1. Copyright and related rights
2. Trademarks, including service marks
3. Geographical indications, including appellations of origin
4. Industrial designs
5. Patents, including the protection of new varieties of plants
6. Layout-designs (topographies) of integrated circuits
7. Undisclosed information, including trade secrets and test data
Intellectual property rights listed above are customarily divided into two main areas: 1) copyrights and related rights, 2) industrial property rights.
The rights of authors of literary and artistic works (such as books and other writings, novels, poems and plays, films, musical works, musical compositions, computer programs and films, drawings, paintings, photographs and sculptures, and architectural designs) are protected by copyright, for a minimum period of 50 years after the death of the author.
Also protected through copyright and related (sometimes referred to as “neighbouring”) rights are the rights of performers (e.g. actors, singers and musicians), producers of phonograms (sound recordings) and broadcasting organizations.
Industrial property can usefully be divided into two main areas:
One area can be characterized as the protection of distinctive signs, in particular trademarks (which distinguish the goods or services of one undertaking from those of other undertakings) and geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin).
Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.
IPRs are intended to give the creators adequate returns so that there are enough incentives for creativity. For example, the social purpose of industrial property rights of the second area is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means to finance research and development (R&D) activities.
IPRs can further ensure fair competition and protect consumers, by enabling them to make informed choices between various goods and services and to differentiate counterfeit commodities. This objective is particularly attributable to the protection of industrial property rights of the first area (distinctive signs). The protection may last indefinitely, provided the sign in question continues to be distinctive.
A functioning intellectual property regime should also facilitate the transfer of technology in the form of foreign direct investment, joint ventures and licensing.
To sum up, the protection and enforcement of intellectual property rights should contribute
- to the promotion of technological innovation,
- to the transfer and dissemination of technology,
- to the mutual advantage of producers and users of technological knowledge in a manner conducive to social and economic welfare, and
- to a balance of rights and obligations.
So far, we have understood that creations should be accorded protection. However, the general public that benefits from such creations should not be expected to pay unreasonably high prices. The balance between the remuneration to the innovator and artist on the one hand, and the genuine interests of the public on the other, has been a subject of debate for a long time. Various countries tried to have their own balance. The extent of protection and enforcement of intellectual property rights varied widely around the world; and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. Although the World Intellectual Property Organization (WIPO) has laid down some rules for the protection of intellectual property, many developed countries feel that the protection of IPRs needs much more strengthening than what is possible through the WIPO agreements. In the wake of rapid technological development, reaping the full benefits of their technological innovations is important for them. In the emerging world economic and trade scene, their prospects lie mainly in knowledge-intensive, high technology sectors of industrial production and services. It is vital for them to provide strengthened and assured protection to their innovations, particularly in the sectors of pharmaceuticals and electronics where copy is much easier. New internationally-agreed trade rules for intellectual property rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically.
The 1986-94 Uruguay Round achieved this goal in spite of the initial objection from a large number of countries participating in the negotiations to the inclusion of IPRs in GATT negotiations on the grounds that the subject was covered by another organization, i.e., the World Intellectual Property Organization, and that the GATT had jurisdiction only in the field of trade (As a compromise, the subject of the negotiations was termed trade-related intellectual property rights, and it was thought that it would cover only the matters related to trade. But finally, it was agreed that all issue relating to IPRs, including the standards of protection, would be negotiated, and the link with trade has almost vanished.). The TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights), which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property.
The agreement covers five broad issues:
- how basic principles of the trading system and other international intellectual property agreements should be applied
- how to give adequate protection to intellectual property rights
- how countries should enforce those rights adequately in their own territories
- how to settle disputes on intellectual property between members of the WTO
- special transitional arrangements during the period when the new system is being introduced.
The TRIPS is an attempt (i) to narrow the gaps in the way these rights are protected around the world, (ii) to bring them under common international rules, and (iii) When there are trade disputes over intellectual property rights, the WTO’s dispute settlement system is available.
The general goals of the TRIPS Agreement are contained in the Preamble of the Agreement, which reproduces the basic Uruguay Round negotiating objectives established in the TRIPS area by the 1986 Punta del Este Declaration and the 1988/89 Mid-Term Review. These objectives include:
- the reduction of distortions and impediments to international trade,
- promotion of effective and adequate protection of intellectual property rights, and
- ensuring that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.
The three main features of the Agreement are:
1) Standards. In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection.
The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPO, i.e., the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions, must be complied with. With the exception of the provisions of the Berne Convention on moral rights, all the main substantive provisions of these conventions are incorporated by reference and thus become obligations under the TRIPS Agreement between TRIPS Member countries.
Secondly, the TRIPS Agreement adds a substantial number of additional obligations on matters where the pre-existing conventions are silent or were seen as being inadequate. The TRIPS Agreement is thus sometimes referred to as a Berne and Paris-plus agreement.
