to the passing of a period of three years from the date of application.

In addition, the TRIPS Agreement mandates that Members shall publish each trademark
either before it is registered or right away after it has been registered. They also must
provide a platform for opposition to a trademark’s registration, as well as petitions to cancel
the registration.

According to Article 16(1) of the TRIPS Agreement, the owner of a registered trademark has
the exclusive right to prevent any third parties from using identical or similar signs for goods
or services that are identical to or similar to those for which the trademark is registered.
This prohibition extends to all third parties without the owner’s consent. It has also been
acknowledged that certain rights are protected under the Paris Convention.

Geographical Indications
With regard to wines and spirits, the TRIPS Agreement offers more comprehensive
protection. Geographical indications are defined by the TRIPS Agreement as “indications
which identify a good as originating in the territory of a Member, or a region or locality in
that territory, where a given quality, reputation, or other characteristic of the good is
essentially attributable to its geographical origin.” Regarding the preservation of
geographical indications, the TRIPS Agreement also lists a few restrictions.

The geographical indicators of wines and spirits are further protected under the TRIPS
Agreements. It includes exclusions from the enhanced protection for wine and spirit
geographical indicators. The TRIPS Agreement also calls for the creation of a multinational
framework, which strengthens protection.

Industrial Designs
Both the requirements for protection and the protection of industrial designs themselves are
covered by the TRIPS Agreement. The TRIPS Agreement specifies that Members may
protect industrial designs under either system, since some nations use the registration
approach to protect industrial designs in the same manner as patents and other nations
protect them as creative works in the same way as copyright.

According to the TRIPS Agreement-

Members must protect independently created industrial designs that are new or original,
Members may specify that this protection does not apply to designs that are not new or
original because they do not significantly differ from existing designs or combinations of
existing design elements.

This clause was created to cover both the copyright technique and the patent strategy that
are employed in various jurisdictions. The TRIPS Agreement further stipulates that the
conditions for acquiring protection for textile or clothing designs shall not unreasonably limit
the ability to apply for and get such protection.
This aims to guarantee that registration is completed quickly for Members using the patent
strategy for registering industrial designs which have a limited lifecycle, such as textiles or
clothing.

Patents
In terms of patentable subject matter, the TRIPS Agreement stipulates that-

patents shall be available for all inventions, whether products or processes, in all
technological fields, provided that they are novel, inventive, and capable of industrial
application, and
patents shall be available and patent rights enjoyed without regard to the location of the
invention, the technological field, or whether products are imported or produced locally.

However, the TRIPS Agreement specifies the following restrictions on what constitutes
patentable subject matter – Members may exclude from patentability plants and animals
other than microorganisms, diagnostic, therapeutic and surgical methods for treating
humans and animals, as well as essential biological processes for producing plants or
animals other than microorganisms. Members may do this in order to upload morality or
public order, including to safeguard the health or well-being of people, animals, or plants or
to prevent grave environmental harm.

The TRIPS Agreement further states that Members must take steps to safeguard unique
plant varieties using patents, an efficient sui generis system, or any combination of the
two.

Apart from a few specific exceptions, the TRIPS Agreement forbids Members from making
unreasonable exceptions to the patentable subject matter and establishes the general rule
that any invention—be it a product or a process—in any area of technology should be
eligible for patent protection if it satisfies the patent requirements. Thus, provisions that in
the past had been passed specifically in the laws of developing countries, excluding
inventions in specific fields from being patentable subject matter, such as pharmaceuticals,
chemicals, and foods, conflicting with the TRIPS Agreement, give rise to the expectation
that protection of inventions in developing countries will be improved.

Additionally, as will be discussed later, the TRIPS Agreement recognises a 10-year grace
period for developing nations to establish a product patent system if they did not already
have one at the time the World Trade Organisation Agreement entered into force. However,
even in relation to these nations, when a member party does not provide patent protection
for the pharmaceutical and agricultural chemical products as of the World Trade Organisation
Agreement’s entry into force date, they are required to put in place measures that are
equivalent to recognising patent applications for these inventions as of the World Trade
Organisation Agreement’s entry into force date.

In addition, the TRIPS Agreement has clauses that categorically forbid discrimination,
including-

discrimination based on the country of invention,

discrimination based on the technical sector, and
discrimination based on whether a product is imported or made domestically.

According to the TRIPS Agreement, a patent grants its owner the following exclusive rights:
 The acts of making, using, offering for sale, selling, or importing that product for these
purposes when a patent’s subject matter is a product, and
The acts of using, offering for sale, selling, or importing at least the 30 products obtained
directly by that process when a patent’s subject matter is a process.

The TRIPS Agreement further affirms that the owner of a patent may enter into licencing
agreements and that patent rights may be licenced or passed through succession.

The TRIPS Agreement states that regarding a patent owner’s obligations when applying for a
patent, applicants must efficiently disclose their innovations and members must also ask
them to specify the best way to implement their invention. The reason for this is to
acknowledge that patent rights are exclusive once which are given in exchange for
disclosing the innovation to the public. The TRIPS Agreement also stipulates that data
related to international patent applications must be submitted.

