Intellectual Property Rights
"Global Harmonization of Intellectual Property Laws:
Challenges and Prospects"
By:
Aayushi Srivastava 23020622016
Rizaal Dhawan 23020622266
Neha Shah 23020622204
Tandri Meghana 23020622344
Raghav Gupta 23020622250
Arav Shah 23020622300
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Index Page
S. No Topic Page
1. Abstract 3
2. Objectives 4
3. Types of IPR 5
4. Cases and Examples 7
5. Obstacles and 9
Challenges
6. Solutions 10
7. Conclusion 12
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Abstract
Intellectual Property Rights(IPRs) have become ubiquitous and have become a crucial part of
global innovation policies. This article critically examines Global Harmonization of
Intellectual Property Laws: Challenges and Prospects.
Global Harmonization of IPR laws examines the Trade-Related Aspects of Intellectual
Property Rights(TRIPS) Agreement, signed in 1994 as a founding element of the World
Trade Organisation(WTO).
Western governments and large corporations claim that strong IPRs are needed to maintain
investment in innovation. This position is contrasted by new political and social movements,
which assert that muscular IPRs enforcement hampers economic growth and welfare in
developing countries. The article argues that both positions overemphasize what IPRs can
actually do to promote or obstruct innovation.
IPR is a globally recognized system of legal protections that cover various aspects of
intellectual creations, and international agreements and organizations play a crucial role in
ensuring these rights are upheld across borders.
There are substantial cross-industry differences in the role played by IPRs: while patents are
quite significant in pharmaceuticals and copyright is important in the audio-visual industry,
the majority of sectors are not seriously affected by either strong or weak IPR regimes.
This report recounts and analyses all the various aspects involved in the roles of IPR and how
they may be harmonized across countries.
Objectives
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1. To analyse the linguistic, jurisdictional, definitional, and cultural complexities behind
Intellectual Property
2. To understand the importance of achieving universal consistency in International
Property Rights and Laws
3. The reason behind the harmonization of IP
4. Analysis of the history behind harmonization
5. Analysis of the obstacles behind defining work under copyright laws
6. Analyse exchange of IP information
TYPES OF IPR
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Intellectual property rights are all rights associated with intangible assets. The subject of
intellectual property rights is very broad. There are many different forms of rights that
together make up intellectual property. It mainly consists of patents, trademarks, and designs.
The protection of industrial property rights extends to utility models, service marks, trade
names, passes, signs of source or origin, including geographical indications.
Copyright
It deals with the protection and exploitation of the expression of ideas in a tangible form. Law
of copyright provides not only a legal framework for the protection of the traditional
beneficiaries of copyright, the individual writer, composer, or artist, but also the publication
required for the creation of work by major cultural industries, film, Broadcast and recording
industry and computer & software industries.
It resides in literary, dramatic, musical, and artistic works in original cinematic films, and in
sound recordings set in a concrete medium. The idea must be expressed in original form, to
be protected as the copyright. Copyright acknowledges both the economic and moral rights of
the owner. The right to copyright is, by the principle of fair use, a privilege for others,
without the copyright owner’s permission to use copyrighted material. By the application of
the doctrine of fair use, the law of copyright balances private and public interests.
Patent
A patent is a special right granted to the owner of an invention to the manufacture, use, and
market the invention, provided that the invention meets certain conditions laid down in law.
This law recognizes the exclusive right of a patent holder to derive commercial benefits from
his/her invention. Exclusive right means that no person can manufacture, use, or market an
invention without the consent of the patent holder. This exclusive right to patent is for a
limited time only.
In order to qualify for a patent protection, an invention must fall within the scope of the
patentable subject and satisfy the three statutory requirements of innovation, inventive step,
and industrial application. If the patent applicant is the first to invent the claimed invention,
the novelty and necessity are by and large satisfied. Novelty can be inferred by prior
publication or prior use. Mere discovery cannot be considered as an invention. Patents are not
allowed for any idea or principle.
The purpose of patent law is to encourage scientific research, new technology, and industrial
progress. The economic value of patent information is that it provides technical information
to the industry that can be used for commercial purposes. If there is no protection, then there
may be enough chances that the other person might take the leverage of another person’s
investment. This ability of copying the invention reduces the incentive to invent something
new because the inventor may not feel motivated to invent due to lack of incentives.
Trademark
Trademarks protect logos, sounds, words, colours, or symbols used by a company to
distinguish its service or product. It is a specific sign used to make the source of goods and
services public in relation to goods and services and to distinguish goods and services from
other entities. This establishes a link between the proprietor and the product. It portrays the
nature and quality of a product. The essential function of a trademark is to indicate the origin
of the goods to which it is attached or in relation to which it is used. It identifies the product,
guarantees quality, and helps advertise the product. The trademark is also the objective
symbol of goodwill that a business has created.
