wto & ip

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1

developed byGURJEIT SINGH

World Trade Organization

Intellectual Property Rights

Introduction

GATT

WTO

IntellectualProperty

Patents

Trademarks

Copyright

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1.1 History

World War II,global military conflictthat,interms oflives lostand materialdestruction, was

the mostdevastating warinhumanhistory. Itbeganin 1939 as a European conflictbetween

Germany and an Anglo-French coalition but eventually widened to include most of the

nations ofthe world. Itendedin 1945,leavinganew worldorderdominatedbythe United

States and the Union of Soviet Socialist Republics (USSR). Morethananyprevious war,World War II involvedthe commitmentof nations entire humanandeconomic resources,

theblurringofthedistinctionbetween combatantandnoncombatant,andtheexpansionof

thebattlefieldtoincludealloftheenemys territory. The mostimportantdeterminants ofits

outcome were industrial capacityandpersonnel. Inthelast stages ofthe war,tworadically

new weapons were introduced: the long-range rocket and the atomic bomb. In the main,

however, the war was fought with the same or improved weapons of the types used in

World War I (1914-1918). Thegreatestadvances wereinaircraftandtanks.

A rough consensus has been reached on the total cost of the war. The human cost is

estimatedat 55 milliondead25 millioninthe militaryand 30 million civilians. Theamount

ofmoney spenthas beenestimatedat morethan $1 trillion, which makes World War II more

expensivethanallother wars combined.

Bretton Woods Conference, popular name of the United Nations Monetary and Financial

Conference that took place July 1-22, 1944, at Bretton Woods, a vacation resort in New

Hampshire. The conference was attended by representatives of 44 nations, during World

War II to shape aprogram for internationaleconomic cooperation. Conference resulted in

the creation of the International Monetary Fund to help stabilize international exchange

rates, the International Bank for Reconstruction and Development to provide economic

assistanceto war-ravagednations,andtheGeneral Agreementon Tariffs and Trade (GATT).

Theseorganizations becameoperational in 1945 aftera sufficientnumberof countries hadratifiedtheagreement. The summaryofagreements states, "Thenations should consultand

agree on international monetary changes which affect each other. They should outlaw

practices which are agreed to be harmful to world prosperity, and they should assist each

othertoovercome short-term exchangedifficulties."

The mainterms ofthis agreement were:

1. Formationofthe IMFandthe IBRD (presentlypartofthe World Bank).

2. Adjustablypeggedforeignexchange marketrate system: Theexchangerates werefixed,

withtheprovisionofchangingthem ifnecessary.

3. Currencies were required to be convertible for trade related and other current account

transactions. Thegovernments,however,hadthepowertoregulateostentatious capital

flows.

4. As it was possible that exchange rates thus established might not be favourable to a

country's balanceofpayments position,thegovernments hadthepowertorevisethem

byupto 10%.

5. All member countries wererequiredto subscribetothe IMF's capital.

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One of the conference outcomes was to set up a new international monetary system,

replacing the international gold standard that had collapsed during the Great Depression.

The U.S. dollar played a key role in the new system, becoming, in effect, the worlds

currency. This was true, first, because all IMF members defined the value of their own

currencies interms ofthedollarand, second,becausethe United States agreedto convert

all dollars held by foreign governments into gold on demand and at the exchange rate

agreed on when the IMF was established. This meant that the world was on a goldexchange standard sincegovernments could changetheir currencies intogoldviathe U.S.

dollar.

1.2 Failed Proposals

1. International Trade Organization

The Conferencealsoproposedthe creationofan International Trade Organization (ITO) to

establish rules and regulations for international trade. The ITO would have complemented

theothertwo Bretton Woods proposed internationalbodies:the IMFandthe World Bank.

The ITO charter was agreedonat the U.N. Conference on Tradeand Employment (held in

Havana, Cuba, in March 1948),but was notratifiedbythe U.S. Senate. As aresult,the ITO

never cameintoexistence. TheGATT wouldovertheyears "transform itself" intoade facto

internationalorganization. It was contemplatedthattheGATT wouldbeappliedfor several

years until the ITO came into force. Seven rounds of negotiations occurred under GATT

beforetheeighthround-the Uruguay Round- concludedin 1994 withtheestablishmentof

the World Trade Organisation (WTO) as the GATT's replacement. The GATT principles and

agreements were adopted by the WTO, which was charged with administering and

extendingthem.

2. International Clearing Union

The International Clearing Union (ICU) would be a global bank whose job would be to

regulate trade betweennations. The ICU would makeall internationaltradebe done in its

own currency called a bancor. The bancor would have a fixed exchange rate with other

national currencies,and would beusedto measurethebalance oftradebetweennations.

Everygoodexported wouldaddbancors toa country's account,everygoodimported would

subtract them. Each nation would then be given large incentives to keep their bancor

balance withinavery closepercentagetozero. Ifanationhadtoohighabancor surplus the

ICU would take a percentage of that surplus and put it into the Clearing Union's Reserve

Fund. This taking of surplus bancors would encourage nations with surpluses to buy other

nations'exports, sothey maintainazerotrade sum. Nations that imported morethanthey

exported would have their currency deflated to encourage other nations to buy their

products,and makeimports moreexpensive.

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1.3 Introduction

General Agreementon Tariffs and Trade (GATT) originatedafter World War II (1939-1945) as

a charter for the International Trade Organization (ITO), a proposed specialized agency of

the United Nations. GATT was signed by 23 nations at a trade conference in 1947 and

becameeffectivein January 1948. Althoughthe ITO failedto winratificationbythe United

States Congress in 1950 and never came into being, the GATT remained in use to governinternationaltrade.

It is atreaty among internationaltrade organization in existence from 1948 to 1995.GATT

members, known as contracting parties, worked to minimize tariffs, quotas, preferential

trade agreements between countries, and other barriers to international trade. GATT was

founded on the principle of nondiscrimination and the most-favored-nation (MFN) clause,

which required members to treat all other contracting parties equally. Once a member

reduced a tariff for another member country, that reduction applied to all member

countries. However,an escape clauseallowed anation to withdraw its tariffreduction if it

seriously harmed the country's domestic producers. The latter says that a country cannot

restrict or promote imports of certain goods from country A if it does not do so from

countries B to Z as well-all countries'imports mustgetthe samedeal. Theformer says that,

once a good has entered the country, it must be treated no differently than "like" goods

produceddomestically. Inpractice,theserules also meanthata country cannotdiscriminate

against goods produced in an environmentally damaging way, such as paper made by

chlorinebleaching. This is becausetheGATT interprets "like goods" tobe those which are

similaratpointofimport.

Most of the rounds dealt with tariff reduction only, but as tariffs came down, non-tariff

barriers wentup. The Kennedyround (1964-1967) cametoagreementonanti-dumping. And

the Tokyo Round went further; dealing with subsidies and countervailing measures,technicalbarriers totrade,importlicensingprocedures,governmentprocurementandother

non-tariffareas ofconcern.

GATT members sponsored eight specially organized rounds of trade negotiations. The last

roundofnegotiations, calledthe Uruguay Round,began in 1986 andended in 1994. Atthe

endofthenegotiations,the members ofGATT,as wellas representatives from sevenother

nations, signed a trade pact that will eventually cut tariffs overall by about one-third and

reduceoreliminateotherobstacles totrade. Thepactalsotook steps towardopeningtrade

in investments and services among member nations and strengthening protection for

intellectualpropertythat is, creative works that canbe protected legally. The 1994 trade

agreementofficiallytook effectin January 1995,butit willbeyears beforeits provisions are

fullyimplemented.