According to the TRIPS Agreement, Members may grant limited exceptions to the rights
granted by a patent as long as those exceptions do not unreasonably conflict with a patent’s
normal exploitation and do not unreasonably adversely harm the legitimate interests of the
patent owner while also taking into account the legitimate interests of third parties. This
clause replicates the requirements of many nations’ patent laws pertaining to activities
including-

using a patented invention for testing-related research and

prescription medicine dispensing by medical professionals.

Standard essential patents refer to a breed of patents where compliance to a standard is

absolutely essential and there is no non-infringing alternative to the patent if the third party
wishes to comply with the technological standards. Each of the technology standards is
formulated from a consensual mechanism by a standard-setting organisation.

The manner in which the owner of the standard essential patent is expected to conduct in
order to ensure the fair adoption of standards from all third parties and fair and reasonable
access to technology standards to all third parties affects the enforcement of such patents.

There were attempts to include a small number of definite exceptions to patent rights in the
TRIPS Agreement, but it was ultimately decided to instead include an umbrella clause that
clearly outlined the requirements for exceptions and took into consideration, both, the
interests of the patent owner and third parties.

The Doha Declaration, 2001 on the TRIPS agreement highlighted and stressed that
individual governments have the ability to grant compulsory licences in circumstances of
public emergencies. The TRIPS Agreement has clear and comprehensive provisions
regarding compulsory licences.

The Doha Declaration makes reference to a number of TRIPS provisions, including the
freedom to establish the regime of exhaustion of intellectual property rights, the freedom to
establish what constitutes a national emergency and circumstances of extreme urgency, the
freedom to grant compulsory licences and the freedom to determine the grounds upon
which licences are granted. By defining these provisions, the Doha Declaration clarifies the
conditions under which licences may be granted.

Trade Secrets
The TRIPS Agreement protects information that has been provided to governments or
governmental agencies as well as information that has been kept hidden, such as know-how
and trade secrets. The TRIPS Agreement has the additional feature of including rules for the
intellectual property rights enforceability. The TRIPS Agreement includes measures for the
acquisition and upkeep of intellectual property rights, as well as related inter-party
processes for dispute prevention and resolution, temporary arrangements, institutional
arrangements, and final provisions.

Members are required to establish basic standards of protection under the TRIPS
Agreement. The term “minimum standards” refers to-

minimum requirements that must be consistently met by all Members; and

the freedom for Members to enact more comprehensive protection in their legal systems
than what is mandated by the TRIPS Agreement.

Utility Models
The so-called minor patents are protected by the utility model systems. However, there are
no restrictions pertaining to utility models in the TRIPS Agreement. As a result, there are no
requirements for utility model systems under the TRIPS Agreement, and each country is
free to design its own unique utility model system. Utility model systems are currently used
in numerous nations, and this number is rising. Systems for protecting utility models vary
from nation to nation, depending on factors like the length of the protection and whether or
not registration should be subject to inspection. It is clear that each nation uses the utility
model system to safeguard and expand its industries.

Enforcement of intellectual property rights

If rights cannot be effectively enforced in response to infringements, there is no use in
implementing intellectual property rules and regulations. As a result, rules relating to the
protection of intellectual property rights are included in the TRIPS Agreement. Since a
country’s legal system is determined by its Constitution, many of the rules in the TRIPS
Agreement regulating the enforcement of IP rights are restricted to broad and abstract
terms. However, the enforcement of IP rights involves not just IP law but also civil and
criminal law. However, the fact that a global agreement was established on the enforcement
of intellectual property rights is quite significant.

According to the TRIPS Agreement, members must make sure that legal enforcement
processes are accessible to them in order to take action against any violation of intellectual
property rights. Members may handle cases of intellectual property rights violations using
their regular legal systems, and this provision does not require Members to establish a
unique judicial system for the enforcement of intellectual property rights. The TRIPS
Agreement further stipulates that processes for enforcing intellectual property rights must
be just and equitable. They must not be overly complicated, involve arbitrary deadlines, or
cause unneeded delays.

The TRIPS Agreement mandates that Members publish their internal rules and regulations
and notify the Council for TRIPS of them in order to prevent disputes from forming between
nations as much as possible and to ensure the openness of domestic laws.

According to the TRIPS Agreement, Members must use the new World Trade Organisation
dispute resolution procedures to resolve any actual disputes that emerge about the
application of the TRIPS Agreement and must refrain from acting unilaterally.
Trade-Related Aspects of Intellectual Property Rights regarding anti-
competitive practices
Certain contractual licences could have provisions that limit competition, like grant-back
clauses that give the licensor an exclusive licence over an improved invention made by the
licensee. The TRIPS Agreement addresses these issues by stating that-

Clauses that restrict competition may have negative effects on trade and may obstruct
the transfer and dissemination of technology,
Members have the right to specify and control anti-competitive practices,
If anti-competitive practices are used with regard to a Member country, that country may
request consultations with the country of the intellectual property right owner, and
The country of the intellectual property right owner may request consultations with the
country that has imposed the regulations.

Criticism of Trade-Related Aspects of Intellectual Property Rights

Although the TRIPS agreement sets fundamental and compulsory obligations on signature
member states to implement the bare minimum standards of IP protection in all of its
components, the agreement is not free from criticism.

