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ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT Page | 2
SUBMITTED TO: Ghulam Murtaza Korai SUBMITTED BY: Mehrunissa Jalil STUDENT ID: 10539
ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT Page | 3
Table of Contents
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ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT Page | 5
NATIONAL TREATMENT
1. Each Member shall accord to the nationals of other Members treatment no less favorable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the omissions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided under this Agreement. Any Member availing itself of the possibilities provided in Article 6 of the Berne Convention (1971) or paragraph 1(b) of Article 16 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for TRIPS. 2. Members may avail themselves of the exclusions permitted under paragraph 1 in relation to judicial and administrative procedures, including the term of an address for service or the appointment of an agent within the rule of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not varying with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.
MOST-FAVORED-NATION TREATMENT
With regard to the protection of intellectual property, any advantage, favor, privilege or immunity granted by a Member to the nationals of any other country shall be accorded directly and totally to the nationals of all other Members. Exempted from this obligation is any advantage, favors, privilege or immunity accorded by a Member: a. Arising from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property; b. Approved in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of
ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT Page | 6 national treatment but of the treatment accorded in another country; c. in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement; d. deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.
ON
ACQUISITION
OR
MAINTENANCE
OF
The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
EXHAUSTION
For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.
OBJECTIVES
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
PRINCIPLES
1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
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Intellectual property relates to items of information or knowledge, which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information or knowledge reflected in them. Intellectual property rights are also characterized by certain limitations, such as limited duration in the case of copyright and patents. The importance of protecting intellectual property was first recognized in 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. Both treaties are administered by the World Intellectual Property Organization (WIPO). Countries generally have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and to the rights of the public in accessing those creations. The second is to promote creativity, and the dissemination and application of its results, and to encourage fair trade, which would contribute to economic and social development.
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ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT Page | 9 a. As to Patents: Patents granted in different contracting States for the same invention are independent of each other. b. The grant of a patent may not be refused, and a patent may not be invalidated, on the ground that the sale of the patented product, or of a product obtained by means of the patented process, is subject to restrictions or limitations resulting from the domestic law. c. Each contracting State that takes legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exclusive rights conferred by a patent may do so only with certain limitations. Thus, a compulsory license (license not granted by the owner of the patent but by a public authority of the State concerned) based on failure to work the patented invention may only be granted pursuant to a request filed after three or four years of failure to work or insufficient working of the patented invention and it must be refused if the patentee gives legitimate reasons to justify his inaction. d. As to Marks: The Paris Convention does not regulate the conditions for the filing and registration of marks which are therefore determined in each contracting State by the domestic law. Thus, no application for the registration of a mark filed by a national of a contracting State may be refused, nor may a registration be invalidated, on the ground that filing, registration or renewal has not been affected in the country of origin. e. Where a mark has been duly registered in the country of origin, it must, on request, be accepted for filing and protected in its original form in the other contracting States. Nevertheless, registration may be rejected in well-defined cases, such as when the mark would infringe acquired rights of third parties, when it is devoid of typical character, when it is contrary to morality or public order, or when it is of such a nature as to be liable to deceive the public. f. If, in any contracting State, the use of a registered mark is compulsory, the registration cannot be canceled until after a reasonable period, and only if the owner cannot justify his inaction.
g. Each contracting State must refuse registration and prohibit the use of marks which constitute a reproduction, imitation or translation, liable to create confusion, of a mark considered by the competent authority of that State to be well known in that State as being already the mark of a person entitled to the benefits of the Convention and used for identical or similar goods. h. Each contracting State must likewise reject registration and prohibit the use of marks which consist of or contain without authorization, armorial bearings, State emblems and official signs and hallmarks of contracting states, provided they have been communicated through the International Bureau of WIPO. The same provisions apply to
ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT P a g e | 10 armorial bearings, flags, other emblems, abbreviations and names of certain intergovernmental organizations. i. Collective marks must be granted protection. I. As to Industrial Designs: Industrial designs must be protected in each contracting State, and protection may not be forfeited on the ground that the articles incorporating the design are not manufactured in that State.
II. As to Trade Names: Protection must be granted to trade names in each contracting State without the obligation of filing or registration. III. As to Indications of Source: Measures must be taken by each contracting State against direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer or trader. IV. As to Unfair Competition: Each contracting State must provide for effective protection against unfair competition. j. The Paris Union, established by the Convention, has an Assembly and an Executive Committee. Every State member of the Union which has adhered to at least the administrative and final provisions of the Stockholm Act (1967) is a member of the Assembly. The members of the Executive Committee are elected from among the members of the Union, except for Switzerland, which is a member ex officio.
The establishment of the biennial program and budget of the WIPO Secretariatas far as the Paris Union is concernedis the task of its Assembly. The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958 and at Stockholm in 1967, and it was amended in 1979. The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO.
THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (1886)
The Convention rests on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries which want to make use of them. 1. The three basic principles are the following:
ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT P a g e | 11 a. Works originating in one of the contracting States (that is, works the author of which is a national of such a State or works which were first published in such a State) must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals (principle of national treatment) b. Such protection must not be conditional upon compliance with any formality (principle of automatic protection) c. Such protection is independent of the existence of protection in the country of origin of the work (principle of the independence of protection). If, however, a contracting State provides for a longer term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases 2. The minimum standards of protection relate to the works and rights to be protected, and the duration of the protection: a. As to works, the protection must include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression (Article 2(1) of the Convention). b. Subject to certain permitted reservations, limitations or exceptions, the following are among the rights which 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, dramatic-musical and musical works, the right to recite in public literary works, the right to communicate to the public the performance of such works, the right to broadcast (with the possibility of a contracting State to provide for a mere right to equitable remuneration instead of a right of authorization), the right to make reproductions in any manner or form (with the possibility of a contracting State to permit, in certain special cases, reproduction without authorization provided that the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author, and with the possibility of a contracting State to provide, in the case of sound recordings of musical works, for a right to equitable remuneration),
ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT P a g e | 12 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 Convention also provides for moral rights, that is, the right to claim authorship of the work and the right to object to any mutilation or deformation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to the authors honor or reputation. c. As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the authors death. There are, however, exceptions to this general rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years after the work has been lawfully made available to the public, except if the pseudonym leaves no doubt as to the authors identity or if the author discloses his identity during that period; in the latter case, the general rule applies. In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public (release) orfailing such an eventfrom the creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of such a work 3. Countries regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations may, for certain work and under certain conditions, depart from these minimum standards of protection with regard to the right of translation and the right of reproduction. 4. The Berne Union has an Assembly and an Executive Committee. Every country member of the Union which has adhered to at least the administrative and final provisions of the Stockholm Act is a member of the Assembly. The members of the Executive Committee are elected from among the members of the Union, except for Switzerland, which is a member ex officio. 5. The establishment of the biennial program and budget of the WIPO Secretariat as far as the Berne Union is concernedis the task of its Assembly. 6. The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979. The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO.
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ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT P a g e | 14 decade, so WIPOs role has also evolved as it helps in forming these new systems and negotiate with every member to assist them in forming and protecting the laws and regulations for intellectual property rights. Also WIPO plays a key role in the area of enforcement of intellectual property rights. This area has expanded to new dimensions, for instance: Copyright and related rights have further increased their boundaries with help of technology and developments in IT, it has brought new ways dramatically as technological developments have brought new ways of spreading the creations globally through such forms of communication as satellite broadcasting, compact discs, DVDs and the Internet. WIPO is closely involved in the on-going international debate to shape new standards for copyright protection in cyberspace. WIPO administers the following international treaties on copyright and related rights: Berne Convention for the Protection of Literary and Artistic Works Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite Geneva Convention for the Protection of Unauthorized Duplication of Their Phonograms Producers of Phonograms Against
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations WIPO Copyright Treaty (WCT) WIPO Performances and Phonograms Treaty (WPPT)
WIPO as an organization also has a facility of an Arbitration and Mediation Center, where multiple services are offered like the resolution of international commercial disputes between private parties involving intellectual property. The subject matter of these proceedings includes both contractual disputes (such as patent and software licenses, trademark coexistence agreements, and research and development agreements) and non-contractual disputes (such as patent infringement). The Center is also now recognized as the leading dispute resolution service provider for disputes arising out of the abusive registration and use of Internet domain names.
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CONCLUSION
Intellectual property these days is a very critical factor for many business models, there are individual organizations with hundreds of patents because that intellectual property gives them the edge, make them unique, its what makes them stand apart in the market, like windows, Coke formula, and countless others. There have been a lot of incidents where whole organizations lost their position in the market due to the loss of intellectual property. So in order to stop that from happening everyone should know the importance of the intellectual property and how to protect it and for that the organization should study the countrys intellectual property rights and follow the best available options which will drastically reduce the risk of losing the companys intellectual property. Commitment to protect the intellectual property of a company should be developed and nurtured at all levels of the organization. Actually the intellectual property laws are still not perfect they have loop holes so the things that cover are limited for instance the copyright protects only the expressions of an idea, not itself; violation is not occurred if the claimant cannot prove the defendants contact to the material in the question. And there is also rules such as under fair use doctrine, anyone can use (borrow) few indefinable parts of the material that is supposed to be protected under IP laws. Although these users are not pirates but merely those who make copies for their own convenience and enjoyment, not in pursuit of illegal profits, still this may injure this protected works own customers. As for Patents, a patented device may be reengineered by a third party that will not be considered as infringer if the new assembled device performs equivalent processes differently. Also, as described previously, a digital content product shall not be defined as a tangible asset or an intangible asset because there are rights from the intellectual property system for the origin of the product content and other rights from the Civil Code for the product itself. Most content can be protected by the copyright system, yet some types of content cannot fulfill conditions of intellectual property protection, such as a database. Due to the complication of rights in a digital content product/service, a digital content company sometimes needs to deal with various rights owners before it is able to sell its product. Accordingly end users usually do not build any direct relationship with the rights owners, but obtain a product/service that consists of various rights. So there are areas where there Is still a lot of potential for improvement and thus WIPOs role is very important in order to keep on improving these laws and protect the rightful owners of intellectual property.
REFERENCES
http://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm
ROLE OF DIFFERENT CONVENTIONS INCLUDING WTO FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHT P a g e | 16 http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html http://www.wipo.int/treaties/en/ip/paris/summary_paris.html http://www.wipo.int/treaties/en/ip/berne/summary_berne.html http://www.inta.org/TrademarkBasics/FactSheets/Pages/InternationalTreaties.aspx http://kalyan-city.blogspot.com/2011/03/wto-trips-trade-related-intellectual.html