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Any sign or any combination thereof, capable of distinguishing the goods or services of
another undertaking, can create a trademark. It can be a combination of a name, word, phrase,
logo, symbol, design, image, shape, colour, personal name, letter, number, figurative element,
and colour, as well as any combination representing a graph. Trademark registration may be
indefinitely renewable.
Geographical Indication
It is a name or sign used on certain products which corresponds to a geographic location or
origin of the product, the use of geographical location may act as a certification that the
product possesses certain qualities as per the traditional method. Some common examples of
geographical indication are Darjeeling tea and basmati rice. The relationship between objects
and place becomes so well known that any reference to that place is reminiscent of goods
originating there and vice versa.
It performs three functions. Firstly, they identify the goods as origin of a particular region or
that region or locality. Secondly, they suggest to consumers that goods come from a region
where a given quality, reputation, or other characteristics of the goods are essentially
attributed to their geographic origin, and at last, they promote the goods of producers of a
particular region. They suggest the consumer that the goods come from this area where a
given quality, reputation or other characteristics of goods are essentially attributable to the
geographic region.
It is necessary that the product obtains its qualities and reputation from that place. Since,
those properties depend on the geographic location of production, a specific link exists
between the products and the place of origin. Geographical Indications are protected under
the Geographical Indication of Goods (Registration and Protection) Act, 1999.
Industrial Design
It protects the visual design of the object which is not purely utilized. It consists of the
creation of features of shape, configuration, pattern, and composition of lines or colours
applied to any article in two or three-dimensional form or combination of one or more
features. Design protection deals with the outer appearance of an article, including
decoration, lines, colours, shape, texture, and materials. It may consist of three-dimensional
features such as colours, shapes and shape of an article or two-dimensional features such as
shapes or surface textures or other combinations.
Trade Secret
These are intellectual property rights on confidential information which may be sold or
licensed. It is any practice or process of a company that is generally not known outside of the
company. Information considered a trade secret gives the company a competitive advantage
over its competitors and is often a product of internal research and development.
To be legally considered a trade secret, company must make a reasonable effort in concealing
the information from the public, the secret must intrinsically have an economic value and the
trade secret must contain information.
Trade secrets are defined differently based on jurisdiction, but all have the following
characteristics in common (i) they are not public information, (ii) their secrecy provides
an economic benefit to their holder and (iii) their secrecy is actively protected.
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Cases and Examples:
• The World Trade Organization's (WTO) primary agreement is the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS). It lays out baseline requirements for
IP protection that must be followed by all WTO members. It strives to create a standard
framework for IP protection around the globe and encompasses a variety of IP forms,
including patents, copyrights, trademarks, and trade secrets. The TRIPS Agreement specifies
the minimal levels of protection that each Member shall offer for each of the major sectors of
intellectual property covered by the Agreement. The subject matter to be protected, the rights
to be granted and any permitted exceptions to those rights, as well as the minimum period of
protection, are all defined.
• The Madrid Protocol for Trademarks: This international agreement makes it easier to
register trademarks across many nations. It enables trademark owners to apply to the World
Intellectual Property Organization (WIPO) only once to register their marks across various
member states. The trademark registration process is streamlined and made simpler as a result
worldwide. The Madrid mechanism offers a centrally managed mechanism for obtaining
several trademark registrations in distinct jurisdictions; unlike the European Union trademark
system, it does not produce a single unified registration across many jurisdictions. Instead,
applicants submit a single worldwide trademark application and pay a single set of costs to
request protection in any or all of the system's participating nations; each nation has the
option of granting the application. When a chosen country's trademark authority awards
protection, the mark is safeguarded in that territory exactly as if that office had registered it.
• The Patent Cooperation Treaty (PCT): The PCT is another treaty that is overseen by the
WIPO and streamlines the procedure for submitting an international patent application. It
makes it possible for businesses and inventors to submit a single international patent
application that can be used to request patent protection across several nations. This lessens
the expense and administrative hassle of applying for patents across several jurisdictions.
One of the first and most important international accords on copyright protection is the Berne
Convention for the Protection of Literary and Artistic Works. It specifies minimum
requirements for copyright defense, such as the idea of automatic defense upon the
production of a work. Member nations concur to treat the writings of foreign authors equally
with those of their own citizens.
• The Hague Agreement Concerning the International Registration of Industrial Designs: The
WIPO-managed Hague Agreement permits the international registration of industrial designs
(product designs) in numerous member nations with a single application. This makes the
process of globally securing a product design's aesthetic elements simpler. The Hague
Agreement enables applicants to register an industrial design with the International Bureau of
WIPO by submitting a single application, allowing design owners to protect their designs
with the fewest possible formalities across a number of nations or regions. Since subsequent
changes can be recorded and the worldwide registration can be renewed in a single
procedural step, the Hague Agreement also makes managing an industrial design registration
easier.
