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Unit 1

The Genesis and Evolution of Intellectual Property Rights

The concept of protecting intellectual creations is not a recent phenomenon. Early forms of
exclusive rights can be traced back to ancient Greece. However, the first modern patent is
widely considered to have been granted in Florence in 1421 to the architect and engineer
Filippo Brunelleschi for a new type of hoist used in the construction of the Florence Cathedral.

A more formalized system emerged with the Venetian Patent Statute of 1474, which
established a system for granting patents for "any new and ingenious device, not previously
made." This statute laid down the fundamental principles of novelty and utility that remain
central to patent law today.

The development of the printing press in the 15th century spurred the need for protecting the
works of authors. Initially, printing privileges were granted to publishers, but the focus
gradually shifted to the author's rights. The Statute of Anne, enacted in Great Britain in 1710,
is recognized as the world's first copyright statute, granting authors the exclusive right to print
their books for a limited period.

The term "intellectual property" itself gained prominence in the 19th century. The foundation
of the modern international IPR system was laid with the adoption of two key treaties: the Paris
Convention for the Protection of Industrial Property in 1883 and the Berne Convention
for the Protection of Literary and Artistic Works in 1886. These conventions established
the principles of national treatment and priority rights, which are fundamental to international
IPR protection. The establishment of the World Intellectual Property Organization (WIPO), a
specialized agency of the United Nations, in 1967 further solidified the global framework for
IPR.

Philosophical Underpinnings: Theories of Intellectual Property

The justification for granting exclusive rights over intangible creations has been a subject of
intense philosophical debate. Three prominent theories provide different rationales for the
existence of IPR.

Locke’s Labor Theory

The English philosopher John Locke, in his Second Treatise of Government, articulated a
powerful argument for property rights based on labor. Locke's theory posits that individuals
have a natural right to the fruits of their labor. When a person mixes their labor with the
common stock of resources, they acquire a property right in the resulting product.

In the context of IPR, this "labor theory" suggests that when an individual invests their
intellectual labor—their creativity, ingenuity, and effort—to create something new, they are
entitled to own that creation. This perspective views intellectual property as a just reward for
the creator's mental exertion.
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Hegel’s Personality Theory

The German philosopher Georg Wilhelm Friedrich Hegel offered a different justification for
property rights, rooted in his concept of personality. According to Hegel, property is essential
for individuals to express their will and develop their personality. By owning and controlling
property, individuals can project their identity onto the external world and achieve self-
realization.

From a Hegelian perspective, intellectual property is an extension of the creator's personality.

A work of art, a novel, or an invention is seen as an embodiment of the creator's unique
thoughts, feelings, and character. Protecting these creations through IPR is therefore seen as
crucial for safeguarding the creator's personal identity and freedom of expression. This theory
is particularly influential in the realm of copyright and the concept of "moral rights," which
protect the personal link between an author and their work.

The Marxian Critique

In stark contrast to Locke and Hegel, Karl Marx viewed property, including intellectual
property, through the lens of class struggle and alienation. From a Marxian perspective, IPR is
a product of capitalism that serves to commodify knowledge and reinforce social inequalities.

Marx argued that in a capitalist society, the means of production—including ideas and
knowledge—are controlled by the bourgeoisie (the capitalist class). This allows them to exploit
the labor of the proletariat (the working class). IPR, in this view, is a mechanism for enclosing
the "intellectual commons" and creating artificial scarcity, thereby enabling the owners of
intellectual property to extract surplus value from the labor of others. Marxian analysis
critiques IPR for hindering the free flow of information, stifling innovation by creating
monopolies, and alienating creators from the products of their intellectual labor.

The Ethical, Moral, and Human Rights Dimensions of IPR

The legal framework of IPR is deeply intertwined with a host of ethical, moral, and human
rights considerations that spark ongoing debate and controversy.

Ethical Perspectives

The primary ethical justification for IPR is utilitarian: that by granting temporary monopolies
to creators, society encourages innovation and creativity, which ultimately benefits everyone.
This incentive-based argument posits that without the prospect of financial reward, there would
be less investment in research and development, leading to fewer new technologies, medicines,
and cultural works.

However, this justification is challenged by the ethical imperative to ensure broad access to
knowledge and its benefits. The exclusive rights granted by IPR can lead to high prices for
essential goods, such as life-saving medicines, and can restrict access to educational materials
and scientific research. Striking an ethical balance between incentivizing innovation and
promoting the public good is a central challenge for IPR policy.
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Moral Perspectives

Beyond the economic incentives, IPR also encompasses a moral dimension, particularly in the
context of copyright. "Moral rights," a concept with strong roots in European legal traditions,
recognize the deep personal connection between a creator and their work. These rights typically
include the right of attribution (the right to be identified as the author) and the right of integrity
(the right to object to any distortion or modification of the work that would be prejudicial to
the author's honor or reputation). These moral rights are seen as protecting the creator's artistic
and personal investment in their creation, independent of their economic rights.

Human Rights Perspectives

The relationship between intellectual property and human rights is complex and often
contentious. Article 27 of the Universal Declaration of Human Rights (UDHR) addresses this
duality. It states that:

1. Everyone has the right freely to participate in the cultural life of the community, to
enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the author.

This provision highlights the inherent tension. On one hand, it recognizes the right to benefit
from scientific and cultural progress, which can be hindered by strong IPR protection. On the
other hand, it acknowledges the right of creators to be recognized and rewarded for their work.

