Abstract
The field of technological advancement has been rapidly growing over the past few years. This advancement has led to a growing demand for the protection, security and enforcement of the innovations, creativity and ideas at a global stage. When the covid-19 befall, no one in the world was ready, leading us to debate over the intellectual rights of vaccines and at the same time the future of intellectual property in International Legislations. The paper aims to discuss the present stage of IP laws and treaties, the emerging trends and challenges and try to understand the potential directions of IP law in future by analysing the technological advancements, the rights of the people, access to knowledge on the subject and evolving of IP laws in coming times.
Keywords Technological Advancement – Intellectual Rights – Intellectual Property – International Legislations – Emerging Trends – Challenges
Introduction
Intellectual property (IP) refers to all initial inventions of a human’s intellect, for example the arts, literature, technology or science. Intellectual Property Rights. IPR is a term used to refer to legal rights granted for periods of time by an inventor or creator in order to protect the invention or creation. These Legal Rights give the inventor, writer and his or her assignee a sole right in full exercise of their invention for any period of time. Intellectual property is often differentiated in two categories, Industrial Property and Copyright and related rights. The fact that intellectual property plays an important role in today’s economic landscape is well known. Also, it was demonstrated that the intellectual labour associated with innovation should be given due attention in order to contribute to public good. In fact, with little attention paid to external impacts, many nations are using their resources in ways they see as benefiting them. Many countries are not offering adequate protection and restricting rights available to them under their patent, copyright or trademark law with a view to protecting their own interests in the IP field. The system of Intellectual Property requires to balance the rights and interests of different groups like creators, businesses, low as well as high income countries.[1]
Intellectual property and IPR protection are increasingly important to global economics, both developed and developing countries alike, which is driven by innovation but also fuelled by knowledge, creativity and technology. WIPO (World Intellectual Property Organization) is an international forum that provides intellectual property services, policies, information and cooperation. In 1974, the Agency was established in 1967, becoming a specialised United Nations agency. There are four main elements of WIPO’s work- Shaping international rules, delivering global services, Cooperating with countries and partners to make IP work for development and Providing information and shared infrastructure. This organisation helps the countries to bring out a shared response towards the changes surrounding technological advancement and in the field of IPR.
The area of research for the focuses on the different treaties for intellectual property, how though the legislations provide a minimum standard do not have proper procedures for the countries to adhere and how does it affect the presently increasing demand of the emerging sector of intellectual property in international space as countries engagement with each other in trade and other aspects require us to understand the importance of having a more specified procedures in this field.
Research methodology
The research relies on secondary sources of data that analyses in depth the drawbacks, lack of specified procedures and laws in international level. The various sources relied upon are research papers, treaties, bilateral and multilateral agreements, TRIPS agreement, WIPO and various conventions.
Brief history of Intellectual Property
The laws and administrative procedures relating to IPR have their roots in Europe. The first known copyrights appeared in Italy. Venice can be considered the cradle of the IP system as most legal thinking in this area was done here.[2] The first very important step taken to protect the intellectual works of the creators was the Paris Convention for the Protection of Industrial Property adopted in the year 1883. Subsequently, the French writer Victor Hugo presented a draft on international copyright agreement. Later in 1886, after three years of conferences, the Berne Convention for the Protection of Literary and Artistic Works formed. In 1893 the decision to combine the Paris and Berne conventions led to the formation of the United International Bureaux for the Protection of Intellectual Property (BIRPI) based in Berne, Switzerland. After 77 years, BIRPI was transformed to become The Convention establishing the World Intellectual Property Organization (WIPO) in 1970 and in 1974 joined the United Nations as a specialized Agency.
Current state of Intellectual Property in International Law
With the major advancement in industry standards since the 20th century a major development is observed among the countries as well as laws that govern intellectual property at both National and International level. WIPO convention governs the global IP field and administers various treaties and agreements that allows countries to protect their IP services. Among the major treaties and agreements involved are Beijing Treaty on Audiovisual Performances, Berne Convention, Paris Convention, Patent Law Treaty, Rome Convention, Trademark Law Treaty, WIPO Copyright Treaty (WCT), WIPO Performances and Phonograms Treaty (WPPT), Patent Cooperation Treaty (PCT) and Vienna Agreement.
Berne convention deals with the rights of authors in protecting their work providing them means to control how, who and on what basis their work is being used. It focuses on three main principles i.e. the principle of national treatment, principle of automatic protection and the principle of independence of protection.
