INTRODUCTION
Intellectual property (IP) comprises original creations of the mind, including but not limited to inventions, literary and artistic works, designs, and distinctive symbols, names, and images utilized in commerce.[1]. In today’s connected world, a global system protecting intellectual property (IP) is more important than ever. Intellectual property rights (IPRs) are essential for encouraging innovation, creativity, and economic growth. However, because IP laws vary between countries, it is difficult for businesses and innovators to protect their inventions, brands, and creative works worldwide. This is a global concept that demands harmonization.
Harmonization is the process of interconnecting and combining the domestic laws of different sovereigns into one.[2] This blog article examines the various efforts and challenges of aligning global intellectual property laws. It emphasizes the potential benefits of such harmonization while acknowledging the complexities that must be addressed.
THE BENEFITS OF A HARMONIZED IP FRAMEWORK
The goal of harmonizing IP laws is to create a consistent and predictable legal environment for IP protection across various jurisdictions. Establishing a harmonized intellectual property framework offers businesses and innovators the assurance of legal certainty and predictability, thereby minimizing the likelihood of intellectual property disputes and litigation. Simplified processes for securing and enforcing intellectual property rights across multiple jurisdictions result in substantial cost efficiencies for organizations engaged in international operations. Individual creators would be able to protect their work in foreign countries because they do not have as much funds as organizations to file for patent protection in every country. A unified IP system encourages cross-border collaboration and innovation by providing consistent protections and incentives for creators and inventors.
Harmonized IP laws will make it easier to combat IP infringement, counterfeiting, and piracy.
EFFORTS TOWARDS IP HARMONIZATION
Several international agreements and organizations have played significant roles in the harmonization of IP laws, those are:
Paris Convention for the Protection of Industrial Properties, 1883: The history of patent law harmonization goes back to the adoption of the Paris Convention for the Protection of Industrial Property in 1883, The Paris Convention, is an international agreement that protects a wide range of industrial property. This includes patents, trademarks, industrial designs, utility models, service marks, trade names, geographical indications, and measures to prevent unfair competition. The primary aim of the convention is to promote, protect, and harmonize intellectual property laws across international boundaries by establishing certain common principles and standards that member countries agree to uphold.[3]
The Convention mandates that each Contracting State must provide the same level of protection for industrial property to nationals of other Contracting States as it provides to its nationals. Nationals of non-contracting States are also entitled to this treatment if they are domiciled or have a real and effective industrial or commercial establishment in a Contracting State.[4]
Berne Convention for the Protection of Literary and Artistic Works, 1886: The Berne Convention was established in 1886 in Switzerland to address the growing problem of literary piracy. The Berne Convention, much like the Paris Convention, was founded on the principle of national treatment, which entails that each member nation extends the same rights to foreign nationals as it does to its citizens. The convention set out fundamental rights that countries must respect and uphold. Once a person obtains a copyright in one Berne Convention country, they automatically receive copyright protection in all member countries. The Berne Convention simplifies the formal requirements for copyright registration and helps to harmonize copyright laws across member countries.[5]
World Intellectual Property Organization (WIPO) 1967: It was set up in 1967 and has 193 member countries. Its headquarters is in Geneva, Switzerland. The Paris Convention and Berne Convention served as the initial documents for the establishment of the World Intellectual Property Organisation. Both Conventions stipulated the creation of an “International Bureau. So, in 1893 The United International Bureau for the Protection of Intellectual Property (BIRPI) was founded and was subsequently succeeded by the World Intellectual Property Organisation in 1970.[6] WIPO’s objective is to aid in the development of initiatives that improve global IP protection and promote consistency among national laws, in addition to its numerous other functions.
Patent Corporation Treaty (PCT) 1970: The PCT is an international treaty signed in 1970, with over 155 Contracting States. It allows inventors to seek patent protection for their inventions in many countries at the same time by filing a single “international” patent application. This simplifies the process compared to filing separate national or regional patent applications. [7]
Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1995: The TRIPS Agreement is a part of the World Trade Organization (WTO) and is a comprehensive international agreement concerning intellectual property rights. It facilitates the exchange of knowledge and creative products, resolves IP-related trade disputes, and allows WTO members to pursue their domestic policy objectives. The agreement is centred on promoting innovation, technology transfer, and public welfare. It establishes the intertwined nature of intellectual property and trade, as well as the significance of maintaining a well-balanced intellectual property system.[8]
CHALLENGES IN ACHIEVING IP HARMONIZATION
IP harmonization encounters numerous obstacles. The initial hurdle is the presence of diverse legal traditions, with different countries possessing different legal systems, traditions, jurisdictions, and understandings of IP law.
The main challenge is the convergence of legal systems between civil law and common law countries, as the laws of one are not accepted by the other.[9] One of the challenges we face relates to the economic constraints and varying priorities present in developing countries. These nations have expressed concerns about the impact of intellectual property rights on important social issues, including access to medicines and educational materials.[10]
Additionally, there is the challenge of differences of opinion on traditional knowledge. Traditional knowledge (TK) encompasses knowledge, know-how, skills, and practices that are transmitted through generations within a community and often form part of its cultural or spiritual identity. Developing countries have been more supportive of international traditional knowledge rights than developed countries. The rapid progress of technology, including the increasing prevalence of digital content and artificial intelligence, poses new challenges to harmonizing intellectual property laws. As these developments outpace existing laws, inconsistencies in the protection of intellectual property are becoming more pronounced.
CONCLUSION
Harmonization of IP laws will create a level playing field where innovators and creators can thrive. However, achieving this uniformity can be challenging as countries have different needs and priorities. In my view, even after so much effort on a global level, we are far away from making a perfectly harmonized environment for IP protection. So, countries should put aside their differences and work together to create a unified set of rules about IP that will benefit future generations.
Author(s) Name: Hitesh Thakran (Advocate, District and Sessions Court, Gurugram)
Reference(s):
[1] WIPO (World Intellectual Property Organisation) 1967 < https://www.wipo.int/about-ip/en/> accessed on 8 July 2024
[2] Lavanya Yadav ‘Harmonization of IP Laws’ (2019) 9(3) Pramana Research Journal 197,198 <https://www.pramanaresearch.org/gallery/prj-p566.pdf> accessed 8 July 2024
[3] WIPO (World Intellectual Property Organisation) 1967 <https://www.wipo.int/treaties/en/ip/paris/summary_paris.html >accessed 8 July 2024
[4] Ibid
[5] Lavanya Yadav ‘Harmonization of IP Laws’ (2019) 9(3) Pramana Research Journal 197,198 <https://www.pramanaresearch.org/gallery/prj-p566.pdf> accessed 8 July 2024
[6] WIPO (World Intellectual Property Organisation) 1967 <https://www.wipo.int/about-wipo/en/history.html>
accessed 18 July 2024
[7] Ibid
[8] World Trade Organisation 1995 <https://www.wto.org/english/tratop_e/trips_e/trips_e.htm> accessed 08 July 2024
[9] Lavanya Yadav ‘Harmonization of IP Laws’ (2019) 9(3) Pramana Research Journal 197, 202 <https://www.pramanaresearch.org/gallery/prj-p566.pdf> accessed 08 July 2024
[10] J. Janewa OseiTutu, ‘Emerging Scholars Series: A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law’ (2011) 15(1) Marq. Intell. Prop. L. Rev. 147 149 <https://scholarship.law.marquette.edu/iplr/vol15/iss1/3 > accessed on 8 July 2024
