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