TRIPS Agreement
Agreement on Trade-Related Aspects of Intellectual Property Rights | |
---|---|
Type | Annex to the Agreement establishing the World Trade Organization |
Signed | 15 April 1994[1] |
Location | Marrakesh, Morocco[1] |
Effective | 1 January 1995[2] |
Parties | 164 (All WTO members)[3] |
Languages | English, French and Spanish |
Full text | |
Agreement on Trade-Related Aspects of Intellectual Property Rights at Wikisource |
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an
The TRIPS agreement introduced intellectual property law into the multilateral trading system for the first time and remains the most comprehensive multilateral 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."
Specifically, TRIPS requires WTO members to provide
Background and history
This section needs additional citations for verification. (May 2012) |
TRIPS was negotiated during the
Unlike other agreements on intellectual property, TRIPS has a powerful enforcement mechanism. States can be disciplined through the WTO's
Requirements
TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
- Copyright terms must extend at least 50 years, unless based on the life of the author. (Art. 12 and 14)[8]
- Copyright must be granted automatically, and not based upon any "formality", such as registrations, as specified in the Berne Convention. (Art. 9)
- 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 for "inventions" in all "fields of technology" provided they meet all other patentability requirements (although exceptions for certain public interests are allowed (Art. 27.2 and 27.3)[9] and must be enforceable for at least 20 years (Art 33).
- Exceptions to 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 under the principle of most favored nation clause.
The TRIPS Agreement incorporates by reference the provisions on copyright from the
Article 10 of the Agreement stipulates:
- Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
- Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.
Implementation in developing countries
The obligations under TRIPS apply equally to all member states; however,
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.[12][13] It has been argued that it is, prima facie, in the strategic interest of most if not all underdeveloped nations to use the flexibility available in TRIPS to legislate the weakest IP laws possible.[14]
This has not happened in most cases. A 2005 report by the
Banerjee and Nayak[18] shows that TRIPS has a positive effect on R&D expenditure of Indian pharmaceutical firms.
Post-TRIPS expansion
In addition to the baseline intellectual property standards created by the TRIPS agreement, many nations have engaged in bilateral agreements to adopt a higher standard of protection. These collection of standards, known as TRIPS+ or TRIPS-Plus, can take many forms.[19] General objectives of these agreements include:
- The creation of World Intellectual Property Organization Copyright Treaty (WIPO Treaty) and the WIPO Performances and Phonograms Treaty.
- More stringent restrictions on compulsory licenses for patents.
- More aggressive patent enforcement. This effort has been observed more broadly in proposals for WIPO and EU Copyright Directivewas to implement the 1996 WIPO Copyright Treaty.
- 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,[20] in the first ten years, 25 complaints have been lodged leading to the panel reports and appellate body reports on TRIPS listed below.[21]
- 2005 Panel Report:[22]
- European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs.
- 2000 Panel Report:[23] Part 2[24] and 2000 Appellate Body Report[25]
- Canada – Term of Patent Protection.
- 2000 Panel Report, Part 1:[26] and Part 2[27]
- US Copyright Act.
- 2000 Panel Report:[28]
- Canada – Patent Protection of Pharmaceutical Products.
- 2001 Panel Report:[29] and 2002 Appellate Body Report[30]
- United States – Section 211 Omnibus Appropriations Act of 1998.
- 1998 Panel Report:[31]
- India – Patent Protection for Pharmaceutical and Agricultural Chemical Products.
- 1998 Panel Report:[32]
- Indonesia – Certain Measures Affecting the Automobile Industry.
Criticism
TRIPs imposed on the entire world the dominant intellectual property regime in the United States and Europe, as it is today. I believe that the way that intellectual property regime has evolved is not good for the United States and the EU; but even more, I believe it is not in the interest of the developing countries.