This tension is particularly acute in the context of public health, where patent protection on
essential medicines can create significant barriers to access for people in developing countries.
The debate over compulsory licensing and other flexibilities in international IPR agreements,
such as the TRIPS Agreement of the World Trade Organization, reflects the ongoing struggle
to reconcile the property rights of patent holders with the fundamental human right to health.
Similarly, in the digital age, copyright laws are often at odds with the right to freedom of
expression and access to information.

In conclusion, intellectual property rights are a multifaceted and dynamic field of law. Born
out of a desire to encourage innovation and protect creators, the modern IPR system is built
upon a rich history and a complex web of philosophical justifications. However, the
implementation of these rights is not without its challenges, as it requires a continuous and
delicate balancing act between the interests of individuals, the needs of society, and the
fundamental principles of ethics, morality, and human rights.
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Unit 2

In an increasingly interconnected world, the products of the human intellect—from

groundbreaking inventions to captivating artistic works—traverse borders with unprecedented
ease. This globalization of innovation and creativity has underscored the critical international
relevance of Intellectual Property Rights (IPR). A robust international framework for IPR
protection is no longer a niche legal concern but a fundamental pillar of global trade, economic
development, and international relations.

The International Relevance of IPR: A Catalyst for a Global Economy

The importance of a harmonized approach to intellectual property protection on the world stage
is multi-faceted and profound. It serves as a vital engine for economic growth and cross-border
collaboration.

 Promoting International Trade: A predictable and enforceable international IPR

system gives businesses the confidence to export their products and services. When
companies know their patents, trademarks, and copyrights will be respected in foreign
markets, they are more willing to engage in international trade, leading to a more
vibrant and integrated global economy.
 Encouraging Foreign Direct Investment (FDI): Countries with strong IPR laws are
significantly more attractive to foreign investors. Investors need assurance that their
proprietary technologies and brand identities will not be misappropriated. A reliable
IPR regime signals a stable and fair business environment, encouraging the flow of
capital and the establishment of new enterprises.
 Facilitating Technology Transfer: International IPR agreements provide a secure
legal framework for the licensing and transfer of technology across borders. This allows
for the dissemination of knowledge and innovation, enabling developing countries to
access advanced technologies and fostering collaborative research and development
efforts between nations.
 Fostering Innovation and Creativity: By ensuring that creators and innovators can
receive recognition and financial rewards for their efforts in multiple countries,
international IPR protection incentivizes the creation of new technologies, medicines,
software, and cultural content. This global incentive structure fuels a virtuous cycle of
innovation that benefits societies worldwide.
 Ensuring Fair Competition: In the absence of international IPR standards, a
company's innovative product could be legally copied and sold in another country,
creating unfair competition. A global framework for IPR helps to level the playing field,
ensuring that competition is based on factors like quality and ingenuity, rather than
imitation.
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The internationalization of Intellectual Property (IP) protection refers to the global

evolution and harmonization of laws and practices to safeguard intellectual creations—such
as inventions, literary and artistic works, symbols, and designs—across borders. As
globalization intensifies, protecting IP internationally becomes crucial to support innovation,
investment, and fair trade.

1. Meaning and Evolution

Traditionally, IP rights were governed solely by domestic laws with territorial limitations.
However, the rise of cross-border trade, digital innovation, and multinational enterprises
created a demand for standardized and enforceable IP rights globally. This gave rise to a
network of international treaties and institutions aimed at unifying and strengthening IP
protection worldwide.

2. Key Features of International IP Protection

 Territoriality principle: IP rights are still granted by national authorities but guided
by international standards.
 Minimum standards: Global treaties require member states to adhere to baseline
protections.
 Mutual recognition and cooperation: Countries agree to protect foreign IP rights
and cooperate in enforcement.
 Dispute settlement: Mechanisms like WTO’s dispute resolution provide
accountability for violations.

3. Major Treaties and Agreements Facilitating International IP Protection

a) Paris Convention for the Protection of Industrial Property (1883)

 Covers patents, trademarks, industrial designs.

 Introduces national treatment and right of priority.

b) Berne Convention for the Protection of Literary and Artistic Works (1886)

 Automatic copyright protection in member states without formal registration.

 Recognizes moral rights and sets minimum protection duration.

c) Patent Cooperation Treaty (PCT) (1970)

 Facilitates single international patent filing across multiple countries.

 Administered by WIPO.

d) Madrid System (1891)

 Enables international registration of trademarks through a single application.

 Operates under Madrid Agreement and Madrid Protocol.
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e) World Trade Organization (WTO) – TRIPS Agreement (1995)

 Sets comprehensive minimum standards for IP protection across:

o Copyright
o Patents
o Trademarks
o Industrial designs
o Trade secrets
o Geographical indications
 Provides enforceable dispute settlement between countries.

f) WIPO Internet Treaties (1996)

 WIPO Copyright Treaty (WCT)

 WIPO Performances and Phonograms Treaty (WPPT)
 Address IP protection in digital environments.

5. Key Case Examples and Implications

a) Novartis AG v. Union of India (2013)

 Indian Supreme Court denied patent for cancer drug Glivec.

 Upheld Section 3(d) of Indian Patents Act.
 Emphasized public interest and access to medicines, using TRIPS flexibility.

b) India–US Pharmaceutical Dispute under TRIPS

 The US raised concerns over India’s patent regime affecting US drug companies.
 India defended use of compulsory licenses and high threshold for patentability.

c) Myriad Genetics Case (US, 2013)

 US Supreme Court ruled that naturally occurring genes cannot be patented.