2) Enforcement. The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify in detail the procedures and remedies that must be available so that right holders can effectively enforce their rights.
3) Dispute settlement. The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.
In addition the Agreement provides for certain basic principles, such as national and most-favored-nation treatment, and some general rules to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement. The obligations under the Agreement will apply equally to all Member countries, but developing countries will have a longer period to phase them in. Special transition arrangements operate in the situation where a developing country does not presently provide product patent protection in the area of pharmaceuticals.
The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal system and practice.
As in GATT and GATS, the starting point of the intellectual property agreement is basic principles. And as in the two other agreements, non-discrimination features prominently: national treatment (treating one’s own nationals and foreigners equally), and most-favored-nation treatment (equal treatment for nationals of all trading partners in the WTO).
National treatment is a key principle in other intellectual property agreements outside the WTO. As in the main pre-existing intellectual property conventions, the basic obligation on each Member country is to accord the treatment in regard to the protection of intellectual property provided for under the Agreement to the persons of other Members. These persons are referred to as “nationals” but include persons, natural or legal, who have a close attachment to other Members without necessarily being nationals. The criteria for determining which persons must thus benefit from the treatment provided for under the Agreement are those laid down for this purpose in the main pre-existing intellectual property conventions of WIPO, applied to all WTO Members whether or not they are party to those conventions. These conventions are the Paris Convention, the Berne Convention, International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention), and the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty). These obligations cover not only the substantive standards of protection but also matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in the Agreement.
While the national treatment clause forbids discrimination between a Member's own nationals and the nationals of other Members, the most-favored-nation treatment clause forbids discrimination between the nationals of other Members. In respect of the national treatment obligation, the exceptions allowed under the pre-existing intellectual property conventions of WIPO are also allowed under TRIPS. Where these exceptions allow material reciprocity, a consequential exception to MFN treatment is also permitted (e.g. comparison of terms for copyright protection in excess of the minimum term required by the TRIPS Agreement as provided under Article 7(8) of the Berne Convention as incorporated into the TRIPS Agreement). Certain other limited exceptions to the MFN obligation are also provided for.
When an inventor or creator is granted patent or copyright protection, he obtains the right to stop other people making unauthorized copies. Society at large sees this temporary intellectual property protection as an incentive to encourage the development of new technology and creations which will eventually be available to all. The TRIPS Agreement recognizes the need to strike a balance. It says intellectual property protection should contribute to technical innovation and the transfer of technology. The agreement says both producers and users should benefit, and economic and social welfare should be enhanced.
Exhaustion has an implication for the limitation on the exclusive rights of the IPR-holder. According to the principle of exhaustion of IPRs, once the IPR-holder has sold the product covered by the IPR, the IPR-holder cannot thereafter have any control on the later stages of the marketing of the product. The IPR is deemed to have been exhausted after the first sale.
For example, when a patent-holder sells the patented product, the buyer is free to use it in any way he/she likes, including selling it and exporting it to another country. Suppose that a product is patented in a country C and it is sold to a buyer in that country. A person in another country D imports it for sale in country D where this product is also patented. Since the patent right has been exhausted in country C after the first sale in that country, the patent-holder cannot stop the export of the product to country D. This process has been called “parallel import”, to distinguish it from the normal import of the product with the authorization of the patent-holder. If the patented product normally sells at higher prices in country D, the parallel import from country C may push the prices down, thus the consumers will benefit.
A Member is free to have its own provisions regarding the exhaustion of IPRs in their domestic laws and practices. In fact, it may be an important tool to protect the interest of consumers and to ensure the availability of industrial and agricultural inputs as well as essential drugs at competitive prices.
The second part of the TRIPS agreement looks at different kinds of intellectual property rights and how to protect them. The purpose is to ensure that adequate standards of protection exist in all member countries. Here the starting point is the obligations of the main international agreements of the World Intellectual Property Organization (WIPO) that already existed before the WTO was created:
- the Paris Convention for the Protection of Industrial Property (patents, industrial designs, etc).
- the Berne Convention for the Protection of Literary and Artistic Works (copyright).
Some areas are not covered by these conventions. In some cases, the standards of protection prescribed were thought inadequate. So the TRIPS agreement adds a significant number of new or higher standards.
Copyright includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.
During the Uruguay Round negotiations, it was recognized that the Berne Convention already, for the most part, provided adequate basic standards of copyright protection. Thus it was agreed that the point of departure should be the existing level of protection under the latest Act, the Paris Act of 1971, of that Convention. Members are obliged to comply with the substantive provisions of the Paris Act of 1971 of the Berne Convention, i.e. Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto (Article 9.1). However, Members do not have rights or obligations under the TRIPS Agreement in respect of the rights conferred under Article 6bis of that Convention, i.e. the moral rights (the right to claim authorship and to object to any derogatory action in relation to a work, which would be prejudicial to the author's honor or reputation), or of the rights derived thereof.