INTRODUCTION

In today’s increasingly interconnected world, “Intellectual Property Rights” have emerged as a vital area, influencing global innovation, creativity, and economic development. As states attempt to protect and capitalize on the fruits of human ingenuity, deciphering the complex web of international treaties and accords governing intellectual property rights have become critical. This article sheds light on the foundational frameworks and pivotal agreements that govern the rights and responsibilities of creators, innovators, and consumers worldwide. From patents to copyrights, Trade Marks to trade secrets, the Berne Convention to TRIPS, knowing these accords is critical for individuals, corporations, and policymakers navigating the complexity of ‘intellectual property’ protection in the twenty-first century.

Paris Convention for the Protection of Industrial Property, 1883.

‘The Paris Convention’, is a basic international convention requiring member countries to uphold minimal protections for industrial property. ‘The Paris Convention’, adopted in March 1883 and revised in the years 1900, 1911, 1925, 1934, 1958, 1967, and 1979, comprehensively addresses “patents, utility models, industrial designs, trademarks, service marks, trade names, and geographical indications”.[1] It ensures national treatment for citizens of member nations in terms of intellectual property protection (Article 2), grants a 12-month right of priority for patent applications and utility models and six months for industrial designs and trademarks filed across member states (Article 4), and protects the independence of patents obtained for the same innovation globally (Article 5).[2] While these principles are basic, member nations have significant flexibility in tailoring their national patent laws to line with their interests, including setting patentability criteria, duration, and other features. The idea of national treatment underpins the Convention, which prohibits discrimination against nationals of other member states in intellectual property disputes after admission.[3]

Berne Convention for the Protection of Literary and Artistic Works, 1887

‘The Berne Convention for the Protection of Literary and Artistic Works’, formed on September 9, 1886, is the earliest international treaty on copyrights.[4] Prior to its creation, several countries implemented copyright laws individually, resulting in varied regulations limited to their respective territories. However, some nations had entered into bilateral agreements, recognizing the importance of expanded cross-border diffusion of creative works as well as enhanced protection. Despite their intention to promote mutual recognition of rights, these agreements lacked comprehensiveness and consistency. As a result, the ‘Berne Convention’ was developed and adopted in response to the critical need for a unified framework among signatory parties that would facilitate both international distribution and strong protection of intellectual property rights[5].

‘The Berne Convention’ grants creators like ‘authors, musicians, poets, and painters’ the power to control how their works are used, including determining who is allowed to use them and under what terms.[6] Governed by three core principles, the convention establishes guidelines for the minimum protection to be afforded to creators and includes special provisions tailored for developing countries seeking to avail themselves of these protections.[7]

WIPO Treaties

‘The WIPO Copyright Treaty’ and the “WIPO Performances and Phonograms Treaty” became effective in 2002,[8] marking a notable milestone in enhancing copyright and related rights protection globally, showcasing substantial advancements and international collaboration.

WIPO Copyright Treaty, 1996

Digitalization has facilitated widespread, cross-border copyright infringement, fueled by the simplicity of digital reproduction, swift transmission, and manipulation. Authors protect their digital content from infringement using contracts and technological methods, which led to the international community creating the “WIPO Copyright Treaty”. “The Copyright Treaty” is a distinct accord, authorized by “Article 20 of the Berne Convention,” designed to strengthen the rights and duties of its participants. It protects creative expressions but does not extend to ideas, operational methods, or mathematical principles. The “WIPO Copyright Treaty” incorporates the “exclusive rights of authorizing the reproduction”. [9]

WIPO Performances and Phonograms Treaty, 1996

The “WIPO Performances and Phonograms Treaty” is a global pact endorsed by member states of the ‘World Intellectual Property Organization;. It was ratified in Geneva on December 20, 1996, and became operative on May 20, 2002. This treaty centers on the rights of two primary entities, especially in the digital sphere: (i) performers, encompassing actors, singers, and musicians, and (ii) phonogram producers, who are individuals or entities accountable for crafting and disseminating sound recordings.[10

Trade-Related Aspects of Intellectual Property Rights Agreement, 1994

In Marrakesh, a crucial agreement was reached that contributed to establish the ‘World Trade Organization’ in 1995. This agreement, known as TRIPS, has had profound effects. The World Trade Organization’s TRIPS’ accord is the most comprehensive multinational intellectual property accord. TRIPS establishes baseline criteria for IP protection among members’ countries. This resulted in a more predictable legal environment for international trade and collaboration on R&D. TRIPS required members to reveal their Intellectual Property (IP) rules and regulations, hence increasing transparency in the global IP system. TRIPS regulations for technology transfer promote collaboration between developed and developing countries.[11]

Madrid Agreement Concerning the International Registration of Marks and Madrid Protocol

‘The Madrid System’ consists of two treaties: the ‘Madrid Agreement’ of 1891 and the ‘Madrid Protocol’ of 1989. Both treaties were established during diplomatic gatherings in Madrid, Spain. This mechanism permits trademark holders with an active application or registration in a member country to secure an “international registration” for their trademark via the ‘World Intellectual Property Organization’. Although the Agreement and the Protocol complement each other and function in parallel, they are independent treaties with distinct differences.[12]

Madrid Agreement, 1891

Adopted in 1891, the “Madrid Agreement on International Registration of Marks” created a system for international trademark registration. This mechanism enables trademark owners to secure protection in multiple countries by submitting a single application to the ‘World Intellectual Property Organization’. The agreement sought to streamline the process of getting trademark protection among member countries by eliminating the need for numerous national applications.

