Protecting Intellectual Property - Essay Example

Protecting Intellectual Property Intellectual property protection is very important to any business and it is critical to fostering innovation. Intellectual property refers to creations of mind such as literary and article works, symbols, inventions, names and images that are used in business uniquely. It includes copyright, patent and trade mark. If these are not protected globally, the business cannot gain the benefits of their creative works. It is painful that every efforts that a business has been putting in creatively to develop and improve further through its unique brand name, business plan and strategy, images, trade mark and patent have been stolen by other businesses. Some of the US based companies and exporting manufacturers are not aware of piracy, counterfeiting and theft of their patent or trademark in other countries. It was reported that the brand name, products, packaging style and business plans of some US companies have been copied by some businesses abroad. For this reason, it is recommended that businesses must seek trademark and patent protection in their concerned foreign market ahead of exporting to such markets. The protection of intellectual properties varies widely around the world. When intellectual property becomes more important in international trade, the differences between different protection acts become a source of problem in international economic relation. In 1994, the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was negotiated at the end of Uruguay Round of the GATT administered by World Trade Organization. TRIPS put forward requirements that countries laws are expected to meet rights for protecting copyrights, geographical indications, integrated layout- designs, patents, and industrial designs. The Anti- counterfeiting Trade Agreement (ACTA) is currently negotiated by the governments of United State, Switzerland, Australia, New Zealand, South Korea, Japan, Canada and Mexico. ACTA imposed strong enforcement of intellectual property pertaining to internet activity and information based trading. Current situations of TRIPS The WTO’s TRIPS agreement attempts to reduce the gaps in protecting intellectual property around the world and to bring them under systematic international rules. Philippe Sands says that the 1994 WTO TRIPS agreement establishes a regime requiring WTO members to make patents available for any inventions, whether product or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and applicability. It also requires that patents be available and patents rights be enjoyable without discrimination as to the place of invention and regardless of whether products are imported or locally produced (Philippe Sands. p.1050). Bruce A Lehman states that TRIPS agreement sets significant standard for the protection of copyright and related rights. Perhaps, most importantly, it contains provisions to ensure that parties to the TRIPS agreement fully implement obligations under it (Bruce A Lehman, p. 137). The TRIPS agreement has an additional principle that intellectual property protection must contribute to technical innovation and the transfer of the technology. TRIPS agreement confirms that all types of computer programs are literary works and requires each WTO country to protect them. It also expands international copyright rules to cover rental rights. Authors of computer programs and sound recording producers must have the right to prohibit the commercial rental of their works to the general public. The agreement provides right to the performers of films and other programs that unauthorized copying should be prevented. The agreement not only defines what types of signs and marks can be eligible for protection as trademarks but also it presents minimum rights on their owners. Trademarks that have already become known well in a country can enjoy additional protection. When a place name is used to identify a product it is said to be geographical indication. It sometimes denotes the characteristics of the product like Champagne. The TRIPS agreement instructs countries to prevent unauthorized use of place names because using a place name when a product is manufactured in some other places, it may mislead the public and it even can lead to unfair trading practices. For wines and spirits, the agreement provides higher level of protection. Since TRIPS was negotiated under WTO, there always was growing level of arguments against it from developing countries and non-governmental organizations. By enforcing intellectual property protection, it ensures incentives for innovation and hence the agreement can be viewed as a way of ensuring the improvement of standard life. One of the controversies was over AIDS drug in Africa. This controversy has not led to a revision of TRIPS agreements, despite the fact that patents have played major role in maintaining higher drug costs for public health programs. In Doha declaration, governments agreed that the TRIPS agreements do not prevent members from taking measures to protect public health. According to 2003 agreement, domestic market requirement has been loosened and developing countries are allowed to export to other countries where there is a national health problem. The TRIPS agreements also have been criticized on the ground of technology. TRIPS hurting developing countries It is widely criticized that TRIPS resulted in reduced welfare for the world as a whole and developing countries in particular. There are two characteristics for innovation namely non rivalry in consumption and non exclusion. In non rivalry feature of the innovation, the use of innovation by another