Role of WTO and International Organisations in promotion of Intellectual Property rights.

 INTRODUCTION

TRIPS is a main treaty which regulate IPRs among member states of 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 . 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 .

The actual copyright and patent standards laid out in the TRIPS agreement are mostly drawn from other sources . 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 .

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.

FUNCTIONS OR ROLES OF WTO WITH REGARD TO IPRs

WTO is an organization which function through treaties, rules and conventions made to govern that institution. To examine roles of WTO with regard to intellectual property rights, the following are the key issue to be highlighted;

National treatment. National treatment is the principle of giving others the same treatment as one's own nationals. National treatment also applies to imported goods once they enter the market, foreign and domestic services, and to foreign and local trademarks, copyrights, and patents.  National treatment requires member state of WTO to give same treatment to all imported goods as domestic produced goods, no over taxation and subordination of foreign goods. The same applies to IPRs, member states of WTO are required to protect the IPRs of other member states of WTO and give them the same rights as domestic IPRs.

The concept of national treatment is provided in several treaties under World Trade Organization: Article 3 of the General Agreement on Tariffs and Trade (GATT), Article 17 of the General Agreement on Trade in Services (GATS), and Article 3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The most-favored-nation (MFN) clause (equal treatment for nationals of all trading partners in the WTO) is, of course, central to other WTO agreements, and it has the potential to amplify increased IPR protection that may result from bilateral negotiations. Under the WTO agreements, countries cannot normally discriminate between their trading partners. Grant someone a special favour (such as a lower customs duty rate for one of their products) and you have to do the same for all other WTO members. This applies the same to IPRs, no favor or discrimination of members in IPRs, the treatment must be the same. ThisThis principle of most-favoured-nation (MFN) is found under General Agreement on Tariffs and Trade (GATT), which governs trade in goods. MFN is also a priority in the General Agreement on Trade in Services (GATS) (Article 2) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (Article 4).

IPRs minimum standards. TRIPS requires member state of WTO to provide minimum standards of intellectual property that it covers. This is achieved by spelling out the subject matter to be protected, the rights to be conferred (and what the permissible exceptions to those rights are), and the minimum duration of protection. This establish a framework through which IPRs can be recognized, guaranteed protection and be enforced before court of law. There might be differences on handling IP matters across states, but the rights are still recognized and available in all WTO member states.

Disputes settlement body and sanctions to WTO state members. WTO is empowered to hear and rule trade based disputes include IPRs. Member states of WTO can sue or be sued at DSB for infringement of treaty on IPRs, DSB is entitled to punish a state infringed other state’s IPRs through trade sanctions. WTO has supervisory role regarding intellectual property rights.

FUNCTIONS OR ROLES OF WIPO WITH REGARD TO IPRs

The history of WIPO go began at 1883 and 1886 when the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works, respectively, were concluded. Both Conventions provided for the establishment of an "International Bureau". The two bureaus were united in 1893 and, in 1970, were replaced by the World Intellectual Property Organization, by virtue of the WIPO Convention.

WIPO is an intergovernmental organization that became in 1974 one of the specialized agencies of the United Nations system of organizations. WIPO's two main objectives are (i) to promote the protection of intellectual property worldwide; and (ii) to ensure administrative cooperation among the intellectual property Unions established by the treaties that WIPO administers. Through several organs established under WIPO, member states of WIPO Convention are required to handle cross border IPRs in the same manner as their domestic IPRs.

WIPO offers ADR service to private members and states regarding intellectual property rights. The WIPO Arbitration and Mediation Center offers time- and cost-efficient alternative dispute resolution (ADR) options, such as mediation, arbitration, expedited arbitration, and expert determination to enable private parties to settle their domestic or cross-border commercial disputes. The WIPO Center is international and specialized in IP and technology disputes, WIPO  is entitled to supervisory powers on matters concerning intellectual property rights.

FUNCTIONS OR ROLES OF ARIPO WITH REGARD TO IPRs

The African Regional Intellectual Property Organization (ARIPO) is an inter-governmental organization (IGO) that facilitates cooperation among member states in intellectual property matters, with the objective of pooling financial and human resources, and seeking technological advancement for economic, social, technological, scientific and industrial development. 

The present members of the Organization are Botswana, The Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mauritius, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Sierra Leone, Somalia, Sudan, Swaziland, Uganda, United Republic of Tanzania, Zambia and Zimbabwe.

Among objectives of ARIPO is to join together African states in handling IP matters by Harmonizing IP Laws and Coordinating IP Activities among the member states; centrally handling most of the matters related to IP including  Grant & Registration of IP Rights on behalf of the Member States; Dissemination of Information Relating to IP; capacity building; stimulation Business, Human Resources  and Institutional Building of  IP in the member states, etc.

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 . The main changes 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 . 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 .

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

FUNCTIONS OF COSOTA WITH REGARD TO IPRs

The Copyright Society of Tanzania (COSOTA) is a statutory body set up by the government of Tanzania under the Ministry of Industry and Trade. The body was established under S.46 of the Copyright and Neighboring Rights Act . The Copyright Society of Tanzania is vested with power to administer the Copyright Act. This in itself is a great improvement on the old Act which, among other things, did not provide for an Institution to administer the Act.

The functions of the society are, to promote and protect the interest of authors, performers, transistors, publishers and in particular to collect and distribute any royalties or other remuneration accruing to them in respect of their rights ;among the rights protected include work of art, to maintain registers of works, productions, and associations of authors, performers, translators, producers of sound recordings, broadcasters and publishers.

Other function of COSOTA is to publicize the rights of owners and give evidence of ownership of these where there is a dispute or an infringement; to print, publish, issue or circulate any information reports, periodicals, books, pamphlets, leaflets, or any other material relating to copyright, expressions of folklore and neighboring rights and to advise the minister on all matters under the Act.

The Copyright Society of Tanzania has been set up therefore to help administer collectively the rights of authors, performers, producers of sound recordings and broadcasters. The society act as a link between the owners of the rights on the one hand and the users of their works on the other, hence the rights of the society to collect royalties on behalf of the right owners. 

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 as it 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 in case 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 the University 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 and Materials. 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