“TRIPS” (Agreement on Trade Related Aspects of Intellectual Property Rights) is an internationally established agreement among the signatory states of the WTO (World Trade Organization). It came into force in the year 1995 to become the most widely influential agreements since the institution of the WTO (Gervais, 2008; Gervais, 2009). The agreement was intended to harmonize IP laws and regulations for all signatory states. Its negotiations started with the GATT Ministerial Conference in Uruguay. This was when negotiations between the underdeveloped and developed countries regarding the review of the Paris Convention settled on establishing a new multilateral agreement. This was for protection of intellectual property to bring developed and less developed states closer (Nguyễn, 2010).
This research will be focused on addressing the following research question: How does Saudi Arabia and England differ in terms of implementing the TRIPS Agreement? Several claims have been made stating that Saudi Arabia ought to remain in the US’s Watch List. Arguments have also been made to push for a review of the country’s IP law to protect the works of other people and make sure that Saudi IP law system meets international standards (Gause & CFR, 2011). While different views have been put forwards regarding this issue, there is no sufficient evidence to show that the country has not satisfied the basic minimum requirements of the TRIPS Agreement. Thus far, no studies which have tried to look at this issue by comparing the Saudi Arabia with England. However, there exist several addressing the many subcomponents which constitute the larger issue.
Clearly, notable differences exist between different states regarding this issue (Carvalho, 2010). TRIPS Agreement does not establish a uniform law requirement as countries are granted some degree of freedom to design appropriate legislation at national level (Carvalho, 2011). Hence, this provides a good reason for comparison to show the difference between the two countries. Other than being free to design own legal systems, another reason for comparison is that both countries in question adopt different legislations. Saudi Law and English Law are quite dissimilar. In addition, both countries began the implementations at different times, not forgetting that studies have established implementation differences between developed and developing countries (Michalopoulos, 2003; Cardwell & Ghazalian, 2012). Although there is a large body of literature focused on TRIPS, not much of focuses on how different countries, and more so the countries of interest in this paper, have exercised the freedom provided by the agreement in implementing IPR protection. The report makes a significant contribution to literature and also provides some basis for further study regarding the paucity of relevant literature. Although this may not completely fulfill this gap, it will be a major step towards meeting this goal.
The study also seeks to meet the following objectives:
- To determine how Saudi Arabia has implemented the Trade-Related Aspects of IP Rights Agreement.
- To determine how England has implemented the Trade-Related Aspects of IP Rights.
- To show the differences between the two countries by comparing how each has implemented the agreement.
BACKGROUND AND KEY LITERATURE
Absence of a uniform law requirement has allowed TRIPS’s member countries to exercise some freedom in meeting the agreement’s requirements. In line with the research topic, evidence shows that England and Saudi Arabia are at different levels in this regard. Saudi’s enforcement system is not that transparent (Senftleben, 2004). Although raids on piracy have been random in the kingdom, they have not had any deterrent impact. Intellectual property rights holders are given only spotty information and aggregate statistics concerning the raids conducted. In addition they do not have a way to collaborate with authorities in cataloging the property which has been confiscated neither is there a way to validate the claims. Judicial results are not publicized while fines levied tend to be low. There are other issues which indicate how Saudi Law is still far from meeting the TRIPS basic minimum requirements (Pugatch, 2004). For instance, in Saudi Arabia, illegal distribution of pay TV services occurs in compounds. Although the government, through the Ministry of Information carries out raids for the same and has confirmed this to be a major problem in the country, the action taken does not prevent it. Other IPR issues are still a problem such as book piracy, copyright infringement, and so forth. While the actions taken so far to protect IP rights in Saudi Arabia give hope for a better system, they still have not satisfied TRIPS basic minimum standards (He, 2011). On top of that, they do not also meet the WIPO “digital” standards. Saudi Law does not adequately protect sound recordings/musical works.
IP Law under Saudi and English Law
The TRIPS Agreement has several provisions regarding patents. In Saudi Arabia, patent and industrial design protection is under the Committee for Examining Patents on Invention Lawsuits. Inventors get sole rights and may either be Saudi, or foreign, both individuals and companies (Campbell, D. & Campbell, C., 2007). Validity of patents is one lunar year or fifteen Hijri years. English law is a bit stronger with the Patents Act is the main law for patent protection. England has developed more detailed Rules, directions and Acts to govern legal duties, procedures and rights for patents.
