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The WTO after ten years
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The aim of this article is to analyse the implications of and opportunities arising out of the TRIPS Agreement to which India is a signatory. The most important aspect of the TRIPS Agreement is that it protects Intellectual Property Rights (IPRs) very efficiently and effectively. The IPRs can act as a lever for economic growth and India could be one of the countries for which IPRs can do this task.
I. INTRODUCTION
The law regulates the conduct of the society in its most desirable and benign form. It maintains the order in the society and eliminates unhealthy delinquencies and deviations. Thus, law plays an important role in developing a civilised society. The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “Private International Law”. An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevail, if there is a conflict between the two laws of the different sovereign States. The position is, however, totally different when it comes to “Public International Law” that primarily encompasses within its ambit the law(s), which are, required to be uniformly followed by the “Member Countries”. The Treaties and Conventions entered under the banner of a common platform like WTO bind these “Member Countries” and they cannot plead that the same is against the notions and ideologies of their nation. That is why countries are very cautious while entering into various Treaties and Conventions. The Treaties and Conventions so entered are not automatically incorporated in the “Municipal Legal System”, though some countries endorse the concept of “automatic incorporation” of the same. In India, we have to take an independent action of “legislation” U/A 253 of the Constitution of India to make the Treaties and Conventions functional. This shows the legislative superiority of Parliament over the respective States. The laws concerning Intellectual Property Rights (IPRs) are also part of Public International Law and the TRIPS Agreement governs most sturdily and persuasively the protection requirements of IPRs in India. In fact, with effect from 01-01-2005 the provisions of Indian Patents Act, 1970 also allows “product patent” along with the “process patents” for medicines. It is interesting to note that India was sternly against extending the protection of product patents to “medicines”, but as a trade-off it has accepted to confer the same protection to pharmaceutical industry. It must be noted that by acceding to the TRIPS Agreement India has secured for itself a “golden path of economic development”. Thus, to appreciate the value and importance of IPRs a brief evaluation of TRIPS becomes essential.
II. THE TRIPS AGREEMENT
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Edited 4/20/2005 5:52 pm by PRAVEENDALAL |
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| | | | | 7.2 in reply to 7.1 | |
Hullo Praveendalal
If TRIPS protects IPR very efficiently and effectively, by definition it must protect the interests of those countries that hold the greatest amount of intellectual property. In other words, it is a magnet by which the already-industrialised countries become richer at the expense of those that don't have a strong research and development sector. While India may do well in this rat race, because it is emerging as having a strong research and development sector, most countries will lose out. This is not the best pathway to world development.
Intellectual property is a privatisation of knowledge, and flies in the face of the free interchange of knowledge that has been distinguishing mark of science and has been a major cause of the huge advances that science has made in the past 200 years. Ownership of innovation by profit-motivated corporations won't serve development as well as free release of innovation into the public domain.
By the way, much or most intellectual property generated by corporations is built upon publicly funded research in the universities or other public institutions. This rightly belongs or partly belongs to the community and should generate a revenue stream back to the public purse. |
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| | | | | 7.3 in reply to 7.2 | |
Hello GeoffEdward2
Thanks for the comment. I liked it very much. I wish to share with you the other side of the coin. The previous writing explained the first side but that should be analysed keeping in mind the other side as well. I personally believe that whatever the human activity may be it should not loose its "human face". That is why the rights provided under the banner of WTO and TRIPS have to be read in the light of Human Rights. The basic purpose of all human activities should be to maximise benefit for maximum number of people. The Doha Declaration is a classical example of the same. Similarly, the TRIPS also contains the "public interest provisions" in the form of acquisition of IPRs and Compulsory licenses. Actually, it is for the government of the concerned country to utilise the provisions of the TRIPS Agreement for the betterment of its people. I do not wish to classify myself as an "Indian representative" because to me there is no difference between an Indian and a foreigner. My first concern is always to subserve interst of human beings at large. Further, the TRIPS cannot serve its purpose unless an equilibrium is maintained between the rights of the IPRs holder on the one hand and public interest on the other. If we give undue importantace to either one it would be counterproductive.
For a better insight of my views kindly see the following:
(1) http://perry4law.blogspot.com/
(2) http://praveen_dalal.rediffblogs.com/
(3) http://perry4law.rediffblogs.com/
(4) www.naavi.org
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| | | | | 7.4 in reply to 7.3 | |
Thanks, Praveen
These are interesting articles. I agree that it is difficult to balance the rights of the IP holder and the public interest. Of course, the purpose of IP regimes is to achieve such a balance.
I think there is a difference between IP enforced within a country and IP enforced across national boundaries. Because of differences in value of money, in negotiating power, and of course in the attraction that already-strong countries exert over less well-endowed countries, IP enforced between countries always carries the risk that the benefits will be one-sided.
Regards
Geoff Edwards |
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