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TheGATT 1994 Agreements included:

y Agriculture Agreement wherereduced subsidies foragriculturalproducts wouldallow for

increased production in developing countries, and reduce use of chemical pesticides,

fertilizers.

y Agreementonthe ApplicationofSanitaryand Phytosanitary Measures

y Agreementon Technical Barriers to Tradey Agreementon Subsidies and Countervailing Measures

y Anti-Dumpingand Safeguard Measures Agreements

y Agreementon Trade-Related Investment Measures

y Agreement on Textiles and Clothing tries to do away with a long-standing protectionist

agreement called the Multifibre Arrangement (MFA) which effectively restricted

developed countryimports oftextiles and clothingfrom developing countries.

The 1994 GATT pactalsoprovidedforestablishmentofthe WTO. In 1995 GATT's functions

were taken over by the World Trade Organization (WTO), an international body that

administers trade laws and provides a forum for settling trade disputes among nations.Throughout 1995, GATT and the WTO coexisted while GATT members sought their

governments' approval for WTO membership. After the transition period, GATT ceased to

exist. All of the 128 nations that were contracting parties to the 1994 GATT agreement

eventually transferred membership to the WTO. Although the WTO operates a dispute

settlement process similar to the one under GATT, it has stronger power to enforce

agreements, including authority to issue trade sanctions against a country that refuses to

revokeanoffendinglaw orpractice.

Rounds: GATT/WTO heldatotalof8 rounds.

GATT and WTO trade rounds

Name Start Duration Countries Subjects covered Achievements

Geneva April 19477

months23 Tariffs

SigningofGATT, 45,000

tariffconcessions

affecting $10 billionof

trade

Annecy April 19495

months13 Tariffs

Countries exchanged

some 5,000 tariff

concessions

TorquaySeptember

1951

8

months38 Tariffs

Countries exchanged

some 8,700 tariff

concessions, cutting

the 1948 tarifflevels by

25%

Geneva IIJanuary

1956

5

months26

Tariffs,admission

ofJapan

$2.5 billionintariff

reductions

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Dillon

September

1960 -

1961

11

months26 Tariffs

Tariffconcessions

worth $4.9 billionof

worldtrade

Kennedy

May

1964 -1967

37

months 62

Tariffs, Anti-

dumping

Tariffconcessions

worth $40 billionofworldtrade

Tokyo

September

1973 -

1979

74

months102

Tariffs,non-tariff

measures,

"framework"

agreements

Tariffreductions worth

morethan $300 billion

dollars achieved

Uruguay

September

1986 -

1994

87

months123

Tariffs,non-tariff

measures,rules,

services,

intellectual

property,dispute

settlement,

textiles,

agriculture,

creationofWTO,

etc

Theroundledtothe

creationofWTO,and

extendedtherangeof

tradenegotiations,

leadingto majorreductions intariffs

(about 40%) and

agricultural subsidies,

anagreementtoallow

fullaccess fortextiles

and clothingfrom

developing countries,

andanextensionof

intellectualproperty

rights.

DohaNovember

2001141

Tariffs,non-tariff

measures,

agriculture,labor

standards,

environment,

competition,

investment,

transparency,

patents etc

Theroundis notyet

concluded.

The 1994 GATT treaty was oneofthe mostambitious internationaltradeagreements tobe

signedby suchalargenumberofnations. A numberofgroups,includingenvironmentalists,

human-rights activists, and labor organizations in the United States and other countries,

arguedagainstthetreaty, claimingthatitfailedtolink tradepreferences toprotections for

environmentand workers rights.

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1.4 Meaning

The World Trade Organization (WTO) is the only global international organization dealing

withtherules oftradebetweennations. Its mainfunction is toensurethattradeflows as

smoothly, predictably and freely as possible. At its heart are the WTO agreements,

negotiated and signed by the bulk of the worlds trading nations and ratified in their

parliaments. The goal is to help producers ofgoods and services, exporters,and importers

conduct their business. Its an organization for liberalizing trade. Its a forum for

governments tonegotiatetradeagreements. Its aplaceforthem to settletradedisputes. It

operates a system oftraderules.

1.5 Facts

Location:Geneva, Switzerland

Established: 1 January 1995

Createdby: Uruguay Roundnegotiations (1986-94)

Membership: 153 countries on 23 July 2008Budget: 189 million Swiss francs for 2009

Secretariat staff: 625

Head: Pascal Lamy (Director-General)

1.6 Functions

Administering WTO tradeagreements

Forum fortradenegotiations

Handlingtradedisputes

Monitoringnationaltradepolicies

Technicalassistanceandtrainingfordeveloping countries Cooperation withotherinternationalorganizations

1.7 Role

Its anegotiatingforum - The WTO is aplace where membergovernments go,totryto sort

outthetradeproblems theyface witheachother. Thefirst stepis totalk. The WTO was born

outofnegotiations,andeverythingthe WTO does is theresultofnegotiations. Thebulk of

the WTO's current work comes from the 1986-94 negotiations calledthe Uruguay Roundand

earlier negotiations undertheGeneral Agreementon Tariffs and Trade (GATT). The WTO is

currentlythehosttonew negotiations,underthe Doha Development Agendalaunchedin

2001.

Where countries havefacedtradebarriers and wantedthem lowered,thenegotiations have

helped to liberalize trade. But the WTO is notjust about liberalizing trade, and in some

circumstances its rules support maintaining trade barriers for example to protect

consumers orpreventthe spreadofdisease.

Its a setofrules - Atits heartarethe WTO agreements,negotiatedand signedbythebulk of

the worlds trading nations. These documents provide the legal ground-rules for

international commerce. Theyareessentially contracts,binding governments to keeptheir

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tradepolicies withinagreedlimits. Althoughnegotiatedand signedbygovernments,thegoal

is tohelpproducers ofgoods and services,exporters,andimporters conducttheirbusiness,

whileallowinggovernments to meet socialandenvironmentalobjectives.

The systems overridingpurposeis tohelptradeflow as freelyas possible solongas there

arenoundesirable side-effects becausethis is importantforeconomic developmentand

well-being. That partly means removing obstacles. It also means ensuring that individuals,companies and governments know what the trade rules are around the world, and giving

them the confidence that there will be no sudden changes of policy. In other words, the

rules havetobe transparentandpredictable.

It helps to settledisputes - Trade relations often involve conflicting interests. Agreements,

including those painstakingly negotiated in the WTO system, often need interpreting. The

mostharmonious wayto settlethesedifferences is through someneutralprocedurebased

on an agreed legal foundation. That is the purpose behind the dispute settlement process

writtenintothe WTO agreements.

1.8 Principles of Trading System

The WTO agreements arelengthyand complexbecausetheyarelegaltexts coveringa wide

range of activities. They deal with: agriculture, textiles and clothing, banking,

telecommunications, government purchases, industrial standards and product safety, food

sanitation regulations, intellectual property, and much more. But a number of simple,

fundamental principles run throughout all of these documents. These principles are the

foundationofthe multilateraltrading system. Thetrading system shouldbe:

1. Trade withoutdiscrimination

1. a. Most-favoured-nation (MFN): treating other people equally Under the WTO

agreements, countries cannot normally discriminate between their trading partners. Grant

someonea specialfavour (suchas alower customs dutyrateforoneoftheirproducts) and

youhavetodothe sameforallother WTO members.

