LLM Group 3 Law of Intellectual Property and Information Technology Intellectual Property and International Organisations and Agreements 2019 Question Paper with Solutions

The objectives in the Convention

The Convention Establishing the World Intellectual Property Organization, signed at Stockholm on 14 July 1967 and in force from 26 April 1970, states WIPO's objectives in two places.

The preamble records the desire of the contracting parties:

1. to contribute to better understanding and cooperation among States for their mutual benefit on the basis of respect for their SOVEREIGNTY AND EQUALITY;
2. to ENCOURAGE CREATIVE ACTIVITY by promoting the protection of intellectual property throughout the world;
3. to MODERNISE AND RENDER MORE EFFICIENT the administration of the Unions established in the fields of the protection of industrial property and of literary and artistic works; and
4. to do so while FULLY RESPECTING THE INDEPENDENCE of each of the Unions.

Article 3 states the operative objectives:

1. to PROMOTE THE PROTECTION OF INTELLECTUAL PROPERTY THROUGHOUT THE WORLD through cooperation among States and, where appropriate, in collaboration with any other international organisation; and

1. RAISING STANDARDS OF LIVING;
2. ensuring FULL EMPLOYMENT and a large and steadily growing volume of REAL INCOME AND EFFECTIVE DEMAND;
3. EXPANDING THE PRODUCTION OF AND TRADE IN GOODS AND SERVICES;
4. allowing for the OPTIMAL USE OF THE WORLD'S RESOURCES in accordance with the objective of SUSTAINABLE DEVELOPMENT, seeking both to protect and preserve the environment and to enhance the means for doing so consistently with members' needs at different levels of economic development; and
5. ensuring, through positive efforts, that DEVELOPING COUNTRIES, and especially the least developed, secure a share in the growth of international trade commensurate with the needs of their economic development.

The means are reciprocal and mutually advantageous arrangements directed to the SUBSTANTIAL REDUCTION OF TARIFFS AND OTHER BARRIERS TO TRADE and the ELIMINATION OF DISCRIMINATORY TREATMENT, and the development of an INTEGRATED, MORE VIABLE AND DURABLE MULTILATERAL TRADING SYSTEM that preserves the basic principles of the system.

The objectives given legal effect in WTO adjudication

The preamble is not decoration. In United States, Import Prohibition of Certain Shrimp and Shrimp Products (DS58), India was one of four Asian complainants against a United States law that barred shrimp from countries not certified as requiring their trawlers to use turtle excluder devices. The United States defended the ban under Article XX(g) of the GATT as a measure relating to the conservation of EXHAUSTIBLE NATURAL RESOURCES; the complainants argued that the phrase meant minerals and other finite resources, not living species. In its report of 12 October 1998 the Appellate Body relied expressly on the reference to SUSTAINABLE DEVELOPMENT in the WTO preamble, which it said adds colour, texture and shading to the reading of the agreements, and read the phrase in an evolutionary way so as to include sea turtles.

The ban was therefore provisionally justified, but it failed the chapeau of Article XX because the United States had negotiated conservation arrangements with some countries and not with the complainants, and administered certification without transparency or due process, which was UNJUSTIFIABLE AND ARBITRARY DISCRIMINATION. The objectives in the preamble thus shape how every WTO obligation is interpreted, including the TRIPS Agreement, whose own objectives in Article 7 are read in the same way.

The comparison explains the history. WIPO's objective of promoting protection could be pursued only through consensus and persuasion; the WTO's objective of a durable trading system came with enforcement. When industrialised countries wanted enforceable intellectual property standards, they pursued them through the WTO in TRIPS, and the two organisations have cooperated since 1995 on technical assistance and the notification of laws.

PART D: THE TREATIES AND CONVENTIONS ADMINISTERED BY WIPO

Including its own Convention, WIPO administers twenty-eight treaties. WIPO itself arranges them in three groups.

Group one: intellectual property protection treaties

These define internationally agreed basic standards of protection in each member.

9. Trademark Law Treaty, 1994: harmonised trademark office procedures.
10. WIPO Copyright Treaty, 1996.
11. WIPO Performances and Phonograms Treaty, 1996.
12. Patent Law Treaty, 2000: harmonised patent office formalities.
13. Singapore Treaty on the Law of Trademarks, 2006.
14. Beijing Treaty on Audiovisual Performances, 2012.
15. Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, 2013.
16. WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, 2024.
17. Riyadh Design Law Treaty, 2024.

Group two: global protection system treaties

These ensure that one international registration or filing has effect in each relevant signatory.

1. Patent Cooperation Treaty, 1970.
2. Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, 1977.

And the constitution itself

1. Convention Establishing the World Intellectual Property Organization, 1967.

India's position

India is party to the WIPO Convention (since 1 May 1975), the Berne Convention (since 1928), the Paris Convention and the PCT (since 7 December 1998), the Phonograms Convention (1975), the Nairobi Treaty (1983), the Budapest Treaty (2001), the Madrid Protocol (2013), the Marrakesh Treaty (2016), the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (2018), the Nice, Locarno and Vienna Agreements (2019) and the Strasbourg Agreement (from 7 July 2026). It is not party to the Rome Convention, which it signed but never ratified, or to the Lisbon, Hague or Beijing instruments.

Conclusion. WIPO's OBJECTIVES are, by its preamble, cooperation among sovereign and equal States to encourage creative activity and modernise the administration of the Unions, and, by ARTICLE 3, to PROMOTE THE PROTECTION OF INTELLECTUAL PROPERTY THROUGHOUT THE WORLD and to ENSURE ADMINISTRATIVE COOPERATION AMONG THE UNIONS, enlarged by technology transfer and development objectives since 1974 and 2007. The WTO's OBJECTIVES, in the preamble of the Marrakesh Agreement, are raising living standards, full employment, growing real income, expanding trade in goods and services, the optimal use of resources in accordance with SUSTAINABLE DEVELOPMENT, a principle already part of Indian law after Vellore Citizens' Welfare Forum v. Union of India, and a fair share of trade growth for developing countries, pursued through reduced barriers, non-discrimination and an integrated trading system operationalised by ARTICLE III, and the Appellate Body in United States, Shrimp used those objectives to interpret the agreements themselves.