 Affects international norms on biotechnology patents.

6. Challenges to International IP Protection

 North-South Divide: Developed nations favor stricter IP laws; developing nations

seek access and flexibility.
 Enforcement Gaps: Varying capacities across countries hinder uniform
enforcement.
 Digital Piracy and AI: New technologies challenge traditional IP frameworks.
 Traditional Knowledge and Biopiracy: Indigenous knowledge often excluded from
mainstream IP systems.
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Unit 3

1. Paris Convention for the Protection of Industrial Property (1883)

Overview:

The Paris Convention is the first major international treaty aimed at providing a basic
framework for the protection of industrial property, which includes:

 Patents
 Trademarks
 Industrial designs
 Utility models
 Trade names
 Service marks
 Geographical indications
 Repression of unfair competition

Key Features:

 National Treatment (Article 2):

Foreign nationals are entitled to the same protection as nationals of the member
country in which protection is sought.
 Right of Priority (Article 4):
Applicants who file for protection in one member country can claim that filing date
as a priority date in other member countries, if filed within:
o 12 months for patents and utility models.
o 6 months for trademarks and industrial designs.
 Independence of Patents and Trademarks (Article 6):
A patent or trademark granted in one country is independent of similar grants in other
countries. Refusal or cancellation in one country does not affect the others.
 Protection against Unfair Competition (Article 10bis):
Members must provide effective protection against acts of unfair competition, such as
misleading advertising or trademark imitation.
 Common Rules:
Provides common standards for compulsory licenses, patent rights, industrial design
protection, and trademark registration.

Administration:

 Administered by the World Intellectual Property Organization (WIPO).

 Has over 175 member countries (as of 2025).
 Revised multiple times (notably in Stockholm, 1967, and Lisbon, 1958).

Importance:

 Encourages international trade and innovation.

 Prevents loss of rights due to different filing dates in different countries.
 Formed the basis for many subsequent treaties including TRIPS.
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2. Berne Convention for the Protection of Literary and Artistic Works (1886)

Overview:

The Berne Convention is the principal treaty governing copyright protection at the
international level. It applies to:

 Literary works (books, articles)

 Artistic works (paintings, drawings)
 Musical works
 Dramatic works
 Cinematographic works
 Software (as a literary work)

Key Features:

 Automatic Protection (Article 5(2)):

Works are protected automatically in all member countries without any formality
(no need for registration or deposit).
 National Treatment (Article 5(1)):
Foreign authors are granted the same rights as local authors in each member country.
 Minimum Standards of Protection:
Sets minimum duration and scope of copyright:
o Life of the author + 50 years (now often extended to 70 years in many
countries).
o Protection includes economic and moral rights.
 Moral Rights (Article 6bis):
Authors have the right to:
o Be identified as the author.
o Object to any distortion or mutilation of their work.
 Right of Translation and Reproduction:
Gives authors control over translations and reproductions of their works.
 Enforcement and Reservations:
Does not include enforcement mechanisms (unlike TRIPS).
Member countries cannot impose formalities as a condition for protection.

Administration:

 Also administered by WIPO.

 Currently includes over 180 countries.
 Revised at Berlin (1908), Rome (1928), Brussels (1948), Stockholm (1967), and
Paris (1971).

Significance:

 Ensures global copyright protection.

 Eliminates the need for registration in each country.
 Influenced modern digital copyright treaties such as:
o WIPO Copyright Treaty (WCT)
o WIPO Performances and Phonograms Treaty (WPPT)
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Comparison: Paris vs. Berne Convention

Feature Paris Convention Berne Convention

Subject Matter Industrial Property Copyright and Artistic Works
Year 1883 1886
Patents, trademarks,
Key Rights Literary and artistic rights
designs
Requires filing (e.g.,
Formality Requirement No formality required
patents)
Moral Rights Not covered Strongly protected
Administered by WIPO WIPO
National Treatment
Yes Yes
Principle
Yes (automatic in all member
Automatic Protection No (requires application)
countries)

TRIPS Agreement – Overview

TRIPS stands for Trade-Related Aspects of Intellectual Property Rights. It is a

comprehensive multilateral agreement on IP, administered by the World Trade
Organization (WTO) and came into force on January 1, 1995.

It is binding on all WTO members and aims to:

 Harmonize IP protection globally.

 Balance rights of IP holders with public interest.
 Link IP rules with international trade and dispute settlement.

🔹 Basic Principles of TRIPS Agreement

The TRIPS Agreement is built on five core principles, many of which are drawn from the
Paris and Berne Conventions:

1. National Treatment (Article 3)

 Each WTO member must treat nationals of other members no less favorably than it
treats its own nationals regarding IP protection.

2. Most-Favoured-Nation (MFN) Treatment (Article 4)

 If a member grants special IP rights to nationals of one country, it must extend the
same to all WTO members.

3. Minimum Standards of Protection (Articles 9–40)

 Members must provide at least the level of IP protection specified in TRIPS, though
they can provide more.
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4. Transparency (Article 63)

 Countries must publish IP laws and notify the WTO of changes to ensure clarity and
access to information.

5. Dispute Settlement (Article 64)

 IP disputes between members can be brought before the WTO Dispute Settlement
Body (DSB).

🔸 Minimum Standards of IP Protection under TRIPS

TRIPS sets baseline standards for the protection of various forms of IP. These are
mandatory for all WTO members:

A. Copyright and Related Rights (Articles 9–14)

 Incorporates Berne Convention (except moral rights).

