INTELECTUAL PROPERTY RIGHTS -I

International Convention and Treaties. (Research)

Overview
International conventions are treaties or agreements between countries.
"International convention" is often used interchangeably with terms like
"international treaty," "international agreement," "compact," or "contract
between states." 
 Conventions may be of a general or specific nature and between two or
multiple states.  Conventions between two states are called bilateral
treaties; conventions between a small number of states (but more than
two) are called plurilateral treaties; conventions between a large number
of states are called multilateral treaties.

A treaty, as the name suggests is an understanding reached between two or more

entities which could be sovereign states or international organizations. The subject

matter of the treaty would obviously be of vital importance to the parties to the

agreement. It also implies that the agreement arrived at would conform to

international law. Furthermore, international law dictates that many of these treaties

& conventions would be applicable to all the countries irrespective of whether they

had signed the agreement or not.

Paris Convention for the protection

of Industrial Property 
When there was no existence of any international convention in the field of
industrial property, it was difficult to obtain protection for inventions in
different countries of the world due to the diversity of laws. In addition,
patent applications were filed at the same time in all countries to prevent a
publication in one country destroying the novelty of the invention in other
countries. These practical problems constituted a strong objective to
overcome such problems in the case of IPR. In the late nineteenth century,
the development of a more international-oriented flow of technology and
increased international trade increased the need for harmonization of
industrial property laws in both the patent and trademark sectors. The Paris
Convention is also administered by WIPO. It came into existence to provide
some international harmony in intellectual property laws and was adopted on
March 20, 1883, at Paris and enforced on July 7, 1884. It provides basic
guidelines for the protection of intellectual property such as patents, utility
models, industrial designs, trademarks, service marks, trade names, sources
of information or signs of appeal, and some provisions for harassment and
national treatment of unfair competition. This treaty came into existence in
India on December 7, 1998. Under the convention, in the anti-discrimination
principle, a member country is empowered to grant nationals of other
member countries the equal protection and advantages as it grants to its
own nationals. This anti-discrimination policy of the convention is also a
fundamental principle of many other intellectual property agreements and
treaties. 

Berne Convention (Protection of

Literary and Artistic Works)
Copyright protection on the international level took its first step in the middle
of the nineteenth century on the basis of bilateral treaties. India became a
signatory of the Berne Convention on April 1, 1928. A number of such
treaties providing for mutual recognition of rights were concluded but they
were neither comprehensive enough nor of a uniform pattern. The need for a
uniform system led to the formation of the Berne Convention for the
preservation of Literary and Artistic Works. The Berne Convention is the
primeval international treaty in the field of copyright. It is open to all states.
Adopted on September 9, 1886, at Berne and entered into force on
December 4, 1887. Originally signed in 1886 at Berne, Switzerland, it was
revised in 1914, 1928, 1948, 1967, 1971, and 1979. This Convention is
based on three fundamental principles:

1. Works in one of the contracting states (works of which the author is

a national of such state or a work already published in such a state)
should be given equal protection to each of the other contracting or
non contracting states(the principle of “national treatment”).
2. Protection should not be conditional upon compliance with any
formalities (the principle of “automatic” protection).
3. Protection must be independent of the existence of protection in the
origin country of the work (principle of “independence” of
protection). If a contracting State provides protection for a longer
term than the minimum term prescribed by the Convention and the
work ceases to be protected in the country of origin, protection may
be denied once if protection in the country of origin ceases.
The minimum standards of protection relate to the works and rights to be
protected, and to the duration of protection:
 1. As to works, protection must include “every production in the
literary, scientific and artistic domain, whatever the mode or form of
its expression” (Article 2(1) of the Convention).
2. Subject to certain allowed reservations, limitations or exceptions,
the following are among the rights that must be recognized as
exclusive rights of authorization: 

 the right to translate, 

 the right to make adaptations and arrangements of the work, 
 the right to perform in public dramatic, dramatico-musical and
musical works,
 the right to recite literary works in public,
 the right to communicate to the public the performance of such
works,
  the right to broadcast,
 the right to make reproductions in any manner or form, 
 the right to use the work as a basis for an audiovisual work, and
 the right to reproduce, distribute, perform in public or communicate
to the public that audiovisual work.