The application of Paris Convention is focused in the widest sense and applies to all industrial property like patents, service names, utility model while also repressing unfair competition. The three main principles under this convention are national treatment, right of priority and common rules.
The Rome Convention guarantees protection in broadcasts for broadcasting organisations, in phonograms for manufacturers of phonograms, and in performances for performers.[3] Under this convention phonograms are interpreted as aural fixation of sounds of a performance or of other sounds.
These three conventions play a significant role in the TRIPS Agreement.
The provisions relating to the protection of related rights are also contained in the TRIPS Agreement. These provisions differ in several respects from those laid down in the Rome Convention and in the Geneva Convention for the Protection of Phonogram Producers against Infringement of their Phonograms (1971).
The principles of Berne convention under the TRIPS agreement are binding on those members of WTO (World Trade Organization) who are not party to the convention. In addition, the TRIPs Agreement also provides for “most-favoured nation treatment”, under which benefits granted by a WTO member to nationals of another country must also be granted to nationals of all WTO members. Under the TRIPs Agreement, computer software and, in certain circumstances, audio-visual works have an exclusive right to rent.
In accordance with the provisions of the agreement, it also says that any period of protection calculated on a life-extension basis shall be at least fifty years from the date on which the work was first authorized to be published, or, in the absence of such a date, fifty years from the time of the work’s creation. This provision does not apply, however, to photographic works or to applied art.
It is important to note that WTO Members, including those that are not parties to Berne Convention, are subject to the substantive law requirements of Berne Convention, with the exception of WTO Members that are not party to Berne Convention that are not subject to the moral rights requirements of the Convention.
Ongoing advancements in Intellectual Property
Intellectual Property aims to bridge the gap between organizations and entrepreneurs, enabling them to understand that IP is an integral part of their goals and business strategies, regardless of the sector they are in. IP may be efficiently leveraged to bring inventions, brands, and companies to market, maximising earnings with the aim of entering foreign markets. This is done by using the experience of specialists.
Additionally, IP rights are being further safeguarded in a number of industries, including pharmaceuticals with cutting-edge cannabis protection solutions, pharmaceutical technology protection strategies, scientific innovation, and counterfeiting safety solutions.
There are also new solutions for the Development and Protection of FoodTech Incidents, Greater Linking of Organisms and IP Solutions for the Prevention of Anti-piracy in the Food Sector.
For the Retail sector, there will be an emphasis on innovation strategies that focus on the shopping experience, as well as a clear boom in Brand Protection with current protection figures such as Famous Brands or Sound or Smell.
Since 2021, the use of NFTs has grown and gained great importance as it enables artists to make money from their digital works where the blockchain ensures their authenticity. It is expected that the usage of NFTs will increase in video games where players will be able to create their own characters and NFTs will support them. Some fashion companies even use their own NFTs to make their own apparel and shoes. In order to respond to future developments in virtual and social reality, including an immersive metaverse where users may immerse themselves in the actual world without having to leave their homes, experts also find new market niches via innovation. The legislation must safeguard IP at this stage since brands are eager to emerge in this cosmos, creating a vast area of possibility.
Blockchain has been growing for a few years from an IP and commercial point of view, and that’s why there’s been an increase in patent applications for blockchain-related inventions around the world. But even with all the patent filings, there’s still not a lot of case law out there that can help us figure out what’s and isn’t patentable for blockchain.
As the main strategy in every organization’s R&D process, intellectual property (IP) plays a crucial role in the effective realisation of results and is essential to the creation of ideas, products, and brands. Similar to how invention and creativity have shown that competition exists even in the face of difficulty, IP is a crucial element in the economic growth of nations. This is a result of the spread or development of ideas or technologies, and IP is crucial to their effective operation and commercial use.
