Agreement On Trade-Related Aspects of Intellectual Property Rights

Agreement on Trade-Related Aspects of Intellectual Property Rights - Wikipedia, the free encyc... http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_R...
Agreement on Trade-Related Aspects of Intellectual Property Rights

From Wikipedia, the free encyclopedia
TRIPS redirects here. For the new microprocessor design, see TRIPS architecture. For the German racing driver, see Wolfgang Graf
Berghe von Trips
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World
Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other
WTO Members.[1] It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
Specifically, TRIPS contains requirements that nations' laws must meet for copyright rights, including the rights of performers, producers of sound
recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-
designs; patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS
also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights
shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual
advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights
and obligations.
The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive
international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an
overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that
clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal "to promote access to medicines for
all."
TRIPS has been criticized by the alter-globalization movement. Members of the movement object, for example, to its consequences with regard to the
AIDS pandemic in Africa.
Contents
1 Background and history
2 The requirements of TRIPS
2.1 Access to essential medicines
2.2 Software and business method patents
3 Implementation in developing countries
1 of 8Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com) 1/30/2011 4:47 PM
4 Post-TRIPS expansionism
5 Panel reports
6 Controversy
7 See also
7.1 Related treaties and laws
7.2 Related organizations
7.3 Related topics
8 References
9 External links
Background and history

TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the
culmination of a program of intense lobbying by the United States, supported by the European Union, Japan and other developed nations. Campaigns
of unilateral economic encouragement under the Generalized System of Preferences and coercion under Section 301 of the Trade Act played an
important role in defeating competing policy positions that were favored by developing countries, most notably Korea and Brazil, but also including
Thailand, India and Caribbean Basin states. In turn, the United States strategy of linking trade policy to intellectual property standards can be traced
back to the entrepreneurship of senior management at Pfizer in the early 1980s, who mobilized corporations in the United States and made
maximizing intellectual property privileges the number one priority of trade policy in the United States (Braithwaite and Drahos, 2000, Chapter 7).
After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. Because ratification of TRIPS is a
compulsory requirement of World Trade Organization membership, any country seeking to obtain easy access to the numerous international markets
opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS. For this reason, TRIPS is the most
important multilateral instrument for the globalization of intellectual property laws. States like Russia and China that were very unlikely to join the
Berne Convention have found the prospect of WTO membership a powerful enticement.
Furthermore, unlike other agreements on intellectual property, TRIPS has a powerful enforcement mechanism. States can be disciplined through the
WTO's dispute settlement mechanism.
The requirements of TRIPS

TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
Copyright terms must extend to 50 years after the death of the author.(Art. 12 and 14)[1] (http://www.wto.org/english/tratop_e/trips_e
/t_agm3_e.htm)
Copyright must be granted automatically, and not based upon any "formality", such as registrations or systems of renewal.
Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.
National exceptions to copyright (such as "fair use" in the United States) are constrained by the Berne three-step test
Patents must be granted in all "fields of technology," although exceptions for certain public interests are allowed (Art. 27.2 and 27.3)[2] and
must be enforceable for at least 20 years (Art 33).
Exceptions to the exclusive rights must be limited, provided that a normal exploitation of the work (Art. 13) and normal exploitation of the
patent (Art 30) is not in conflict.
No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed.
Legitimate interests of third parties have to be taken into account by patent rights (Art 30).
In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPs
signatories by the principles of national treatment (with certain limited exceptions, Art. 3 and 5).[3] TRIPS also has a most favored nation
clause.
Many of the TRIPS provisions on copyright were imported from the Berne Convention for the Protection of Literary and Artistic Works and many of
its trademark and patent provisions were imported from the Paris Convention for the Protection of Industrial Property.
Access to essential medicines
The most visible conflict has been over AIDS drugs in Africa. Despite the role that patents have played in maintaining higher drug costs for public
health programs across Africa, this controversy has not led to a revision of TRIPs. Instead, an interpretive statement, the Doha Declaration, was
issued in November 2001, which indicated that TRIPs should not prevent states from dealing with public health crises. After Doha, PhRMA, the
United States and to a lesser extent other developed nations began working to minimize the effect of the declaration.
A 2003 agreement loosened the domestic market requirement, and allows developing countries to export to other countries where there is a national
health problem as long as drugs exported are not part of a commercial or industrial policy.[4] Drugs exported under such a regime may be packaged or
colored differently to prevent them from prejudicing markets in the developed world.
In 2003, the Bush administration also changed its position, concluding that generic treatments might in fact be a component of an effective strategy to
combat HIV. Bush created the PEPFAR program, which received $15 billion from 2003–2007, and was reauthorized in 2007 for $30 billion over the
next five years. Despite wavering on the issue of compulsory licensing, PEPFAR began to distribute generic drugs in 2004-5.
Software and business method patents
Main article: Software patents under TRIPs Agreement
Another controversy has been over the TRIPS Article 27 requirements for patentability "in all fields of technology", and whether or not this
necessitates the granting of software and business method patents.
Implementation in developing countries