The Universal Copyright Convention

(UCC) 
The Universal Copyright Convention (UCC), was first created in 1952 in
Geneva, as an alternative to the Berne Convention. Some countries were not
in favour of certain articles in the Berne Convention and did not agree to sign
the terms of the Berne Convention. Particularly, the United States who was
the only one at the time who provided protection on a fixed term registration
basis via the Library Of Congress, and required that copyright works must
always show the © symbol. This stated that the US had to make several
changes to its laws before it could follow the Berne Convention.

The US finally became an official member of the Berne Convention on the 1st
of March 1989, and now one only requires registration for work first
published in the US by US citizens. The UCC international protection was
available to authors even in countries that would not become parties to the
Berne Convention. The Berne convention countries also became members of
the UCC to ensure that the work of citizens in Berne Convention countries
must be protected in non-Berne Convention countries. To ensure that the
existence of the UCC did not lead to a conflict with the Berne
Convention, Article 17 of the UCC states that the convention does not affect
the provisions of the Berne Convention and also stated that any country who
withdraws from the Berne Convention after 1st January 1951 will not get
protection under UCC in countries of the Berne Convention Union. 

World Intellectual Property

Organisation 
The World Intellectual Property Organization (WIPO) is an international
organization which grants worldwide protection to the rights of creators and
owners of intellectual property. It was adopted on July 14, 1967, at
Stockholm and enforced on April 26, 1970. WIPO came into establishment
under this Convention with two main objectives: 

 For the promotion of the protection of intellectual property

worldwide and;
 to safeguard administrative cooperation among the intellectual
property Unions established by the treaties which are under WIPO
administration. 
India became an official member of WIPO on May 1, 1975. WIPO’s origin
dates back to 1884 when the Paris Convention entered into force with 14
member States, which set up an International Bureau to carry out
administrative tasks, such as organizing meetings of the member States.
Like the Paris Convention, the Berne Convention also set up an International
Bureau to carry out the tasks of administration. In 1893, these two small
bureaux came together and form an international organization known as the
United International Bureaux for the Protection of Intellectual Property.
Based in Berne, Switzerland, with a staff of seven, this small organization
was the predecessor of the World Intellectual Property Organization of today
– a dynamic entity with 185 member States, number of staff who are around
938, from 95 different countries around the world, and with a mission and a
mandate that are constantly flourishing. This International Bureau emerged
over time to be recognised in 1970 as WIPO. In 1974, WIPO became a
specialized agency of the United Nations and in 1996, WIPO expanded its
role into globalized trade by entering into a cooperation agreement with the
World Trade Organization. WIPO administers 25 treaties (three of those
jointly with other international organizations) and carries out a rich and
varied program of work, through its member States and the secretariat, that
seeks to: 

 To integrate national laws and procedures related to intellectual

property.
 To provide an international registration service for the industrial
property. 
 To exchange information about intellectual property.
  To provide legal and technical assistance to developing countries
and others. 
 To assist during the settlement of disputes related to intellectual
properties among individuals. 
 To keep a check on the use of information technology as an
instrument for access and exploit valuable information about
intellectual property. 
According to the Convention held at Stockholm on 14th July 1967 and Article
2(viii) of the convention following rights are included in Intellectual Property
Rights:

1. Literary, artistic and scientific works;

2. Performances of performing artists, phonograms and broadcasts;
3. Inventions in all fields of human behavior;
4. Scientific discoveries;
5. Industrial designs;
6. Trademarks;
7. Service marks;
8. Commercial names and designations;
9. Protection against unfair competition;
10. All other rights resulting from Intellectual activity in industrial
scientific, literary or artistic fields; etc. 

