Unit-5

IPR in IT

International Treaties: - WIPRO treaty, TRIP’s and SCPA

INTERNATIONAL TREATIES
International Protection for Computer Software Intellectual-property issues are of growing
international concern. Problems like commercial piracy that occur in domestic markets have
international counterparts. The United States currently enjoys a strong competitive position in
international software markets, and appropriate intellectual-property protections and enforcement can
help maintain our position and reduce piracy.
International Conventions and Treaties Copyright is the predominant form of software protection in
the United States and abroad. In most countries, computer programs per se are not in principle eligible
for patent protection (although interpretations of these policies vary in practice among the various
patent offices and courts). However, in some countries (including the United States) certain types of
computer-implemented processes and algorithms can be patented.
Copyright and patent protections abroad are substantially similar in form to those in the United
States, and have most of the same advantages and liabilities. Sui generis protection for software has
been proposed but has not had much of an international impact so far.
International treaties are formal agreements between sovereign states or international organizations.
These agreements can cover a wide range of subjects, including trade, human rights, environmental
protection, arms control, and more. Treaties are a fundamental aspect of international law and play a
crucial role in regulating the behaviour of states and promoting cooperation among them.
Here are some key points about international treaties:
1. Negotiation and Drafting: The process of creating a treaty usually involves negotiation
among the parties involved. Diplomats or representatives of the states or organizations
negotiate the terms and conditions of the agreement. Once the terms are agreed upon, the
treaty is drafted.
2. Signing: After the treaty is drafted, representatives of the parties may sign it. However,
signing a treaty does not necessarily mean that a state is legally bound by it. The signature
indicates the state's intention to review the treaty and consider ratification.
3. Ratification: Ratification is the formal approval of the treaty by the state's governing body.
Depending on the country, this could involve the approval of the legislature, the head of state,
or another authorized body. The process ensures that the state is willing to be legally bound
by the terms of the treaty.
4. Entry into Force: The treaty enters into force once a specified number of parties have
ratified it. This is often outlined in the treaty itself. Some treaties enter into force immediately
upon ratification by the initial signatories.
5. Reservations and Declarations: States may include reservations or make declarations when
signing or ratifying a treaty. Reservations are statements indicating that a state does not intend
to be bound by a particular provision of the treaty. Declarations are statements that clarify a
state's understanding or interpretation of certain treaty provisions.
 6. Amendments and Protocols: Treaties can be amended or supplemented through additional
agreements or protocols. Amendments may require the consent of all parties, while protocols
may be adopted by a separate process outlined in the original treaty.
7. Enforcement and Dispute Resolution: International treaties often include mechanisms for
dispute resolution. This may involve negotiation, mediation, arbitration, or adjudication by an
international court or tribunal. The effectiveness of enforcement mechanisms varies, and
compliance relies on the goodwill and cooperation of the parties involved.
8. Withdrawal and Termination: States can withdraw from a treaty under certain conditions,
as specified in the treaty itself or under general principles of international law. Treaties may
also have provisions for termination under specific circumstances.
Examples of notable international treaties include the United Nations Charter, the Kyoto Protocol, the
Paris Agreement on climate change, the North Atlantic Treaty (NATO), and the Treaty on the Non-
Proliferation of nuclear weapons (NPT). These treaties address a wide range of global issues and
contribute to the development of international norms and cooperation.
WIPO TREATY:
The World Intellectual Property Organization Copyright Treaty, (WIPO Copyright Treaty or WCT), is
an international treaty on copyright law adopted by the member states of the World Intellectual
Property Organization (WIPO) in 1996. Additional protections for copyright deemed necessary due to
advances in information technology since the formation of previous copyright treaties before it.
One of the key treaties administered by WIPO is the "WIPO Copyright Treaty" (WCT), which was
adopted on December 20, 1996, and entered into force on March 6, 2002. The WIPO Copyright
Treaty addresses issues related to the protection of works and the rights of authors and creators in the
digital environment. It is part of the broader international legal framework for the protection of
copyright and related rights.
Key provisions of the WIPO Copyright Treaty include:
1. Protection of Copyright in the Digital Environment: The treaty aims to update and
strengthen the protection of copyright in the context of digital technologies. It addresses
issues such as the reproduction and distribution of copyrighted works in digital form.
2. Rights Management Information: The WCT includes provisions to protect information that
is attached to copyrighted works to identify the work, its author, and other relevant
information. Tampering with such information without authorization is prohibited.
3. Anti-Circumvention Measures: The treaty includes provisions to prevent the circumvention
of technological measures (such as digital rights management or DRM) used by copyright
owners to protect their works.
4. Limitations and Exceptions: While the WCT enhances the protection of copyright, it also
recognizes the importance of striking a balance. It includes provisions on limitations and
exceptions, allowing member states to provide for certain uses of copyrighted works without
the authorization of the rightsholder under certain conditions.
The WIPO Copyright Treaty works in conjunction with another treaty called the WIPO Performances
and Phonograms Treaty (WPPT), which addresses the protection of the rights of performers and
producers of phonograms.
1. WIPO Copyright Treaty (WCT):
  Adoption: The WCT was adopted on December 20, 1996.
 Entry into Force: The treaty entered into force on March 6, 2002.
 Objective: The WCT addresses the challenges posed by the digital environment to
the traditional copyright system. It aims to update and strengthen the protection of
copyright and related rights in the context of digital technology.
Key provisions of the WCT include:
 Protection of copyrighted works in the digital environment.
 Recognition of the rights of authors in the digital environment, including the right of
reproduction, distribution, and making works available to the public.
 Protection of rights management information (RMI) associated with copyrighted
works.
 Prohibition of circumvention of technological protection measures.
2. WIPO Performances and Phonograms Treaty (WPPT):
 Adoption: The WPPT was also adopted on December 20, 1996.
 Entry into Force: Similar to the WCT, the WPPT entered into force on March 6,
2002.
 Objective: The WPPT addresses the rights of performers and producers of
phonograms in the digital environment.
Key provisions of the WPPT include:
 Protection of the rights of performers in their live performances.
 Protection of the rights of producers of phonograms.
 Right of performers to authorize or prohibit the broadcasting and communication to
the public of their performances.
 Protection against unauthorized fixation and reproduction of performances.
Both treaties work together to provide a comprehensive framework for the protection of intellectual
property rights in the digital age. WIPO member states that are parties to these treaties commit to
implementing their provisions within their national legal frameworks.