TRIPS effectively have little to do with trade directly and have instead led to trade being
negatively impacted and restricted, which goes against the ideologies of the World Trade
Organisation.
Intellectual property rights are domestic and territorial. They are governed by domestic
laws and regulations. There is no worldwide patent.
The approach of ‘one size fits all’ is inappropriate for countries that are in their
developing stage, and have not yet been developed completely.
Companies doing ‘generic’ are not doing something innovative and have gotten
unwarranted rights and protections on them.
The rationale for the TRIPS agreement was trans-border and not domestic, but domestic
rights and protection of intellectual property have proliferated over the years. There is
nothing trans-border in it.

Patent Law Treaty, 2000

The Patent Law Treaty of 2000 aims to harmonize, simplify, and make more user-friendly
formal processes relating to national and regional patent applications and patents.

The Patent Law Treaty specifies the maximum set of conditions that the office of a
Contracting Party may impose, with the notable exception of filing date restrictions. This
means that while a Contracting Party is permitted to establish standards that are more
lenient towards applicants and owners, the Patent Law Treaty’s requirements are necessary
with regard to the imposition of as many conditions as an office may demand of applicants
or owners. To reduce the chances that applicants would unintentionally lose the filing date,
which is crucial to the patent process, the Treaty includes standards for acquiring a filing
date.
The Patent Law Treaty mandates that upon satisfaction of three straightforward formal
requirements (mentioned below), the office of any Contracting Party shall award a filing date
to an application. A Contracting Party is permitted to require indications on both the
identification and the contact of the applicant. The formalities are given below-

An indication that the elements received by the office are meant to be a patent
application for an invention.
A statement indicating the information received by the office is intended to constitute a
patent application for an invention.
Indications that would enable the office to locate or get in touch with the applicant. A
Contracting Party may, however, demand indications on both, and

A component that seems to be an inventive description. A filing date cannot be assigned

based on any additional criteria. For instance, a Contracting Party is not allowed to
incorporate a filing fee or one or more claims in a filing date requirement. As was previously
stated, these requirements are absolute requirements, rather than maximum requirements,
and a Contracting Party would not be permitted to grant a filing date until all of those
requirements are met.

The Patent Law Treaty outlines procedures to follow in order to prevent substantive rights
from unintentionally being lost due to formality violations or missed deadlines. These include
the requirement that offices give applicants or other concerned parties notice, extensions of
deadlines, ongoing processing, restoration of rights, and limitations on revocation or
invalidation of a patent for formal flaws in cases where they were not discovered by the
office during the application stage.

World Intellectual Property Organization Performances

and Phonograms Treaty
There are certain types of commercial rights in their phonograms allowed to the creators of
phonograms by the World Intellectual Property Organization’s Performances and
Phonograms Treaty (1996).

With the exception of nations that, as of April 15, 1994, have a system in place for equitable
remuneration of such rental, all Contracting Parties have the following rights:

The right of reproduction, which authorises direct or indirect reproduction of and

copies of the phonogram as determined by national law, and
The right to authorize the release of a phonogram to the public by wire or wireless
methods in tales granting the public access to the phonogram at a time and place of their
choice. The interactive, on-demand services offered by the Internet are explicitly covered
under this right.

Subject to certain restrictions and exclusions, each of the rights described above is an
exclusive right. The Treaty requires each Contracting Party to treat nationals of other
Contracting Parties with the same treatment it gives to its own nationals with regard to the
specifically granted rights in the Treaty, subject to various exceptions and limitations in
terms of both performers and phonogram producers. The Treaty further states that
phonogram performers and producers are entitled to a single equitable payment for any
direct or indirect usage of phonograms that are broadcast or communicated to the general
public for commercial reasons.

However, if a Contracting Party submits a reservation to the Treaty, it may limit or deny this
power. The other Contracting Parties are allowed to withhold national treatment from the
reserving Contracting Party in the event and to the extent of such a reservation by a
Contracting Party.

The treaty mandates that the contracting member countries provide legal remedies against
the infringement of technology safeguards such as encryption used by performers or
phonogram producers in the course of exercising their rights, as well as against the removal
or alteration of information like indication of specific data that identify the performance,
producer of the phonograph and the phonogram required for management such as
collection, distribution and licencing.

Each Contracting Party is required by the Treaty to take the steps necessary to ensure that
the Treaty is applied in line with its own legal framework.

The Treaty creates an Assembly of Contracting Parties, whose major responsibility is to

discuss issues pertaining to the upkeep and development of the Treaty. It assigns the
administrative responsibilities for the Treaty to the World Intellectual Property Organization
Secretariat. The Treaty was signed in 1996, and on May 20, 2002, it became operative.

The European Community and States that are the World Intellectual Property Organization
members are eligible to sign the Treaty. Other international organizations may be permitted
to join the Assembly established by the Treaty.

World Intellectual Property Organization Copyright Treaty

Under the Berne Convention, the World Intellectual Property Organization Copyright Treaty,
1996, is a special agreement. Any Contracting Party shall adhere to the substantive terms of
the 1971 Act of the Berne Convention for the Protection of Literary and Artistic Works, 1886,
even if that party is not bound by the Berne Convention.

Additionally, the treaty lists items that are protected by copyright:

computer programs, regardless of the way they are expressed, and

collections of data or other materials, in any format, that are considered intellectual
creations because of the way their contents have been chosen or arranged.

The Treaty addresses three rights related to writers’ rights:

(i) The right of distribution is the authority to permit the sale of or other transfer of
ownership that makes the original and copies of a work available to the public.