 Protection for:
o Literary and artistic works
o Computer programs (as literary works)
o Databases
o Performers, producers of sound recordings, and broadcasting organizations.
 Duration: Life of the author + 50 years minimum.

B. Trademarks (Articles 15–21)

 Protection of signs that distinguish goods/services.

 Rights include exclusive use and prevention of unauthorized use.
 Minimum duration: 7 years, renewable indefinitely.
 Protection for well-known marks (Article 16.2).

C. Geographical Indications (GIs) (Articles 22–24)

 Protection for names indicating geographical origin and quality (e.g.,

"Champagne", "Darjeeling").
 Higher level of protection for wines and spirits.

D. Industrial Designs (Articles 25–26)

 Must be protected if new or original.

 Minimum protection: 10 years.

E. Patents (Articles 27–34)

 Patents must be available for inventions in all fields, if they are:

o New
o Involve an inventive step
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o Capable of industrial application

 Duration: 20 years from filing date.
 Exceptions: Members may exclude patents for:
o Public health and morality
o Plants and animals (except microorganisms)

F. Layout Designs of Integrated Circuits (Articles 35–38)

 Protection of original layout designs (topographies).

 Minimum term: 10 years.

G. Protection of Undisclosed Information (Trade Secrets) (Article 39)

 Requires protection for confidential information if:

o Not generally known
o Has commercial value
o Has been subject to reasonable efforts to keep it secret

H. Control of Anti-Competitive Practices in Licensing (Article 40)

 Allows members to address abusive IP licensing that restrains competition.

Limits of the “One-Size-Fits-All” Approach and Flexibilities under TRIPS

The TRIPS Agreement is often criticized for imposing a "one-size-fits-all" model of

intellectual property (IP) protection, requiring all WTO member states to follow minimum
standards of IP protection regardless of their levels of economic development, public
health needs, or technological capacity.

While TRIPS provides certain flexibilities to accommodate national differences, these have
practical limitations, especially for developing and least-developed countries (LDCs).
Here's an analytical overview:

🔹 Understanding “One-Size-Fits-All” in TRIPS

TRIPS mandates uniform minimum standards in all areas of IP: patents, copyright,
trademarks, geographical indications, and more. However, not all countries have:

 The infrastructure
 The technical capacity
 The legal systems
 The economic strength

to implement or enforce such standards in the same way.

This uniformity disregards national socio-economic priorities—e.g., access to medicines,

educational resources, or food security—which vary widely between developed and
developing nations.
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🔹 Key TRIPS Flexibilities and Their Purpose

To counterbalance strict IP rules, TRIPS includes flexibilities, such as:

 Compulsory Licensing (Article 31): Allowing governments to authorize use of a

patent without the owner's consent.
 Parallel Importation: Permits importation of legitimately sold products without the
patent holder’s approval.
 Transition Periods: More time for developing and least-developed countries to
implement TRIPS.
 Exclusion from Patentability (Article 27.2 and 27.3): For inventions contrary to
public order or for certain sectors like plants and animals.

⚠️ Limits and Challenges to These Flexibilities

Despite being legal provisions, these flexibilities are difficult to implement effectively due
to the following limitations:

1. Political and Economic Pressure

 Developed countries (notably the US and EU) and multinational corporations often
use bilateral trade agreements and economic sanctions to discourage use of TRIPS
flexibilities.
 Example: The US Special 301 Report criticizes countries like India and Brazil for
using compulsory licensing.

2. Lack of Legal and Technical Capacity

 Many developing countries lack the legal expertise, resources, or administrative

capacity to:
o Properly draft TRIPS-compliant legislation.
o Assess patentability and manage compulsory licenses.
o Defend their actions in international forums.

3. Limited Use of Compulsory Licensing

 Though allowed, very few countries have used compulsory licensing due to:
o Complex procedures.
o Political backlash from pharma companies.
o Dependence on foreign aid or trade.

4. TRIPS-Plus Provisions in FTAs

 Many developed countries negotiate Free Trade Agreements (FTAs) that require
more stringent IP rules (TRIPS-plus), reducing room for flexibilities.
o Example: US FTAs with Latin American countries often limit compulsory
licensing or extend patent terms.
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5. Interpretative Uncertainty

 The ambiguous language of TRIPS leads to uncertain interpretations, especially in

Articles 30–31 (limitations and exceptions), which deters proactive use by weaker
states.

6. Pharmaceutical Sector Constraints

 While the Doha Declaration (2001) reaffirmed public health rights, countries face
supply and technology dependence in producing or sourcing affordable generics.
 Example: Africa’s reliance on Indian generics makes them vulnerable to Indian patent
law changes.

7. Delayed Benefits for LDCs

 Transition periods have been extended (e.g., up to 2034 for pharma patents in LDCs),
but these are temporary and do not solve underlying structural inequities.

🔍 Case Examples Illustrating Limitations

a) Thailand (2007) – Compulsory License on HIV Drugs

 Issued licenses for Efavirenz and Kaletra.

 Faced severe pressure from US and pharma companies.
 Highlighted the tension between health needs and trade diplomacy.

b) India – Novartis Case (2013)

 Indian Supreme Court rejected patent for Glivec under Section 3(d).
 India faced international criticism, but used TRIPS flexibility effectively to prevent
evergreening.
 However, continuous US pressure and lobbying remain.

c) Canada – Apotex Export under Paragraph 6 System

 Canada used WTO’s Paragraph 6 mechanism to export drugs to Rwanda.