The obligations under TRIPS apply equally to all member states, however developing countries were allowed extra time to implement the applicable
changes to their national laws, in two tiers of transition according to their level of development. The transition period for developing countries expired
in 2005. The transition period for least developed countries to implement TRIPS was extended to 2013, and until 1 January 2016 for pharmaceutical
patents, with the possibility of further extension.[5]
Developed countries are massive net-exporters of copyright-, patent- and trademark-related royalties. It has therefore been argued that the TRIPS
standard of requiring all countries to create strict intellectual property systems will be detrimental to poorer countries' development.[6] Many argue
that it is, prima facie, in the strategic interest of most if not all underdeveloped nations to use any flexibility available in TRIPS to legislate the
weakest IP laws possible.
This has not happened in most cases. A 2005 report by the WHO found that many developing countries have not incorporated TRIPS flexibilities
(compulsory licensing, parallel importation, limits on data protection, use of broad research and other exceptions to patentability, etc.) into their
legislation to the extent authorized under Doha.[7]
This is likely caused by the lack of legal and technical expertise needed to draft legislation that implements flexibilities, which has often led to
developing countries directly copying developed country IP legislation,[8] or relying on technical assistance from the World Intellectual Property
Organization (WIPO), which, according to critics such as Cory Doctorow, encourages them to implement stronger intellectual property monopolies.
Post-TRIPS expansionism
The requirements of TRIPS are, from a policy perspective, extremely stringent. Despite this, lobbyists for the industries that benefit from various
intellectual property laws have continued since 1994 to campaign to strengthen existing forms of intellectual property and to create new kinds:
The creation of anti-circumvention laws to protect Digital Rights Management systems. This was achieved through the 1996 World Intellectual
Property Organization Copyright Treaty (WIPO Treaty) and the WIPO Performances and Phonograms Treaty.
The desire to further restrict the possibility of compulsory licenses for patents has led to provisions in recent bilateral US trade agreements.
It is one thing for states to have intellectual property laws on their statutes, and another for governments to enforce them aggressively. This
distinction has led to provisions in bilateral agreements, as well as proposals for WIPO and European Union rules on intellectual property
enforcement. The 2001 EU Copyright Directive was to implement the 1996 WIPO Copyright Treaty.
The wording of Trips 27 of non-discrimination is used to justify an extension of the patent system.
The campaign for the creation of a WIPO Broadcasting Treaty that would give broadcasters (and possibly webcasters) exclusive rights over the
copies of works they have distributed.
Panel reports
According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005 page 142,[9] in the first ten years, 25 complaints have been
lodged leading to the panel reports and appellate body reports on TRIPS listed below.
The WTO website has a gateway to all TRIPS disputes (including those that did not lead to panel reports) here [2] (http://www.wto.int/english
/tratop_e/dispu_e/dispu_subjects_index_e.htm#trips) .
2005 Panel Report [3] (http://www.wto.org/english/news_e/news05_e/panelreport_174_290_e.htm) :