(ii) The right to rent is the legal authority to permit the original and copies of three different
types of works to be commercially rented to the general public, they are-

Computer programs, with the exception of situations where the computer program itself
is not the primary object of the rental,
 Cinematographic Works, but only in situations where commercial rental has led to
widespread copying of such works, materially impairing the exclusive right of
reproduction, and
Works incorporated in phonograms as defined in the national law of contracting parties.

(iii) The right to communicate with the public involves making works accessible to the public
in a way that allows users to access the work from a location and at a time of their choice.
This covers any wired or wireless public communication. It must be noted that interactive
and on-demand communication over the internet is referred to.

According to this treaty, Contracting Parties must offer legal recourse for the management
of authors’ rights against the removal or alteration of information, including specific data
that identifies works or their authors, and against the evasion of technological safeguards
used by authors in connection with the exercise of their rights.

Each Contracting Party is required by the Treaty to take the steps necessary to ensure that
the Treaty is applied, in conformity with its own legal framework. To enable effective action
against any act infringing on rights protected by the Treaty, each Contracting Party shall
guarantee that enforcement measures are accessible under its law.

Such action must include quick fixes to stop infringement and fixes that operate as a
deterrent to future infringement. The Treaty creates an Assembly of Contracting Parties,
whose major responsibility is to discuss issues pertaining to the upkeep and development of
the Treaty. It assigns the administrative responsibilities for the Treaty to the World
Intellectual Property Organisation Secretariat.

The Treaty was finalised in 1996, and on March 6, 2002, it became operative. The European
Community and States that are World Intellectual Property Organisation members are
eligible to sign the Treaty. Other international organisations may be permitted to join the
Assembly established by the Treaty.

Singapore Treaty on the Law of Trademarks

A modern and dynamic worldwide framework for the harmonisation of administrative
trademark registration procedures is what the Singapore Treaty on the Law of Trademarks
(2006) aims to achieve. Expanding upon the trademark law treaty of 1994, the Singapore
treaty is more comprehensive and incorporates new developments in communication
technology.

The Singapore treaty applies to every type of mark that can be registered under the laws of
specific contracting parties. The contracting parties may choose to use any method of
communication, including electronic messaging and communication, to communicate with
their offices. The creation of the assembly of the contracting party is a company by the
introduction of regulations governing the documentation of trademark licence and time
constants alleviation.

Unlike the trademark law treaty, the Singapore treaty covers all marks that might be
registered under a contracting party’s legal system. Above all, this is the first worldwide
trademark law to officially identify non-traditional trademarks. The treaty includes all types
of markings, including intangible ones like sound, smell, taste and feel, as well as ones that
aren’t usually visible, like holograms, three-dimensional marks, colours, location and
movement marks. The regulations allow for the use of non-graphic or photographic copies of
these marks in applications.

Beijing Treaty on Audiovisual Performances

The Beijing Treaty on Audiovisual Performances of 2012 is the most recent agreement
pertaining to copyright. It is the first to be ratified following the passing of the World
Intellectual Property Organisations Performance and Phonograms Treaty in 1996 and the
Copyright Treaty.

The agreement was approved during the Beijing Diplomatic Conference on the Protection of
Audiovisual Performances which took place in the month of June 2012.

There were 155 countries present at the diplomatic conference, including the member states
of the European Union, six inter-government mental health organisations, and 45 non-
governmental organisations.

The performers who include their performances in audio-visual fixation are not protected in
any way by the World Intellectual Property Organisation Performances and Phonograms
Treaty of 1996.

The audio-visual performers are actors and other performers whose performances are
featured in the audio-visual work.

There were also new international rules that were formed through this convention. These
rules aided in appropriately handling the problems brought by social, technical and other
likewise factors.

The acknowledgement of the impact of the development and convergence of information

and communication technology on the production and reception of audio-visual
performances was another endeavour undertaken under this significant treaty.

This agreement was primarily motivated by the need to preserve a balance between the
rights of performers over their audio-visual performances and the interests of the general
public, which include access to information, research and education.

Rights allowed for the performers

The performer is permitted to use their moral and pecuniary rights according to the
contract.

The category of moral rights includes the right to integrity as well as authorship.

In reference to the economic rights, it stipulates-

The freedom to focus on the unscheduled performances of the artist and the freedom to
share those performances with the public by broadcast unless they have previously been
shared on the same through any medium, and
The freedom to broadcast and make public those scheduled performances as well as the
rights to copy, distribute, rent and have them available.
The treaty also allows National legislatures to either do nothing at all or restrict or reserve
the rights of performers to broadcast and distribute recordings of their scheduled
performances. The two essential rights that have been mentioned above will be protected
among all the signatory countries to the treaty.

Significance of the treaty

There are several reasons why the newly discussed treaty is a major development. A few of
them are stated below-

It gives a long overdue update on international audio-visual performer protection and

modernises it by acknowledging the rights of performers in today’s digital environment.
It is the result of considerable international collaboration, and it demonstrates that
uniform copyright guidelines may be advanced and established in multilateral forums.
Many of the recommendations that were discussed during the diplomatic conference were
given by Nations from all around the world and by this important treaty, they were
acknowledged and received substance.
This treaty also acknowledges that copyright protection benefits all countries, whether is
established or at a developing stage. Further, it is advantageous, especially when it
comes to the development of their own talent and industries. A few examples of nations
that have a booming audio-visual industry globally are China India Brazil and Nigeria.

