The legal framework in this regard has been embodied in a bundle of international agreements. The most important of them, are known as the multilateral trade agreements; these are a bunch of agreements on international intellectual property field or in the international trade field. The first group of these agreements belongs to multilateral treaties representing a large number of member countries. The second group represents bilateral treaties, which represents two countries, for example, the agreement on bilateral Free Trade Areas (FTAs). The third group represents regional treaties like North American Free Trade Agreement or the treaty establishing the European Union and its directives and regulations to regulate and administer the European Union. The fourth group consists of something most recently known as plurilateral treaties1; these are treaties which have partners less than multilateral and regional treaties but at the same time involve more than just two parties. This is the bunch of four groups of international treaties covering the subject of international intellectual property rights.
International Treaties do constrain national discretion. To start with, I begin with two oldest 19th century treaties namely, the Paris Convention2, for the protection of industrial properties, and the Berne Convention3, to protect literary and artistic work. These two treaties basically tell the member countries that they cannot discriminate against foreigners; the nations have to give foreigners the same treatment which is no less favourable than given to their own citizens or nationals, the same is called the 'national treatment'. Whenever one hears the term 'national treatment' one may think of non-discrimination treatment. Thus the Paris and Berne conventions mandate non-discrimination against foreign trade. Consider two other things, the Paris convention, for example, established minimum international standards for the filling of trade mark in one's own country and that becomes the priority date in other member countries as well to protect the intellectual property rights. Then there are 1961 Rome Convention and the 1989 Washington treaty. Since 1967 all these Conventions are being administered by World Intellectual Property Organisation (WIPO)4.
The most significant multilateral treaty of all is the WTO agreement on trade related aspects of intellectual property rights known as TRIPS agreement5. This agreement is probably the most important multilateral agreement around, and the reason for its importance is that it for the first time established minimum standards for the protection of intellectual property.
The Paris convention prescribes no discrimination and the Berne convention prescribes no discrimination too, but Berne convention established some minimum standards of the bulk of property rights.
However, the TRIPS agreement has now established minimum standards for bulk of different form of property protection in respect of:
i. Copyrights related rights;
ii. Trademarks;
iii. Geographic indicators;
iv. Patents;
v. Industrial designs;
vi. Integrated circuits; and;
vii. Undisclosed information known as Trade secrets.
From this perspective, TRIPS is also important because it provides minimum standards for enforcement, that is, the procedure and remedies required to enforce the rights through litigation. The TRIPS agreement is also important because it has set up an international dispute settlement mechanism whereby an aggrieved member who believes that another member has not lived up to the laid-down standards can bring the culprit country before the World Trade Organisation and can initiate the dispute settlement process before WTO dispute settlement body and if necessary can demand imposition of sanctions against the non-compliant member.
Now it is not individual dispute resolution, that presently is being taken care of under the enforcement standards, rather each nation has been provided with standard enforcement procedures whereby one can go to WTO dispute settlement body or can get enforcement of one's bulk of property rights even in their national courts. If the individual nations do not provide TRIPS enforcement procedure, one can seek remedy before the WTO and the matter can be settled by the WTO dispute settlement body.
But that is misleading as developing world had 10 years moratorium in respect of implementation of TRIPS, so it will not be sure before the end of moratorium that how developing countries are going to comply with TRIPS.
There have been several disputes, specifically involving obligations under the TRIPS agreement, but in reality a blurred situation exists today, for example, behaviour of developing world would be measurable now that is after 10 years of moratorium. Thus some of the most important aspects of TRIPS agreement are now becoming more visible.
The first seven disputes involving resolution to the problems of intellectual property safeguards arose between developed countries, these countries stood pitched against each other, for example, United States filed a complaint against European Union and European Union against United States.
One cannot complain for obligation on the TRIPS agreement because the developed world had to implement TRIPS agreement much more quickly, since the exemption given to developing world stands expired after 10 years, this fact is now going to result in more disputes against the developing countries for the compliance of obligations under TRIPS agreement.
