International Legal Framework for Protection of Intellectual Property under the TRIPs Agreement/the WTO & Related Human Rights Issues of Dissemination & Transfer of Environmentally Sound Technology - A critique of conflicting rights

Abstract: Recent history of contemporary world has substantiated the fact that the secret of enjoying technological and economic leadership, lies in placing a high premium on the system and content of intellectual property (IP) rights. Nations that do so are reaping the fruit of their timely decision and are seen as role models for economic growth. The reason is obvious: the dream of scientific and technological development cannot be realized unless there is a galaxy of fertile intellect and human resources at work, with full zeal and zest, trained in scientific knowledge and technical skill. Human experience has shown, however, that the determining factor in creating and upholding such a cadre is an environment, conducive to creativity and innovation. The intellectual property protection regime responds to the challenge by advancing this rationale. Another big challenge of the contemporary world is the escalating environmental degradation, which is swiftly making the habitat and making the climate unsafe for human survival. The underlying reason for such degradation is industrial processes and polluted technologies employed for enhanced productivity to raise the standard of living. This presents challenges for technologists and innovators to come up with such innovative technologies (products and processes), which could realize the dream of economic growth without compromising the environment. In other words, the question remains: how does one crystallize the myth of sustainable development? The solution lies in the creation and invention of products and processes that are environment friendly. This answer could guarantee a resolution to the serious threat to biological life and health. Such efforts have already gained momentum on an international level. Many multilateral environmental treaties (MEAs) have come into effect, which have vehemently called for access to and transfer of environment friendly technologies (ESTs), for the protection of environment. Apparently conflicting obligations under two parallel protection regimes, present a dilemma. Most states are parties to the TRIPs Agreement/the WTO agreements as well as MEAs. The moot question is how to reconcile and harmonize the conflicting rights and interests? This paper examines the conflicting rights critically and attempts to harmonize them in accordance with the principles of interpretation under international law. It is an attempt to evaluate the ways in which patent law under the TRIPs Agreement might assist in the attempts that are being made to minimize and reduce the scope of harm that is presently being inflicted upon the environment and human health by industrial processes. The paper will also attempt to evaluate the high profile issue/objection raised as to ''whether the TRIPs Agreement impedes the transfer and dissemination of technology?'' This paper is structured in the following way. It is divided into five chapters. After this introduction in chapter one, the second chapter presents a general survey of the protection of intellectual property rights regime under the TRIPs Agreement and important provisions relating to IP protection and transfer of technology and its dissemination in more simple terms. Thereafter, the third chapter explains the significance of ESTs from the angle of sustainable development. An attempt is made to show how the denial of access to and transfer of such technology could have negative repercussions for the environment, sustainable development as well as fundamental human rights. To achieve this end, the chapter is split into three sub-divisions. In the first section, ESTs are defined and a general survey is presented regarding the repercussions of contaminated technological and industrial processes. Secondly, a review of the multilateral environmental agreements (MEAs) is made to highlight the significance of transfer of ESTs and to examine states obligations hereunder. In the third section, the correlation of sustainable development and international human rights is evaluated. This is relevant because the purpose of ESTs is to assist, support and advance sustainable development. The paper thereafter proceeds to look at the extent to which the transfer and dissemination of ESTs is itself a human rights issue. The third chapter comprises an analysis of the issue and evaluates conflicting rights and interests arising out of the international obligations under the TRIPs Agreement vis-à-vis those arising under MEAs and international human rights law. In addition, the South-North confrontation over the IP- protection regime established under the TRIPs and the WTO is examined. In particular, this paper scrutinizes the legitimacy of the concern raised by developing countries that the protection of the IP regime under the TRIPs was too enhanced to impede the transfer of EST from North to South. In this chapter their genuine concerns in the context of their obligations under international human rights law as well as under international environmental standards are highlighted. Then the flexibility of the TRIPs Agreement in this regard is analysed to rebut the unreasonable criticism made of the whole IP protection rationale and regime in the pretext of other obligations and rights. Finally in the final chapter named ''Epilogue'' a sort of conclusion is added, to fill the loopholes and left over-deductions.