Someexceptions areallowed.Forexample, countries can setupafreetradeagreementthat

applies onlytogoods traded withinthegroup discriminatingagainstgoods from outside.

Orthey cangivedeveloping countries specialaccess totheir markets. Ora country canraise

barriers against products thatare considered to betradedunfairlyfrom specific countries.And in services, countries are allowed, in limited circumstances, to discriminate. But the

agreements only permit these exceptions under strict conditions. In general, MFN means

thateverytimea countrylowers atradebarrieroropens upa market,ithas todo soforthe

samegoods or services from allits tradingpartners whetherrichorpoor, weak or strong.

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1. b. National treatment: Treating foreigners and locals equallyimported and locally-

producedgoods shouldbetreatedequallyat leastaftertheforeigngoods haveentered

the market. The same shouldapplytoforeignanddomestic services,andtoforeignandlocal

trademarks, copyrights andpatents. This principleofnationaltreatmentgivingothers the

sametreatmentas ones ownnationals.

Nationaltreatmentonlyapplies onceaproduct, serviceoritem ofintellectualpropertyhasentered the market. Therefore, charging customs duty on an import is not a violation of

nationaltreatmenteveniflocally-producedproducts arenot chargedanequivalenttax.

2.Freertrade:gradually,throughnegotiation

Loweringtradebarriers is oneofthe mostobvious means ofencouragingtrade. Thebarriers

concerned include customs duties (ortariffs) and measures suchas importbans orquotas

that restrict quantities selectively. From time to time other issues such as red tape and

exchangeratepolicies havealsobeendiscussed.

SinceGATTs creationin 1947-48 therehavebeenninerounds oftradenegotiations. Atfirst

these focused on lowering tariffs (customs duties) on imported goods. As a result of the

negotiations,bythe mid-1990s industrial countries tariffrates onindustrialgoods hadfallen

steadilytoless than 4%. Butbythe 1980s,thenegotiations hadexpandedto covernon-tariff

barriers ongoods,andtothenew areas suchas services andintellectualproperty.

Opening markets can be beneficial, but it also requires adjustment. The WTO agreements

allow countries to introduce changes gradually, through progressive liberalization.

Developing countries areusuallygivenlongertofulfilltheirobligations.

3. Predictability:throughbindingandtransparency

Sometimes, promising not to raise a trade barrier can be as important as lowering one,

because the promise gives businesses a clearer view of their future opportunities. With

stability and predictability, investment is encouraged,jobs are created and consumers can

fully enjoythebenefits of competition choice and lowerprices. The multilateraltrading

system is an attempt by governments to make the business environment stable and

predictable.

Inthe WTO, when countries agreetoopentheir markets forgoods or services,they bind

their commitments. For goods, these bindings amount to ceilings on customs tariff rates.

Sometimes countries tax imports at rates that are lower than the bound rates. Frequently

this is the case in developing countries. In developed countries the rates actually charged

andtheboundrates tendtobethe same.

A country can changeits bindings,butonlyafternegotiating withits tradingpartners, which

could mean compensatingthem for loss oftrade. Oneoftheachievements ofthe Uruguay

Round of multilateral trade talks was to increase the amount of trade under binding

commitments. Inagriculture, 100% ofproducts now haveboundtariffs. Theresultofallthis:

a substantiallyhigherdegreeofmarket securityfortraders andinvestors.

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The system tries toimprovepredictabilityand stabilityinother ways as well. One wayis to

discouragetheuseofquotas andother measures usedto setlimits onquantities ofimports

administeringquotas canleadto morered-tapeandaccusations ofunfairplay. Anotheris

to make countries trade rules as clear and public (transparent) as possible. Many WTO

agreements requiregovernments todisclosetheirpolicies andpractices publicly withinthe

countryorbynotifyingthe WTO.

4. Promotingfair competition

The WTO is sometimes described as a free trade institution, but that is not entirely

accurate. The system does allow tariffs and, in limited circumstances, other forms of

protection. Moreaccurately, it is a system ofrules dedicated toopen,fair andundistorted

competition.

Therules onnon-discrimination MFN and nationaltreatment aredesignedto secure

fair conditions oftrade. Sotooarethoseondumping (exportingatbelow costtogain market

share) and subsidies. The issues are complex, and the rules try to establish what is fair or

unfair,andhow governments canrespond,inparticularby chargingadditionalimportduties

calculatedto compensatefordamage causedbyunfairtrade.

Many of the other WTO agreements aim to support fair competition: in agriculture,

intellectualproperty, services,forexample. Theagreementongovernmentprocurement (a

plurilateral agreement because it is signed by only a few WTO members) extends

competitionrules topurchases bythousands ofgovernmententities in many countries. And

soon.

5. Encouragingdevelopmentandeconomic reform

The WTO system contributes todevelopment. Ontheotherhand,developing countries need

flexibilityinthetimetheytaketoimplementthe systems agreements. Andtheagreements

themselves inherittheearlierprovisions ofGATT thatallow for specialassistanceandtrade

concessions fordeveloping countries.

Overthreequarters ofWTO members aredeveloping countries and countries intransitionto

market economies. During the seven and a half years of the Uruguay Round, over 60 of

these countries implemented trade liberalization programmes autonomously. At the same

time,developing countries andtransitioneconomies were much moreactiveandinfluential

inthe Uruguay Roundnegotiations thaninanyprevious round,andtheyareeven more soin

the current Doha Development Agenda.

Atthe endofthe Uruguay Round, developing countries werepreparedtotakeon most of

theobligations thatarerequiredofdeveloped countries. Buttheagreements didgivethem

transitionperiods toadjusttothe moreunfamiliarand,perhaps,difficult WTO provisions

particularly soforthepoorest, least-developed countries. A ministerialdecisionadopted

at the end of the round says better-off countries should accelerate implementing market

access commitments on goods exported by the least-developed countries, and it seeks

increasedtechnicalassistanceforthem. Morerecently,developed countries have startedto

allow duty-free and quota-free imports for almost all products from least-developed

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countries. Onallofthis,the WTO andits members are stillgoingthroughalearningprocess.

The current Doha Development Agenda includes developing countries concerns aboutthe

difficulties theyfaceinimplementingthe Uruguay Roundagreements.

1.9 Benefits of WTO

1. The system helps to keepthepeace

The system does contribute to international peace. Peace is partly an outcome of two

fundamental principles of the trading system: helping trade to flow smoothly and

providing countries witha constructiveandfairoutletfordealing withdisputes overtrade

issues. It is also an outcome of the international confidence and cooperation that the

system creates andreinforces.

2. The system allows disputes tobehandled constructively

As trade expands in volume, in the number of products traded, and in the numbers ofcountries and companies trading,there is agreater chancethatdisputes willarise. Ifleft

tothemselves,thosedisputes could leadto serious conflict. A lot of international trade

tensionis reducedbecause countries canturntoorganizations,inparticularthe WTO,to

settletheirtradedisputes. Whentheybringdisputes tothe WTO,the WTOs procedure

focuses theirattentionontherules. Oncearulinghas been made, countries concentrate

on trying to comply with the rules, and perhaps later renegotiating the rules not on

declaring waroneachother. Around 300 disputes havebeenbroughttothe WTO sinceit

was setupin 1995.

