Impact of TRIPS on the development of IPRs in Tanzania

 INTRODUCTION

TRIPS is among several treaties under WTO. The World Trade Organization or WTO, formally established in 1995, is an intergovernmental organization devoted to the promotion of international trade. Most of the world's countries have become members of the WTO, which establishes an obligation for them to trade with other members on agreed terms[1]. These terms are set out in a series of treaties or agreements, the most important of which are the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Trade-Related Aspects of International Property Rights (TRIPS).

Trade-Related aspects of Intellectual Property, universally known as TRIPS, is a multilateral agreement under the World Trade Organization (WTO) that took effect in 1994. It was the first such agreement to treat so-called intellectual property (IP) rights, most notably copyright and patents, as a global trade issue, on the theory that one country's failure to protect another's IP creates a barrier to trade between those countries. But the underlying reason for defining IP as trade issue was to gain access to the well-established enforcement mechanisms of the WTO, which can authorize the use of trade sanctions against countries who do not meet the agreed standards[2].

The actual copyright and patent standards laid out in the TRIPS agreement are mostly drawn from other sources[3]. On copyright, the Berne Convention is the source for most of the TRIPS provisions. The main areas in which TRIPS extends the Berne provisions on copyright are by adding explicit protection for software and databases. Similarly the Paris Convention provides the source of the TRIPS provisions on patents, to which TRIPS mainly adds enforcement provisions. Both the Berne and Paris Conventions are administered by WIPO[4].

The aim of TRIPS includes ‘reducing distortions and impediments to international trade’, promoting effective and adequate protection of Intellectual Property Rights (“IPRs”), and ‘ensuring that measures and procedures to enforce IPRs do not become barriers to legitimate trade’. Broadly, this aim is achieved by bringing IPRs together under a common international set of rules and establishing minimum standards of IPR protection, which will allow for trans-border technology flows.

HISTORICAL BACKGROUND OF IPRs IN TANZANIA

Historically, IPR laws resided in the domestic sphere, and national governments had the flexibility to create policies relating to the scope and coverage of Intellectual Property Rights within their national jurisdictions. The existing Paris and Berne Conventions provided weak IPRs enforcement mechanisms[5]. The main change to the law was therefore the imposition of new and substantive minimum standards, as well as a powerful enforcement mechanism. For example, governments must ensure that their laws provide for enforcement of IPRs and to make available procedures to ensure that private IPRs holders can take effective action against infringement, as well as to intervene directly to enforce IPRs.

Intellectual property right has long history which came as a result of struggle of creators and inventors. By nature intellectual property right is non rival since can be used by limited number of users simultaneously and is non- excludable eventually became public goods. That is why creators and inventors struggled to ensure intellectual property would be appreciated as a private property and excludable rather being public goods. To enable them be rewarded for their creativity and innovation.

The intellectual property rights movements became fruitful when the World Intellectual Property Organization – WIPO was established in 1967[6]. At the same time IP accommodated in World Trade Organization as one of their multilateral trade agreements. Thus, under principle of single undertaking all WTO members are supposed to undertake IP protection measures as stipulated in Trade Related Intellectual Property agreement. But what is IP meant, IP is legal rights given to creators and inventors to have temporary monopoly rights over their creations and inventions of the mind, both artistic and commercial. IP covers: trade marks rights, geographical indication rights, patents rights, plant breeders’ rights, industrial design rights, copyrights and related rights[7].

In Tanzania (Known as Tanganyika before Independence) Intellectual Property rights aspects was introduced by colonial administration, and this was in The Patent Legislation[8]and the introduction of Trade Marks and 1924 through “Chapter 218 of the Copyright Legislation”[9]After the independence there was no any significant changes on the contents of IP legal system, however in 1966, the Copyright Ordinance[10] was repealed by Copyright Act[11]. The new Copyright Legislation was enacted in 1999. It is the current Copyright Legislation in force.

IMPACT OF TRIPS ON DEVELOPMENT OF IPR IN TANZANIA

Firstly, TRIPS requires that patent protection to be available to both products and processes ,which conform with the requirements of patentability. In TRIPS agreement, all member states are required to grant patent to all kind of technology inventions, whether products or process of manufacturing those products. Tanzania is a member state of WTO, hence bound by all terms set in treaties which govern trade between member states of WTO, Article 27 of TRIPS agreement extend scope granting patent rights to owners of inventions, not only their products but even their processes are subject to patent[12].

The above article grants protection to process and products produced by Tanzanians to an international level.

Secondly, TRIPS mandatorily requires that the term of protection of patents be not less than 20 years. The TRIPS Agreement extends the scope of patent protection to both products and processes[13]. It would therefore be possible to apply for patent rights over products for 20 years, and thereafter, further periods of 20 years each could be applied for products covered by patented processes. Some experts also caution that the 20-year protection can also be abused to extend the monopoly through process patents as well as patents on usage form, dosage form and combination form. In the US for example, patents have been taken on new combinations of drugs even when the product patent on the basic drug – the active ingredient - has long expired. Monopoly protection would be extended through minor changes to the existing medicines where the product patents have expired[14].

