Agreement on Trade-Related Aspects of Intellectual Property Rights
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The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) is an international treaty by the World Trade Organization (WTO) which sets down minimum standards for most forms of intellectual property (IP) regulation within all member countries of the World Trade Organization. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) treaty in 1994.
Specifically, TRIPs deals with copyright and related rights, such as rights of performers, producers of sound recordings and broadcasting organisations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents, including the protection of new varieties of plants; trademarks; trade dress; and undisclosed or confidential information, including trade secrets and test data. TRIPs also specifies enforcement procedures, remedies, and dispute resolution procedures.
The obligations under TRIPs apply equally to all member states, however developing countries are allowed a longer period in which to implement the applicable changes to their national laws.
Although subsequent developments have expanded the original requirements of TRIPs, the agreement itself 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. TRIPS has been contested by the alter-globalization movement, concerning for example the consequences on AIDS in Africa.
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Background and history
TRIPs was added to the General Agreement on Tariffs and Trade (GATT) treaty at the end of the Uruguay Round of trade negotiations 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 were also influential. 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 mobilised corporations in the United States and made maximising intellectual property privileges the number one priority of trade policy in the United States.
After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. As 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 very strict intellectual property laws mandated by TRIPs.
Furthermore, unlike other international agreements on intellectual property, TRIPs has a powerful enforcement mechanism. States which do not adopt TRIPs-compliant intellectual property systems can be disciplined through the WTO's dispute settlement mechanism, which is capable of authorising trade sanctions against non-compliant states.
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, although films and photographs are only required to have fixed 50 and 25 year terms, respectively.
- 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) must be tightly constrained.
- Patents must be granted in all "fields of technology," although exceptions for certain public interests are allowed (Art. 27.2 and 27.3 [1]).
- Exceptions to patent law must be limited almost as strictly as those to copyright law.
- 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 [2]). TRIPs also has a most favoured 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.
Controversy
Since TRIPs came into force it has received a growing level of criticism from developing countries, academics, and Non-governmental organizations, on the basis that the World Trade Organization system in general and the TRIPs system in particular encapsulates all that is socially, politically and economically unjust about globalisation, which is protested by the anti-globalisation movement. However, due to the rule-based system of the WTO, and the technical complexities of applicable laws, many commentators consider that only extensive and intense social and political opposition is likely to overcome the perceived unequal application of TRIPs upon lesser-developed countries and communities.
Access to essential medicines
The most visible conflict has been over AIDS drugs in Africa. Despite the role which patents have played 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. Since then PhRMA, the United States and, to a lesser extent, other developed nations, have been working to minimise the effect of the declaration. TRIPs provides for "compulsory licencing", which allows a national government to issue a licence for the production of drugs without the consent of the patent owner as long as those drugs are primarily for the domestic market. 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 [3]. Drugs exported under such a regime may be packaged or colored differently to prevent them from prejudicing markets in the developed world.
Indeed, in 2004, the main way that Intellectual Property rules hinders access to medicines comes not so much from the TRIPs Agreement itself but rather from regional trade agreements with more stringent IP requirements, or from the way the TRIPs Agreement has been implemented at the national level.
Software and business method patents
Template:Main Another recent 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.
Use for enforcement of industrial espionage cases
The Clinton Administration submitted and won 13 TRIPs international intellectual property theft cases. As of August 2005, the Bush Administration has not submitted any (12:40-16:30).
Post-TRIPs expansionism
Although the requirements of TRIPs are, from a policy perspective, extremely stringent, the lobby groups working to expand various IP laws ("intellectual property laws") have certainly found "limitations" in it.
These have formed the basis for various bilateral and multilateral initatives since 1994:
- The creation of anti-circumvention laws to protect digital restrictions 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 World Intellectual Property Organization 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.
Panel reports
According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005 page 142 [4], 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 [5].
- 2005 Panel Report [6]:
- European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs .
- 2000 Panel Report [7], Part 2 [8] and 2000 Appellate Body Report [9]:
- Canada - Term of Patent Protection.
- 2000 Panel Report, Part 1 [10] and Part 2 [11]:
- United States - Section 110(5) of the US Copyright Act.
- 2000 Panel Report [12]:
- Canada - Patent Protection of Pharmaceutical Products.
- 2001 Panel Report [13] and 2002 Appellate Body Report [14]:
- United States - Section 211 Omnibus Appropriations Act of 1998.
- 1998 Panel Report [15]:
- India - Patent Protection for Pharmaceutical and Agricultural Chemical Products.
- 1998 Panel Report [16]:
- Indonesia - Certain Measures Affecting the Automobile Industry.
See also
- EU Directive on the enforcement of intellectual property rights
- Intellectual property in the People's Republic of China
- List of international trade topics
- Patent Law Treaty (PLT)
- Substantive Patent Law Treaty (SPLT)
- Globalization and health
External links
- World Trade Organization links
- Jagdish Bagwati (WTO) on TRIPs (2002)
- Drahos & Braithwaite, Information Feudalism: Who Owns the Knowledge Economy?, Earthscan Publications, 2002
- GRAIN has developed a section of their website to analyse the review of Article 27.3(b), taking place in the WTO TRIPS Council
- The Consumer Project on Technology page on Health Care and Intellectual Property: http://www.cptech.org/ip/health/
- FFII TRIPS analysis paper http://swpat.ffii.org/analyse/trips/index.en.html
- Comprehensive reviews of TRIPS Compatibility and Software Patentability http://beauprez.net/softpat/ with a particular emphasis towards conflicts between rights of software authors and logic patent holders
- Comprehensive portal on intellectual property rights http://www.iprsonline.org/
- Intellectual Property, Access to Medicines and Human Rights [17]
- TRIPS, the Doha Declaration and increasing access to medicines: policy options for Ghana
- TRIPs and human rights
- World Trade Organization and Intellectual Property Rights: selective bibliography compiled by Hugo H.R. van Hamel, Peace Palace Librarybg:Споразумение относно свързаните с търговията аспекти на правата на интелектуалната собственост (ТРИПС)
de:Übereinkommen über handelsbezogene Aspekte der Rechte des geistigen Eigentums es:Acuerdo sobre los Aspectos de los Derechos de Propiedad Intelectual relacionados con el Comercio fr:Aspects des droits de propriété intellectuelle qui touchent au commerce nl:TRIPs pt:Acordo TRIPs sv:TRIPS