TRIPS

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It is a matter of record that India was not sufficiently prepared to evaluate the implications of the provisions of TRIPS when it was rushed through for approval. One example is the provision for additional protection of wines at Article 23, in the chapter on geographical indications. Paragraph 1 of this article is as follows:

“1. Each member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “limitation” or the like.’

Two points are to be noted in this context. Obviously, as business in wine is carried on by developed countries and it procures large revenue, this paragraph providing for additional protection has been introduced intro TRIPS relating to wines only, not other products. More

than that, Paragraph 1 prescribes that it would be a breach of the condition of TRIPS, if expressions such as “kind”, “type”, “style”, “imitation” or “like” appear along with the indication of the true origin of wines. The same principle should apply to other goods also. There appears to be no other reason. The footnote to paragraph 1 states that notwithstanding the first sentence of Article 42, members may, with respect to these obligations, instead provide for enforcement by administrative action. The first sentence of Article 42 requires that members shall make available to right holders civil judicial procedures concerning the enforcement of any IPR covered by this Agreement. As it is recognized judicial procedures take time, the members have been enabled to enforce rights relating to wines through administrative action. Again, this is clearly providing certain countries dealing with certain products only the freedom to determine rights through administrative action, which is discriminatory.

Action by India

Conformity to TRIPS or other international treaties relating to IPR is only one aspect of the issue. Matters of direct concern are questions of how far are these laws comprehensive in that they cover all segments that need to be provided for and the extent to which enforcement is effective. India has not so far signed the Internet Treaties viz. WIPO Copyright Treaty (WCT) (1996) and WIPO Performances and Phonograms Treaty (WPPT) (1996). These require that legal remedies shall be provided against circumvention of effective technological measures that are used by authors and performers or producers of phonograms respectively in connection with the exercise of their rights. In substance, use of any technology that would enable circumvention of copy protection methods used by the right holders in respect of their work is to be punished. It is well known that this has encouraged piracy of music and films to an alarming extent and the owners of these rights are misallocating their resources is search, seizure and prosecution without installing copy-protection controls in their works. But a series of amendments to the Copyright Act, 1957 have been laid out and the two objects of the Internet Treaties are part of the proposed amendments.

The main amendments are proposed to deal with: performer’s rights, substituting s.52 which states what are not infringements of a copyright, and the introduction of two sections, s.65A providing for protection of technological measures and s.65B towards protection of rights management information, meeting the specific objectives of the Internet Treaties. The amendments must materialize into law after the legislative process. Only towards protection of

rights management information, meeting the specific objectives of the Internet Treaties. The amendments must materialize into law after the legislative process. Only then, these rights can be effectively enforced and violators proceeded against.

Enforcement

As matters stand now, crimes against IPRs of others are not dealt with as severely as in other countries and for the most part, affected persons or institutions are left to protect themselves. Not all of them will have the resources, either money or expertise, in tracing the offender and bringing him to justice. An enforcement machinery to be sufficiently deterrent should be quick and well-equipped with technological support and knowledge of the basic laws covered. Bilateral agreements with advanced countries for the purpose of sharing their experience in tackling what are called “white collar” crimes should be arranged.

Protection of biological resources, traditional knowledge

The previous paragraphs dealt with cases where the proprietor of an IPR is a specific individual who can be expected to initiate some action against actual or threatened infringement. But the real danger to which India is exposed and against which proper protection is to be ensured relates to the area of the country’s biological resources and traditional knowledge. The Biological Diversity Act, 2002 is to be enforced seriously and cases of bio-piracy through patents for basmati, turmeric, etc., should be things of the past. What needs to be emphasized is that the entire work of monitoring the illegal activities of citizens of India or others outside India in misappropriating the biological resources in India to the prejudice of the country cannot be expected to be done by the Government alone. Considering the vast size of the country over which the biological resources of the country are distributed and the fact that much of the traditional knowledge in the use of the resources is not in recorded form, the role of the voluntary associations in each zone cannot be overemphasized. It is true that in the two cases of misappropriation mentioned above, action was initiated by non-governmental organizations, but the point is that both the Government and such voluntary organizations ought to work in a coordinated manner to take the matter to the appropriate forum that would finally dispose of the complaint. It is for India to take on from that stage and take timely action.

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