Theoretical justification for Intellectual Property

Rights (IPR)
Intellectual property rights theory plays a vital role in helping people understand the rights
that are available and why they are available. A few significant theories are discussed
below-

The utilitarian theory

John Stuart Mill espoused the utilitarian theory of property. He said that an act is said to be
good if it results in the greatest good for the greatest number of people. Consequently, it
was Jeremy Bentham who actually started with this theory, but Mill eventually modified and
formulated the concept. He said that one has to count the amount of happiness and a
particular act that causes it, as well as the amount of harm that is caused, to understand
stability or to determine right and wrong. If one weighs the harm against the happiness,
and if the happiness outweighs the harm, then such an act would be a good act; otherwise,
it is a bad act.

The intellectual property right mainly works as an incentive system. For instance, in
patents, the monopoly is granted to the investors for a period of 20 years.

Utilitarians would say that the end result of granting patents would actually be good for
society. Providing protection for innovation or any new creation would encourage people to
openly disclose their innovation without any fear. If no monopoly is granted, then any
person who actually comes up with innovation will basically not come forward to announce
his invention in public, and it will make room for replication and the time, money and labour
of the person would go to waste. However, if the patent is granted, the innovators enjoy
protection for a certain period of time wherein they can actually practice their innovation,
disclose how it was created, and at the same time recoup the money during the monopoly
period.

Mill agreed that patent monopolies are appropriate compared to earlier practices of rewards
or privileges granted by the monarchy or the government because they actually reward a
person who has worked on a new invention which is unique.

A number of companies have secret formulas that are secret because it is thought that the
moment they are actually disclosed and if there is no protection granted, others will use it
and compete in the market, which would reduce profit margins. But if protection is granted,
then a number of innovators will disclose such formulas, which can enable the public to
learn about new innovations, and also allow downstream innovators to come up with
notifications about a new technology.

Utilitarian theory is also used to justify the trademark law. If there is no trademark
protection at all then there will be confusion as to which product is sold by which
manufacturer. If protected, then it would largely help consumers avoid search costs and
would ensure that there is no deception from a manufacturer’s perspective. It is a good kind
of incentive for them to maintain the quality and ensure that their products throughout are
of particular quality because the moment the consumer identifies the mark with a certain
quality, he is likely to keep buying the same product time after time.

Mill’s theory works well to justify the existence of the copyright regime as well. If a certain
Monopoly period is not allowed for the author of a book, then others can actually replicate
the book and earn revenue out of it but if a certain period of protection is granted, then it
will allow him to actually come forward with a work, publish it and also recoup the cost and
earn royalties by himself.

Criticism
Utilitarian theory, in effect, says that the protection of all three different kinds of intellectual
property rights would, in the end, result in maximum happiness for the maximum number of
people. However, the theory has been criticised because it has not been able to evenly
balance private and public interests. Private intellectual property restricts the use of ideas. A
patent regime based on an incentive system restricts people other than the first person to
register the idea from freely using the idea.

If a person who has come up with new technology and a patent is granted, then no one else
can use that technology for a period of 20 years unless the person secures the licence from
the patent holder. That means no modification can be made to such an innovation until the
expiration of the monopoly. If any addition or modification has to be made to a new
technology, then it will be expensive for society.

Granting property rights to intangible ideas actually impedes the flow of knowledge and also
prevents or delays downstream innovation.

Though there is a system of disclosure and the patent system, it provides exclusive
ownership to the person who owns the patents. Today, the owner of the invention can
restrict others from freely using it for a certain period of time. Had it been there when
wheels were invented, then it would have seriously restricted the development of mankind
as many inventions with the small or big or improvements immediately followed after the
invention of the wheel. Thus, Intellectual Property Rights do not actually allow the free flow
of ideas and restrict the diffusion of technology, in a way impedes innovation based on
original patents.

There is also a negative effect it tends to have on the market. A certain period of monopoly
eliminates competitors in the market, creating a monopoly situation that prevents others
from entering the industry itself. This leads to the patent holders controlling the price of the
product in the market. For instance, in the pharmaceutical industry, a manufacturer of life-
saving drugs generally, when he had obtained a patent, would not allow others to enter the
market.

Locke’s labour theory

John Locke, in his Two Treatises of Government, mentions that a person deserves the fruits
of his labour. The above-mentioned belief is one of the most powerful bases for justifying
intellectual property rights. Locke asserts that all that is in nature is provided by God, and it
is available to all men as it is held in common for the benefit of all.

He therefore believes that nothing should be monopolized or held as property by a particular

individual. In fact, it should be allowed for everyone to enjoy what is given to all of us by
God. He says that an individual can have prior claim over substances that are available in
nature, as it is meant for the enjoyment of the entire humanity.

He asserts that when an individual exerts his labour over resources, he can claim it as his
property because he has added value through his labour to it. For instance, while digging
ground someone finds gold, then, according to him, that will become his property as he
actually used his labour to dig and as a result he found gold.

Locke’s version of this labour justification is based on the assumption that each individual
has prior property rights in one’s body. According to him, labour exerted by an individual is
his own property, as he is the owner of his body. It is impossible to separate labour and its
product. Once the labour is mixed with something existing in nature and transformed, then
it becomes difficult to differentiate. Only the person’s effort is relevant, no less to others as
a pre-condition for property acquisition. Thus, anything an individual mixes his labour with
becomes his property. No one has a superior or conflicting claim over it.

