The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as: agreement, protocol, covenant, convention, exchange of letters, etc. Regardless of the terminology, all of these international agreements under international law are administered by the World Trade Organization The World Trade Organization is an international organization designed by its founders to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade (GATT), which commenced in 1947 (WTO) that sets down minimum standards for many forms of intellectual property Intellectual property is a term referring to a number of distinct types of creations of the mind for which property rights are recognised--and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries (IP) regulation as applied to nationals of other WTO Members. [1] It was negotiated at the end of the Uruguay Round The Uruguay Round was the 8th round of multilateral trade negotiations conducted within the framework of the General Agreement on Tariffs and Trade (GATT), spanning from 1986-1994 and embracing 110 countries as “contracting parties”. The Round transformed the GATT into the World Trade Organization of the General Agreement on Tariffs and Trade The General Agreement on Tariffs and Trade was negotiated during the UN Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organization (ITO). GATT was formed in 1947 and lasted until 1994, when it was replaced by the World Trade Organization in 1995. The original GATT (GATT) in 1994.
Specifically, TRIPS contains requirements that nations' laws must meet for: copyright Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after which the work is said to enter the public domain. Copyright applies to a wide range of rights, including the rights of performers, producers of sound recordings and broadcasting organizations; geographical indications A geographical indication is a name or sign used on certain products which corresponds to a specific geographical location or origin (eg. a town, region, or country). The use of a GI may act as a certification that the product possesses certain qualities, or enjoys a certain reputation, due to its geographical origin, including appellations of origin; industrial designs; integrated circuit layout-designs A mask work is a two or three-dimensional layout or topography of an integrated circuit , i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections. By extension, it also refers to the copyright-like intellectual property right conferring time-limited; patents A patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention; monopolies for the developers of new plant varieties; trademarks A trademark or trade mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities; trade dress Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers. Trade dress is a form of intellectual property; and undisclosed or confidential information. TRIPS also specifies enforcement Coming into force refers to the process by which legislation, or part of legislation, and treaties come to have legal force and effect. The term is closely related to the date of this transition procedures, remedies, and dispute resolution One could theoretically include violence or even war as part of this spectrum, but dispute resolution practitioners do not usually do so; violence rarely ends disputes effectively, and indeed, often only escalates them.[citation needed] Some individuals, notably Joseph Stalin, have stated that all problems emanate from man, and absent man, no 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 Alter-globalization is the name of a social movement that supports global cooperation and interaction, but which opposes the negative effects of economic globalization, feeling that it often works to the detriment of, or does not adequately promote, human values such as environmental and climate protection, economic justice, labor protection, movement. Members of the movement object, for example, to its consequences with regards to the AIDS pandemic in Africa HIV/AIDS is a major public health concern and cause of death in Africa. Although Africa is inhabited by just over 14.7% of the world's population, it is estimated to have more than 88% of people living with HIV and 92% of all AIDS deaths in 2007.
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Background and history
TRIPS was negotiated at the end of the Uruguay Round The Uruguay Round was the 8th round of multilateral trade negotiations conducted within the framework of the General Agreement on Tariffs and Trade (GATT), spanning from 1986-1994 and embracing 110 countries as “contracting parties”. The Round transformed the GATT into the World Trade Organization of the General Agreement on Tariffs and Trade The General Agreement on Tariffs and Trade was negotiated during the UN Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organization (ITO). GATT was formed in 1947 and lasted until 1994, when it was replaced by the World Trade Organization in 1995. The original GATT (GATT) in 1994. Its inclusion was the culmination of a program of intense lobbying Lobbying is a form of advocacy with the intention of influencing decisions made by legislators and officials in the government by individuals, other legislators, constituents, or advocacy groups. A lobbyist is a person who tries to influence legislation on behalf of a special interest or a member of a lobby. Governments often define and regulate by the United States ^ b. English is the de facto language of American government and the sole language spoken at home by 80% of Americans age five and older. Spanish is the second most commonly spoken language, supported by the European Union The European Union is an economic and political union of 27 member states which are located primarily in Europe. Committed to regional integration, the EU was established by the Treaty of Maastricht in 1993 upon the foundations of the European Communities. With over 500 million citizens, the EU combined generated an estimated 28% share (US$ 16.5, Japan Japan is an island country in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south. The characters that make up Japan's name mean "sun-origin", which is why Japan is and other developed nations The term developed country is used to describe countries that have a high level of development according to some criteria. Which criteria, and which countries are classified as being developed, is a contentious issue and is surrounded by fierce debate. Economic criteria have tended to dominate discussions. One such criterion is income per capita;. Campaigns of unilateral economic encouragement under the Generalized System of Preferences The Generalized System of Preferences, or GSP, is a formal system of exemption from the more general rules of the World Trade Organization , (formerly, the General Agreement on Tariffs and Trade or GATT). Specifically, it's a system of exemption from the Most Favored Nation principle (MFN) that obligates WTO member countries to treat the imports 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 Pfizer Incorporated is a pharmaceutical company, ranking number one in sales in the world. The company is based in New York City, with its research headquarters in Groton, Connecticut. It produces Lipitor (atorvastatin, used to lower blood cholesterol); the neuropathic pain/fibromyalgia drug Lyrica (pregabalin); the oral antifungal medication 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 The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886 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 The Dispute Settlement Body of the World Trade Organization (WTO) makes decisions on trade disputes between governments that are adjudicated by the Organization 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 An author is broadly defined as "the person who originates or gives existence to anything" and that authorship determines responsibility for what is created. Narrowly defined, an author is the originator of any written work, although films and photographs are only required to have fixed 50 and to be at least 25 year terms, respectively.(Art. 7(2),(4))
- 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 The expression "limitations and exceptions to copyright" refers to situations in which the exclusive rights granted to authors, or their assignees under copyright law do not apply (such as "fair use Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author'" 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 National treatment is a principle in customary international law vital to many treaty regimes. It essentially means treating foreigners and locals equally. Under national treatment, if a state grants a particular right, benefit or privilege to its own citizens, it must also grant those advantages to the citizens of other states while they are in (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 The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886 and many of its trademark and patent provisions were imported from the Paris Convention for the Protection of Industrial Property The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, was one of the first intellectual property treaties. As a result of this treaty, intellectual property, including patents, of any contracting state are accessible to the nationals of other states party to the Convention.[clarification needed].
Access to essential medicines
The most visible conflict has been over AIDS Acquired immune deficiency syndrome or acquired immunodeficiency syndrome is a disease of the human immune system caused by the human immunodeficiency virus (HIV). This condition progressively reduces the effectiveness of the immune system and leaves individuals susceptible to opportunistic infections and tumors. HIV is transmitted through direct drugs in Africa HIV/AIDS is a major public health concern and cause of death in Africa. Although Africa is inhabited by just over 14.7% of the world's population, it is estimated to have more than 88% of people living with HIV and 92% of all AIDS deaths in 2007. Despite the role which 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 AgreementAnother 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 Software patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".[a 1] and business method patents Business method patents are a class of patents which disclose and claim new methods of doing business. This includes new types of e-commerce, insurance, banking, tax compliance etc. Business method patents are a relatively new species of patent and there have been several reviews investigating the appropriateness of patenting business methods.
Implementation in developing countries
The obligations under TRIPS apply equally to all member states, however developing countries Developing country is a term generally used to describe a nation with a low level of material well being. There is no single internationally-recognized definition of developed country, and the levels of development may vary widely within so-called developing countries, with some developing countries having high average standards of living 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 Least developed country is the name given to a country which, according to the United Nations, exhibits the lowest indicators of socioeconomic development, with the lowest Human Development Index ratings of all countries in the world. A country is classified as a Least Developed Country if it meets three criteria based on (updated 2009, Ref: http:/ was extended to 2016, and could be extended beyond that.
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.[5] Many argue[who?] that it is, prima facie, in the strategic interest of most if not all underdeveloped nations to use any flexibility available in TRIPS to write the weakest IP laws possible.[who?]
This has not happened in most cases. A 2005 report by the WHO The World Health Organization is a specialized agency of the United Nations (UN) that acts as a coordinating authority on international public health. Established on 7 April 1948, and headquartered in Geneva, Switzerland, the agency inherited the mandate and resources of its predecessor, the Health Organization, which had been an agency of the 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.[6]
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,[7] or relying on technical assistance from the World Intellectual Property Organization The World Intellectual Property Organization is one of the 16 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world." (WIPO), which, according to critics such as Cory Doctorow Cory Doctorow is a Canadian blogger, journalist, and science fiction author who serves as co-editor of the blog Boing Boing. He is an activist in favour of liberalising copyright laws and a proponent of the Creative Commons organisation, using some of their licences for his books. Some common themes of his work include digital rights management,, 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 Digital rights management is a generic term for access control technologies that can be used by hardware manufacturers, publishers, copyright holders and individuals to impose limitations on the usage of digital content and devices. The term is used to describe any technology that inhibits uses of digital content not desired or intended by the systems. This was achieved through the 1996 World Intellectual Property Organization Copyright Treaty (WIPO Treaty) and the WIPO Performances and Phonograms Treaty The WIPO Performances and Phonograms Treaty is an international treaty signed by the member states of the World Intellectual Property Organization was adopted in Geneva on December 20, 1996. The Digital Millennium Copyright Act is the United States's implementation of the treaty (see WIPO Copyright and Performances and Phonograms Treaties.