Madrid Protocol, 1989

‘The Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks’ was adopted in 1989 and became effective in 1996. It was intended to solve some of the inadequacies of the original ‘Madrid Agreement’, particularly by making the system more flexible and accessible. Key enhancements included extending trademark protection to more countries after initial registration, streamlining procedures for trademark.

Patent Cooperation Treaty, 1970

‘Intellectual property’ is already a crucial element of global trade and is continuing to expand. As a result, the number of cross-border conflicts and patent infringement litigation is increasing.

‘The Patent Cooperation Treaty’ enables patent applicants to efficiently file patent applications in all member states by submitting just one application. “The Patent Cooperation Treaty (PCT) assists applicants in seeking patent protection internationally for their inventions, helps patent offices with their patent granting decisions, and facilitates public access to a wealth of technical information relating to those inventions.”[13]

Nagoya Protocol, 2010

When researchers acquire genetic resources organisms, tissue, DNA from another country, what responsibility do they have to share potential benefits with the country of origin? Similarly, what obligations apply to natural history museums that receive new specimens for their collections? The Nagoya Protocol requires that those collecting genetic resources guarantee fair and equitable sharing of benefits with the countries where the resources are sourced. Often, these countries are located in economically disadvantaged regions of the Southern Hemisphere. ‘The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization’ was adopted in 2010 during CoP10 in Nagoya, Japan. It officially came into force on October 12, 2014. ‘The Nagoya Protocol’ outlines guidelines for accessing genetic resources, ensuring equitable benefit sharing between those accessing the resources and the countries providing them, and ensuring the legality of resource use. Additionally, it addresses the acquisition and utilization of traditional knowledge linked to ‘genetic resources acquired from indigenous and local communities.[14]

Way Forward

 As we traverse the intricacies of the 21st-century intellectual property landscape, the key to success is striking a balance between protecting invention and encouraging global collaboration. It is critical to strengthen the implementation of existing treaties such as TRIPS and improve member-state collaboration. Equally crucial is the ongoing modification of these frameworks to accommodate rapid technological breakthroughs and new types of digital content creation. The acceptance of broader and adaptable protocols like the ‘Madrid Protocol’ and the ‘WIPO Treaties’ highlights the necessity for international intellectual property systems that cater to the interests of both developed and developing nations. The emergence of digital technology and the growth of artificial intelligence underline the need for new legal frameworks capable of addressing the unique challenges posed by these advancements. Moreover, the enforcement of the ‘Nagoya Protocol’ underscores the importance of fair and equitable sharing of benefits, especially concerning genetic resources and traditional knowledge from regions abundant in biodiversity but lacking economic advantage.

By promoting transparency, encouraging international cooperation, and assuring equitable access and benefit sharing, we can establish an intellectual property regime that not only protects creators and innovators but also promotes global innovation and economic growth.

Author : Ayush, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.

[1] “Paris Convention for the Protection of Industrial Property, as last revised at the Stockholm Revision Conference, Mar. 20, 1883, 21 U.S.T. 1583; 828 U.N.T.S. 305.”

[2] “WIPO, Paris Convention for the Protection of Industrial Property, Official English Text. Geneva, WIPO, 1984.”

[3]Kumar, Nagesh. “India, Paris Convention and TRIPS.” ‘Economic and Political Weekly’ 33, no. 36/37 (1998): 2334– 35.

[4] Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, as revised at Stockholm on July 14, 1967, 828 U.N.T.S. 221.

[5] Alikhan, Shahid. “Role Of the Berne Convention in the Promotion of Cultural Creativity and Development: Recent Copyright Legislation in Developing Countries.” ‘Journal of the Indian Law Institute’ 28, no. 4 (1986): 423–40.

[6] Supra note 4, art. 8, 9, 11, 12 and 14.

[7] Lehmann, Michael. “Trips, the Berne Convention, and Legal Hybrids.” ‘Columbia Law Review’ 94, no. 8 (1994): 2621–29.

[8] J Reinbothe and S von Lewinski “The WIPO Treaties 1996: Ready to Come into Force” [2002] EIPR 199.

[9] “WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 2186 U.N.T.S. 121; 36 I.L.M. 65, (1997)”.

[10] “Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, “Marrakesh Agreement Establishing the World Trade Organization”, Annex 1C, 1869 U.N.T.S. 3; 33 I.L.M. 1197 (1994)”.

[11] “Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, “Marrakesh agreement establishing the World Trade Organization”, Annex 1C, 1869 U.N.T.S. 3; 33 I.L.M. 1197 (1994)”.

[12] “Protocol Relating to the Madrid Agreement Concerning the International Registration of marks, adopted at Madrid June 27, 1989, WIPO Doc. MM/DC/27 Rev (1989).”

[13] Patent Cooperation Treaty, June 19, 1970, 28 U.S.T. 7645; 1160 U.N.T.S. 231; 9 I.L.M. 978 (1970).

[14] “Nayoga Protocol, 2010, UN Doc. UNEP/CBD/COP/DEC/X/1.”