Legal Principles of International Intellectual Property Regime

Intellectual property rights give the inventors the rights to exploit their innovations and protection from third party using it. Today a lot of trade and commerce takes place globally but surprisingly there aren’t really any international IP rights. IP rights are territorial and are created by each country’s national law, and typically apply only to conduct that takes place within that nation. This issue to some extent is resolved by the international treaties which set up ground rules for IP rights. Countries that join these treaties can have higher protection standards but treaties set up baseline of protection they must provide. The most important minimum standard set up by these treaties is principle of national treatment, which operates like an international IP golden rule i.e. ‘Do onto other countries’ authors and inventors as you would have done onto your own’, which means to protect the foreigners in the same way as a country would protect its own people. These are response to globalization and play a significant role in all channels of international trade. Sellers, most likely, sell their products to the country with strong IP rights, especially for products like computer software as it is purely intellectual property. Some of these legal regimes are discussed here.

International Conventions and Agreements

  • The International Convention for the Protection of Intellectual Property (Paris Convention), 1883

As the industrial revolution advanced across Europe and North America, difference in countries’ patent laws urged a need to create international standards for patents. Subsequently Paris Convention came into existence. This was the first convention to cover patents and industrial conventions. This convention failed to set minimum standards which gave countries great freedom to tailor their patent laws to their own need and interests. Furthermore, it lacked in adequate enforcement mechanism. Paris Convention also governs trademarks and in many ways it treats it like patents.

  • The Berne Convention for the Protection of Literary and Artistic Works, 1886

It is the oldest and the most important copyright treaty aimed at solving the problem of widely varying treatment of authors among countries. It sets up certain minimum standards for the copyright laws of any country that signs in, regarding minimum copyright terms, scope of exceptions and limitations to exclusive rights etc. This convention too didn’t have any effective enforcement system.

  • Madrid Agreement Concerning the International Registration of Marks, 1891

Trademark law is territorial and one has to apply for protection in each country where use is planned. This agreement establishes a common international registration system for trademarks. Later in 1989, Madrid Protocol Relating to Madrid Agreement was signed which strengthen the trademark provision to great extent.

  • Trade Related Aspects of International Property Rights (TRIPS), 1994

This is an international legal agreement between all the member nations of World Trade Organization. It incorporates most of the Berne Convention & adds a few copyright bits of its own, most of the Paris Convention & sets a number of minimum standards for patent protection and also extended protection to geographical indications. This agreement resolved the issue of ineffective enforcement systems of Berne Convention and Paris Convention under WTO’S dispute settlement body.

WIPO produces two other multi-lateral treaties namely:

The WIPO Copyright Treaty, &

The WIPO Performance and Phonograms Treaty

These treaties of WIPO are referred as “Internet Treaties”.

Nations and Trade

Developed and developing nations have different attitudes towards IP rights. On one hand, developed nations aim at becoming more attractive trade partners and form strong IP rights, on the other hand developing nations need access to advanced technology and knowledge to develop, modernize and compete in the modern world. Developing nations see strong IP rights as tools used to either deny access altogether to technology and knowledge or to severely limit access via high royalties and licensing fees. This could be seen under Paris Convention where developing countries denied patents to pharmaceuticals as they thought that access to cheap health facilities is basis of development. Subsequently, TRIPS incorporated provisions to prevent WTO members from denying patent to pharmaceuticals and biotechnological products and processes.  

Conclusion

International intellectual property rights are all about setting minimum standards and national treatment. It is about countries treating the nationals of other countries as well as they treat their own. This push for standardization has caused some problems. There are now so many IP treaties and agreements and protocols in place that it makes intellectual property reforms difficult. Today with increasingly globalized world, both national and international systems are struggling to find the right balance of exclusive rights and public access to knowledge in a world where borders are traversed with a click.

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