- The desire to further restrict the possibility of compulsory licenses In a compulsory license, a government forces the holder of a patent, copyright, or other exclusive right to grant use to the state or others. Usually, the holder does receive some royalties, either set by law or determined through some form of arbitration 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 The European Union is an economic and political union of 27 member states which are located primarily in Europe. Committed to regional integration, the EU was established by the Treaty of Maastricht in 1993 upon the foundations of the European Communities. With over 500 million citizens, the EU combined generated an estimated 28% share (US$ 16.5 rules on intellectual property enforcement. The 2001 EU Copyright Directive The Copyright Directive , is a directive of the European Union enacted to implement the WIPO Copyright Treaty, to which the European Union is a party. It was enacted under the internal market provisions of the Treaty of Rome 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,[8] 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 [1].
- 2005 Panel Report [2]:
- European Communities The European Communities were three international organisations that were governed by the same set of institutions. These were the European Coal and Steel Community (ECSC), the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom) - Protection of Trademarks A trademark or trade mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities and Geographical Indications A geographical indication is a name or sign used on certain products which corresponds to a specific geographical location or origin (eg. a town, region, or country). The use of a GI may act as a certification that the product possesses certain qualities, or enjoys a certain reputation, due to its geographical origin for Agricultural Products and Foodstuffs.
- 2000 Panel Report [3], Part 2 [4] and 2000 Appellate Body Report [5]:
- 2000 Panel Report, Part 1 [6] and Part 2 [7]:
- United States - Section 110(5) of the US Copyright Act.
- 2000 Panel Report [8]:
- Canada - Patent Protection of Pharmaceutical Products.
- 2001 Panel Report [9] and 2002 Appellate Body Report [10]:
- United States - Section 211 Omnibus Appropriations Act of 1998.
- 1998 Panel Report [11]:
- India - Patent Protection for Pharmaceutical and Agricultural Chemical Products.
- 1998 Panel Report [12]:
- 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.
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 [13].
France, 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 [14].
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
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
- ^ See TRIPS Art. 1(3).
- ^ World Trade Organization, "Part II — Standards concerning the availability, scope and use of Intellectual Property Rights; Sections 5 and 6", Agreement on Trade-Related Aspects of Intellectual Property Rights, http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm
- ^ World Trade Organization, "Part I — General Provisions and Basic Principles", Agreement on Trade-Related Aspects of Intellectual Property Rights, http://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm
- ^ 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
- ^ IP Justice policy paper for the WIPO development agenda, IP Justice, http://www.ipjustice.org/WIPO/WIPO_DA_IP_Justice_Policy_Paper.shtml
- ^ Musungu, Sisule F.; Oh, Cecilia (August 2005), The use of flexibilities in TRIPS by developing countries: can they promote access to medicines?, Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH), http://www.who.int/intellectualproperty/studies/TRIPS_flexibilities/en/index.html
- ^ Finger, J. Michael (2000). "The WTO's special burden on less developed countries" (PDF). Cato Journal 19 (3). http://www.cato.org/pubs/journal/cj19n3/cj19n3-9.pdf.
- ^ World Trade Organization (2005). "Annual Report 2005". http://www.wto.org/english/res_e/booksp_e/anrep_e/anrep05_e.pdf.
- Braithwaite and Drahos, Global Business Regulation, Cambridge University Press, 2000
- 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
- World Trade Organization links
- Audio presentation by Professor Susan Sell, George Washington University, on intellectual property rights in the global context.
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Categories: Intellectual property treaties | World Trade Organization | Copyright treaties | Patent law | International trade | Business law | Treaties concluded in 1994
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Jeremy
Mon, 15 Feb 2010 05:50:00 GM
O Mitelman and Daniel R Zuccherino (Obligado & Cia) review various aspects of Argentine patent practice in the wake of that country's commitment to the . Agreement on Trade. -. Related Aspects of Intellectual Property Rights. (TRIPs). ...
Sat Jul 24 18:58:05 2010