3. A system basedonrules ratherthanpower makes lifeeasierforall

The WTO cannot claim to makeall countries equal. Butitdoes reduce someinequalities,

giving smaller countries morevoice,andatthe sametimefreeingthe majorpowers from

the complexity of having to negotiate trade agreements with each of their numerous

trading partners. Decisions in the WTO are made by consensus. The WTO agreements

were negotiated by all members, were approved by consensus and were ratified in all

members parliaments. Theagreements applytoeveryone. Richandpoor countries alike

haveanequalrightto challengeeachotherinthe WTOs dispute settlementprocedures.

4. Freertrade cuts the costofliving

Weareall consumers. Theprices wepayfor ourfood and clothing,ournecessities and

luxuries,andeverythingelse inbetween,areaffectedbytradepolicies. Protectionism is

expensive: it raises prices. The WTOs global system lowers trade barriers through

negotiationandapplies theprincipleofnon-discrimination. Theresultis reduced costs of

production (because imports used in production are cheaper) and reduced prices of

finishedgoods and services,andultimatelyalower costofliving.

5. Itgives consumers more choices,andabroaderrangeofqualities to choosefrom

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Think of all the things we can now have because we can import them: fruits and

vegetables outof season,foods, clothingandotherproducts thatusedtobe considered

exotic, cutflowers from anypartofthe world,all sorts ofhouseholdgoods,books, music,

movies,and soon. Iftradeallows us toimport more,italsoallows others tobuy moreof

our exports. It increases our incomes, providing us with the means of enjoying the

increased choice.

6. Traderaises incomes

Lowering trade barriers allows trade to increase, which adds to incomes national

incomes and personal incomes. But some adjustment is necessary. The WTOs own

estimates for the impact of the 1994 Uruguay Round trade deal were between $109

billionand $510 billionaddedto worldincome.

7. Trade stimulates economic growthandthat canbegoodnews foremployment

Trade clearlyhas the potentialto createjobs. Inpracticethere is oftenfactualevidence

that lower trade barriers have been good for employment because trade boosts

economic growth,andthateconomic growth means morejobs. It is alsotruethat some

jobs arelosteven whentradeis expanding. Thepictureis notthe samealloverthe world.

Theaverage lengthoftimea workertakes tofindanew job canbe muchlonger inone

countrythanfora similar workerinanother countryexperiencing similar conditions.

8. Thebasic principles makethe system economically moreefficient,andthey cut costs

Manyofthebenefits ofthetrading system are moredifficultto summarizeinnumbers,

buttheyare stillimportant. Theyaretheresultofessentialprinciples attheheartofthesystem,and they make life simplerfortheenterprises directly involved intradeandfor

theproducers ofgoods and services. Tradeallows adivisionoflabourbetween countries.

Itallows resources tobeused moreappropriatelyandeffectivelyforproduction. Butthe

WTOs trading system offers more than that. It helps to increase efficiency and to cut

costs even more becauseof important principles enshrined inthe system. Imaginenow

that the government announces it will charge the same duty rates on imports from all

countries, and it will use the same regulations for all products, no matter where they

comefrom, whetherimportedor locallyproduced. Lifeforthe company wouldbe much

simpler. Sourcing components wouldbecome moreefficientand would costless.

9. The system shields governments from narrow interests

The GATT-WTO system which evolved in the second half of the 20th Century helps

governments takea morebalancedview oftradepolicy.Governments arebetter-placed

todefendthemselves againstlobbyingfrom narrow interestgroups byfocusingontrade-

offs thatare madeintheinterests ofeveryoneintheeconomy.

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10. The system encourages goodgovernment

Under WTO rules,oncea commitmenthas been madetoliberalizea sectoroftrade,itis

difficulttoreverse. The rules also discouragearangeofunwisepolicies.Forbusinesses,

that means greater certaintyand clarityabouttrading conditions.Forgovernments it can

often mean good discipline. Many other areas of the WTOs agreements can also help

reduce corruption and bad government. Quite often, governments use the WTO as awelcomeexternal constraintontheirpolicies: we cantdothis becauseit wouldviolate

the WTO agreements.

1.10 Reasons to Oppose the WTO

1. The WTO Is Fundamentally Undemocratic

The policies of the WTO impact all aspects of society and the planet, but it is not a

democratic,transparentinstitution. The WTO rules are writtenbyandfor corporations with

insideaccess tothenegotiations.Forexample,the US Trade Representativegets heavyinput

fornegotiations from 17 "Industry Sector Advisory Committees." Citizeninputby consumer,

environmental, human rights and labor organizations is consistently ignored. Even simple

requests for information are denied, and the proceedings are held in secret. Who elected

this secretglobalgovernment?

2. The WTO Will Not Make Us Safer

The WTO wouldlikeyoutobelievethat creatinga worldof"freetrade" willpromoteglobal

understanding and peace. On the contrary, the domination of international trade by rich

countries forthebenefitoftheir individual interests fuels angerandresentmentthat make

us less safe. To build real global security, we need international agreements that respectpeople's rights todemocracyandtrade systems thatpromoteglobaljustice.

3. The WTO Tramples Laborand Human Rights

WTO rules putthe "rights" ofcorporations toprofitoverhumanandlaborrights. The WTO

encourages a'racetothebottom'in wages bypitting workers againsteachotherratherthan

promotinginternationallyrecognizedlabor standards. The WTO has ruledthatitis illegalfor

agovernmenttobanaproductbasedonthe wayitis produced, suchas with childlabor. It

has alsoruledthatgovernments cannottakeintoaccount "non commercialvalues" suchas

humanrights,orthebehaviorofcompanies thatdobusiness withvicious dictatorships such

as Burma when makingpurchasingdecisions.

4. The WTO Would Privatize Essential Services

The WTO is seeking to privatize essential public services such as education, health care,

energyand water. Privatization means the sellingoffofpublic assets - suchas radioairwaves

or schools -toprivate (usuallyforeign) corporations,torunforprofitratherthanthepublic

good. The WTO's General Agreementon Trade in Services,orGATS, includes a listofabout

160 threatened services includingelderand child care, sewage,garbage,park maintenance,

telecommunications, construction, banking, insurance, transportation, shipping, postal

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services,andtourism. In some countries,privatizationis alreadyoccurring. Thoseleastable

topayforvital services - working class communities and communities ofcolor-aretheones

who sufferthe most.

5. The WTO Is Destroyingthe Environment

The WTO is being used by corporations to dismantle hard-won local and nationalenvironmentalprotections, whichareattackedas "barriers totrade." The WTO is attempting

to deregulate industries including logging, fishing, water utilities, and energy distribution,

which willleadtofurtherexploitationofthesenaturalresources.

6. The WTO is Killing People

The WTO's fierce defense of 'Trade Related Intellectual Property' rights (TRIPs)patents,

copyrights andtrademarkscomes attheexpenseofhealthandhumanlives. The WTO has

protected for pharmaceutical companies' 'right to profit' against governments seeking to

protecttheirpeople's healthbyprovidinglifesaving medicines in countries inareas like sub-

Saharan Africa, wherethousands dieeverydayfrom HIV/AIDS. Developing countries wonan

importantvictoryin 2001 whentheyaffirmedtherighttoproducegeneric drugs (orimport

them if they lacked production capacity), so that they could provide essential lifesaving

medicines to their populations less expensively. Unfortunately, in September 2003, many

new conditions wereagreedtothat will makeit moredifficultfor countries toproducethose

drugs. Onceagain,the WTO demonstrates thatitfavors corporateprofitover savinghuman

lives.

