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 administered 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 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 was extended to 2016, and could be extended beyond that.

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: 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 criticised by the alter-globalization movement, regarding for example its consequences for the AIDS pandemic in Africa.

Contents

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 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. 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 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 authorizing 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. Some of this criticism is against the WTO as a whole, but many advocates of trade liberalisation also regard TRIPS as bad policy. 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.

The most visible conflict has been over AIDS drugs in Africa. 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 that point, PhRMA, the United States and, to a lesser extent, other developed nations, began 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.

Implementation of flexibilities

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. [4]

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.[5]

It has been argued that the practice of using developed-country protection levels (whether voluntarily adopted or imposed through bilateral trade agreements) is detrimental to developing countries, based on the idea that countries have different optimum levels of protection according to their stage of development.[6]

Software and business method patents

Main article: Software patents under TRIPs Agreement

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:

Panel reports

According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005 page 142 [7], 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 [8].

See also

References

  1. Braithwaite and Drahos, Global Business Regulation, Cambridge University Press, 2000

External links


References

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