 The process was cumbersome and slow, used only once.
 Showed inefficiency of system intended to help countries without manufacturing
capacity.
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Unit 4

🔍 Key Issues and Challenges in Intellectual Property

1. Access to Medicines and Health Care

 Challenge: Strong patent protection, especially under the TRIPS regime, restricts
access to affordable drugs, particularly in low- and middle-income countries.
 Case: Novartis v. Union of India (2013) – India rejected a patent on a modified cancer
drug to prevent “evergreening” and preserve access to generics.
 Doha Declaration (2001) affirmed the right of WTO members to prioritize public
health, but flexibilities like compulsory licensing are hard to use.

2. Digital Piracy and Copyright Infringement

 Issue: Rapid digitalization makes it easy to copy, distribute, and modify protected
works (music, films, books, software).
 Enforcement is difficult across jurisdictions.
 Challenge: Balancing the rights of creators and freedom of expression / access to
knowledge.
 Example: WIPO Copyright Treaty (1996) introduced digital protections but
enforcement remains weak in many countries.

3. Biopiracy and Traditional Knowledge

 Problem: Corporations and researchers often patent traditional knowledge (TK) or

biological resources without consent or benefit sharing.
 Example: The patent on turmeric for wound healing was revoked after India proved
prior traditional use.
 Challenge: The global IP regime doesn’t adequately protect TK and indigenous
rights.
 Need for sui generis protection systems and inclusion in patent databases.

4. Patent Evergreening

 Issue: Companies file successive minor modifications to extend patent life and block
generic competition.
 Legal Response: India’s Patent Act Section 3(d) prevents patenting of minor
improvements unless they enhance efficacy.
 Challenge: Global pressure from pharma lobbies and TRIPS-Plus agreements to
dilute such safeguards.

5. IP Enforcement and Piracy

 Challenge: Many developing countries lack infrastructure to enforce IP rights

effectively.
 Weak enforcement affects both foreign investment and local creativity.
 TRIPS encourages enforcement, but without adequate funding or training,
implementation remains weak.
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6. Agricultural Patents and Food Security

 Problem: Patents on seeds, plant varieties, and genetically modified organisms

(GMOs) can limit farmers' rights.
 Issue of terminator seeds and dependency on MNCs.
 Conflicts with farmers' rights under laws like India’s Protection of Plant Varieties
and Farmers’ Rights Act (2001).
 Challenge: Balancing innovation with livelihood and food sovereignty.

7. Artificial Intelligence (AI) and IP

 Emerging Issue: AI can create works—paintings, music, inventions—raising

questions of authorship, ownership, and originality.
 Does the programmer own it, or the machine?
 Current IP laws do not clearly cover non-human authorship.
 WIPO and national legislatures are still grappling with regulatory approaches.

8. TRIPS-Plus Agreements and Policy Space Erosion

 Bilateral and regional trade agreements often include IP provisions that go beyond
TRIPS (e.g., extended patent terms, data exclusivity).
 These limit the policy space of developing countries to tailor IP laws to local needs.
 Examples: US FTAs with Peru, Colombia, and others.

9. IP and Climate Change Technology Transfer

 Issue: Patent protections hinder access to green technologies needed by developing

countries.
 Despite global agreements on climate action (e.g., Paris Agreement), lack of
affordable access to clean technologies creates inequality.
 Need for global IP sharing frameworks or patent pools for sustainability.

10. Over-Protection and Innovation Suppression

 Paradox: Excessive IP protection can stifle innovation by locking up knowledge and

hindering cumulative innovation.
 Especially in software and biotechnology sectors.
 Calls for open access models, creative commons licensing, and patent pools as
alternatives.
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Copyright Protection with Reference to Performer’s Rights and Artist Rights

✅ Introduction
Copyright law is designed to protect the rights of creators over their original works. It offers
economic and moral rights to authors of literary, musical, dramatic, and artistic works. Among
these, special attention is accorded to performers (such as singers, actors, dancers) and artists
(painters, sculptors, photographers) who contribute significantly to cultural production.
Over time, international conventions and national legislations have expanded to include these
stakeholders as rightsholders, deserving both recognition and legal protection for their
creative expressions.

🎭 Performer’s Rights

📌 Definition
Performers' Rights refer to the rights of individuals who perform artistic works—actors,
musicians, dancers, orators, etc. These rights ensure that performers have control over the use
of their performances, particularly in terms of recording, broadcasting, and reproduction.

📜 Legal Basis
a) International Conventions
 Rome Convention (1961): First major international treaty to recognize the rights of
performers.
 WIPO Performances and Phonograms Treaty (WPPT, 1996): Modernized
protections to include digital use and distribution.
 Beijing Treaty on Audiovisual Performances (2012): Grants performers moral and
economic rights in audiovisual works.
b) Indian Law
 Section 38 of the Copyright Act, 1957 (as amended in 2012) grants performers:
o The right to be identified as the performer.
o The right to restrain or claim damages for unauthorized use.
o Moral rights similar to those of authors.
 The 2012 Amendment inserted Section 38A and 38B, which:
o Provide performers with the exclusive right to authorize the broadcast,
communication, or distribution of their performance.
o Recognize moral rights, including the right to object to distortion or mutilation
of their performance.
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🧑⚖️ Important Case Law

 Neha Bhasin v. Anand Raj Anand (2006): Highlighted the rights of singers as
performers, especially regarding credit and royalty.

