The adaptation of TRIPS will bring about the provision of an adequateframework for protection of intellectual property rights by concernednations. In addition, it will also lay the ground work for the effectiveenforcement of these rights. The agreement seeks to provide a forum for bothtransitional arrangement for those countries which are yet to adopt theseprovisions as well as a dispute settlement mechanism between nations.

With respect to the provision of a mechanism for protecting IPRs as well asto create an environment of effective enforcement of these provisions theTRIPS agreement makes it obligatory on the part of member-nations (who areessentially signatories to the TRIPS agreement) to evolve a set ofprocedures to implement and monitor the agreement under their existing laws.

However, the enactment of the necessary laws or the amendment andmodification of existing ones and creation and implementation of the legalmechanism is left entirely to the discretion of the individual nations. Byand large it has been found that most nations had the requisite legalframework and only some fine-tuning was required. In addition, the questionof the mode of implementation and monitoring is also addressed. Here theagreement is explicit that there is no obligation for the member countriesto put in place a judicial system which is distinct from that in place forthe enforcement of other national laws.

The monitoring of IPRs will of course be inclusive of both domestic as wellas foreign right holders. These micro-provisions relate to how individualcountries deal with the implementation and monitoring of IPRs within theirborders. But there is the crucial question of transnational conflicts, whichhas been addressed separately by evolving a distinct mechanism. To this enda council will be established under the TRIPS agreement which will beentrusted with the task of monitoring the operation of the agreement and thelevel of compliance of the individual concerned governments. In addition tothe council there is also a provision that dispute settlement can take placeunder the integrated General Agreement on Tariffs and Trade (GATT) disputesettlement procedures as revised in the Uruguay Round.

But the structure which was agreed upon by the member nations is subject tochange. And the mechanism for effecting this change is also specified. Thiscan either be done via a mandated general review whereby the implementationof the agreement is to reviewed in the year 2000 and subsequently every twoyears after that. One more mechanism for review is akin to judicial reviewin any national legal system and that is by dispute settlement. However,unlike other aspects of the WTO agreement the TRIPS agreement does notenable a member state to seek redressal of a grievance or rather thesettlement of any IPR dispute with a nation that is not a signatory to theagreement.

But the implementation and monitoring mechanisms is the least of the worriesof member countries. The more substantive portion of the agreement and whichnaturally is the source for concern deals with what constitutes intellectualproperty and how it is to be managed and protected. These deal withcopyright, trademarks, geographical indications, industrial design, patents,undisclosed information and the layout design of integrated circuits.

As far as India is concerned substantial steps have already been taken tomove towards a comprehensive IPR regime. To that end several requisite IPRlaws have been modified to suit the international norms. These include thelaws relating to patents, trademarks (through an amendment), copyright,designs (also via an amendment to an existing Act), integrated circuits(currently under consideration by the concerned government department). Thereally big effort surrounds the Indian Patents Act, which will addresscrucial questions such as what really constitutes a patent and whether ornor an exclusive marketing right (EMR) can be considered to be an adequateworking of the patent. Also a crucial area that will be taken up forconsideration is whether the patent should be related to products andprocesses or to products alone irrespective of the process used. These amongother issues need to be sorted out before full implementation of thisregime.

But while the issues relating to patent laws are still being worked out thegovernment has raced ahead on all other aspects of IPRs. For example thegranting of EMRs through the Patent Amendment Act. India has already listedthe commodities based on which it can claim unassailable geographicalindicated identification; this would help the country lay claim on specialtyproducts; such as certain types of rice or tea. Further, what needs to beclarified is the fact that the methods of extraction end products have beenpatented and not the raw material itself. For example a new variety ofbasmati rice has been patented rather than basmati itself. Unfortunately,the TRIPS agreement does not provide for protection of intellectual propertythat is considered to be in the public domain. The rectification of thisanomaly is crucial for furthering Indian interests.

But there are more grey areas than clarity on a number of other criticalissues. For example the conservation of the traditional community knowledge(including intellectual property) as well as bio diversity. Further, twoindividual pieces of legislation have already been enacted in India; theseare the Plant Variety Protection Act and the Farmers Rights Act. Thislegislation currently denies the farmers the right to sell seeds. A farmercan save, use or exchange farm products except for the purpose ofreproduction. The opposition to this legislation stems from the fact thatthe plant breeders' rights exist in perpetuity, and will form the core ofchanges that India should seek to make in the next round of negotiations.

Another controversy has crept up with a TRIPS provision that states thatmembers shall have under patents; micro-organisms, non-biological andmicro-biological processes. The challenge here is to ensure the patenting ofproducts which are derived from micro-organisms rather than the patenting ofthe micro-organism itself. It is crucial for India to press its casediligently and obviously in tandem with other like minded nations. Otherwisethe effect of the last round of negotiations where numerous Indian concernswere not attended to could be repeated.