person does not reduce its availability to the existing users. Economically, when the innovation has been made the marginal social cost of its consumption would be zero. The non exclusion feature of the innovation denotes that when an innovation is there, others cannot be prevented from using it. When there is zero marginal cost of supplying innovation, the innovations should be provided freely to whoever wants it. The non exclusion property says that short lived patents may be insufficient for innovators to recover their costs. Rather than being driven by piracy concerns, which focuses exclusively on the interests of innovators, good policy seeks a balance between these two opposing factors (Arvind Pangaria- 1999) Proposed ACTA The negotiations around Anti- Counterfeiting Trade Agreements stand for a cooperative endeavor by the governments so as to respond to the increase in international counterfeit activities and pirated copyright protected works. The main objective of ACTA is to establish higher benchmark for intellectual property rights enforcement that country can join on voluntary basis. International cooperation is the basic component of ACTA by which governments agree to exchange information with each other in order to protect intellectual property. Potential provisions include capacity building and technical assistance in progressing enforcement, and international cooperation among enforcement agencies. Provisions include formal or informal advisory groups, fostering of specialized intellectual property expertise within law enforcement structures so as to handle intellectual property right cases effectively. Potential provisions also include criminal enforcement, border measures, civil enforcement, optical disc piracy and other related issues relating to internet distribution. WTOs’ TRIPS has been criticized that it does not form to be an effective law to protect technological and software counterfeits, but ACTA provides potential enforcement against both technological and software piracies. Now, the US administration proposes to share all the information about Americans with the governments of other countries. Thus, ACTA’s fundamental objective is to build a global network of governments that spy on their people and then easily share that information with other governments as well. US Trade Representative’s vision is to coordinate with non-industry groups like educators and librarians. ACTA’s provisions include creating public and private advisory groups, setting in specialized Intellectual Property Right expertise in law enforcement structures and helping consumer public awareness campaigns. ACTA is also bringing strong legal framework to bring pirates to the court of justice, but that particular individual should be convicted of doing malpractice. The ACTA endeavor aims at achieving a framework for countries committed to strong intellectual protection to more effectively combat the intellectual property rights infringement today. The ACTA agreement will possess a leadership attitude establishing a positive example for nations that aim at strengthening intellectual property rights enforcement. It also strengthens the global fight against pirates and counterfeiters, who steal from businesses and workers, discourage innovation and creativity and threaten health and safety. The agreement’s main goal is to achieve a new kind of agreement combining commitments to strong laws with a structure for ongoing co operation and the promotion of effective enforcement practices. This legal approach actually looks at strengthening legal structures as well as bridging the gap between laws and strong enforcement on the ground. Same time, the WTO’s TRIP agreement defined international minimum standard for intellectual property rights enforcement which is the base on which ACTA agreement is established. Thus, ACTA changes the existing enforcement extents and it extends the scope of intellectual property right internationally. Some may ask what the relevance of ACTA is if more countries are not part of it and some countries sign up only for voluntary agreement basis. The ACTA will provide leadership to improved protection and enforcement of intellectual property rights and it enhances partnership with countries that share a similar level of ambition. Piracy and counterfeiting are increasing everywhere and are becoming a big concern for all countries. They also affect a particular country’s economy adversely and public health and safety also will be threatened. So, in short, through enhanced leadership and partnership, the ACTA can improve the global climate for intellectual property rights enforcement in those methods that will eventually benefit all countries. Conclusion This paper details the present conditions of WTO’s TRIPS agreements and the proposed ACTA agreements in protecting intellectual properties worldwide. Through enhanced leadership and partnership with countries, it is expected that the ACTA can form a legal framework to protect intellectual properties globally. References Arvind Pangaria (1999), TRIPS and WTO, An Uneasy Marriage, WTO Bruce A Lehman (1995), Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights, DIANE Publishing Edwin Mansfield (1995), Intellectual Property Protection, Direct Investment, and Technology Transfer: Germany, Japan, and the United States, World Bank Publications, 1995 Philippe Sands (2003), Principles of International Environmental Law, Cambridge University Press Robin Gross (March 2008), IP Justice White Paper on the Proposed Anti-Counterfeiting Trade Agreement (ACTA), Retrieved 9/11/2008 from http://ipjustice.org/wp/2008/03/25/ipj-white-paper-acta-2008/ Read More