INTELLECTUAL PROPERTY RIGHTS: BOON OR BANE

Theme Paper: Technical Session III

Dr. C. Ganesh
Professor
Department of Commerce
University of Kerala
Thiruvananthapuram – 695 034

The agreement on trade related aspects of Intellectual

Property Rights was one of the most important outcomes of
seven years of negotiations from September 1986 to December
1993 as part of the Uruguay Round of Multilateral Trade
Negotiations of the General Agreement on Tariffs and Trade
(GATT). Its inclusion was the culmination of a programme of
intense lobbying by the United States, supported by the
European Union, Japan and other developed nations.The
inclusion of Intellectual Property Rights in the Uruguay
Round agenda largely resulted from the concerns of
developed countries against inadequate protection for
intellectual creations . The developing countries, however,
were against such a proposal on the ground that such
protection would strengthen the monopoly power of
multinational companies and adversely affect the poor by
the rampant increase in the prices of food and medicines.
Similarly, these countries were also concerned about the
limited access to information and transfer of technology as
a result of stronger IPR. But the developed countries
claimed that the stronger protection of IPR would serve to
stimulate research which in the long run would be
beneficial to the developing countries.

After the Uruguay round, the GATT became the basis for
the establishment of the World Trade Organization. Because
ratification of TRIPS is a compulsory requirement of World
Trade Organization membership, any country seeking to
obtain easy access to the numerous international markets
opened by the World Trade Organization must enact the
strict intellectual property laws mandated by TRIPS. For
this reason, TRIPS is the most important multilateral
instrument for the globalization of intellectual property
laws. States like Russia and China that were very unlikely
to join the Berne Convention have found the prospect of WTO
membership a powerful enticement
 Since TRIPS came into force it has received a growing
level of criticism from developing countries, academics,
and non-governmental organisations.The irony of the TRIPS
agreement lies in the fact that when it provides stronger
protection to creators of intellectual property it fails to
address the concerns of developing countries and common
man. This becomes most evident in case of patents provided
for agriculture and pharmaceuticals. Patenting in
agriculture would provide seed companies a monopoly and the
power to control which varieties are cultivated leading to
piling up of enormous assets for these companies. When the
companies get patents for different seeds or plant
varieties, it prevents others from using it. The patent
owners would be interested in research and development of
only those varieties which have huge profit potential.
This, in turn, would lead to loss of bio-diversity.
Similarly, some companies may carry out field research
among indigenous people and acquire necessary information
on the use of various medicinal plants. These are then
commercially developed into products, then patented and
marketed. The common man is thus deprived of his own
resources, prohibited from further use of such plants and
added to it he does not get any fruits of commercialization
eventhough he is the real founder of such medicinal
formula. It is also argued that product patents would lead
to higher health cost for public health programmes and put
essential medicines out of the reach of the people who need
it most.

Against this backdrop, articles both

theoretical/conceptual and research oriented, are invited
on the following aspects of IPR covered under the TRIPS
agreement

1 Patents
2 Copyrights
3 Geographical indications
4 Industrial designs
6 Trademarks
7 Layout designs of integrated circuits
8 Protection of undisclosed information

The articles can also be oriented to address the

following issues:

1 Life patenting and bio-piracy

2 TRIPS and public health
3 Geographical indications registration system
4 Protection for plants and animal inventions
5 Traditional knowledge and bio-diversity
6 Non-violation complaints
7 Technology transfer

The areas identified above are only indicative and not

exhaustive. Articles on related areas that fit into the
broad theme of the technical session are also quite welcome.

It is interesting to note here that the term ‘intellectual

property’ itself is a matter of controversy. Some argue
that the use of the term ‘property’ in this context is
itself misleading. Some characterise intellectual property
as intellectual protectionism. Furthermore, due to the non-
rivalrous nature of intellectual property, comparing the
unauthorized use of intellectual property to the crime of
theft presents its own unique problems. The common law
theft requires deprivation of the rightful owner of his or
her rights to posses, use or destroy property. Since
intellectual property as so easily reproduced, no such
deprivation to the owner occurs.

The TRIPS agreement is builr upon the following important

features:

A The agreement includes processes and products for methods

of agriculture and horticulture, technological processes
and nuclear energy
B the agreement provides for the granting of product patent
to food, medicine, drugs and chemical products
C under the agreement both for product patent and process
patent, the duration of patents will be 20 years
D Under the TRIPS agreement, there is no specific provision
for license or revocation of patents
E the agreement also provides for ‘protection of plant
variety’ and discretionis given to individual countries to
have an effective generic system of their own

It will not be an exaggeration if it is said that many

issues originates from the features of TRIPS agreement
itself. When a patent protection is provided for a long
period of 20 years, it has no specific provision for
revocation of patents in case of abuse. Similarly the
practice of ‘ever-greening’ (the practice of prolonging the
duration of patents by making insignificant changes to an
already existing patented product.) is on rise, especially
among pharmaceutical companies, due to the legislative
provisions and loopholes that exists in the IPR law.

IPRs covered under the TRIPS agreement are

If any seed company manages to get patents over the seed
varities it will force the farmers to buy their seeds every
year giving rise to fincancial issues..

TRIPS was negotiated at the end of the Uruguay Round of the

General Agreement on Tariffs and Trade (GATT) treaty in
1994.

http://www.icaindia.net/Intellectual_Property_Rights.doc

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