🎨 Artist Rights

📌 Definition
Artists' rights, especially of visual artists (painters, sculptors, etc.), include both copyright
protection for their works and moral rights—like the right to be associated with their work
and to object to distortion.

📜 Legal Basis
a) Moral Rights (Section 57, Copyright Act, 1957)
These are personal rights given to authors and artists, regardless of who owns the copyright:
 Right of paternity: To be identified as the author/creator.
 Right of integrity: To prevent distortion, mutilation, or modification that harms the
creator's honor or reputation.
b) Economic Rights (Section 14)
Includes:
 Right to reproduce the artwork.
 Right to exhibit the work publicly.
 Right to communicate it to the public or sell copies.
c) Resale Royalty (Droit de suite)
 Under Section 53A, artists are entitled to a resale share in the proceeds when original
works of art are resold through galleries or auction houses.
 This recognizes that the value of an artwork can increase over time and allows the
artist to benefit from such appreciation.

🧑⚖️ Relevant Case Law

 Amarnath Sehgal v. Union of India (2005):
o Landmark Delhi High Court case where the sculptor successfully sued the
government for unauthorized removal and mutilation of his mural.
o Reaffirmed the moral rights of artists under Section 57.
 18

Global Governance Towards Patents

✅ Introduction
Patents are a core component of intellectual property (IP) that provide inventors with exclusive
rights to their inventions for a limited period, typically 20 years. Given the cross-border nature
of trade, innovation, and technology, global governance of patents has become essential for
creating uniform standards, facilitating innovation, protecting rights, and balancing public
interest.
The international patent regime is governed by a network of treaties, organizations, and
enforcement mechanisms, aimed at harmonizing laws and enabling cooperation between
nations.

🏛️ Major International Institutions Governing Patents

1. World Intellectual Property Organization (WIPO)
 A specialized UN agency that plays a central role in promoting international
cooperation on IP laws and systems.
 Administers major treaties such as the Patent Cooperation Treaty (PCT) and the
Paris Convention.
 Provides dispute resolution, technical assistance, and capacity building for developing
countries.
2. World Trade Organization (WTO)
 Through the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS), WTO sets minimum standards for patent protection globally.
 TRIPS links IP protection with international trade, ensuring enforceability through the
WTO dispute resolution mechanism.

📜 Key International Agreements on Patent Governance

1. Paris Convention for the Protection of Industrial Property (1883)
 First international treaty on IP protection.
 Establishes the principle of national treatment (equal treatment for foreign and
domestic applicants).
 Introduced the right of priority, allowing inventors to file in multiple countries while
preserving the initial filing date.
2. Patent Cooperation Treaty (PCT, 1970)
 Administered by WIPO.
 Allows inventors to file a single international patent application to seek protection
in over 150 countries.
 19

 Streamlines the process, though the final granting of patents remains with
national/regional offices.
3. TRIPS Agreement (1995)
 Binds all WTO members to minimum standards for patent protection.
 Mandates 20-year patent terms and protection for all fields of technology, including
pharmaceuticals and biotechnology.
 Allows for certain flexibilities, such as compulsory licensing, to address public interest
needs.

⚖️ Key Principles of Global Patent Governance

 Territoriality: Patents are territorial; they must be applied for and granted in each
country separately (unless a regional mechanism like EPO is used).
 Non-Discrimination: TRIPS prohibits discrimination in patent protection based on
technology field or the origin of the invention.
 Balance of Interests: Seeks to ensure a fair balance between inventors’ rights and
public interest (e.g., access to medicine, education, and technology).

Trade Marks: Legal recognition

A trademark is a sign capable of distinguishing the goods or services of one enterprise from
those of others. It can consist of words, logos, symbols, colors, shapes, or even sounds. The
legal recognition of trademarks ensures protection of brand identity, consumer trust, and
commercial goodwill.
The importance of trademarks has grown significantly with globalization, prompting both
national laws and international treaties to provide robust frameworks for trademark
protection and enforcement.

⚖️ Legal Definition

🏛️ Under Indian Law:

 As per Section 2(1)(zb) of the Trade Marks Act, 1999:
“Trademark means a mark capable of being represented graphically and which is capable of
distinguishing the goods or services of one person from those of others…”
 It includes shapes of goods, packaging, and combination of colors.

🏛️ Under International Law:

 As defined in Article 15 of the TRIPS Agreement:
“Any sign, or combination of signs, capable of distinguishing the goods or services of one
undertaking from those of other undertakings, shall be capable of constituting a trademark.”
 20

🧑 Objectives of Legal Recognition of Trademarks

 Protect consumers from confusion and deception.
 Safeguard the goodwill and reputation of businesses.
 Promote fair competition.
 Facilitate investment in branding and marketing.
 Enable remedies for infringement and misuse.

📜 Legal Framework
1. National Law: The Trade Marks Act, 1999 (India)
 Provides for registration, protection, enforcement, and remedies.
 Recognizes well-known trademarks and service marks.
 Provisions for opposition, infringement, passing off, and penalties.
 Provides for international registration through the Madrid Protocol.
2. Common Law Recognition
 Even unregistered trademarks enjoy protection under the doctrine of passing off.
 Rooted in equitable principles: "No man is entitled to represent his goods as the goods
of another."
3. International Treaties
a) Paris Convention (1883)
 First treaty recognizing trademarks internationally.
 Grants national treatment and priority rights for registration.
b) Madrid System (Madrid Agreement & Protocol)
 Allows filing of one international application for registration in multiple member
countries.
c) TRIPS Agreement (1995)
 Sets minimum standards for trademark protection and enforcement.
 Requires WTO members to provide protection for distinctive signs, well-known
marks, and service marks.
d) Nice Agreement
 Establishes a classification system for goods and services in trademark registration.

