THIS WEEK the PSOJ continues its look at the WTO's agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).TRIPS provides for special transitional arrangements during the period when the new system is being introduced. When the WTO agreements took effect on January 1, 1995, developed countries were given one year to ensure that their laws and practices conform to the TRIPS agreement. Developing countries and economics in transition were given five years while least developed countries were given 11 years.
PATENT PROTECTION
If a developing country did not provide product patent protection in a particular area of technology when the TRIPS Agreement came into force (1 January 1995), it had up to 10 years to introduce the
protection.
For pharmaceutical and agricultural chemical products, the country must accept the filing of patent applications from the beginning of the transitional period, though the patent need not to be granted until the end of this period.
If the Government allows the relevant pharmaceutical or agricultural chemical to be marketed during the transition period, it must, subject to certain conditions, provide an exclusive marketing right for the product for five years, or until a product patent is granted, whichever is shorter.
Obligations in the agreement apply to intellectual property rights that exist at the end of a country's transition period, as well as to new ones.
In Jamaica, the reform of Intellectual Property Laws has been occupying a position of importance since the singing of the WTO TRIPS Agreement and several measurers have been taken to review and update legislation governing Intellectual Property.
NEW COPYRIGHT ACT
This has included the passing of a new Copyright Act, Layout-Designs and Topographies Act and a new Trademarks Act and supporting regulations.
The Copyright Act passed in 1993 conforms to standards prescribed under the WTO Agreement and under Jamaica's bilateral Intellectual Property Agreement. In particular, this Act provides for, inter alia, the protection of computer programmes and compilations of data and provides for rental rights. The terms of protection and time periods underlined in Article XII of the TRIPS Agreement are adhered to.
Jamaica's Layout-Designs and Topographies Act was passed in 1999.
The third piece of legislation passed in Jamaica's effort to ensure conformity with its multilateral obligations was the Trademarks Act and Rules in 2002. The Trademarks Act was passed in July 1999 and the Trademarks Rules 2000 have been completed.
Essentially, the Trademarks Act implements the TRIPS Agreement in relation to protectable subject-matter in terms of protection and requirements for use and provisions for licensing and assignment.
It is expected that the Patent and Designs Act and the Geographical Indicators Bill will be passed very shortly.
MODERN STANDARDS
The draft Patent and Designs Bill is a revision of the existing piece of national legislation in order to comply with modern standards of protection as outlined in the TRIPS Agreement and in conformity with our bilateral Intellectual Property Agreement, which was signed in December 1999.
The Bill basically adopts the provisions of the TRIPS Agreement. For example, it excludes the following from patentability diagnostic, therapeutic and surgical methods for the treatment of humans or animals; plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. The Bill also secures a wider range of property rights to patent owners, for example, to assign or to transfer by succession.
NO SPECIFIC LEGISLATION
At present there is no specific national legislation which offers comprehensive protection to geographical indications and this is what the draft Geographical Indications Bill seeks to address.
In relation to enforcement, Jamaica's legislation, both that which has been passed and that which is shortly to be passed, in all areas of intellectual property rights has strong provisions dealing with enforcement, for example the granting of injunctive relief, the awarding of damages, and the ordering of the destruction of the offending materials.
OFFENDING MATERIALS
In addition, there is legislation dealing with the suspension of release by the Customs authorities of offending materials upon notification of infringement.
In cases of wilful trademark counterfeiting or copyright piracy on a commercial scale, Jamaica's legislation has provisions for criminal procedures and penalties.
Jamaica has also recognised the need for greater specialisation and speed in litigating intellectual property and other commercial matters. In that regard, rules have been passed which provide for a commercial court and, some months ago, Jamaica's first commercial judge was appointed.
INTELLECTUAL ROPERTY DISPUTES
This court will deal with a wide variety of commercial cases such as intellectual property disputes and it is anticipated that the Court will assist in disposing of these disputes in a timely and efficient manner.
In conclusion, attention must be drawn to the establishment of the Jamaica Intellectual Property Office.
The office functions under the Ministry of Commerce, Science and Technology and brings under one umbrella all aspects of intellectual property. The office provides for a more efficient method of administration and is yet another step in complying with the terms of the TRIPS agreement.