The TRIPS agreement has express provisions relating to protection of copyright of various works. On the other hand, Saudi Arabia, through The Ministry of Culture and Information, has instituted VRC (Violation Review Committee) on Copyrights to operate in conjunction with General Directorate of Copyright in reviewing copyright cases. Pressure from the US has forced the country to institute measures for copyright regulations (Gause & CFR, 2011), which are still unfavorable to foreign copyrights. With England being the originator of the modern copyright concept, it has the Copyright, Designs and Patents Act as the main source of copyright laws (Rossini, 1998). The amendments made over time allow for protection of dramatic, literary, musical and artistic work, sound recordings, broadcasts, films and so on.
The TRIPS agreement supplements the Paris Convention provisions relating to protectable trademarks. Under Saudi IP law, Trademark Regulation governs trademarks where applications are made to the Ministry of Commerce. Saudi law imposes some limitations to prevent registration of specific alcoholic products and other which offend or are against morality (Ramady, 2010). Trademark renewal occurs after five Hijri years. The UK allows for registration of trademarks under the Trademarks Act to prevent infringement (such as using a mark similar to the registered one) (Cumming, Freudenthal, & Janal, 2008). A trademark can only be defended if it is registered or can distinctively be identified with a person.
The TRIPS Agreement acknowledges that countries approach design protection differently (either as patents, creative works or copyright) and thus allows signatory states to adopt either system. Saudi Law does not have statutorily designed systems for protecting designs, but it protection can be achieved through cautionary notifications in Ummulqura (official gazette). Design right originated from the UK where English law provides a unique design right protection system (Wilkof, Burkitt, & Stothers, 2005). It has national registered and unregistered design rights which may last up to 15 and 25 years respectively.
IP in Islam
Under Islamic Law, Sharia is the primary basis for the legislation and laws which are applicable in countries like Saudi Arabia (IBP, 2007). However, when it comes to intellectual property, the larger part of the legislation is based on modern regulations and Sharia has been supplemented by regulations from other sources such as TRIPS, the Berne and the Paris convention. Therefore, the Sunnah and Qur’an are not of much use in intellectual property issues as is the case with contract, commercial, family and criminal law (Cotran, Mallat, & CIMEL., 1995).
Benefits and Costs of TRIPS
- Saudi Arabia
Saudi Arabia sought accession in 1993. During the negotiations for its accession to TRIPS, Saudi Arabia devoted itself to implementing the TRIPS without a transition period (Van Eeckhaute, 2002). Its accession occurred in 2005 and the WTO TRIPS Council reviewed the country’s IPR systems in February, 2007. Its accession to TRIPS has seen the country achieve progress in IPR protection. In this case, the US Trade Representative removed it from the special 301 Watch List (Stoll, Busche, Arend, & Max-Planck-Institut, 2009). Saudi’s customs Authority, through a unit for IPR protection and combat of commercial counterfeiting, has helped combat IPRs infringement and counterfeiting, seizing 423,332 counterfeit items. The Committee for Examining Patents on Invention Lawsuits had, by 2011, resolved 410 of the 435 cases filed. Saudi has managed to protect test data for agricultural and pharmaceutical chemicals submitted for marketing approval from unfair commercial usage for five years after approval. It has brought many parents on file, and it has achieved dramatic improvement in developing laws to govern intellectual property (Fukunaga, 2008; Correa, 2007). This guarantees protection of IPRs of firms or individuals in the country. Assistance from the WTO and other developed countries has helped Saudi design effective IPR systems. However, Saudi Arabia, like many developing states has not been able to protect its traditional knowledge.
Being one of the developed states of the world, England has stringent intellectual property systems in compared with Saudi Arabia. This has enhanced innovation since people are motivated by the idea that their creations are properly protected (Dierx, Ilskovitz, & Sekkat, 2004). In turn, this has increased economic growth in the country being the origin of some very big multinationals. English firms have found market in other markets which would not be available without IPR protection as products would be easily copied (Vrey, 2006). Through IP protection, England has managed to preserve its generic industries.