7. The WTO is Increasing Inequality

Free trade is not working for the majority of the world. During the most recent period ofrapid growth in global trade and investment (1960 to 1998) inequality worsened both

internationallyand within countries. The UN Development Program reports thattherichest

20 percentofthe world's population consume 86 percentofthe world's resources whilethe

poorest 80 percent consumejust 14 percent. WTO rules have hastened these trends by

openingup countries toforeign investmentandthereby making it easier for productionto

go wherethelaboris cheapestand mosteasilyexploitedandenvironmental costs arelow.

8. The WTO is Increasing Hunger

Farmers produce enough food in the world to feed everyone -- yet because of corporate

control of food distribution, as many as 800 million people worldwide suffer from chronic

malnutrition. Accordingtothe Universal DeclarationofHuman Rights,foodis ahumanright.

Indeveloping countries,as manyas fouroutofeveryfivepeople maketheirlivingfrom the

land. Buttheleadingprincipleinthe WTO's Agreementon Agricultureis that marketforces

should control agricultural policies-rather than a national commitment to guarantee food

securityand maintaindecentfamilyfarmerincomes. WTO policies havealloweddumpingof

heavily subsidized industrially produced food into poor countries, undermining local

productionandincreasinghunger.

9. The WTO Hurts Poor, Small Countries inFavorofRich Powerful Nations

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The WTO supposedlyoperates ona consensus basis, withequaldecision-makingpowerfor

all. In reality, many important decisions get made in a process whereby poor countries'

negotiators are not even invited to closed door meetings -- and then 'agreements' are

announcedthatpoor countries didn'teven know werebeingdiscussed. Many countries do

notevenhaveenoughtradepersonneltoparticipateinallthenegotiations ortoevenhavea

permanent representative at the WTO. This severely disadvantages poor countries from

representing their interests. Likewise, many countries are too poor to defend themselvesfrom WTO challenges from therich countries,and changetheirlaws ratherthanpayfortheir

owndefense.

10. The WTO Undermines Local Level Decision-Makingand National Sovereignty

The WTO's "most favored nation" provision requires all WTO member countries to treat

eachotherequallyandtotreatall corporations from these countries equally regardless of

theirtrack record. Localpolicies aimedatrewarding companies whohirelocalresidents,use

domestic materials, or adopt environmentally sound practices are essentially illegal under

the WTO. Developing countries are prohibited from creating local laws that developed

countries once pursued, such as protecting new, domestic industries until they can be

internationally competitive.

11. The Tideis turning AgainstFree Tradeandthe WTO!

Internationaloppositiontothe WTO is growing. Massiveprotests in Seattleof1999 brought

over 50,000 people together to oppose the WTOand succeeded in shutting the meeting

down. Whenthe WTO metin 2001,the Tradenegotiators wereunable meettheirgoals of

expanding the WTO's reach. In Cancn, Mexico and Hong Kong, China, the WTO met

thousands of activists in protest, scoring a major victory for democracy. Developing

countries refusedtogiveintotherich countries'agendaofWTO expansion-and causedthetalks to collapse!

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1.11 Meaning

The Doha Development Round is the current trade-negotiation round of the World Trade

Organization (WTO) which commenced in November 2001. Its objective is to lower trade

barriers around the world, which allows countries to increase trade globally. As of 2008,

talks have stalled over a divide on major issues, such as agriculture, industrial tariffs and

non-tariff barriers, services, and trade remedies. The most significant differences arebetween developed nations led by the European Union (EU), the United States (USA), and

Japanandthe majordeveloping countries ledandrepresented mainlyby India, Brazil, China,

and South Africa. Thereis also considerable contentionagainstandbetweenthe EU andthe

U.S. over their maintenance of agricultural subsidiesseen to operate effectively as trade

barriers. The Doha Round began with a ministerial-level meeting in Doha, Qatar in 2001.

Subsequent ministerial meetings took placein Cancn, Mexico (2003),Geneva, Switzerland

(2004, 2006, and 2008), Hong Kong (2005), Paris, France (2005), and Potsdam, Germany

(2007). The mostrecentroundofnegotiations, July 23-29 2008,brokedownafterfailingto

reacha compromiseonagriculturalimportrules.

1.12 Issues: Discussed at DOHA

Agriculture

Agriculture has become the most important and controversial issue. The United States is

being asked by the European Union (EU) and the developing countries, led by Brazil and

India, to make a more generous offer for reducing trade-distorting domestic support for

agriculture. The United States is insistingthatthe EU andthedeveloping countries agreeto

make more substantialreductions intariffs andtolimitthenumberof import-sensitiveand

special products that would be exempt from cuts. Import-sensitive products are of most

concern to developed countries like the European Union, while developing countries areconcerned with special products those exempt from both tariff cuts and subsidy

reductions because of development, food security, or livelihood considerations. Brazil has

emphasized reductions in trade-distorting domestic subsidies, especially by the United

States, while India has insisted on a large number of special products that would not be

exposedto wider marketopening.

Access topatented medicines

A major topic at the Doha ministerial regarded the WTO Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPS). The issue involves the balance of interests

between the pharmaceutical companies in developed countries that held patents on

medicines and the public health needs in developing countries. Before the Doha meeting,

the United States claimedthatthe currentlanguagein TRIPS was flexibleenoughtoaddress

health emergencies, but other countries insisted on new language. On August 30, 2003,

WTO members reachedagreementonthe TRIPS and medicines issue. VotingintheGeneral

Council, membergovernments approvedadecisionthatofferedaninterim waiverunderthe

TRIPS Agreement allowing a member country to export pharmaceutical products made

under compulsorylicenses toleast-developedand certainother members. Specialanddifferentialtreatment

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Developing countries wanted to negotiate on changes to special and differential (S&D)

provisions, keepproposals together inthe Committeeon Trade and Development,and set

shorter deadlines. Developed countries wanted to study S&D provisions, send some

proposals to negotiating groups, and leave deadlines open. Developing countries claimed

thatthedeveloped countries werenotnegotiatingingoodfaith, whiledeveloped countries

argued that the developing countries were unreasonable in their proposals. At the

December 2005 Hong Kong ministerial, members agreed to five S&D provisions for leastdeveloped countries (LDCs),includingthetariff-freeandquota-freeaccess.

Implementationissues

Developing countries claim that they have had problems with the implementation of the

agreements reached in the earlier Uruguay Round because of limited capacity or lack of

technical assistance. They also claim that they have not realized certain benefits that they

expected from the Round, such as increased access for their textiles and apparel in

developed-country markets. They seek a clarificationoflanguagerelatingtotheirinterests in

existingagreements.

1.13 Benefits: of DOHA round

All countries participatinginthenegotiations believethatthereis someeconomic benefitin

adopting the agreement. There is considerable disagreement of how much benefit the

agreement wouldactuallyproduce. Itis foundina study, ifalltradebarriers inagriculture,

services, and manufactures were reduced by 33% as a result of the Doha Development

Agenda,there wouldbeanincreaseinglobal welfareof$574.0 billion. Andinanother study

it is found that global income could increase by more than $3000 billion per year, $2500billionofwhich wouldgotothedeveloping world. Others hadbeenpredicting more modest

outcomes, i.e., worldnet welfaregains rangingfrom $84 billionto $287 billionbytheyear

2015. DDA is being consideredas the secondbest investmentforglobal welfare, afterthe

provisionofvitamin supplements tothe world's 140 million malnourished children.