European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs.
2000 Panel Report [4] (http://www.wto.org/english/tratop_e/dispu_e/1391da.pdf) , Part 2 [5] (http://www.wto.org/english/tratop_e/dispu_e
/1391db.pdf) and 2000 Appellate Body Report [6] (http://www.wto.org/english/tratop_e/dispu_e/170abr_e.pdf) :
Canada - Term of Patent Protection.
2000 Panel Report, Part 1 [7] (http://www.wto.org/english/news_e/news00_e/1234da.pdf) and Part 2 [8] (http://www.wto.org/english/news_e
/news00_e/1234db.pdf) :
United States - Section 110(5) of the US Copyright Act.
2000 Panel Report [9] (http://www.worldtradelaw.net/reports/wtopanelsfull/canada-pharmaceuticals(panel)(full).pdf) :
Canada - Patent Protection of Pharmaceutical Products.
2001 Panel Report [10] (http://www.wto.org/english/tratop_e/dispu_e/176r_e.pdf) and 2002 Appellate Body Report [11] (http://www.wto.org
/english/tratop_e/dispu_e/176abr_e.pdf) :
United States - Section 211 Omnibus Appropriations Act of 1998.
1998 Panel Report [12] (http://www.worldtradelaw.net/reports/wtopanelsfull/india-patents(panel)(ec)(full).pdf) :
India - Patent Protection for Pharmaceutical and Agricultural Chemical Products.
1998 Panel Report [13] (http://www.worldtradelaw.net/reports/wtopanelsfull/indonesia-autos(panel)(full).pdf) :
Indonesia - Certain Measures Affecting the Automobile Industry.
Controversy
Since TRIPS came into force it has received a growing level of criticism from developing countries, academics, and Non-governmental organizations.
Some of this criticism is against the WTO as a whole, but many advocates of trade liberalization also regard TRIPS as bad policy (see, for example,
Jagdish Bhagwati's In Defense of Globalization for a discussion on the detrimental effect of TRIPS on access to medicines in developing countries).
TRIPS' wealth redistribution effects (moving money from people in developing countries to copyright and patent owners in developed countries) and
its imposition of artificial scarcity on the citizens of countries that would otherwise have had weaker intellectual property laws, are a common basis
for such criticisms. As an example, Peter Drahos writes that "It was an accepted part of international commercial morality that states would design
domestic intellectual property law to suit their own economic circumstances. States made sure that existing international intellectual property
agreements gave them plenty of latitude to do so."[10]
A notable and exception has been raised by the General Prosecutor of Paris, who allowed bank FINAMA (part of the French insurer GROUPAMA)
to scupper a $200 million software piracy trial for the sake of bank secrecy [14] (http://www.remoteanything.com/archives/GROUPAMA.pdf) .
In France, the Cour de Cassation and an Appeal Court have dismissed an EUR 520 million software piracy case, ruling that U.S. Copyright
certificates were not providing any protection and that software sold by its author during a decade in more than 140 countries does not deserve the
"originality" criteria because it was "banal", prior art in the market segment being already available [15] (http://twd-industries.com/archives
/ma/French_Copyright_Violation.pdf) .
In the light of this judicial decision, the jurisprudence is unclear as there is little software able to claim being the first of its kind.
See also
Related treaties and laws
Anti-Counterfeiting Trade Agreement (ACTA)

EU Directive on the enforcement of intellectual property rights (IPRED)
Patent Law Treaty (PLT)
Substantive Patent Law Treaty (SPLT)
Uruguay Round Agreement Act of the United States (URAA)
Related organizations
Intellectual Property Committee
World Trade Organization
Related topics
Confusing similarity
Geographical Indication
Intellectual property in the People's Republic of China
List of international trade topics
List of parties to international copyright agreements
World Trade Organization Dispute 160
References
1. ^ See TRIPS Art. 1(3).