🔹 Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. (2001)

 Supreme Court emphasized the importance of protecting consumer interest from
confusion due to deceptive similarity in trademarks.
 21

🔹 Daimler Benz Aktiegesellschaft v. Hybo Hindustan (1994)

 Rejected use of “Benz” by a clothing company; upheld the reputation of well-known
foreign marks.

🔹 Yahoo Inc. v. Akash Arora (1999)

 Delhi High Court protected the domain name “Yahoo” as a trademark under passing
off, even though it was unregistered in India at that time.

Trade secrets: Comparative analysis in India, EU and USA

Comparative Analysis of Trade Secret Protection: India, EU, USA
This table provides a comprehensive comparative analysis of trade secret protection
frameworks across India, the European Union (EU), and the United States (USA).
Aspect India European Union United States
(EU) (USA)
Definition No statutory Defined under Defined under
definition. Directive (EU) Defend Trade
Protected via 2016/943. Secrets Act (DTSA,
common law. 2016) and Uniform
Trade Secrets Act
(UTSA).
Key Criteria Must be secret, Same: not generally Same: secrecy,
commercially known, commercial commercial value,
valuable, and value, and secrecy and reasonable
protected by maintained. protection
reasonable steps. measures.
Governing Law - Indian Contract - EU Directive - DTSA, 2016
Act, 1872 2016/943 (federal)
- Tort law (Breach - Implemented via - UTSA (state laws)
of confidence) national laws - Economic
- IT Act, 2000 Espionage Act,
1996 (criminal law)
Civil Remedies Injunctions, Injunctions, Injunctions,
damages, breach of damages, seizure of damages (actual
confidence claims. infringing goods. and punitive),
attorney’s fees,
civil seizure.
Criminal Remedies No specific trade Varies by member Yes. Theft or
secret crime. May state (e.g., Germany espionage
punishable under
Economic
 22

fall under IPC or IT allows criminal Espionage Act

Act. prosecution). (1996).
Registration ❌ Not required ❌ Not required ❌ Not required
Required?
Term of Protection Unlimited, as long Same – indefinite Same – indefinite,
as secrecy is duration. conditional on
maintained. secrecy.
Protection in Via NDAs, Requires NDAs and NDAs, non-
Employment employment confidentiality compete clauses
contracts, under Directive (restricted in some
confidentiality compliance. states like
clauses. California).
Court Jurisdiction Civil courts, High National courts of Federal courts
Courts for IP/tech member states. under DTSA + state
disputes. courts under UTSA.
Famous Cases John Richard Brady National decisions Epic Systems v.
v. Chemical vary, based on local TCS (2016)
Process Equipments implementation. DuPont v.
(1987) Christopher (1970)
Anil Gupta v.
Kunal Dasgupta
(2002)
Compliance with ✅ Yes – through ✅ Yes – via ✅ Yes – through
TRIPS (Art. 39) general legal Directive. DTSA and UTSA
principles. provisions.
Strengths Flexible via tort & Harmonized Strong
contract law. regional enforcement;
framework; unified federal jurisdiction;
standards. civil + criminal
protection.
Weaknesses No dedicated Variations in State law
legislation; national variations; overuse
inconsistent implementation; of NDAs in some
enforcement. weak criminal laws. sectors.
Need for Reform High – need a Better criminal Address AI-
codified trade standardization generated
secrets law. among member information and
states. interstate
enforcement
consistency.
 23

Unit 5

1. Benefit Sharing and Contractual Agreements

 Definition and Principle

o Access and Benefit Sharing (ABS) refers to the fair and equitable sharing of
benefits arising from the use of genetic resources and associated traditional
knowledge (TK).
o Central to the Convention on Biological Diversity (CBD), this concept ensures
that indigenous communities benefit when their biological resources or
knowledge are used commercially.
 Mechanisms of Implementation
o Implemented through Prior Informed Consent (PIC) and Mutually Agreed
Terms (MAT).
o These legal instruments are designed to protect the rights of knowledge
holders and ensure fair compensation.
 Significance for Developing Countries
o ABS frameworks help prevent biopiracy where corporations exploit local
resources without recognition or reward.
o Strengthens local governance and empowers communities economically.
 Challenges
o Lack of legal awareness among indigenous populations.
o Disputes over ownership and documentation of traditional knowledge.
o Bureaucratic delays in implementing MATs.
 Examples
o The Kani tribe in Kerala, India received benefit-sharing from the use of
Arogyapacha in a commercial drug.
o National frameworks such as India’s Biological Diversity Act, 2002 mandate
ABS compliance.

