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Legal Article by - ZEBA KHAN (This Article was written by her during her Internship)
Introduction:
Intellectual property means the creation of the mind. It can be any creation such as artistic work, logos, symbols, words, names, etc. which is used in designs, inventions or commercially. For these creations the government grants rights to the creators to protect their Intellectual property from getting infringed or used by others without their permission. These Intellectual property rights have different forms such as books, paintings, music, films, etc. these can be copyrighted, patented, or registered as trademark. The Government gives these creators an incentive to share their ideas or inventions to benefit the society as a whole.
As there is a rapid increase and demand in technology, there are many cases of IP disputes around the world. To protect these rights of the creators and to resolve the disputes there are some organizations which look after these disputes and many countries around the world has agreed and signed certain agreements which help these countries to resolve the IP disputes in International Trade.
How IP Disputes Arise?
IP disputes can be arise when the owner of the IP alleges that its IP has being infringed used or acquired by other person without their permission. These rights can be related to any form of intellectual property. For instance, if any person uses or acquires any trademarked sign or symbol or patented inventions of the owner without the consent of the owner then it is termed as trademark and patent infringement.
IP disputes can also be arise in bad faith by a business which can alleges any rights which in fact does not exists, with the goal to eliminate the competition. The disputes can also arise by joint ownerships or authorizations to use the IP developed inventions by jointly or any other agreements.
1.) World Trade Organization & TRIPS Agreement:
As the IP related disputes were included in the WTO system of multilateral trade laws back in 1980s, in the form of TRIPS Agreement (Trade-Related Intellectual Property Rights) which was agreed and signed by all the WTO countries. It is a multilateral treaty.
TRIPS Agreement is the first international agreement which mainly focused on all types of intellectual property disputes among nations. It covers all the issues of protection of intellectual property in trade related areas to a significant degree.
The main aim of this agreement is to create uniform methods for resolving the intellectual property disputes for the owners and to give a guarantee to all member countries for protecting their intellectual property.
2.) Dispute Settlement Body:
The Dispute Settlement body of WTO deals with disputes which arise among the WTO members. These disputes can be arise with the respect of any agreement which contained the Final Act of the Uruguay Round which has rules and procedures for Governing the Settlement Disputes.
The Dispute Settlement Body which consists of General Council and other authorities establishes disputes settlement panels, arbitrations, arbitration reports, adopt panel, it also deals with the maintenance of surveillance over the implementation of recommendations and rulings contained in such reports. The decisions are generally taken by consensus by all the WTO member country’s chairpersons.
3.) Internation Arbitration:
International Arbitration which is also known as Commercial litigation is one of the forms of dispute resolution mechanism which is similar to the traditional court litigation. It is the fastest and less expensive methods to resolve disputes. In this method like the ordinary court proceedings the disputes takes place before the private adjudicators known as the arbitrators which are mostly appointed by the courts to resolve disputes. It is consensual, neutral, binding, private and enforceable means of international dispute resolution.
The use of international arbitration is usually related to civil laws and common law procedure which allows parties to design the arbitral procedures under which the dispute can be resolved. There are many countries who has agreed upon this method like the Convention on the Recognition and Enforcement of Foreign Arbitral Awards which was adopted in New York, it is also called as the New York Convention where it was agreed by all the state parties to enforce and recognize international arbitration agreements among other contracting states.
4.) Free Trade Agreements & Regional Trade Agreements:
The Free trade Agreement refers to those agreements which are agreed and signed between two or more countries. This agreement helps all the countries to agree upon the obligations related to trade in goods and services, intellectual property rights for the investors, among other topics. The main objective of this agreement is to reduce barriers for trade among different countries, protect interest for competing abroad nations.
The United States has 14 FTAs with 20 countries, which help in export and import services among countries. This agreement helps countries to enter their companies and compete easily in the global markets with minimum tariffs and other provisions. The Regional Trade Agreement refers to that agreement which is agreed between two or more country’s government. These agreements are basically governed by the countries in a particular region for trade purpose.
The Regional Trade Agreements include the North American Free Trade Agreement (NAFTA), Central AmericanDominican Republic Free Trade Agreement (CAFTA-DR), the European Union (EU) and the Asia- Pacific Economic Cooperation (APEC).
These trade agreements are mostly used for negotiations for tariffs for cross border trade of goods and services, it helps in regulating competition policy among other countries. It also helps government procurement rules and intellectual property rights disputes settlement among the other countries.
5.) Alternate Dispute Resolution:
Alternate Dispute Resolution is a method where people can resolve disputes in many different ways such as arbitration, mediation, conciliation, negotiation, etc. these methods help in providing dispute settlement without court trials. These processes are less expensive, less stressful, less formal, and confidential than the traditional court proceedings.
In Negotiation, the parties are allowed to resolve the disputes by themselves to control the process and the solutions. It is the preeminent mode of dispute resolution where the parties initiate to resolve disputes by negotiating and it is also less formal forms of ADR as compared to arbitration and mediation.
The Mediation process is one of the forms of dispute resolution where a mediator who is appointed by the court, which is trained in negotiations helps the parties to come together for solving disputes by negotiation and settlements or agreements that both parties accept or reject. This method is mostly used for juvenile laws and government negotiations with other countries. It is also an informal method to solve disputes.
Arbitration is one of the prominent and widely used form of ADR. It is more formal and less time consuming method than mediation and negotiation. Arbitration is similar to the traditional court proceedings where the courts appoints an individual who is an arbitrator to resolve disputes among parties. There are different types of arbitrations for different specialized fields like construction arbitration, post M&A arbitration, investors arbitration, international arbitration, etc. which helps disputes to solve easily and in faster ways.
Case Law:
• John Fogerty vs. John Fogerty
John Fogerty a musician and a composer who was part of a reputed music company CCR but later left to pursue his who brand he published a song called ‘The Old Man Down the Road’ which was sued by CCR’s record label, Fantasy Records, for allegedly plagiarizing ‘Run Through The Jungle’John Fogerty was sued again for the song which he wrote himself. It was a copyright case where the musician was sounding similar to the music which he recorded for Fantasy label. In the Judgement, the judge added in his judgment to Fogerty ‘That you can’t plagiarize yourself’, which effectively ended all the debates about whether or not he should plagiarized himself.
• The Music Industry vs. Napster
Napster is a software for sharing files in peer-to-peer method. In early 2000s the owner of this software used this tool to download and use copyrighted music. It was the first case of peer-to-peer file sharing which was sued by a well known musician. This leads to the backlashing of Napster software where many other music labels started suing Napster. In the Judgement, the judge stated Napster to shut down its software and pay for the damages, Napster paid $26 million for damages.
Conclusion:
As there’s an increase in technologies the companies and governments seek leverage opportunities from these developments. It is important to protect the intellectual property rights. A right is valued only if it is enforceable, and the important element for enforceability is to maintain a proper disputes resolution mechanism. For maintaining the dispute resolution mechanisms, the governments should enforce proper laws to resolve disputes among nations and businesses. For the companies to operate smooth businesses in different countries it is important to assess business and contractual arrangements. With different agreements signed by all the countries for trade purpose it becomes easier for the companies to trade globally.
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