In 2021, the global patent application rate returned to pre-COVID levels, with 3.4 million applications filed worldwide. This was marginally higher than the 3.3 million applications filed in 2018. Global patent applications increased 3.6% compared to 2020, following a 1.5% increase in 2020 following a 3% decrease in 2019. The European Patent Office (EPO) (8,432), was the main driver of growth in 2021.[4]
In the wake of the coronavirus pandemic, countries around the world raced to develop a vaccine to combat the disease. While some high-income countries were successful in developing a vaccine, the effectiveness of these vaccines was in question. Before the issue became a commercial one, India, South Africa, and other countries sought a Temporary Suspension of Intellectual Property Rights for the duration of the pandemic. The request was made to the WTO’s TRIPS Council, which recommended a Temporary Suspension of four sections of the TRIPS Agreement: “1”, “4”, “5”, and “7”. These sections cover copyright, related intellectual property, industrial design and patents, as well as protection of undisclosed data. Pharmaceutical companies, such as Pfizer, and other companies, objected to the proposed waiver, claiming that it would impede the global response, including ongoing efforts to address new variants. Furthermore, the proposed waiver could lead to confusion, which could erode public trust in vaccine safety, and create an obstacle to information sharing. Not only does the territoriality principle give IP law power, but it also gives IP law enforcement power within a country’s territorial borders. In this context, national courts play an important role in protecting intellectual property rights (IPRs) and shaping IP laws and policies. Geiger argues that the social function of IPRs ‘should be embedded in legislation and nurtured through national courts’. Just as at the state level, the judge ‘writes’ sentences by considering all relevant factors and laws, taking into account secondary norms of interpretation and decision-making. As a result, the IP laws are designed to ensure a fair and balanced system.
For example, in the case of Delhi University Photographs, the Delhi High Court broadened the scope of the Indian copyright law, which is relevant to exceptions and limitations, in its judgment in the case ‘Delhi University Photographs’.[5] In the case, international publishers brought a copyright suit against a photocopying service doing business at the Delhi University. The Court concluded that the publications of large-scale reproduction, distribution of copies, and unauthorised compilation of substantial extracts of the plaintiffs’ publications into a course package fall within the scope of fair use, regardless of the medium. The judgment suggests that any form of coursework, including translation of audio books, prepared by the instructor, is permissible use. The Court emphasised that copyright protection is intended to encourage the creation of knowledge for the benefit of the public, and that national courts have a role to play in extending the legal provisions to ensure that the public interest is taken into account and that the balance between the private and public interest is maintained. This serves as a reminder that intellectual property (IP) is ever-evolving and requires constant challenge from creators, industries, and national courts.
Challenges of not Implementing Strong IPR Protections and Enforcement
Nations that have failed to implement or fail to enforce robust IP protections tend to impede economic growth in at least three fundamental ways. Firstly, they impede future innovation. Secondly, they impede trade and FDI, which has a detrimental effect on their own consumers and enterprises, as they limit their options and impede their businesses’ access to leading technologies that are essential for increasing domestic productivity. Finally, in countries with inadequate IP protections, companies are forced to invest disproportionately in protection rather than innovation. It’s ironic that developing countries’ own economic growth and IP growth opportunities are held back by their own weak IP protection. For example, China’s lack of effective IP protection has held back foreign companies’ ability to bring in cutting-edge technology and innovation, limiting the potential benefits for local innovation.[6] Some non-tech-focused countries have adopted an intellectual property (IP) theft strategy as part of their efforts to catch up with the rest of the world. While researchers like Grossman (2009) and Helpman (2011) have found that IP theft can be beneficial to countries in the near term, they have also found that IP theft eliminates incentives to invest in domestic technology development, which is detrimental to countries and makes IP theft a poor long-term strategy.[7]
The international law approach to intellectual property then concentrates on the instruments and institutions established by states to govern the use of intellectual property (IP) on a cross-border basis. However, in a context where IP rights are considered to be private rights granted under national law, one might ask, “how much of that regulation is really international?” In the cases where countries have allowed their courts or intellectual property (IP) authorities to directly apply international IP standards, these are almost invariably from a domestic perspective: for instance, when setting the threshold in the context of art. 6bis of the Paris Convention when a trademark is deemed to be “well-known” in the country in which protection is sought. In the context of the interpretation and application of domestic intellectual property laws, national courts occasionally take into account and rely on public international treaties relating to intellectual property. However, they often adopt their own views on what the treaty rules mean to them and the case before them. Their national approaches sometimes directly conflict with the interpretations that WTO Panels have reached in what is now the first multilateral regime of dispute settlement applied to IP treaties. In international intellectual property (IP) treaties, particularly TRIPs, there is a stated objective of minimum standards. However, the extent to which a country surpasses the minimum standard is dependent on the governance of the country. Generally, the minimum standards have a specific objective to be achieved. For instance, in TRIPs, three criteria are set for patentability (novelty, inventive step and industrial application). The aim is to guarantee that patents are evaluated on the basis of these criteria. These criteria are not defined in TRIPs; therefore, countries are able to define these terms according to their own requirements. This flexibility allows countries to develop their own IP policies. As a result, countries often have distinct national IP laws. For example, in the Indian Patent Act, Section 3(d) requires a new form to demonstrate ‘efficacy’ in order to avoid evergreening, which would prohibit the patenting of any existing pharmaceutical substance.[8] The interpretation of the term ‘efficacy’ has been controversial, with the Indian Supreme Court ruling that ‘efficacy’ is synonymous with ‘innovative step requirements’ in the patent law.