2. ^ World Trade Organization, "Part II — Standards concerning the availability, scope and use of Intellectual Property Rights; Sections 5 and 6"
(http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm) , Agreement on Trade-Related Aspects of Intellectual Property Rights, http://www.wto.org
/english/docs_e/legal_e/27-trips_04c_e.htm
3. ^ World Trade Organization, "Part I — General Provisions and Basic Principles" (http://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm) ,
Agreement on Trade-Related Aspects of Intellectual Property Rights, http://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm
4. ^ World Trade Organization (1 September 2003), Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health
(http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm) , http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm
5. ^ World Trade Organisation, IP - http://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm
6. ^ IP Justice policy paper for the WIPO development agenda (http://www.ipjustice.org/WIPO/WIPO_DA_IP_Justice_Policy_Paper.shtml) , IP Justice,
http://www.ipjustice.org/WIPO/WIPO_DA_IP_Justice_Policy_Paper.shtml
7. ^ Musungu, Sisule F.; Oh, Cecilia (August 2005), The use of flexibilities in TRIPS by developing countries: can they promote access to medicines?
(http://www.who.int/intellectualproperty/studies/TRIPS_flexibilities/en/index.html) , Commission on Intellectual Property Rights, Innovation and Public
Health (CIPIH), http://www.who.int/intellectualproperty/studies/TRIPS_flexibilities/en/index.html
8. ^ Finger, J. Michael (2000). "The WTO's special burden on less developed countries" (http://www.cato.org/pubs/journal/cj19n3/cj19n3-9.pdf) (PDF). Cato
Journal 19 (3). http://www.cato.org/pubs/journal/cj19n3/cj19n3-9.pdf.
9. ^ World Trade Organization (2005). "Annual Report 2005" (http://www.wto.org/english/res_e/booksp_e/anrep_e/anrep05_e.pdf) . http://www.wto.org/english
/res_e/booksp_e/anrep_e/anrep05_e.pdf.
10. ^ Drahos with Braithwaite, Information Feudalism, New Press 2002, p38
1. Braithwaite and Drahos, Global Business Regulation, Cambridge University Press, 2000
2. Westkamp, 'TRIPS Principles, Reciprocity and the Creation of Sui-Generis-Type Intellectual Property Rights for New Forms of Technology'
[2003] 6(6) The Journal of World Intellectual Property 827-859, ISSN: 1422-2213
External links
TRIPS agreement (http://www.worldtradelaw.net/uragreements/tripsagreement.pdf) (PDF version)
Agreement on Trade-Related Aspects of Intellectual Property Rights (http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm) (html
version)
World Trade Organization links
World Trade Organization - Official Text (http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm)
World Trade Organization - TRIPs gateway (http://www.wto.org/english/tratop_e/trips_e/trips_e.htm)
Audio presentation by Professor Susan Sell, George Washington University, on intellectual property rights in the global context.
(http://waterfall.lis.uiuc.edu/dl/classes/auditorium/sellfeb08_08.ram)
Retrieved from "http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights"
Categories: Intellectual property treaties | World Trade Organization | Copyright treaties | Patent law | International trade | Business law | Treaties
concluded in 1994
This page was last modified on 17 January 2011 at 09:51.

Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. See Terms of Use for details.
Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

Agreement On Trade-Related Aspects of Intellectual Property Rights - Wikipedia, The Free Encyclopedia

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Agreement On Trade-Related Aspects of Intellectual Property Rights - Wikipedia, The Free Encyclopedia

Uploaded by

Copyright:

Available Formats

Agreement on Trade-Related Aspects of Intellectual Property Rights - Wikipedia, the free encyc... http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_R...

Background and history

The requirements of TRIPS

Access to essential medicines

Software and business method patents

Main article: Software patents under TRIPs Agreement

Implementation in developing countries

2005 Panel Report [3] (http://www.wto.org/english/news_e/news05_e/panelreport_174_290_e.htm) :

Anti-Counterfeiting Trade Agreement (ACTA)

1. ^ See TRIPS Art. 1(3).

This page was last modified on 17 January 2011 at 09:51.

You might also like