THE MANDATES OF WTO

BY

PRAVEEN DALAL*

 

            The aim of this article is to evaluate the mandates and requirements of Treaties and Conventions entered under the banner of World Trade Organisation (WTO). The discussion becomes essential, as the heat of these mandates has been felt with effect from 01-01-2005 when the provisions of these Treaties and Conventions came into full force in India. A timely attempt has been made to make the people and the Government of India aware about the impact of the same vis-à-vis data protection requirements.

 I. Introduction

             The law regulates the conduct of the society in its most desirable and benign form. It maintains the order in the society and eliminates unhealthy delinquencies and deviations. Thus, law plays an important role in developing a civilized society.

The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “Private International Law”.

An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevails, if there is a conflict between the two laws of the different sovereign States.

The position is, however, totally different when it comes to “Public International Law” that primarily encompasses within its ambit the law(s), which are, required to be uniformly followed by the “Member Countries”. The Treaties and Conventions entered under the banner of a common platform like WTO bind these “Member Countries” and they cannot plead that the same is against the notions and ideologies of their nation. That is why countries are very cautious while entering into various Treaties and Conventions. The Treaties and Conventions so entered are not automatically incorporated in the “Municipal Legal System”, though some countries endorse the concept of “automatic incorporation” of the same.

In India, we have to take an independent action of  “legislation” U/A 253[1] of the Constitution of India to make the Treaties and Conventions functional. This shows the legislative superiority of Parliament over the respective States. The laws concerning Intellectual Property Rights (IPRs) are also part of Public International Law and the TRIPS[2] Agreement governs most sturdily and persuasively the protection requirements of IPRs in India. In fact, with effect from 01-01-2005 the provisions of Indian Patents Act, 1970 also allows “product patent” along with the “process patents” for medicines. It is interesting to note that India was sternly against extending the protection of product patents to “medicines”, but as a trade-off it has accepted to confer the same protection to pharmaceutical industry. This protection is, however, subject to various “public interest limitations” that can be invoked against these industries in situations of calamities and emergencies. In fact, none of the IPRs are absolute in nature and public interest is pervading all of them. The provisions of TRIPS Agreement expressly recognize this requirement and the “Doha Declaration” was adopted as a “safety valve” for releasing the pressure created by the apprehensions of possible charging of “excessive prices for the medicines” in “Least Developed Countries (LDCs))” and “Developing Countries (DCs))”. Thus, to appreciate the level of protection available for “data property”, a brief evaluation of TRIPS becomes essential.

 II. The TRIPS Agreement- A Magna Carta of IPRs

             The provisions of TRIPS Agreement are the most extensive and rigorous in nature. They protect all the forms of IPRs collectively. The protective umbrella of TRIPS covers the following IPRs:

(1) Copyright and Related Rights,

(2) Trademarks,

(3) Geographical Indications,

(4) Industrial Designs,

(5) Patents,

(6) Layout designs of Integrated Circuits, and

(7) Protection of Undisclosed Information.

            It must be noted that by virtue of Article 1(2) of the TRIPS Agreements[3], the Control of Anti-Competitive Practices in Contractual Licences has been excluded from the definition of “intellectual property”. The discussion in the present article is addressing only the “data protection” aspect, hence it is confined exclusively to section 1, i.e. Copyright and Related Rights[4].

Article 9(1) of the Agreement provides that Members shall comply with Articles I through 21 of the Berne Convention, 1971 and the Appendix thereto. The members, however, shall not have any rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom[5].  Thus, although TRIPS utilises Berne as a “minimum standard”, it deviates from the Berne in two aspects. TRIPS is broader than Berne, in that it protects “software and databases”; but at the same time, TRIPS is also narrower than Berne, in that it does not require compliance with moral rights provided by Berne Article 6bis[6].  The member will, however, have to continue to fulfill the existing obligations that Members may owe to each other under the Berne Convention[7].

 It means that if two Members of TRIPS Agreement are “already” extending protection to each other in the form of “moral rights” of the authors under the Berne Convention, then the TRIPS Agreement will not prevent them from doing so.

The combined reading of Article 2(2) and Article 9(1) shows that the two provisions are not contradicting each other. The TRIPS Agreement is not “recognising” the “moral rights” of the authors and the story ends here only. It is in no way restricting the conferment of the same under the Berne Convention if the Members to the TRIPS Agreement are already extending the same to each other on a “reciprocal basis”. Thus, in no way TRIPS should be misunderstood as laying down the rule that it is “prohibiting” or “regulating” the moral rights. It has only refused to bring the same under the protective umbrella of TRIPS Agreement.

 III. TRIPS Agreement and Data Protection

 The TRIPS Agreement recognizes the protection of “data property” in Article 10(2) of the TRIPS Agreement. Article 10(2) of the Agreement provides that “compilation of data” or “other material”, whether in machine-readable or other form, which “by reason of the selection or arrangement” of their contents constitute intellectual creations shall be protected “as such”. The Article further provides that such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.

A closer perusal of the Article reveals the following facts: 

(1) It is the ‘compilation” of data or other material, which is protected under TRIPS Agreement. It must be noted that “compilation” of a subject matter of Copyright is protected under almost all the legal systems. This is also protected in the Berne Convention. Thus, if a data is compiled in a particular manner, the same cannot be used in the similar manner. Further, by using the words “other materials” the ambit of this Article has been extended to even “non-data items”.