Locke would readily grant patent rights if an individual exerts labour to come up with an
innovative product or a machine that is useful. For instance, James Watt used his labour to
develop and improve steam engines that could be used in locomotives. That invention added
value and spurred the growth of the economy. This labour theory can be used to justify
patent protection in the light of the above statement as even though steam engine had been
made, labour contributed to develop new technology.

As per Locke, an author, painter, photographer or musician who has exerted his labour to
express his original thoughts in the form of books, paintings, photos, or a music album
should readily be granted copyright, but he also brings in a sufficiency provision saying that
property rights can be allowed only if it does not deny the others of resources existing in
nature. If there are enough resources available in nature, then property rights can be
claimed over resources when a person exerts labour over them.

He expresses concern that if a particular substance is not available in abundance, then

property rights over it would deny others access to that scarce resource. When such
circumstances occur, an individual who exerted his labour over the scarce resource cannot
claim property rights over it. Thus, Locke would have a responsibility if natural phenomena
or natural resources like genes were monopolised, even if an individual had exerted labour
to identify or discover their existence, as it would prevent others from using it for a certain
period of time.

Criticism
According to Robert Nozick, fruits of labour are usually valuable, and property rights enable
the labourers to appropriate this value. He clarifies that Locke allowed private property
rights only if there was enough left for others from the common pool of resources. He
explained that Locke only allowed private property rights if it did not cause harm to others
and left enough for others.

Locke suggests that 99% of the value is created when labour is mixed with a naturally
existing substance to create an object. However, this is not plausible when labour is mixed
with a naturally existing substance, it does not result in the transformation of the
substance.

It is also criticised as it fails to take into account the value added to the production by
contributions made by others in the evolution of the product. For instance, the steam
engine would not have been invented by James Watt alone, but he was definitely involved in
improving the technology.

Hegel’s personality theory

Hegel’s theory of personality has been used to justify intellectual property rights. According
to this theory, any work or any invention would be long to its author or inventor because it
is the manifestation of the creator or inventor’s personality.

George Wilhelm Friedrick Hegel states in his book Elements of Philosophy of Rights that
the individual’s will, should be given more importance as compared to other elements that
make up an individual. He identifies the personality as the will’s struggle to actualise itself.
He gives prominence to the will compared to external properties, which are manifestations
of the will. Property according to him becomes an expression of the will. He gives that
society except the external manifestation of an individual’s personality as a property.

When an individual expresses himself through his work, it is nothing but an external
manifestation of his own personality. Property rights are vested in the external object purely
because it is the resultant manifestation of the will of an individual. Labour is the means by
which the will of an individual occupies the object.

Hegel believes that this external manifestation, which is seen as property, cannot be
alienated at any point in time as it is the reflection of the self.

This theory can be used to justify claims by authors, musicians, artists, sculptures,
photographers, etc in their world. An author’s personality is manifested through his or her
work. Books written by authors are external objects through which there is a personality,
that is, their feelings, emotions, experiences, and imaginations are manifested. For
instance, J.K. Rowling manifested herself when she wrote Harry Potter.

Innovative technology is a manifestation of the inventor’s will and, as such, merits of

property rights.
Criticism
The theory is not without criticism. The question is whether there is a personality, taking in
the particular object, which is the external manifestation of the will, or not.

Hegel’s preposition is that works are external manifestations of the personality, which
possesses problems within the realm of intellectual property rights.

A person copying someone’s work would also be manifesting his personality, regardless of
the fact that he is boring to someone else. Thus, this would be protected as per this theory,
but it would be counter-productive to an intellectual property regime as it does not
recognise the emitter as a property rights holder.

Intellectual Property Rights (IPR) and

fundamental freedoms

The doctrine of the idea-expression dichotomy

The doctrine of idea expression dichotomy is indeed paramount to the very existence of
copyright. The idea is that one who creates a particular work is entitled to his contribution of
expression and not the underlying idea.

Dichotomy serves two purposes-

It ensures that the extent of ideas remains constant or can be built on further, but are
never diminished.
Copyright law is a mechanism to stop somebody else from copying what you have
contributed.

The purpose of this doctrine is to keep ideas in the public domain and outside the purview of
the copyright monopoly.

In the case of Indian Express Newspapers v. Union of India and Ors. (1994), the Bombay
High Court stated that an unfortunate incident involving the rape of a woman was
subsequently made into a film by Mundra. The newspaper claimed copyright over the
newspaper report regarding the incident and alleged Jagan Mohan Mundra to have used it
while making his film. The honourable High Court has rejected the argument, stating that, in
respect of the facts present in the public domain, there cannot be a copyright.

The doctrine is particularly important because the standard of skill and judgement required
for copyright protection is extremely low, and the law has to, therefore, look elsewhere to
prevent the overreach. As a result, copyright protection is extended only to the actual
expression and not the idea underlying it.

The merger doctrine

The merger doctrine is connected with the idea-expression of dichotomy. It applies in
situations where there is a unique or core idea and there are limited ways to express it.