International treaties administered by

world intellectual property organization
There are 24 international treaties which are administered by world
intellectual property organization which are as follows:

 Berne convention
 Brussels convention
 Budapest treaty
 Film register treaty
 Hague agreement
 Libson agreement
 Locarno agreement
  Madrid agreement
 Madrid agreement mark
 Madrid protocol Nairobi treaty
 Nairobi treaty
 Nice agreement
 Paris convention
 Paris law convention
 PCT
 Phonograms convention
 Rome convention
 Singapore treaty on the law of trade mark
 Strasbourg agreement
 Trademark law treaty
 Vienna agreement
 Washington treaty
 WCT
 WPPT
The secretariat of world intellectual property is called the international
bureau which is directed by the director general of the world intellectual
property organization assisted by two or more deputy director generals.
The Universal Copyright Convention (UCC) 
The Universal Copyright Convention (UCC), was first created in 1952 in
Geneva, as an alternative to the Berne Convention. Some countries were not
in favour of certain articles in the Berne Convention and did not agree to sign
the terms of the Berne Convention. Particularly, the United States who was
the only one at the time who provided protection on a fixed term registration
basis via the Library Of Congress, and required that copyright works must
always show the © symbol. This stated that the US had to make several
changes to its laws before it could follow the Berne Convention.

The US finally became an official member of the Berne Convention on the 1st
of March 1989, and now one only requires registration for work first
published in the US by US citizens. The UCC international protection was
available to authors even in countries that would not become parties to the
Berne Convention. The Berne convention countries also became members of
the UCC to ensure that the work of citizens in Berne Convention countries
must be protected in non-Berne Convention countries. To ensure that the
existence of the UCC did not lead to a conflict with the Berne
Convention, Article 17 of the UCC states that the convention does not affect
the provisions of the Berne Convention and also stated that any country who
withdraws from the Berne Convention after 1st January 1951 will not get
protection under UCC in countries of the Berne Convention Union. 

Trade-Related Aspects of Intellectual Property Rights (TRIPS) 

The Uruguay Round of multilateral trade negotiations held in the framework
of the General Agreement on Tariffs and Trade (“GATT”) was concluded on
December 15, 1993.The agreement which established the World Trade
Organization (“WTO Agreement”), was enforced on April 15, 1994, in
Marrakech. For the first time the negotiations included within the GATT,
discussions on aspects of intellectual property rights of international trade.
The result of those negotiations, given in an Annexure of WTO Agreement
was the agreement on Trade-Related Aspects of Intellectual Property Rights
(the “TRIPS Agreement”).

The WTO Agreement, including the TRIPS Agreement (which is binding on all
WTO Members), enforced on January 1, 1995. A new organization was
established by the former agreement known as the World Trade
Organization, which came into force from January 1, 1995. Member States of
WTO were granted a specific period of time after the enforcement of the
agreement establishing the WTO before being obligated to apply the TRIPS
Agreement. Trade-Related Aspects of Intellectual Property Rights (TRIPS) is
the most global and essential international agreement on intellectual
property rights. The member countries of the WTO are automatically binded
by the agreement. The agreement consists of most of the forms of
intellectual property like patents, copyright, trademarks, trade secrets,
geographical indications, industrial designs, and exclusionary rights over new
plant varieties. 

TRIPS proved to be one of the most important agreements to promote

intellectual property at the international level. TRIPS mainly introduced the
global minimum standard for the protection and enforcing of all forms of
intellectual property but it failed to specify the global minimum standard for
the patent. The main object of the trade related aspect of intellectual
property is to promote effective and adequate protection of intellectual
property rights and ensuring that measures and procedures to enforce
intellectual property rights do not themselves become barriers to legitimate
trade. 

Issues covered by the TRIPS

 How basic principles of the trading system and other international

intellectual property agreements should be applied. 
 How to give adequate protection to intellectual property rights.
 How countries should enforce those rights adequately in their own
territories.
 How to settle disputes on intellectual property between members.
 Special transitional arrangements during the period when the new
system is being introduced.

Features of the TRIPS 

There are three main feature of the TRIPS agreement which are as follow: 

1. Standard 
2. Enforcement 
3. Dispute settlement 
Standard: The main element of trade related aspect of intellectual property
is to protect the subject matter.

Enforcement: The second element is about domestic procedure and

remedies provisional measure special related to border measure. 

Dispute settlement: The agreement makes dispute between world trade

organization members arising with respect to the trade related aspect of
intellectual property obligation subject to the world trade organization
dispute settlement procedure. 