Way Ahead
Patents are receiving increased attention outside the United States, and legislators are seeking to streamline the process of patent and trademark applications. Currently, the Unified Patent Court is the most commonly used patent court in the European Union (EU). To facilitate the process, numerous EU Member States are applying for a unified body for the approval and control of patents. This body is expected to become operational between mid-2022 and early 2023, and is likely to be used by developers, businesses, and individuals alike. Member States may need to revise their specific patent and trademark application processes and assess their intellectual property laws. The world has experienced a severe economic downturn as a result of the COVID-19 pandemic. As the world begins to reopen and adapt to the new normal, new companies are being created and established. The newly formed companies will be required to construct their own patent portfolios in order to achieve their business objectives, which will draw in venture capital that will provide them with a high valuation. Older and established companies may also be interested in the newer companies, especially if these companies have a strong intellectual property strategy in place. Conversely, they may adopt strategies to re-establish their position as leaders in the industry. Patent portfolios are being constructed, and the leading companies may be subject to a shift in the patent filing. Digital assets, including Bitcoin, have existed since 2009. Over the last five years, digital assets have become more widespread and developed in the market. As more assets, blockchain-related inventions, and fungible tokens are created and released into the public domain, more patent applications related to digital assets are filed. Although blockchain-related patent applications are on the rise, there is still no clear precedent for these inventions. In particular, fungible tokens have grown in popularity as more developers and artists create their own tokens. Throughout 2022, patent applications for blockchain-related technology do not seem to be developing and are expected to grow gradually over the next several years.
Artificial intelligence (AI) has emerged as another dominant technology, alongside blockchain and NFTs. More and more businesses are adopting AI-based technologies, and this trend is expected to continue. According to the Chinese patent office, the number of patent applications filed between 2009 and 2019 increased by more than 500%. Of those, 90% were domestic. In contrast, in the United States, patent applications increased by 35% over the same period. The prevalence of Technology in Artificial Intelligence will further solidify the position of courts and governments. The reliance of patents for AI on algorithms or mathematical equations is not well defined in patent law, making patent applications more limited. Patent law for AI will need to evolve over time.
With this in mind, countries must rethink their long-standing approach to economic policy, including IP, at the global level and adopt a new strategy, as the costs associated with the status quo (TRIPs rules) and the stasis (new rules and discussions) will only increase as the gap between current rules and emerging technologies and business practices continues to widen.
Yagyanseni Acharya
[1] The wipo doc on what is intellectual property.
[2] Bhattacharya, S. and Saha, C. (2011) ‘Intellectual property rights: An overview and implications in pharmaceutical industry’, Journal of Advanced Pharmaceutical Technology & Research, 2(2), p. 88. doi:10.4103/2231-4040.82952.
[3] WIPO-Administered Treaties, Rome Convention, https://www.wipo.int/treaties/en/ip/rome/summary_rome.html
[4] Publications: World intellectual property indicators (WIPI) (no date) Publications: World Intellectual Property Indicators (WIPI). Available at: https://www.wipo.int/publications/en/series/index.jsp?id=37 (Accessed: 13 June 2023).
[5] The chancellor, masters & scholars of university of Oxford & ors vs. Rameshwari photocopy services & ors (2016) CS(OS) 2439/2012
[6] Fu, X. (2008) ‘Foreign Direct Investment, absorptive capacity and Regional Innovation Capabilities: Evidence from China’, Oxford Development Studies, 36(1), pp. 89–110. doi:10.1080/13600810701848193.
[7] Ezell, Stephen & Cory, Nigel. (2019). The Way Forward for Intellectual Property Internationally
[8] Indian Patent Act, 1970 Section 3 (d)