TRIPs AGREEMENT:

The TRIPS Agreement, which stands for Trade-Related Aspects of Intellectual Property Rights, is an
international treaty that is part of the agreements negotiated during the Uruguay Round of the General
Agreement on Tariffs and Trade (GATT). The TRIPS Agreement came into effect on January 1, 1995,
and it is administered by the World Trade Organization (WTO).
The TRIPS Agreement aims to establish a minimum standard for the protection of various forms of
intellectual property (IP) on a global scale. It covers a range of IP rights, including patents,
trademarks, copyrights, industrial designs, and trade secrets. The agreement seeks to strike a balance
between providing incentives for innovation and ensuring that the benefits of technological
advancements are accessible to the public.
Key features of the TRIPS Agreement include:
 1. Minimum Standards: The TRIPS Agreement sets out minimum standards of protection that
WTO member countries must provide for intellectual property rights. This includes the
establishment of effective enforcement mechanisms.
2. National Treatment: The principle of national treatment requires that foreign nationals and
companies are to be granted the same level of protection for their intellectual property as that
provided to domestic entities.
3. Most-Favored-Nation Treatment: The most-favored-nation (MFN) principle ensures that
any advantages, preferences, or immunities granted by a WTO member to the intellectual
property of nationals or companies of another member must be extended to the intellectual
property of all WTO members.
4. Patents: The TRIPS Agreement requires members to provide patent protection for inventions
in all fields of technology, with certain conditions and exceptions. The agreement mandates a
minimum 20-year term of protection for patents.
5. Copyright and Related Rights: The agreement covers the protection of literary and artistic
works, performances, and sound recordings. It sets standards for the term of protection and
outlines the rights of copyright owners.
6. Trademarks: The TRIPS Agreement addresses the protection of trademarks, including the
obligation to provide protection for well-known trademarks and the prevention of unfair
competition.
7. Enforcement: The agreement includes provisions related to the enforcement of intellectual
property rights, including civil and administrative procedures, provisional measures, and
border measures to prevent the importation of counterfeit goods.
8. Flexibilities and Exceptions: The TRIPS Agreement recognizes the need for members to
adopt measures necessary to protect public health and to promote access to medicines,
allowing for certain flexibilities, such as compulsory licensing.
The TRIPS Agreement has been a subject of ongoing discussions and negotiations within the WTO,
particularly in relation to its impact on access to essential medicines and technology transfer to
developing countries. It represents a significant step in the harmonization of intellectual property
standards at the international level.
TRIPS AGREEMENT & COMPUTER SOFTWARE: -
Agreements and important conventions before TRIPS did not give a lot of attention to computer
software and intellectual protection. The Berne Convention of 1886 which dealt with copyright
protection worldwide did not recognize computer software despite numerous amendments between
1886 and 1979. The Paris Convention of 1883 which deals with industrial property has been criticized
for its patent structure worldwide. TRIPS brought in a major change by bringing computer software
under the ambit of copyright. The Agreement brought computer software under the ambit of
previously existing conventions such as the Berne Convention. It also brings all field of technology
under the ambit of patents. It also provides the inventors with the chance to prove that the invention
meets all the criteria as mentioned by the agreement. Overall, the following are the changes that have
brought in by the agreement: -
(a) The object code and the source of code of computer software have been brought under Berne
convention thereby giving them copyright protection.
(b) The authors get protection under the enforcement mechanism under the TRIPS agreement.
(c) Computer software has been expressly defined as a literary work under the agreement.
(d) The agreement also provides the authors with the “right to authorize or prohibit commercial rental
of their copyrighted works.”
Despite providing some clarification as to the stand of computer software and intellectual protection
is given to it, the agreement had certain drawbacks and had still not clarified major areas of the same.

MAJOR PROBLEMS WITH AGREEMENT?

Patentability of computer software is still a very big issue as almost all the countries do not provide
for a patent to the author of computer software. Though TRIPS made some advancements, it did not
answer whether a computer software can be patented or not and this has been a prolonging question to
date.
1. Article 27 uses the term filed of technology but does not clarify the scope of it. Neither does it
expressly deny nor does it expressly admit that a computer software falls under the ambit of
technology that is eligible to get patents.
2. The agreement does not provide for a definite scope to terms such as “any inventions”. Apart from
that, the exceptions under Article 27 allows the members to exclude certain inventions. TRIPS has
been criticized for this very reason.
3. The agreement has not handled the controversy of ‘pure software’. While certain member countries
are moving towards the idea of patenting computer software, some are against the idea.
4. According to Article 10 of TRIPS, the object code and source code of the software are covered
under the Berne convention thereby extending copyright protection to them.
5. However, the drawback of the TRIPS agreement is that it does not specify any criteria with respect
to the term “works of applied art” as used under the Berne Convention. States have to a very large
extent, been given the authority to tweak these rules and follow their standard practices.
6. TRIPS has also failed to address the issue of copying the functionality and has dealt only with the
issue of copying the code as a whole. As TRIPS has failed to define the scope of application of the
terms and the extent to which protection should be given, the issue largely remains unsolved.