Section 39 of The Patent Act[15], the laws of Tanzania. Term and extension of patent is ten years, TRIPS extend such period to 20 years. This extension of time on patent, gives enough time to patent owners to enjoy fruits of their works, renewal to those rights is also available after expiry of original patent term granted to patent owner.

Thirdly, The TRIPS Agreement mandates recognition of Foreign Trade Marks and well known marks under Article 15 (4) and Article 16 (2). It is also requires that member countries to recognize Trade Mark both in goods and in services. This article intends to protect trade marks from being interfered by non-occupiers, logos and all marks which give impression of particular business are subjected to protection by TRIPS and all member states are to act in reasonable care to protect trade marks[16].

This article gives same rights to all member states of TRIPS, Tanzania being part of the agreement, trade marks of companies, businesses, products and services are protected internationally in all member states of TRIPS. Brand is an important part of a business or service which need protection because it introduce goods or service before customers, interfering with brand means interfering with customers.

Fourthly, Article 22 of the TRIPS Agreement provides protection for Geographical Indications. It further defines geographical indications as indications which determine or identify a good as originating in the territory of a member, or a region or a locality in that territory, which identify a good as originating in the territory of member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essential attributable to its geographical origin[17].

Geographical indications require member states of TRIPS to recognize particular goods in connection to locality where they got produced and to protect it’s quality from being in an alien country. Tanzania is among the countries enjoys the protection in goods originate from Tanzania, alien states are bound to protect our goods in their locality.

Fifth, Article 39 of the TRIPS Agreement envisaged that protection be provided to trade secrets or disclosure of confidential information, a hidden yet important component of business information. The secrets concerning operation of a business form part of intellectual property as per TRIPS and such secrets are subject to protection. A natural or legal person is granted power to claim against release of information concerning business which were held as secret of a business, Tanzanians enjoys protection of trade secrets in all member states of TRIPS and they are empowered to sue in case of breach of conditions of article 39(2) on trade secrets.

CONCLUSION

TRIPS marks a water shed in the area of Intellectual Property Rights. It puts compulsory obligations on the signatory member countries to incorporate minimum standards of intellectual property right protection in its domestic laws and other various aspects. However, there are effects of this Agreement on the developing countries for strict intellectual property regulations hamper the development of local industries in such areas. Intellectual property rights though necessary must be enforced very cautiously in developing countries asit can hamper its economy, its standards of public health, etc. The major implications of the patent protection regime have a deterrent effect on the growth of local industries, for example, the pharmaceutical industries, etc. It must be remembered that most of the intellectual property rights, especially incase of patents are owned by developed countries which could be a means of exploitation and monopolization vis-à-vis the developing countries.

REFERENCE

BOOKS

1. Kurt H. Decker & H. Thomas Felix II, Drafting and Revising Employment Contracts § 3.17, at 68 (1991).

2. Hornbeck, S. The Most Favoured Nation Clause in Commercial Treaties. Bulletin of theUniversity of Wisconsin, vol. 6, n. 2, 1910, pp. 339 - 367.

3. Bhala, R., Kennedy, K. World Trade Law: The GATT-WTO System, Regional Arrangements, and U.S. Law. Charlottesville: Lexis Law Publishing, 1998, pp. 60 – 64.

4. Matsushita, M., Schoenbaum, T., Mavroidis, P. The World Trade Organization: Law, Practice, and Policy. Oxford: Oxford University Press, 2006, 2nd edition, p. 234 - 235.

5. Van den Bossche, P. The Law and Policy of the World Trade Organization: Text, Cases andMaterials. Cambridge: Cambridge University Press, 2006, p. 308

STATUTES

The Patent Act, Cap 217

The Copyright and Neighbouring Act Cap 218

ONLINE SOURCES

https://www.wipo.int/ip-development/en/policy_legislative_assistance/advice_trips.html

https://www.eff.org/issues/trips

https://www.wto.org/english/tratop_e/trips_e/trips_e.htm

https://www.wipo.int/portal/en/index.html

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1021962

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[1]https://www.wipo.int/ip-development/en/policy_legislative_assistance/advice_trips.html

[2]https://www.eff.org/issues/trips

[3]https://www.wto.org/english/tratop_e/trips_e/trips_e.htm

[4]https://www.wipo.int/portal/en/index.html

[5]https://www.lawteacher.net/acts/trips-agreement-intellectual-property.php

[6](Hveem, 2007 and Chartrand, 2008).

[7](WTO, 2006 and Mgonja, 2009).

[8]1922 through Chapter 217

[9](see . WIPO/SMEs/DAR/05/2).

[10]Cap. 218

[11]No. 61 of 1966

[12]https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1021962

[13] Ibid

[14] Ibid

[15] Cap 217

[16] Ibid

[17] Ibid