TRIPS and its place in international intellectual property law making

 

Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a World Trade Organization (WTO) agreement negotiated during the 1986-94 Uruguay Round of international trade talks. The agreement was instrumental in introducing intellectual property rules into the multinational trading system for the very first time. The WTO-TRIPS Agreement attempts to standardize 150 national laws dealing with intellectual property rights and to apply common international rules for regulating intellectual property throughout the world.

Intellectual property rights are state created monopolies conferred on individuals or companies over the creations of their minds. Intellectual property rights can be broadly divided into three main categories (although there are additional types such as trade secrets, geographic indicators, integrated circuits, etc.):

  1. Copyright and related rights – create rights of authors of literary and artistic wo rk such as music, video, photos, and text. Very generally, copyright gives owners the exclusive right to reproduction, distribution, adaption, public display/performance of a creative work. There are important limitations to an author’s rights under copyright, such as fair use rights and first sale privileges. The rights granted under copyright have increased significantly in recent years, particularly in terms of the scope and duration of those rights, while the number of limitations and exceptions that allow for flexibility and innovation are eroding.
  2. Trademarks – create rights to distinctive signs, marks, logos, and geographical indications used in commerce. Trademarks are used to identify the origin of products and services in the stream of commerce. They were originally intended to protect consumers from confusion as to the source of products or services, but can be mis-used to prevent discussion and competition, particularly on the Internet.
  3. Patent rights – govern inventions and designs, processes or methods of doing business, and in the US, patents have been extended to regulate software.

TRIPS establishes minimum levels of protection that each WTO member nation must provide to the intellectual property of fellow WTO members. The TRIPS agreement therefore is often called a “minimum standards agreement,” allowing members to provide greater restrictions on the use of intellectual property if they so wish.

The TRIPS Agreement covers five broad areas:
• Application of the basic principles of the trading system and other international intellectual property agreements
• Adequate protection to intellectual property rights
• Enforcement of intellectual property rights adequately in their own territories
• Settlement of disputes on intellectual property between members of the WTO
• Special transitional arrangements during the period when the new system is being introduced.

Non discrimination is a prominent feature of the TRIPS agreement and among its most basic principles are included the National treatment requirement (which means treating one’s own nationals and foreigners equally), and the Most Favored Nation treatment requirement (which means equal treatment for nationals of all 150 trading partners in the WTO.)

In setting the intellectual property rules that WTO member nations must follow, TRIPS builds upon the international agreements of the World Intellectual Property Organization (WIPO), which existed prior to the formation of the WTO. The WTO-TRIPS Agreement also gives special emphasis to the agreements of the Paris Convention for the Protection of Industrial Property (trademarks patents, industrial designs, etc), the Berne Convention for the protection of literary and artistic works (copyrights), and the Rome Convention on broadcasting.

TRIPS requires member governments to ensure that intellectual property rights can be enforced under national laws and that the penalties of infringement are severe enough to deter further violations. The agreement describes in detail how enforcement should be handled, including rules for obtaining evidence, provisional measures, injunctions, damages and other penalties. The agreement also suggests how each member nation’s courts should behave when faced with certain cases involving counterfeit or infringing goods. TRIPS further requires member governments to ensure that intellectual property rights owners receive the assistance of customs authorities to prevent imports of counterfeit goods.

When the WTO agreements took effect on 1 January 1995, “developed countries” were given one year to ensure that their national laws and practices conform to the TRIPS Agreement. “Developing countries” and (under certain conditions) transition economies were given five years, until 2000 to comply. “Least-developed countries” were given 11 years, until 2006 — now extended to 2016 for drug patents to change their laws. Subject to certain exceptions, the general rule is that obligations in the agreement apply to intellectual property rights that existed at the end of a country’s transition period as well as to new ones.

The TRIPS Agreement also set up a TRIPS Council comprising of all WTO members that is responsible for monitoring the operation and enforcement of the rules established under the agreement. The council is also a forum that the member nations can use to consult on problems arising under the TRIPS agreement. There is no avenue of meaningful participation in the WTO-TRIPS law-making process for public-interest NGO’s. TRIPS was drafted by a small number of representatives from the intellectual property industry, and agreement is reached in secret at the TRIPS Council, without any public input or dialogue among stakeholders. The WTO is head-quartered in Geneva, Switzerland.