Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

 

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),negotiated during the Uruguay Round, introduced intellectual property rules for the first time into the multilateral trading system. The Agreement, while recognizing that intellectual property rights (IPRs) are private rights, establishes minimum standards of protection that each government has to give to the intellectual property right in each of the WTO Member countries. The Member countries are, however, free to provide higher standards of intellectual property rights protection.

The Agreement is based on and supplements, with additional obligations, the Paris, Berne, Rome and Washington conventions in their respective fields. Thus, the Agreement does not constitute a fully independent convention, but rather an integrative instrument which provides "Convention-plus" protection for IPRs.

The TRIPS Agreement is, by its coverage, the most comprehensive international instrument on IPRs, dealing with all types of IPRs, with the sole exception of breeders' rights. IPRs covered under the TRIPS agreement are:

The TRIPS agreement is based on the basic principles of the other WTO Agreements, like non-discrimination clauses - National Treatment and Most Favoured Nation Treatment, and are intended to promote "technological innovation" and "transfer and dissemination"
of technology. It also recognizes the special needs of the least-developed country Members in respect of providing maximum flexibility in the domestic implementation of laws and regulations.

Part V of the TRIPS Agreement provides an institutionalized, multilateral means for the prevention of disputes relating to IPRs and settlement thereof. It is aimed at preventing unilateral actions.

a.        Copyrights and related rights;

b.        Trademarks;

c.        Geographical Indications;

d.        Industrial Designs;

e.        Patents;

f.         Layout designs of integrated circuits; and

g.        Protection of undisclosed information (trade secrets).

Legal Aid

 

Legal Aid:

 No polity can claim to be just if it cannot provide access to justice for all the sections of its population. For it to have any meaning, justice must be available to all, but particularly to the most marginalized and the vulnerable person in our society. Free legal aid is crucial to ensure that people are able to access justice delivery institutions irrespective of their income criteria.

 Unlike many other countries, India has a very progressive legal aid law that provides free legal services for a wide variety of people – women, children, workers, people living with disability, SCs, STs, those earning below Rs. 1 lakh per annum etc. Legal aid is available for both criminal and civil matters. The Legal Services Authorities Act is the key legislation to assist the marginalized people in accessing a host of rights and entitlements. Avenues to access legal aid under the Act are available from the Supreme Court down till the district and taluka level.

The Government will now be focusing its efforts to establish Legal Aid Clinics even at the village level so as to ensure access to justice for the people at their door steps. Paralegals will be trained across the country to empower and assist the marginalized people in accessing their rights and entitlements, and to man the legal aid clinics.

Good practices from other parts of the world are being studied with a view to adapt them to our context. With UNDP support, the Ministry of Law & Justice sent 4 delegations to Indonesia, South Africa, Malawi and Sierra Leone to study good practices on legal aid and empowerment. An international conference was held on 17-18 November 2012 to discuss this subject. Based on the learnings from the conference, the Ministry will be exploring mechanisms to work closely with law school based legal aid clinics so as to utilise the services of law students in providing access to justice for the poor people. The Ministry will work closely with the National Legal Service Authority and the State Legal Service Authorities to strengthen the paralegals as an institution in the country.

Gram Nyayalas

 

Gram Nyayalas:

 

The Gram Nyayalayas Act, 2008 has been enacted to provide for establishment of Gram Nyayalayas at the Inter Mediate Panchayat level by State Governments in consultation with respective High Courts so that speedy and affordable justice could be provided to the common man at his doorsteps.  The Act has come into force w. e. f. 2^nd October, 2009.

As per the information available, till beginning of December 2012 a total of 168 Gram Nyayalyas have been notified by 7 States namely Madhya Pradesh, Rajasthan, Orissa, Karnataka, Maharashtra, Jharkhand and Goa of which 151 have become operational. The difficulties faced by the States in setting up of Gram Nyayalayas were discussed in the meeting of Law / Home Secretaries of the States and Registrar Generals of the High Courts in New Delhi on 19-20 April, 2012. 

A meeting to discuss the issues pertaining to Gram Nyayalayas was convened by the Prime Minister’s Office on 16.10.2012. Considering that implementation of Gram Nyayalayas Act is a thrust area of the Government, it was decided that issues effecting the implementation of the scheme may be placed before the  Chief Justice of India and Chief Justice of the High Courts in the meeting to be convened shortly. It is pertinent to mention here that complete implementation of GramNyayalaya scheme would result in addition of around 5,000 courts at intermediate panchayat level affording quick and inexpensive justice for common man.

Toxicology

 Toxicology is a field of science that helps us understand the harmful effects that chemicals, substances, or situations, can have on people, animals, and the environment. Some refer to toxicology as the “Science of Safety” because as a field it has evolved from a science focused on studying poisons and adverse effects of chemical exposures, to a science devoted to studying safety.