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2.1 Introduction

Protectionofintellectualpropertyrights has becomeanissueofwideand serious discussion

with the formation of the General Agreement on Trade Related Aspects of Intellectual

Property Rights (TRIPS) underthe Uruguay Round AgreementofGATT.

Intellectual property rights allow the creators or owners of patents, trademarks orcopyrighted works tobenefitfrom theirown work orinvestmentina creation. Theserights

areoutlined in Article 27 of the Universal Declarationof Human Rights, whichprovides for

the right to benefit from the protection of moral and material interests resulting from

authorship of any scientific, literaryor artistic work. Intellectual Property Rights definedas

creative works that have economic value and are protected by law. Intellectual property

laws reward the creators of most types of intellectual property by preventing others from

copying, performing, or distributing those works without permission. The main purpose of

this protection is to provide incentives for people to produce scientific and creative works

thatbenefit societyatlarge. Sometypes ofintellectualpropertyareautomaticallyprotected

by law from the moment of their creation. Other types require the creator to request a

specific grant of rights from a government agency before they can be protected by law.

Nearlyallnations havelaws protectingintellectualproperty. However, somenations donot

vigorously enforce intellectual property laws, making illegal copying, or piracy, a major

problem intheseareas.

Someforms ofintellectual property, such as trademarks, date to ancient times. But

comprehensive legalprotectionfor intellectualpropertydidnotbecome commonuntilthe

18th century. Internationalprotection of intellectual property rights was first addressed in

treaties beginninginthelate 19th century.Forexample,the Paris Conventionof1883 dealt

with patents and trademarks, and the Berne Convention of 1886 protected artistic and

literary works among member countries. Since then, many additional internationaltreatieshave addressed intellectual property rights. The World Intellectual Property Organization

(WIPO),basedinGeneva, Switzerland,administers someofthesetreaties.

2.2 Types

The types of intellectual property are patents, copyrights, trademarks, geographical

indications, industrial designs, layout designs on integrated circuits, and undisclosed

information, including trade secrets. Patent law protects inventions that demonstrate

technological progress. Copyright law protects a variety of literary and artistic works,

including paintings, sculpture, prose, poetry, plays, musical compositions, dances,

photographs, motion pictures, radio and television programs, sound recordings, and

computer software programs. Trademark law protects words, slogans, and symbols that

servetoidentifydifferentbrands ofgoods and services inthe marketplace.

Intellectualpropertyalsoincludes certainrelatedfields oflaw, suchas trade secrets andthe

right of publicity. Trade secret law protects confidential information that belongs to a

business and gives that business a competitive advantage. For example, the formula for

making the soft drink Coca-Cola is a trade secret protected by intellectual property laws.

Rightofpublicity law protects the righttouseones ownnameor likeness for commercial

purposes.Forexample,afamous athlete mayprofitbyusinghis or hernametoendorsea

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given product. Using a persons name to endorse a product without their permission is a

violationofrightofpublicitylaw.

Intellectualpropertydiffers from otherforms ofpropertybecauseitis intangiblethat is,it

is a product of the human imagination. Because intellectual property is intangible, many

people mayuseit simultaneously without conflict.Forexample,onlyoneperson candrivea

caratatime,butifanauthorpublishes abook, manypeople canreadthe work atthe sametime. Intellectualpropertyis also mucheasierto copythanitis to create. It maytake many

months of work to writeanovelor computerprogram,but withaphotocopy machineora

computerothers could copythe work ina matterof seconds. Withoutintellectualproperty

laws, it wouldbeeasytoduplicateoriginal works and sellthem forvery low prices, leaving

theoriginal creators withoutany chanceto secureeconomic rewards for their efforts. The

legal system avoids this problem by makingitagainstthelaw toreproducevarious forms of

intellectualproperty withoutthepermissionofthe creator.

Most intellectual property rights expire after a specified period. This permits the rest of

society to benefit from the work after the creator has had an opportunity to earn a fair

reward. For example, after the inventor of a patented telecommunications device has

profited from the work for a specified period, anyone may manufacture that same device

withoutpayingtheinventorroyalties,therebyencouraging competitionthatallows others to

benefit from the invention as well. The one exception to limited periods of intellectual

propertyrights is inthefieldoftrademark law. Trademark rights neverexpire, solongas a

merchant continues tousethetrademark toidentifyagivenproduct.

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2.3 Introduction

Patent is a legal document granted by the government giving an inventor the right to

exclude others from making, using, selling, offering to sell,or importingan invention fora

specified number of years. A patent lasts for 20 years from the date of filing patent

application, irrespective of whether it is filed with provisional or complete specification.

However, for food, drug and insecticide patents, the life is seven years from the date ofcomplete specification,orfiveyears from dateofsealing. Thegoalofthepatent system is to

encourageinventors toadvancethe stateoftechnologybyawardingthem specialrights to

benefitfrom theirinventions.

Patentlaw is onebranchof the larger legalfield knownas intellectual property, whichalso

includes trademark and copyright law. Patentprotectionhas greateconomic importanceto

anumberofindustries thatrelyontechnological innovationtoremain competitive, suchas

the chemical,pharmaceutical,and computerindustries.

Patents arealsoavailablefor significantimprovements onpreviouslyinventeditems. Special

patents canbeobtainedforthe inventionordiscoveryandasexualreproductionof certain

distinct and new types of vegetation. Patents may also be granted for certain types of

industrial designs, such as a distinct tread pattern on the soles of hiking boots or tennis

shoes. Computer programs have been granted patent protection, as have various living

organisms, such as specialized mice that were bred to help in cancer research. In recent

years the government has also allowed inventors to obtain patents on new ways of doing

business, suchas the methodfor conductinganauctiononthe Internet. Books, movies,and

works ofart cannotbepatented,butprotectionis availablefor suchitems underthelaw of

copyright.

2.4 International Patent Law

Thefirsttreatytodeal with international patent law was the Paris Convention of 1883,

which was originally adopted by 20 countries from around the world and has since been

adoptedby mostothers. Inaddition, mostofthe worlds nations have signed severalother

treaties dealing with patent issues during the 20th century. For example, nearly 150

countries have signedthe 1994 Agreementon Trade Related Aspects ofIntellectual Property

Rights (TRIPS), whichis administeredbythe World Trade Organization. This treatygenerally

strengthened legal protection for patents worldwide. However, in 2003, the member

governments ofTRIPS agreedtoarelaxationofpatentprotectionon certain medicines. This

action was intended to allow poorer nations to import patented drugs at lower costs,

specificallytotreatpatients sufferingfrom acquiredimmunodeficiency syndrome (AIDS).

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2.5 Indias Patent Law

Patentprotection is territorialrightandtherefore it is effectiveonly withinthe territory of

India. However, filing an application in India enables the applicant to file a corresponding

application for same invention in convention countries, within or before expiry of twelve

months from thefilingdatein India. Therefore, separatepatents shouldbeobtainedineach

country wheretheapplicantrequires protectionofhis inventioninthose countries. Thereisnopatentvalid worldwide.