Harmonisation of minimum standards under TRIPS is not important, since each country has to provide protection under TRIPS and member countries of WTO are required to make it sure that obligations under the agreement are met. In fact that became one of the reasons that TRIPS agreement in particular and international intellectual property rights in general are so contentious for the reason that developing world believes that the standards laid down under TRIPS are too high and they simply impede their own rapid development, whereas the industrial world believes that the TRIPS is just a minimum standard and that is why that free trade agreements contemplate enhanced standards beyond what TRIPS requires. This trend is known as TRIPS plus agenda where an individual country basically agrees not to do something, which could not be done under TRIPS in the garb of what is termed as a "favourable treatment".
That is exactly, what the developing world has pointed out about the TRIPS agreement because TRIPS basically improves or increases the value of intellectual property and when you increase the value of your assets it also increases one's liability with respect to such assets. Developing world is afraid that increased intellectual property protection will increase their costs, which they will be paying in terms of royalty.
The developing countries should mind it, however, that in order to catch up in innovation and creativity, copying or imitating means stealing of what the developed world has developed, rather they should try to develop originality and creativity more quickly, more faster and more efficiently in order to catch up with the industrialised world. Ideally somewhere along the way developing countries will have enough ongoing innovation to earn favourable balance of trade on their labour intensive goods, but it is quite clear that in the short term, impact of the TRIPS agreement is going to be massive, in the form of transfer of resources from poor part of the world to the richer part of the world. Why developing world has agreed to such an arrangement, the only reason for the developing countries to agree on TRIPS is because of trade advantages being extended by the developed world in the form of greater access in agriculture market and textile market. It is supposedly the concession for the greater export in those fields which may compensate the payments to be made for the royalties and other knowledge intensive products.
Shortly after TRIPS and during the period when the agreement was open for signatures it was recognised the impact of the rise of internet and effect of the digital implements was not comprehended. New horizon in the form of internet and digital technologies for the international trade stands opened. That is why a new organisation namely, WIPO has come into existence to enforce the protection of copyrights, and it is trying to bring out the minimum standards. However, the internet age is going to see the increased impact of digital technologies and a good response can be given by using TRIPS to develop a more specific treaty addressing the precise issues of internet and digital technologies.
To counter the counterfeit goods a new trade agreement came into existence in the form of a plurilateral treaty and that is an attempt to increase the enforcement standards on intellectual property beyond the limits provided for in the TRIPS agreement. Unlike TRIPS, these arrangements were negotiated completely outside the scope of the WTO organisation by a number of countries who decided that they would negotiate their own interests independent of WTO. These enhanced standards for intellectual property enforcement are being viewed as necessary though, yet the developing world is continuously protesting too strongly.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karach)
1. The primary difference between plurilateral treaty and other multilateral treaties is that the availability of reservations is more limited under a plurilateral treaty. Due to the limited nature of a plurilateral treaty the full co-operation of the parties to the treaty is required in order for the object of treaty to be met. As a result reservations to plurilateral treaties are not allowed without the consent of all other parties to the treaty. This fact is in line with the requirements of Article 20(2) of the Vienna convention on the law of treaties.
2. In 1883, 11 countries met in Paris and signed the International convention for protection of Industrial Property.
3. Convention for the protection of literary and Artistic works was signed in 1889.
4. The WIPO was created by the 1967 Convention Establishing the World Intellectual Property Organisation, 828 U.N.T.S. 3. The Convention entered into force in 1970 and the WIPO became a specialised agency of the UN in 1974. The primary objectives of the WIPO, as stated in the Convention, are to improve intellectual property protection around the world and administer certain intellectual property agreements (or "unions" as they are often called). Currently the WIPO administers 17 such intellectual property unions, including the Paris, Berne and Rome Conventions.
5. A negotiating mandate for TRIPS was reached in the Ministerial meeting of September 1986
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