 (2) The compilation may be either in a machine-readable form or in some other form. The previous category includes storing of data in “computers” and its “parallels”, whereas the latter category includes storing of the data in the traditional paper mode. The storing of “data property” in computers and its parallels necessitates protection of the same in Information Technology law as well. That may be why the government is planning to amend the relevant provisions of the Information Technology Act, 2000. The proper approach, however, seems to be to incorporate necessary “explanatory provisions” in the Indian Copyright Act, 1957 and making minor suitable amendments in the Information Technology Act, 2000. In no case it should pressed forward through Information Technology Act alone. If a data stored in a computer or its parallels is misused, the provisions of the Information Technology Act can be pressed in to service along with the Copyright Act, depending upon the nature of violation or contravention.

At this point it may be noted that the Copyright Act, 1957 already protects “databases” as “literary works” under section 2(o) of the Copyright Act[8]. It must be noted that the definition of “literary work” is “inclusive” in nature and it is capable of encompassing more categories. Secondly, the concept of “compilation” used in this section is itself inclusive in nature and the compilation of “databases” is one of them.

Thus, the expression “compilation”, as used in section 2(o), includes at least two forms of compilation. The one is compilations for the purpose of conferment of Copyright and the other is compilation for the purpose of Data Protection. Thus, when the section 13(1)(a) of the Copyright Act uses the expression “original literary works, it is used not only in an “inclusive” manner but also in a “multifunctional” manner. It should not be confused to mean the literary work vis-à-vis copyright only. The inclusive nature of the definition of “literary work” is permeating the entire Copyright Act and it cannot be allowed to be whittled down while interpreting section 13(1)(a) of the Copyright Act.  In short, the copyright Act protects original compilations as “both” copyright and databases. It would be wrong to suggest that copyright and data protection are one and the same thing. These two are different Intellectual Property Rights, which are expressly protected not only under the TRIPS Agreement but also equally under the Copyright Act. The erroneous treatment of databases as copyright and with similar parameters has created a position where the government is planning to make a separate law for data protection. The present requirement is only to issue an “explanatory notification” clarifying this position. In fact, the definition of “literary work” is capable of accommodating “other materials” as well, which may be non-data in nature. This possibility has been expressly recognised and provided by both the TRIPS Agreement and the Copyright Act  

(3) The claim for data protection originates only because of the “selection or arrangement” of the contents by using the “intellectual creations”. Thus, if there is no intellectual endeavor involved in the selection or arrangement of the contents, then the same may not be protected as “data property”. The same will, however, still be entitled to the protection of Copyright, since the protection of copyright is not dependent upon the “quality” of the contents but their “expression” as such. It must be mentioned at this point that the claim of copyright is no dependent upon the formality of registration. The moment the contents are “expressed” in an original manner, the same will get the protection of Copyright. If the contents are arranged using some intellectual endeavour, the same can be claimed as either the copyright or as databases.

Thus, it can safely be concluded that all “databases” are capable of copyright protection but not all copyrightable material qualifies for the data protection. This shows that it is easier to get copyright protection than data protection. This suggestion should not be misinterpreted as suggesting that the copyrightable material can be absolutely devoid of any intellectual shade. It only means that the requirement of “quality” is more demanding and stringent in cases of data protection than the copyright. Thus, the same material may fail to qualify for data protection, but it can be still protected by the copyright.  This point is further strengthened by the use of the expression “as such’ in Article 10(2) of the TRIPS Agreement. Thus, either the work is protected as databases or it may qualify for the protection as copyright.

 (4) The protection in the databases is not available for the data or material itself, but it is exclusively available for the intellectual creation in the form of selection or arrangement. Further, the right in databases is without prejudice to any copyright in the data or material itself. Again, it shows that a person possessing the data has two rights. On the one hand he has a right in the form of databases, which is available in the intellectual creations in the form of selection or arrangement. On the other hand, he has a right in the “very data or material itself”, which is available to him in the form of copyright. In short the right to data protection is available only in the “form and manner” of intellectual selection or arrangement and not in the data or material itself, whereas the copyright is available in the data or material itself since the same is an expression”. Thus, the Copyright Act, 1957 adequately protects both the databases and the copyright equally.

IV. Conclusion

The above discussion shows that the proposed change in the Information Technology Act, 2000 for conferring data protection is not only unwarranted but is equally based on misinterpretation of the provisions of the Indian Copyright Act, 1957 and the TRIPS Agreement.

The concerns and apprehensions of the MNCs are far-fetched and unwarranted. The TRIPS Agreement and the Copyright Act, 1957 provides sufficient safeguards for preventing violations of databases of MNCs. The data, information and details provided by the MNCs will get the protection of ‘Data Property” if the same involves intellectual creations within the meaning of Article 10(2) of the TRIPS Agreement. If they fail to satisfy the requirement of Article 10(2), still they will be protected as copyright. The brightest and the positive aspect of this situation is that even non-data items are also protected, both under the TRIPS Agreement and the Copyright Act, 1957.

Thus, the MNCs should concentrate on their “business initiatives” rather than wasting their resources and time on unnecessary concerns.