The Compatibility of Saudi IP and English Law with with Trips
This research will seek to determine the levels of compatibility between the two country laws with TRIPS. By looking at the Saudi IP laws, it occurs to be integrated with the TRIPS law considering that the country has also ratified both the Berne and the Paris conventions in order to protect intellectual property (Haugen, 2008). Initially, IPRs were governed under by Sharia Law but Saudi revised its IP laws to satisfy the standards of the WTO after its admission. TRIPS laws are used to supplement Sharia laws. Enforcement of both is carried out by the same institutions. Enforcement of IPRs is carried out by KACST (King Abdulaziz City for Science and Technology for patents) (patents), Ministry of Culture and Information (copyright), and Ministry of Commerce and Industry for trademarks (trademarks) (Guo, 2009). However, the current standards fall short of the TRIPS minimum requirements. In England, the IPR systems are properly integrated such that effective protection is guaranteed. Being a signatory to several IP conventions (Paris, Berne, UCC Geneva, WCT), England has developed effective judicial systems to address issues regarding intellectual property.
METHODOLOGY TO BE USED
Research methodology basically refers to the approaches through which to collect data and information, organize it and also analyze it in line with the objectives of the research. In use are two research methods which can be adopted for the purpose of completing this research: quantitative and qualitative research approaches. The qualitative approach uses empirical methods and controlled variables while the quantitative approach tends to be statistical and numerical in nature. For the purposes of carrying out this research, a qualitative approach will be utilized since the nature of data involved is not of a quantifiable nature. The research techniques adopted in this paper will be both comparative and transnational. A comparative research approach, as mentioned by McConville and Chui (2007), entails comparison of different entities. This is a great way to examine a phenomenon in several countries with an aim of comparing them in varied contexts. In this approach, the entities to be compared may be based on different lines including political, regional, geographical and other businesses. Comparative studies may be used to uncover differences in addition to discovering the unique aspects of the entities under study. This research approach will therefore be used to determine the variations existing between Saudi Arabia and England. This will be done with a purpose to expose both the variance and similarity.
In preparing this report, the study will be based on a review of existing literature. It is clear that there is no extensive literature regarding the differences between the two states in implementing the Trade-Related Aspects of IP Rights Agreement. However, there are a bunch of studies and works covering the various subcomponets constituting the larger issue. In order to acquire comparable data, it will involve primarily gathering secondary information from secondary sources which have been generated by transnational sources. The decision to rely on secondary data for the comparative study is based on the fact that obtaining primary data for a project involving large study things like countries can be very costly.
By adopting a comparative approach, this cross-national research will provide a way of assessing this shared phenomenon (TRIPS Agreement) and establish the similarities or differences. This will provide a full understanding of how the different countries have implemented the laws. It is maintained that the country mix chosen for a comparative studies determine their comparability as well as the caliber of research developments (Øyen, 1990). Saudi Arabia and England make an ideal choice considering the notable differences between them making the research feasible.
This research is intended for the purpose of achieving the aforementioned aims and objectives. The research will be conducted with an aim of determining how Saudi Arabia and England differ in terms of implementing then TRIPS Agreement. Through this study, it will be able to find the truth about the argument that Saudi Arabia has failed to satisfy the basic minimum standards of this agreement. The research findings will be very helpful in determining the shortcomings of IP law in the two countries and also provide a good basis for evaluation and improvement. It will help to understand the IPR situation in both countries and also pave way for efforts to address the shortcomings. Every part of this research proposal will be analyzed and clearly documented to develop a complete final report. This research will pave way for further research as well.
Difficulties and limitations
In undertaking this research, there are some difficulties which are so far anticipated. For instance, the first problem is the challenge to access information about Saudi Arabia’s situation regarding the TRIPS. The enforcement system of Saudi Arabia is considered to be very secretive and lacking transparency. Compared with other countries around the world, it might even be among the least transparent systems in the world. Therefore, this may be a major problem as it may be hard to have precise information about the implementation of TRIPS and the enforcement of the same. In addition to that, being a novice researcher without much experience may pose some difficulties. Another difficulty may relate to the research resources such as funds. Undertaking this study will involve a number of expenses which are hard to make accurate estimations as for now. This is a major limitation as opposed to if the researcher was an expert. It is also a major limitation that qualitative research tends to be imprecise. This makes is very hard to ensure complete neutrality and objectivity, thus limiting the research’s accuracy.
Below id the research timetable which is drafted based on the level of tasking and vitality of the various elements of the research.
|Activity||week 1||week 2||week 3||week 4||week 5||week 6||week 7|
|Topic selection and planning|
|Determine research questions, aims and objectives|
|Background and significance|
|Methodology to be used|
|Write up literature review|
|Methodology and their critique|
|Data collection and entry|
|Check data sufficiency|
|WRITE UP LAST SECTIONS|
|Conclusion, appendices, table of contents|
|REVIEW AND PROOFREADING|
|HAND IN PROPOSAL|
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