TRIPS on Copyrights and Provisions in Indian Law

Author: Abhinav Gaur, Research Associate

Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) – An Overview

The TRIPS Agreement is the most comprehensive and extensive piece of multilateral agreement on Intellectual Property which came into effect on 1 January 1995. TRIPS is the first WTO agreement requiring Members to corroborate a relatively comprehensive set of substantive norms within their domestic legal systems, requiring them to establish enforcement measures and procedures meeting minimum standards.The TRIPS Agreement deals in a wide range of intellectual property subject matter areas, such as copyright, trademark, patent. Trips also cover certain areas like competitive markets, enforcement measures, dispute settlement, and transitional arrangements. Members of WTO have the right to implement the TRIPS Agreement in the manner they consider appropriate. Intellectual property (“IP”) law contains much inherent flexibility. Members have the right to use the flexibility inherent in the Agreement, as well the obligation to meet itsminimum requirements.

The requirements of TRIPS

TRIPS require member states to provide strong protection for intellectual property rights and lay down various provisions in relation to it.

Under TRIPS:

  • Copyright terms must extend at least 50 years, unless based on the life of the author. (Art. 12 and 14)
  • Copyright must be granted automatically and not based uponany formality, such as registrations, as specified in the Berne Convention. (Art. 9)
  • Computer programs must be regarded as “literary works” under copyright law and receive the same terms of protection.
  • National exceptions to copyright (such as “fair use” in the United States) are constrained by the Berne three-step test
  • Patents must be granted for “inventions” in all “fields of technology” provided they meet all other patentability requirements (although exceptions for certain public interests are allowed (Art. 27.2 and 27.3) and must be enforceable for at least 20 years (Art 33).
  • Exceptions to exclusive rights must be limited, provided that a normal exploitation of the work (Art. 13) and normal exploitation of the patent (Art 30) is not in conflict.
  • No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed.
  • Legitimate interests of third parties have to be taken into account by patent rights (Art 30).
  • In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPS signatories under the principle of national treatment (with certain limited exceptions, Art. 3 and 5).

Implementation in India: The Constitutional aspect

The discretion to various members to adopt at least minimum standards set by TRIPS Agreement is subject to each nation’s own public policy or constitutionality. Almost every country provides a right to freedom of speech to its citizens through their constitutions, but copyright as a concept itself puts a constraint to this right, which acts a big hurdle in implementation in domestic laws.

While, in the India – Patents (US) case the Panel and Appellate Body discussed certain questions of Indian constitutional law as they affected theadministration of patents, and indicated that the substance of nationalconstitutional rules might be a question of fact in WTO dispute settlement. The question of the range of constitutional protections a Member might offer its citizens is of a different character, and it remains to be seen whether the WTO dispute settlement system might attempt to constrain a Member’s basic constitutional choices1.

TRIPS on Copyrights and Provisions in Indian Law

Unification with The Berne Convention

It was while the Uruguay Round negotiations, that it came to notice that the Berne Convention already, for the most part, provided adequate basic standards of copyright protection. Consequently, it was observed that the extent of departure should be the existing level of protection under the latest Act, the Paris Act of 1971, of that Convention. The point of departure is expressed in Article 9.1 under which Members are obliged to comply with the substantive provisions of the Paris Act of 1971 of the Berne Convention, i.e. Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.

Conversely, the members do not have a rights or obligations under the TRIPS Agreement in respect of the rights conferred under Article 6bis of that Convention, i.e. the moral rights (the right to claim authorship and to object to any derogatory action in relation to a work, which would be prejudicial to the author’s honour or reputation), or of the rights derived therefrom.

The provisions of the Berne Convention primarily deal with issues like minimum term of protection, subject-matter to be protected, rights to be conferred and permissible limitations to those rights. However, the Appendix permits developing countries, under certain conditions, to make some limitations to the right of translation and reproduction.

Not restricted to the discussions above, it also requires compliance with the basic standards of the Berne Convention.

Article 9:1 TRIPS

The TRIPS fundamental provisions on copyright primarily involve assimilated provisions of the Berne Convention (Articles 1 through 21, and the Appendix). Generally, in case of a dispute, for settlement, a panel or the Appellate Body is called upon for interpretation of the relevant provisions of the Berne Convention within the framework of the TRIPS Agreement.

Article 9:2 TRIPS

Copyright protects the interests of authors and artists in their literary and artistic works and concerns the “expression” of the author or artist, in contrast to such person’s “idea”. The author may not be able to copyright the subject of writing but certainly can prevent is the use by others of a particular way of expressing an idea, such as describing specific individuals or the details in a storyline.

Article 10.1 TRIPS

It provides that computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). This provision confirms that computer programs must be protected under copyright and that those provisions of the Berne Convention that apply to literary works shall be applied also to them. Furthermore, the form in which a program is, be itas a source or object code, does not affect the protection. It also confirms that the general term of protection of 50 years applies to computer programs.

Article 10.2 TRIPS

It provides that databases and other compilations of data or other material shall be protected as such under copyright even where the databases include data that as such are not protected under copyright. The TRIPS provision also provides that the databases have to be protected, whether machine readable or other form. Furthermore, the provision clarifies that such protection shall not extend to the data or material itself, and that it shall be without prejudice to any copyright subsisting in the data or material itself.

Article 11 TRIPS

It grants authors the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. With respect to cinematographic works, the exclusive rental right is subject to the so-called impairment test: a Member is excused from the obligation unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title.

Article 13 TRIPS

Members are required to confine limitations to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

Provisions in India to determine first Ownership of a copyright

A person who is the author of a work is the first owner of the copyright2.

The definition of ‘author’ as given under section 2 (d), states that an author means:

  • In relation to a literary or dramatic work, the author of that work;
  • In relation to a musical work, the composer
  • In relation to an artistic work other than a photo]=[P’;L/.graph, the artist
  • In relation to  a photograph, the person who took the photograph
  • In relation to a cinematographic film or sound recording, the producer
  • In relation to an architectural work or any other work involving artistic craftsmanship, the architect or artist, as the case may be; and
  • In relation to a literary, dramatic, musical or artistic work that is computer generated, it is the person who causes the work to be created.

Joint Ownership

  • Section 2 (z) of the Act, defines a work of joint ownership to mean a work produced by the collaboration of two or more authors in which the contribution of one author is not considered distinct from the contribution of other author or authors.
  • In case, there is an intellectual contribution by two or more persons, pursuant to a pre-concerted joint design to the composition of a literary work, then those persons who have contributed to the work have to be regarded as joint authors3.

  1. India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, complaint by the United States,, WT/DS50/AB/R (“India – Patents (US)”). []
  2. S 17 The Copyright Act1957 []
  3. Najma Haptulla v. Orient Longman Ltd and others, AIR 1989 Del 63. []

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