The essence of this doctrine was used by the Delhi High Court in Emergent Genetics India
Pvt. Ltd v. Shailendra Shivam And Ors (2011) famously known as the Emerging Genetics
Case, where the seed manufacturing company alleged that some of its former employees
had virtually used its data to reproduce the same kind of seeds. The copyright here was of
genotypic information, which is generated due to the DNA structure of the seeds.

The Delhi High Court held that nobody could claim a copyright monopoly over a piece of
genotypic information for the simple reason that the Deoxyribonucleic acid or DNA structure
was something found in nature, and even if it was altered, the alteration was something that
was found existing in nature, and it was inevitably a biological product. Therefore, granting
a monopoly over such biological products would in effect stop anybody else from recreating
or reproducing the product. The court applied the merger doctrine, saying that in cases like
this where there are very limited ways or probably one way of expressing it, there cannot be
a copyright monopoly. The rationale behind the doctrine is to prevent monopoly over the
idea through indirect means in special cases where forms of expressing the idea are limited.

Fair use doctrine

The doctrine of fair use allows limited use of copyrighted material without the permission of
the copyright holder. The intent behind the doctrine was to provide a balance between the
rights of the copyright owner and the public interest in using such copyrighted work for the
purpose of commentary, criticism, education, research, or news reporting.

It permits the use of such material under particular circumstances, which would amount to
infringement of the copyright owner’s exclusive right otherwise, and the factors that it takes
into account for determining such circumstances are-

Whether the use of such copyrighted material is for the purpose of commentary, criticism,
news reporting or for educational or research purposes which are likely to be considered
fair. Such use of copyrighted material, which is transformative in nature that they are
used in a unique or creative way, is often seen as acceptable.
Works such as non-fictional or factual are more amenable to fair use than highly creative
and original works like novels or music.
When a very small or a non-crucial portion of the copyrighted material is used, it is
considered to be fairer than using the substantial or core part of that work.
However, the most important factor is taking into account the potential market harm that
can be caused to the copyright owner. If the use of such material washes away the
market for the original work, then such circumstances are considered not fair for the use
of the copyrighted work.

Sweat of the brow doctrine

The sweat of the brow doctrine is the traditional approach to copyright protection. This test
recognises the labour put in by an author or compiler into the making of a work. According
to this doctrine, irrespective of any creativity or judgement on the part of the author, if it
can be proved that the author has expanded considerable labour and expenses over the
making of his work, he is liable to get his work protected by copyright.
The landmark case of Walter v. Lane (1900), which was pronounced by Lord Halsbury, is
said to be a paradigmatic sweat of the brow doctrine. In this case, several public speeches
were reported in the Times newspaper on various occasions. Later, the defendant published
a book containing them all and in addition, he added short notes on them. It was also
admitted by the defendant that these speeches were taken from the reports in the Times.
The Times sued for copyright infringement of the speeches they published. Lord Halsbury
laid down that there is considerable labour involved in reproducing spoken words into
writing or print and first publishing it as a book. And so if a telephone directory can be
protected by copyright, so can a verbatim report of the public. Thus, the House of Lords
decided that the speeches published by the Times were protected under the copyright
legislation.

This doctrine can be thought to be one which does not distinguish between an author and a
publisher. According to it, they equally are entitled to the copyright in a work.

It emphasizes the fact that the objective of copyright law is less to protect authorship and
more to prevent others from misappropriating others’ labour.

The doctrine of creative standards

The doctrine of creative standards maintains that a work must be creative to be original and
thus protected by copyright. A major landmark case that glorified this doctrine in the United
States is Financial Information Incorporation v. Moody’s Investors Service (1984) which
involved a daily use issue of 4 inches v/s 6 inches of index cards printed with information
concerning current municipal bonds being called for redemption.

Typically, the information consisted of the identity of the issuing authority, the series of
bonds being redeemed, the date and price of the redemption, and the name of the trustee
or paying agent to whom the bond should be presented for payment. According to the
plaintiff, they had extended considerable effort and money to compile such pieces of
information. The second circuit on appeal while rejecting the copyrightability of the bond
cards and remanding it back affirmed that a compilation may receive a valid copyright only
if something has been added to the data, the authorship of the compiler in making the
requisite selection, coordination or arrangement of the data.

In Fiest Publications v. Rural Telephones Services Company (1991), the situation of

copyrightability of a directory listing the names, towns and telephone numbers of a large
number of people in a certain area arose. On the question of copyrightability of
compilations, the Supreme Court of the United States empathetically laid down-

The author is the one to whom anything owes its origin. He is, therefore, the originator or
the maker.
Facts do not owe their origin to an act of authorship. The first person to find and report a
particular fact has not created that fact. He or she has merely discovered its existence.
The choices undertaken by the compiler as to the selection and arrangement, as long as
they are made independently by him or her and entail a minimal degree of creativity, are
copyrightable. In plain words, it means that copyright protection may extend only to
those components of the work that are original to the author.
Originality is not a stringent standard. It does not require the facts to be presented in an
innovative or surprising way. It is equally true, however, that the selection and
arrangement of the facts cannot be so mechanical or routine as to require no creativity
whatsoever. The standard of originality is low, but it does exist.
 The copyright statute does not support the sweat of the brow doctrine, as it requires the
selection, coordination and arrangement of facts in such a way that it as a whole
constitutes an original work of authorship.

The American Court concluded that the impugned directory was copyrightable because of its
originality in alphabetically arranging the same.