Actus Reus

 

Actus Reus 

The Latin term ‘actus reus’ implies ‘guilty act.’ The physical component of a crime is known as actus reus. In most cases, the accused must have done or failed to do something that caused injury to the plaintiff or victim. There can be no offense and no lawsuit for damages without a criminal act. According to Kenny, “actus reus is an outcome of human activity that the law aims to prevent.” 

According to section 32 of the Indian Penal Code, actus reus can also refer to the failure to perform any act or omission that the accused is aware he is obligated to execute by duty or law. The phrase ‘act’ refers to both a single act and a series of acts, while the term ‘omission’ refers to both a single omission and a series of omissions. 

According to Section 39 of the Indian Penal Code, actus reus must be voluntary. This is based on “actus me invito factus non est mens actus,” which, according to common law, signifies “an act done against my will is not my act at all.” if the impact of a person’s acts is a likely consequence of the means, he is presumed to have freely induced that effect, whether or not he intended to do so.

Mens Rea

 

Mens Rea 

Mens rea is a Latin word that translates to “guilty mind.” Mens rea is the essential distinguishing feature, emphasizing the importance of the accused person’s state of mind at the time of the offense. 

It’s worth remembering that no conduct is unlawful unless a mens rea accompanies it. The common law maxim “actus non facit reum nisi mens sit rea,” which translates to “the act is not guilty until the mind is guilty,” defines mens rea the best. The accused cannot be held accountable under the criminal law unless he can be proved to have acted with intent to commit a crime.

The burden of proving the presence of mens rea falls on the plaintiff, and the purpose of the defense is to raise a reasonable doubt in the mind of the judge or jury because the principles of justice mandate that an individual cannot be convicted unless the charge against him/her can be established beyond a reasonable doubt.

Essential elements of Crime

 

Elements of Crime

The main criminal laws in India include the Indian Penal Code, Indian Evidence Act and Criminal Procedure Code. People often refer to these three as general laws. Apart from these three laws, we also have other laws that relate to specific kinds of offences.

For example, the Prevention of Money Laundering Act deals with particular financial crimes. Even other laws that do not specifically regulate crimes, like the Companies Act, contain some offences and penalties.

The most important thing common in all these laws is that they contain certain basic elements. The following are four basic elements of crime:

1.   Accused person

2.   Mens rea

3.   Actus reus

4.   Injury

1. Accused person

No crime can ever occur out of thin air because that would simply be an accident. In order to constitute a crime, it is important for somebody to commit it. The law should always be able to pinpoint the person who is responsible for committing an offence.

The term accused “person” does not suggest that only a human being can commit offences. According to Section 11 of IPC, the term “person” also includes a company and an association or body of persons. Therefore, even a trust, an NGO and a public company can commit offences.

Furthermore, certain offences can implicate more than one person for the same crime. In such cases, all persons will face trial and may have to face punishment together.

2. Mens rea

A mere person will never commit a crime unless he possesses some intention to commit it. The law generally refers to this intention as mens rea, which means “guilty mind” in Latin.

The term mens rea has been derived from a famous Latin maxim: Actus non factit reum nesi mens sit rea. This basically means that an act cannot be guilty if it does not accompany a guilty mind.

The element of mens rea itself comprises of certain inherent elements. These include intention, motive or knowledge. Which of these elements must exist in order to constitute an offence generally depends on the relevant provisions. 

For example, Section 300 of IPC contains various kinds of acts which amount to the offence of murder. These acts may include an act done with the “intention” of causing bodily injury sufficient to cause death.

Furthermore, it also includes an act of which the offender has “knowledge” of it being imminently dangerous. Therefore. we need to look at the relevant provisions to understand what kind of intention is necessary.

Crimes in the absence of mens rea

Although mens rea is an essential element of crime, some offences can occur without it. For example, Section 304-A of IPC makes death by negligence a criminal offence. In such cases, a “negligent act” would not include the intention to cause death. However, negligence or mistake itself is sufficient to constitute a crime.

3. Actus reus

Merely possessing a guilty mind and thinking of committing a crime is not enough. The accused person must also act on that intention and do something in its furtherance. Actus reus basically refers to an act or omission which leads to the completion of an offence. Both mens rea, as well as actus reus, together are important to create an offence.

Actus reus can be a positive act, such as stabbing a person to cause his death. It can also be an omission (failure) to perform an action. For example, driving a vehicle without a driving license is an omission.

4. Injury

The last of the basic elements of crime is an injury. There can be no crime if no person faces some kind of an injury. According to Section 44 of IPC, “injury” means any harm caused to a person illegally either in mind, body, reputation or property.

However, there can be some crimes which might not require injuries to anybody. For example, driving without a driving license is a crime even if it may not harm anybody.