Legislation

The Patent system in Indiais governedby The Patents Act, 1970 & The Patents Rules 1972,

effectivefrom April 20, 1972. Subsequently The Patents Act, 2005 is amendedeffectivefrom

January 1, 2005 & The Patents Rules, 2006 is amendedeffectivefrom May 5, 2006.

Administration

The Patent Office, under the Ministry of Commerce & Industry, Department of Industrial

Policy & Promotion,has beenestablishedtoadministerthevarious provisions ofthe Patents

Law relating to the grant of Patents & the Designs Law, relating to the registration of

Industrial Designs.

MembershipofInternational Treaties

y Conventionestablishing World Intellectual Property Organization (WIPO)

y Trips Agreementunderthe World Trade Organization.

y Paris Convention for the protection of Industrial Property with effect from

Dec. 7, 1998.y Patent Cooperation Treaty (PCT) witheffectivefrom Dec. 7, 1998.

What Is Not Patentable

(1) An invention that is frivolous or that claims anything obviously contrary to well

establishednaturallaws;

(2) Aninventiontheprimaryorintendeduseof which wouldbe contrarytolaw or morality

orinjurious topublic health;

(3) The merediscoveryofa scientific principleortheformulationofanabstracttheory;

(4) The mere discovery of any new property or new use for a known substance or of the

mereuseofa knownprocess, machineorapparatus unless such knownprocess results ina

new productoremploys atleastonenew reactant;

(5) A substance obtained by a mere admixture resulting only in the aggregation of the

properties ofthe components thereoforaprocess forproducing such substance;

(6) The mere arrangement or rearrangement or duplication of known devices, each

functioningindependentlyofoneanotherina known way;

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(7) A method or process of testing applicable during the process of manufacture for

rendering the machine, apparatus or other equipment more efficient, or for the

improvement orrestoration oftheexisting machine, apparatus or otherequipment,or for

theimprovementor controlofmanufacture;

(8) A methodofagricultureorhorticulture;

(9) Inventions relatingtoatomic energy.

Inthe caseofinventions relatingto substances preparedorproducedby chemicalprocesses

(includingalloys,opticalglass, semiconductors andinter-metallic compounds) & substances

intended foruseor capableof beingusedas food. Nopatent willbegranted inrespect of

claims for the substances themselves, but claims for the methods or processes of

manufacture willbepatented.

Infringement

Infringement can consist of taking away essential features of the patented invention;

utilizing claimedfeatures; copyingpatented substances; mechanicalequivalence;takingpart

of the invention, while the patent is in force. Use by the government or for government

purposes is notinfringement. Suchuse mustbepaidforonterms tobeagreeduponbefore

or afteruse. Accidental ortemporaryuse,use for research,useonforeignvessels,donot

constituteinfringement.

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2.6 Introduction

Trademark, any word, phrase, or symbolused by manufacturers or sellers to identify their

goods anddistinguishthem from thegoods ofothers. Trademarks help consumers identify

goods they have used and enjoyed in the past. Trademarks also allow consumers to avoid

goods and services that they dislike. A trademark lasts for 10 years from the date of

registration. Examples ofwell-knowntrademarks include Coca-Colafor softdrinks, Kodak for

film and Nike for footwear. When trademarks are used to identify services, such as hotel

chains orrestaurants,theyare sometimes called service marks. Theoverallappearanceofa

products packagingis knownas tradedress. Under modernbusiness conditionatrade mark

performs fourfunctions:

Itidentifies thegoods / or services andits origin.

Itguarantees its unchangedquality

Itadvertises thegoods/services

It creates animageforthegoods/ services.

Most countries of the world legally protect trademarks, service marks, and trade dress.

Trademark law is onebranchofthe larger legalfield knownas intellectual property, which

alsoincludes copyrightandpatentlaw. Because consumers often continuetobuyproducts

they trust, well-known trademarks can be extremely valuable. For example, experts in

trademark law estimatethatthevalueofthe Coca-Colatrademark is morethan $40 billion.

Terms such as "mark", "brand" and "logo" are sometimes used interchangeably with

"trademark". "Trademark" includes any device,brand, label, name, signature, word, letter,

numerical, shape of goods, packaging, colour or combination of colours, smell, sound,

movementorany combinationthereofwhichis capableofdistinguishinggoods and services

of one business from those of others. It must be capable of graphical representation andmustbeappliedtogoods or services for whichitis registered. A trademark is designatedby

thefollowing symbols:

y (foranunregisteredtrademark,thatis,a mark usedtopromoteorbrandgoods);

y (foranunregistered service mark,thatis,a mark usedtopromoteorbrand services);and

y (foraregisteredtrademark).

2.7 History

Throughout history, makers of goods have put their names or other marks on things they

produce. Items such as medieval swords and ancient Chinese pottery were marked with

identifiable symbols so buyers could trace their origin and determine their quality. Before

the 20th century, trademarks were usually symbols or pictures rather than words, since

manypeopleinthe world couldnotread.Formallegaldisputes overtrademarks aroseas far

back as theearly 17th centuryin England.

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As trade increased inthe 19th century, many countries adopted laws recognizing the legal

rights of trademark owners. These laws prohibited other sellers from using similar marks

that might confuse the public about the source of a product. The first international

agreementdealing withtrademark law was atreaty knownas the Paris Convention. Adopted

in 1883,itrequired members torecognizethetrademark rights offoreignproducers.

Most nations of the world are members of the Paris Convention. In 1994 most countriessignedanother significanttreatydealing with internationaltrademark law. This agreement,

called the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS),

strengthened legal protections for trademarks around the world. Most countries join still

another trademark treaty known as the Madrid Protocol. That treaty makes it easier for a

merchanttogettrademark protectionin severalnations aroundthe world withonlya single

application. About 60 nations hadjoinedthe Madrid Protocolbylate 2004.

2.8 Indias Trademark Law

Legal Requirements

Thelegalrequirements toregisteratrade mark underthe Actare:

The selected mark shouldbe capableofbeingrepresentedgraphically (i.e.paperform).

It shouldbe capableofdistinguishingthegoods or services ofoneundertakingfrom those

ofothers.

It should be used or proposed to be used mark in relation to goods or services for the

purposeofindicatingor soas toindicatea connectioninthe courseoftradebetweenthe

goods or services and some person have the right to use the mark with or without

identityofthatperson.

Legislation

The Trademark system in India is governed by The Trade Marks Act 1999 and The Trade

Mark Rules 2002.

Administration

The Patent Office, under the Ministry of Commerce & Industry, Department of Industrial

Policy & Promotion,has beenestablishedtoadministerthevarious provisions ofthe Patents

Law relating to the grant of Patents & the Designs Law, relating to the registration of

Industrial Designs.


y Agreementon Trade Related Aspects ofIntellectual Property Rights (TRIPS)

y Paris Convention

y Proposedaccessiontothe Madrid Protocol

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2.9 Introduction

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic

works andproducers of cinematographfilms and soundrecordings. Infact,itis abundleof

rights including, interalia,rights ofreproduction, communicationtothepublic,adaptation

andtranslationofthe work. There couldbe slightvariations inthe compositionoftherights

dependingonthe work.

Copyrightensures certain minimum safeguards oftherights ofauthors overtheir creations,

thereby protecting and rewarding creativity. Creativity being the keystone of progress, no

civilized society can afford to ignore the basic requirement of encouraging the same.