Intellectual Property Rights (IPR) Regime in India

In the past 20 years, India’s economy has continued to grow at one of the fastest rates in
the world, and the game of entrepreneurship and industry has played a significant role in
this remarkable expansion. A structured system of IP protection aids in the growth and
development of enterprises in a hassle-free environment, while businesses and their
successful operation are crucial to the expansion of the economy. With a systemized legal
system to handle IP protection, India is now in line with international practices. The
Department of Promotion of Industry and Internal Trade, commonly referred to as DPIIT is
one such department of the Indian government which inter alia manages the intellectual
property rights-related chores in India.

In India, intellectual property rights were governed by the Copyright Act of 1957,
the Patents Act of 1970, the Trade and Merchandise Marks Act of 1958, and the Patents and
Designs Act of 1911.

In reaction to the establishment of the World Trade Organisation and the nation’s
participation in the Agreement on TRIPS, India passed a number of new pieces of legislation
for the protection of intellectual property rights. India became a party to TRIPS and the
World Trade Organisation in April 1994 and January 1995, respectively.

These included the Trade Mark Act of 1999, the Designs Act of 2000, which superseded the
Designs Act of 1911, the Copyright (Amendment) Act of 2012, which was the most recent
change to the Copyright Act of 1957, and the Patents (Amendment) Act of 2005.

Additionally, new laws pertaining to plant species and geographic indications were approved
and adopted. The Protection of Plant Varieties Act of 1999, the Farmers Rights Act of
2001 and the Geographical Indications of Goods (registration and protection) Act of
1999 are these new laws.

Over the past fifteen years intellectual property rights have become increasingly important
to the expansion of the world economy. In the 1990’s numerous countries unilaterally
strengthened this section of their laws and regulations and many more were willing to do
the same.

The successful multilateral conclusion of the agreement on TRIPS by the World Trade
Organisation raised the protection and enforcement of intellectual property rights to the
status of a significant International commitment.

A more globally competitive market with stronger Intellectual Property Rights protection is
required to increase incentives for research and to enhance returns on foreign technology
transfer. Regarding Intellectual Property Rights in particular, the trade policy forums working
group on intellectual property remains in touch with India.
In 2016, India released its extensive National Intellectual Property Rights policy which
emphasized public awareness and administrative capacity building.

Copyright and semiconductors are currently under the jurisdiction of the Department of
Industrial Policy and Promotion under the Ministry of Commerce of India.

The newly formed cell of intellectual property promotion and management is in charge of
inter-agency cooperation and the execution of intellectual property rights policies.

In order to combat the threat of online piracy, the state of Telangana established India’s first
intellectual property crime unit in 2016. Subsequently, commercial courts opened for
business in India and the industry started to witness some favourable decisions pertaining to
patents.

The United States Government hosted two workshops one on trade secrets and the other
one on copyright with the Government of India as part of their growing engagement.

The patents rule and the trademark rules have also underground modifications.
The copyright board and the intellectual property appellate board were merged. 458
examiners engaged by the Indian patent office to handle the backlog of patent and
trademark applications.

Conclusion
In summary, the time frame for the emergence of intellectual property rights was
established by the 18th century. Through the trade-related Intellectual Property Rights
agreement, the World Intellectual Property Organisation and the World Trade Organisation
played a crucial role in bringing intellectual property rights to a worldwide scale after the
end of the 19th century and during the start of the 20th century. The utmost nature of
intellectual property rights was its national territory, and the international development that
has been discussed above states that the scope has been widened to international
protection as well.

The development demanded the adoption of the same treatment to the foreigners as is
awarded to the nationals. Also, the unprecedented level of degree of universal
harmonisation of intellectual property rights has been increased. In special reference,
developing countries are bound to incorporate standards of basic protection and accord with
those that are in force in the industrial countries.

Frequently Asked Questions (FAQs)

What is the meaning of bilateral and multilateral treaties?

A bilateral treaty is a treaty between two States, that is, the treaty would have the two
participating States as its signatory or contracting states.

A bilateral treaty may take the form of a multilateral treaty when more than two states get
involved, making the contracting states more than two for the particular treaty.
What is the personhood theory?
The personhood theory states that whenever a person puts his efforts and works on
anything, he expresses his personality on that subject, leaving a mark of his efforts there.
As humans, they can put in labour and hard work and bring themselves in such a position
by extension of their efforts that they should also be the owners of the subjects or objects
they have worked on as their work becomes an extension of their own personality.

What is the theory of the democratic paradigm?

Copyright has also been looked upon from three different functions, that is, it serves
production function expressive function and structural function.

One of the main uses of copyright is that it puts in many more works out there it increases
the volume of creative works, making the expression function one of the most important
functions of all, this is known as the theory of democratic paradigm.

What is the Doha Declaration?

The Doha Declaration on the TRIPS Agreement and Public Health was a result of the TRIPS
Agreement. It was a declaration where specifically a compulsory licence meant for export
purposes could be granted. It was primarily to avoid or to remedy the legal impairments
created by the existing provisions.

What is the incentive theory of intellectual property?

According to the incentive theory of intellectual property, as an incentive for the author of a
certain work to continue their intellectual work, intellectual property rights do include
copyright. It must be noted that it is not intellectual work to copy someone else’s work after
researching.