2. International Treaty on Plant Genetic Resources for Food and Agriculture

(ITPGRFA)

 Background and Objectives

o A treaty by the Food and Agriculture Organization (FAO), adopted in 2001.
o Aims to ensure global food security, promote sustainable agriculture, and
recognize farmers’ contributions to plant diversity.
 Multilateral System (MLS)
o Facilitates access to 64 food crops critical to global nutrition.
o Countries share seeds and genetic material under standardized agreements.
 Benefit-Sharing Provisions
o Includes non-monetary (e.g., technology transfer, capacity building) and
monetary (royalty payments) benefits.
o These are channeled into a Benefit-Sharing Fund used for conservation and
development.
o
 24

 India’s Participation
o India is a party to ITPGRFA and has aligned it with the Protection of Plant
Varieties and Farmers’ Rights Act (PPVFR), 2001.
o Recognizes both breeders' and farmers' rights.
 Challenges and Conflicts
o Tensions between breeders’ IP rights and farmers' traditional rights to save
and exchange seeds.
o Concerns over biopiracy when local varieties are patented abroad.
 Need for Harmonization
o Aligning the ITPGRFA with TRIPS and national IP systems remains a
challenge.
o Calls for greater transparency and community involvement in benefit-
sharing.

3. Patent Policy and Farmers’ Rights

 Global Patent Regime and TRIPS

o TRIPS allows WTO members to protect plant varieties through patents or sui
generis systems.
o Many developed countries grant patents on genetically modified crops and
plant technologies.
 India’s Approach
o India explicitly excludes patents on plants and seeds under Section 3(j) of
the Patents Act, 1970.
o Implements a sui generis system through the PPVFR Act, 2001, offering
unique protection to farmers and breeders.
 Farmers' Rights Under PPVFR
o Farmers can save, use, exchange, and sell seeds like before, provided they
don’t sell branded seeds.
o Recognizes farmers as custodians of biodiversity and entitles them to
rewards for conserving traditional varieties.
 Controversies and Legal Battles
o Cases like the Monsanto v. Nuziveedu Seeds involved disputes over seed
royalties and farmers' obligations.
o Questions about control over genetically modified seeds and dependency on
multinational corporations.
 Biopiracy Concerns
o India has faced incidents where traditional crop varieties like basmati rice or
neem were patented abroad.
o Led to the creation of Traditional Knowledge Digital Library (TKDL) and
strong opposition at international forums.
 Way Forward
o Ensure stronger implementation of farmers' rights.
o Prevent patent regimes from undermining agro-biodiversity and seed
sovereignty.
 25

4. CBD and Nagoya Protocol

 CBD (1992)
o A landmark treaty recognizing state sovereignty over biological resources.
o Enshrines conservation, sustainable use, and equitable benefit sharing as
its three key objectives.
 Nagoya Protocol (2010)
o A supplementary agreement to CBD focusing on Access and Benefit Sharing
(ABS).
o Mandates legal certainty and compliance mechanisms for international users
of genetic resources.
 Key Provisions
o Parties must establish domestic ABS legislation and facilitate MAT with
communities.
o Obligates users to disclose source and obtain prior informed consent (PIC).
 India’s Implementation
o Enacted the Biological Diversity Act, 2002.
o Established National Biodiversity Authority (NBA), State Boards, and
Biodiversity Management Committees.
 Challenges
o Low awareness among local communities.
o Difficulty in tracking and enforcing compliance by foreign entities.
o Tension with intellectual property regimes, particularly in patent disclosures.
 Impact and Reforms
o Provides a legal foundation to protect traditional knowledge and curb
biopiracy.
o Still requires capacity building, simplification of procedures, and
international cooperation.

5. UNESCO: Protection of Folklore and Cultural Expressions

 Intangible Cultural Heritage (ICH)

o UNESCO’s 2003 Convention aims to safeguard oral traditions, performing
arts, rituals, and craftsmanship.
o Recognizes cultural practices as essential to identity, diversity, and heritage.
 Cultural Expressions and IP
o Traditional expressions often do not fit within conventional IP frameworks.
o There is no global IP system that comprehensively protects folklore or oral
traditions.
 Challenges in Protection
o Difficulty in attributing collective ownership.
o Issues of misappropriation by corporations or foreign entities without
benefit-sharing.
o Lack of economic returns to source communities.
 UNESCO Measures
o Maintains the Representative List of Intangible Cultural Heritage.
o Promotes awareness, documentation, and legal protections through national
legislation.
 26

 India’s Role
o Rich cultural diversity with over 14 elements listed as ICH.
o Example: Koodiyattam, Ramlila, Yoga, etc.
o India also integrates cultural rights into local laws and tourism policies.
 Need for Reform
o Integration of customary law into legal systems.
o Creation of sui generis protections that account for the communal and
evolving nature of culture.

6. WIPO Developments on TK and Traditional Cultural Expressions

 WIPO IGC (Intergovernmental Committee)

o Formed in 2000 to address IP issues related to genetic resources, TK, and
traditional cultural expressions (TCEs).
o Seeks to draft international legal instruments to protect community rights.
 Core Issues Being Negotiated
o Definitions of TK and TCEs.
o Scope of protection (commercial vs moral rights).
o Disclosure of origin in patent applications.
 India’s Contribution
o Proactive through the Traditional Knowledge Digital Library (TKDL).
o Prevents foreign patenting of ancient Indian medicinal practices like
Ayurveda, Unani, and Siddha.
o India has called for mandatory disclosure in patent filings.
 Draft Provisions Under Discussion
o Creation of sui generis systems recognizing customary laws.
o Protection against unauthorized commercial use.
o Mechanisms for prior informed consent and equitable benefit sharing.
 Challenges in Finalizing Treaty
o Disagreements between developed and developing nations.
o Developed countries worry about effects on innovation and existing patent
systems.
o Lack of consensus on enforcement mechanisms.
 Future Prospects
o A treaty could fill existing gaps in the TRIPS Agreement.
o Important for empowering indigenous and local communities globally.