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• The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind,
Visually Impaired, or Otherwise Print Disabled: This treaty deals with the problem of
disabled individuals' access to copyrighted materials. It lays out guidelines for enhancing the
accessibility of published works for persons who find it difficult to access printed materials,
such as through the use of specialized forms like Braille or digital text. It calls for the
introduction of a uniform set of restrictions and exemptions to copyright laws by Contracting
Parties in order to allow for the exchange of published works across international boundaries
by organizations that serve the beneficiaries of those restrictions.
Treaty makes it clear that beneficiaries include those with a variety of ailments that prevent
them from effectively reading printed material. The broad meaning includes people who are
physically unable of holding and using a book, such as those who are blind, visually
impaired, print disabled, or physically challenged.
• The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and
the Trans-Pacific Partnership (TPP): Provisions for IP protection and harmonization are
included in these trade agreements involving Pacific Rim nations. To encourage innovation
and trade, they seek to develop uniform rules for IP protection and enforcement among
member nations.By fostering innovation and trade while balancing the interests of creators,
inventors, and the general public, these cases and agreements indicate efforts to develop a
more consistent and predictable framework for intellectual property protection on a global
scale. The diverse economic, cultural, and legal settings of different nations make it difficult
to achieve complete harmonization, and there are still some variations in IP laws and
practices around the world.
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Obstacles & Challenges
The goal of achieving universal consistency in intellectual property (IP) laws faces a
bewildering array of obstacles, starting with the fundamental problem of linguistic diversity.
The complexity of creating a cogent IP framework is made more difficult by the diversity of
languages spoken among nations, creating an environment that is conducive to interpretive
discrepancies and ensuing confusion.
A major conundrum results from the contrast between common law and civil law countries,
each of which has distinct legal systems that make its laws deeply offensive to the
sensibilities of the other. It becomes extraordinarily difficult to create IP norms that are
acceptable to all people because of this incongruity.
The difficulty in defining the boundaries of entities with copyright or trademark protection
also adds to the confusion. The difficult and complicated problem of determining the limits of
protection afforded to artistic or commercial expressions is one that the international
community is now struggling with.
There is a complex problem of protecting traditional knowledge within a global framework.
The argument centers on divergent perspectives regarding the protection of traditional
knowledge, necessitating diplomatic diplomacy to produce an appropriate and workable
framework. The key is to design a system that, rather than imposing a single standard on
many cultures, seeks to bring about a consensus between opposing points of view through
fair discussion.
In conclusion, the quest to harmonize international intellectual property (IP) rules is a
difficult voyage filled with linguistic, jurisdictional, definitional, and cultural complexities.
To surmount these obstacles, international stakeholders must navigate a labyrinth of
negotiations, endeavoring to strike a balance that respects the rich tapestry of human diversity
while fostering fairness and coherence in the realm of intellectual property.
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Solutions:
Global harmonization of intellectual property law is a complex undertaking with both
challenges and potential benefits. Striking the right balance and finding innovative solutions
is the key to realizing the full potential of harmonized IP laws on a global scale. This segment
shed light on possible solutions to protect and promote global harmonization of “Intellectual
Property Laws”.
Strengthen international agreement and treaties – This strategy suggests for global
harmonization of intellectual property (IP) laws, countries should work together to create
formal agreements and treaties. They should develop a set of agreed-upon guidelines that
specify how different intellectual creations and innovations should be legally safeguarded.
These shared rules can help in establishing a common framework that countries across the
globe agree to follow, which would ensure consistency and fairness in how intellectual
property rights should be recognized and enforced globally.
Promote standardized legal framework – This solution emphasizes encouraging individual
countries to adopt a similar set of rules for protecting intellectual property. It is important as
it provides a framework for resolving disputes and conflicts related to intellectual property.
This involves ensuring that definitions, procedures, and ways of enforcing these (intellectual
property laws) rules are consistent and aligned across different regions.
Offering incentives for compliance – This solution suggests providing rewards or benefits
to countries that agree to follow standardized intellectual property laws. Incentives act as a
positive motivator, encouraging countries to actively follow standardized rules for protecting
intellectual properties. These rewards can take various forms such as trade benefits, which
may include providing preferential trade agreements. Additionally, countries following and
actively participating in the global efforts to safeguard intellectual property laws may be
provided access to specialized programs that could assist in acquiring and implementing new
technologies. Countries can also be incentivized by offering them financial aids and so on.