Obligations under TRIPS Agreement 

The TRIPS agreement outlines various important business-related aspects of

intellectual property. In particular, this requires Member States to follow
their own criteria for intellectual property monopoly grants for limited period
along with adherence to the Paris Agreement, the Berne Convention and
other WTO conventions. The norms are the minimum standards for granting
monopolies over any kind of IP, as well as duration limits, enforcement
provisions, and methods of IP dispute settlement. When the TRIPS
agreement was enforced on 1 January 1995, all developed countries were
given twelve months from the date of signing the agreement to implement
its provisions. Developing countries and transition economies (under certain
conditions) were granted five years until 2000. As of 2006, least developed
countries (LDCs) were given 11 years to comply. Some countries have
indicated that the long term should be achieved. For pharmaceutical patents
in these LDCs, the compliance period has been extended to 2016.

Currently, there are 30 LDCs within the WTO organization bound by TRIPS
and another 10 LDCs are awaiting accession. The Most Favored-Nation
Principle (MFN) – The TRIPS Agreement contains the most favored nation
doctrine, which has not traditionally been provided in the context of
intellectual property rights at the multilateral level. This doctrine provides
that any advantage, favour, privilege or immunity granted to the citizens of
any other country shall be immediately unconditional to all other members
(whether or not a member) with a specified exemption. As is the case for
national remedies, the procedures provided in the multilateral agreements
discussed under the aegis of the WIPO relating to the acquisition or
maintenance of intellectual property rights are exempt from this principle.

Conclusion
The purpose of these agreements was not only to provide a minimum
standard for the protection of IPR, but also to provide for its purpose. These
agreements provide a minimum standard for the enforcement of IPR that
allows right holders to protect their legitimate interests through civil court or
administrative proceedings. Part III of the Agreement on the Enforcement of
IPR sets out the obligations of Member States to establish administrative and
judicial mechanisms through which IPR holders can seek effective protection
of their interests. The general obligation of member states to provide
enforcement mechanisms requires that the enforcement process be available
under their national law to allow effective action against any act of violation
of the IPR covered by these agreements, including immediate measures to
prevent violations and remedies are included. Member nations are obligated
to safeguard that enforcement procedures are “fair and equitable”, and “not
unnecessarily complex or costly, or prevent unreasonable deadlines or
unreasonable delays.”

international/ bilateral treaties play a very important role in fostering

international and bilateral cooperation in various fields affecting the lives of
people and promoting peace and harmony. As already indicated above the
Indian Constitution contains provisions to that effect in article 51(c). The
question, however, is that who decides which treaty is good for the country
and which authority is competent to decide on the same. Under the Indian
Constitution and as affirmed by various judicial pronouncements it is the
Indian Parliament which is supreme in deciding such matters. Article 253 of
the Indian Constitution is very clear on that. However, the Indian Parliament
has not made any law as yet regulating the procedure for the Indian
government to enter into international/oblique bilateral treaties. In the
absence of the same under article 73 it is the executive which is signing
international agreements sometimes without taking the parliament into
confidence. While it may not be pragmatic to have the Parliament approve all
treaties. It will be appropriate to take a balanced view on the subject and
have some kind of legislation empowering the executive to sign treaties
subject to certain conditions. The Parliament may mandate certain kinds of
treaties to be approved by it prior to its signing by the executive. Certain
kinds of treaties on the other hand may be left entirely to the discretion of
the executive.

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http://nopr.niscair.res.in/bitstream/123456789/19710/1/JIPR
%201%282%29%2067-75.pdf

http://www.cosoza.or.tz/viewDownload.php?document=1

https://blog.ipleaders.in/leading-international-instruments-related-to-
intellectual-property-rights/

https://www.colorado.edu/faculty/kmaskus/sites/default/files/attached-
files/maskus_chapter_0.pdf

https://www.lexisnexis.com/uk/lexispsl/ip/document/393989/564C-W241-
F18C-X1TC-00000-00/International_treaties_and_conventions_overview

https://www.insightsonindia.com/science-technology/intellectual-property-
and-issues/international-treaties-on-ipr/

https://www.rkdewan.com/treatiesdetails.php?pid=1

https://www.jpo.go.jp/e/news/kokusai/developing/training/textbook/
document/index/
international_treaties_on_industrial_property_rights_2005.pdf