Economic and social development of a society is dependent on creativity. The protection

provided by copyright to the efforts of writers, artists, designers, dramatists, musicians,

architects andproducers of soundrecordings, cinematographfilms and computer software,

creates an atmosphere conducive to creativity, which induces them to create more and

motivates others to create.

Copyrightis abranchoflaw grantingauthors theexclusiveprivilegetoreproduce,distribute,

perform,ordisplaytheir creative works. Thegoalofcopyrightlaw is toencourageauthors to

investeffortin creatingnew works ofartandliterature. Copyrightis onebranchofthelarger

legal field known as intellectual property, which also includes trademark and patent law.

Copyrightlaw is thelegalfoundationprotectingthe work ofmany majorindustries,including

book publishing, motion-picture production, music recording, and computer software

development. These industries account for considerable economic activity in the United

States, making copyrightlaw afieldofenormous economic importance.

Notevery work ofauthorshipis eligiblefor copyright. Toqualifyfor copyrightprotection,a

work mustbebothfixedandoriginal. Thelaw considers a work tobefixedifitis recordedinsomepermanentformat. Acceptable ways offixinga work include writingitdown, storingit

ona computerfloppydisk or compactdisc (CD),recordingitonvideotape,or sculptingit in

marble. Ifapoetthinks ofanew poem andrecites ittoanaudience without writingitdown,

copyrightdoes not protectthepoem because it is notfixed. To beoriginal, the work must

not be copied from previously existing material and must display at least a reasonable

amountofcreativity.Forexample,ifanauthor writes the words the skyis blueonapiece

of paper, copyright does not protect the words because they lack sufficient creativity.

Consequently, shortphrases and titles areusually notprotectedby copyright,but in some

circumstances they maybeprotectedbytrademark law.

Copyrightonlyprotects the words,notes, or images thatthe creatorhas used. Itdoes not

protectanyideas or concepts revealedbythe work. If,forexample,a scientistpublishes an

articleexplaininganew process forrefiningoil,the copyrightprevents others from copying

the words ofthatarticle. Itdoes not,however,preventanyoneelsefrom usingtheprocess

describedtorefineoil. Toprotecttheprocess,the scientist mustobtainapatent. Similarly,if

anovelist writes abook abouta manobsessedabout killinga whale,otherpeople may write

theirownbooks onthe same subject,as longas theydonotusetheexact words ora closely

similarplot.

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2.10 History

Beforethe inventionoftheprintingpress in Europe in the 15th century, copyright law did

notexist. Books wereexpensiveanddifficulttoproduceandfew people knew how toread,

so there was little need for copyright protections. By the mid-1500s, however, books had

become cheaperand more widelyavailable in Europe. To reduce therisk of rivals printing

politicallydangerous books,theroyalgovernmentofEnglandgrantedapublishing monopolytoagroupofbook publishers, whoallbelongedtoaguild calledthe Stationers Company.

Thesepublishers alldependedonthefavorofthe English crownfortheirexistence,and so

they only published materials that did not offend the royal authorities. Additionally,

wheneverone memberoftheguildobtainedtherights topublishabook,allother members

agreed to refrain from competition. This private arrangement was an early form of

copyright. It was replaced in 1710 when the British Parliament passed a law called the

Statuteof Anne,named for Queen Anne, who reignedoverGreat Britainand Irelandfrom

1702 to 1714. This was thefirstreal copyrightlaw inthe modern sense. Itgrantedauthors

theexclusive righttoauthorize theprinting orreprintingof books fora limited numberof

years.

2.11 Copyright in Digital Age

Until the 1990s, the greatest risk of infringement faced by copyright owners came from

competitors. Only competitors hadtheresources, suchas printingpresses,toduplicateand

distribute protected works in large numbers. When personal computers became widely

available, however, the situation changed because computers stored information in the

binary digits of computer code. End users of copyrighted works were suddenly able to

reproduce copyrighted materialdigitallyandto sendthe materialinstantlyalloverthe world

throughthe Internet. To combatunlawful copyingoftheir works inthis environment, somecopyrightowners beganto use various protective measures. For example, some encrypted

their works to make copying impossible. Others required that users enter a password to

view or download a work. However, some users were able to bypass or circumvent these

protective measures.

Another well-known copyright controversy in the digital age has involved peer-to-peer file

sharing. This is theprocess ofexchangingfilesusually music fileswithotherpeopleover

the Internet. File swapping can violate the copyright laws if the people sharing files are

making unauthorized copies of protected works without permission and without paying.

However,itprovedverydifficultfor copyrightowners to stopthis behavior.

In 2003 therecordingindustrybegandirectly suingindividuals who share copyrighted music

over the Internet. The industry had some modest success in obtaining fines from college

students andother individuals. Althoughthese suits mayhave deterred manypeoplefrom

engaging in illegal file swapping, they also resulted in negative publicity for the record

industry. Inaddition,individual suits provedinefficient,as millions ofusers downloadbillions

offiles each month.

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In an ongoing battle to curb Internet piracy, the music and entertainment industries also

pursued the commercial services that make file sharing possible. The file-sharing services

often claimed that they did not know about and could not monitor the activities of their

users,andthus shouldnotbeheldresponsiblefortheactions ofthoseusers.

Some courts agreed with that argument. However, in 2001 several record companies

succeeded in a lawsuit against the music file-sharing service called Napster. In 2005 thejudgement came in the favour of entertainment and recording industries. The Court ruled

thattwofile-sharing services,Groksterand StreamCast Networks, wereliablefor copyright

infringement when individuals used their technology to illegally download copyright-

protected music and movies overthe Internet.

2.12 Indias Copyright Law

Legislation

The Copyright Act, 1957 cameintoeffectfrom January 1958. This Acthas beenamendedfive

times since then, i.e., in 1983, 1984, 1992, 1994 and 1999, with the amendment of 1994

being the most substantial. Prior to the Act of 1957, the Law of Copyrights in the country

was governed by the Copyright Act of 1914. This Act was essentially the extension of the

British Copyright Act, 1911 to India. Eventhe Copyright Act, 1957 borrowedextensivelyfrom

the new Copyright Act of the United Kingdom of 1956. The Copyright Act, 1957 continues

with the common law traditions. Developments elsewhere have brought about certain

degreeofconvergencein copyrightregimes inthedeveloped world.


The Indian Copyright Acttodayis compliant with mostinternational conventions andtreatiesinthefieldofcopyrights. Indiais a memberofthe Berne Conventionof1886 (as modifiedat

Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade

Related Aspects of Intellectual Property Rights (TRIPS) Agreementof 1995. Though India is

not a member ofthe Rome Conventionof 1961, the Copyright Act, 1957 is fully compliant

withthe Rome Conventionprovisions.

Two new treaties, collectively termed as Internet Treaties, were negotiated in 1996 under

the auspices of the World Intellectual Property Organization (WIPO). These treaties are

called the WIPO Copyrights Treaty (WCT) and the WIPO Performances and Phonograms

Treaty (WPPT). Thesetreaties were negotiated essentially toprovide forprotectionofthe

rights of copyright holders, performers and producers of phonograms in the Internet and

digitalera. Indiais nota memberofthesetreaties;amendments arebeing mootedto make

Act in compliant withtheabove treaties in order toprovideprotectionto copyright inthe

digitalera.

Administration

The Copyright Office, underthe Ministryof Human Resource Development, Department of

Higher Education,has beenestablishedtoadministerthevarious provisions ofthe Copyright

Law relatingtothegrantofCopyright.

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