Raising public awareness The global harmonization of intellectual property laws depends
critically on raising public awareness of and educating the public about these rights. It
guarantees that everyone in the globe is aware of intellectual property regulations. This
shared understanding of the significance of intellectual property and related rules motivates
people, organizations, and governments to collaborate internationally on initiatives involving
discoveries and advances. A knowledgeable populace is also more likely to voluntarily
adhere to international intellectual property rights standards, which lowers the possibility of
legal conflicts resulting from misunderstandings and a lack of knowledge of the relevant
issue. Additionally, when
people are aware of these laws, it makes them watchful of intellectual property law
infringement and violation. Building a more knowledgeable, cooperative, and compliant
global community is facilitated by public awareness.
Balancing flexibility and consistency- Balancing flexibility and consistency in global
harmonization is similar to crafting a harmonious blend of adaptability and uniformity. We
should acknowledge that every country has its own traditions and nuances and respect these
differences. By allowing some flexibility, countries can align global intellectual property
standards with their specific needs and circumstances. Moreover, when countries feel their
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interests and values are taken into account. They are more likely to participate in the activities
promoting harmonization of intellectual property laws. Flexibility in intellectual property
laws foster an environment that encourage innovations and creations. While flexibility
accommodates differences maintaining consistency of the core intellectual property
principles promotes global harmonization of intellectual property laws. This also helps to
reduce legal uncertainty and promotes global trade and investment.
Dispute resolution mechanism - An important solution to the global harmonization of
intellectual property law is to create effective ways for resolving intellectual property
disputes that occur across different countries. This can be done by setting up accessible and
specialized forums for resolving these conflicts, such as international arbitration or
mediation. International arbitration allows parties involved in a dispute to choose a neutral
forum and apply agreed-upon rules, providing flexibility and the expertise of arbitrators in
IPR matters. Mediation, on the other hand, promotes open dialogue and negotiation to find
mutually acceptable solutions. By establishing these dispute resolution mechanisms,
countries can encourage parties to seek alternatives to court litigation, leading to faster and
more efficient outcomes. This approach ensures fair and consistent resolution of IPR
disputes, thereby contributing to global harmonization efforts.
In conclusion, global harmonization of Intellectual Property Rights (IPR) is a complex but
crucial objective in today's interconnected world. By implementing solutions such as
international agreements, standardization of laws, public awareness and provision of
incentives we can strive towards a more consistent and effective global IPR framework.
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Conclusion:
In the complex and dynamic landscape of Intellectual Property Rights (IPR), we find the
cornerstone of innovation, creativity, and economic progress. IPR encompasses a spectrum
of legal protections, including patents, copyrights, trademarks, and trade secrets, that
empower individuals and organizations to safeguard their intellectual capital. The
significance of IPR resonates deeply in our interconnected world:
Catalyst for Innovation: IPR serves as an unwavering beacon, guiding the brightest minds to
venture into uncharted territories, invent ground-breaking technologies, and shape the future.
It is the fuel that powers the engine of progress.
Economic Engine: IPR is the lifeblood of economies, propelling growth, attracting
investments, and nurturing thriving industries. It transforms ideas into enterprises, start-ups
into success stories, and drives global competitiveness.
Preservation of Human Endeavor: Copyrights and patents are the guardians of our cultural
heritage and technological achievements. They immortalize our creativity, ensuring that the
legacy of human endeavour endures through generations.
Consumer Assurance: Trademarks and patents are the sentinels of quality and authenticity,
providing consumers with the confidence that the products and services they choose meet
stringent standards of excellence.
Global Collaboration: IPR transcends borders, fostering international collaboration, enabling
the exchange of knowledge and technology, and creating a world where innovation knows
no bounds.
However, the path to protecting IPR is not without challenges. The terrain is marked by
debates on equitable access, striking a balance between individual rights and collective
welfare, and adapting to a rapidly changing technological landscape. To navigate this
landscape successfully, we must:
Embrace Progress: IPR must evolve to keep pace with innovation, digital transformation,
and shifting societal paradigms. It must be a beacon of adaptability, guiding us into the
future.
Educate and Inspire: Fostering a culture of respect for IPR begins with education and
awareness. We must inspire a sense of responsibility, as the guardians of innovation and
creativity.
Collaborate Globally: International cooperation is paramount in the quest to harmonize IPR
standards, address global challenges like counterfeiting and piracy, and create a level
playing field.
In conclusion, Intellectual Property Rights are the bedrock of our innovation-driven society,
igniting creativity, fuelling economic prosperity, and preserving our collective intellectual
heritage. As we venture forward, let us tread this path with unwavering commitment,
adaptability, and the shared vision of a world where ideas and innovation flourish without
boundaries.
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