Since TRIPS came into force, it has been subject to criticism from
Archibugi and Filippetti also argue that the importance of TRIPS, and intellectual property in general, in the process of generation and diffusion of knowledge and innovation has been overestimated by its supporters.[6] This point has been supported by United Nations findings indicating many countries with weak protection routinely benefit from strong levels of foreign direct investment (FDI).[34] Analysis of OECD countries in the 1980s and 1990s (during which the patent life of drugs was extended by 6 years) showed that while total number of products registered increased slightly, the mean innovation index remained unchanged.[35] In contrast to that, Jörg Baten, Nicola Bianchi and Petra Moser (2017) find historical evidence that under certain circumstances compulsory licensing – a key mechanism to weaken intellectual property rights that is covered by Article 31 of the TRIPS – may indeed be effective in promoting invention by increasing the threat of competition in fields with low pre-existing levels of competition. They argue, however, that the benefits from weakening intellectual property rights strongly depend on whether the governments can credibly commit to using it only in exceptional cases of emergencies since firms may invest less in R&D if they expect repeated episodes of compulsory licensing.[36]
TRIPS-plus conditions mandating standards beyond TRIPS have also been the subject of scrutiny.[37] These FTA agreements contain conditions that limit the ability of governments to introduce competition for generic producers. In particular, the United States has been criticised for advancing protection well beyond the standards mandated by TRIPS. The United States Free Trade Agreements with Australia, Morocco and Bahrain have extended patentability by requiring patents be available for new uses of known products.[38] The TRIPS agreement allows the grant of compulsory licenses at a nation's discretion. TRIPS-plus conditions in the United States' FTAs with Australia, Jordan, Singapore and Vietnam have restricted the application of compulsory licenses to emergency situations, antitrust remedies, and cases of public non-commercial use.[38]
Access to essential medicines
The most visible conflict has been over
In 2001, at the Fourth Ministerial Conference in Doha, several
In 2003, the US Bush administration changed its position, concluding that generic treatments might in fact be a component of an effective strategy to combat HIV.
In 2020, conflicts re-emerged over patents, copyrights and trade secrets related to
Software and business method patents
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.
See also
- List of parties to the TRIPS Agreement
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 Actof the United States (URAA)
Related organizations
Other
- Confusing similarity
- Geographical indication
- Intellectual property in the People's Republic of China
- Japanese Sound Recording Trade Disputes
- List of international trade topics
- List of parties to international copyright agreements
- World Trade Organization Dispute 160
References
- ^ a b "TRIPS Agreement (as amended on 23 January 2017)". World Trade Organization. Archived from the original on 18 October 2020. Retrieved 12 February 2021.
- ^ "WTO – intellectual property – overview of TRIPS Agreement". World Trade Organization. Archived from the original on 25 February 2019. Retrieved 8 March 2019.
- ^ "WTO TRIPS implementation". International Intellectual Property Alliance. Archived from the original on 1 June 2012. Retrieved 22 May 2012.
- ^ See TRIPS Art. 1(3).
- ^ Gervais, Daniel (2012). The TRIPS Agreement: Negotiating History. London: Sweet & Maxwell. pp. Part I.
- ^ doi:10.1111/j.1758-5899.2010.00019.x. Archived from the original(PDF) on 25 July 2011.
- ISBN 978-0-521-81914-5.
- ^ "intellectual property (TRIPS) – agreement text – standards". WTO. 15 April 1994. Archived from the original on 12 November 2020. Retrieved 29 October 2020.
- ^ 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, archived from the original on 22 June 2017, retrieved 21 December 2005
- ^ World Trade Organization, "Part I — General Provisions and Basic Principles", Agreement on Trade-Related Aspects of Intellectual Property Rights, archived from the original on 12 November 2020, retrieved 28 February 2006
- ^ "WTO – intellectual property (TRIPS) – frequently-asked questions". World Trade Organization. Archived from the original on 28 May 2019. Retrieved 8 March 2019.
- ^ IP Justice policy paper for the WIPO development agenda, IP Justice, archived from the original on 8 January 2013
- (PDF) from the original on 28 September 2018. Retrieved 24 July 2017.
- JSTOR j.ctt812g5.
- ^ 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), archived from the original on 31 October 2013, retrieved 5 October 2020
- ^ Finger, J. Michael (2000). "The WTO's special burden on less developed countries" (PDF). Cato Journal. 19 (3). Archived from the original (PDF) on 28 July 2006.
- ^ J.-F. Morin; M. Bourassa. "Pharmaceutical patent policy in developing countries: learning from the Canadian experience". Intellectual Property, Pharmaceuticals and Public Health.
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- ISBN 978-0-19-989453-6. Archivedfrom the original on 4 July 2014. Retrieved 7 October 2013.
- ^ World Trade Organization (2005). "Annual Report 2005" (PDF). Archived (PDF) from the original on 24 July 2005. Retrieved 20 July 2005.
- ^ "Index of disputes issues". World Trade Organisation. Archived from the original on 13 February 2015. Retrieved 14 August 2021.
- ^ "2005 News items – Panel reports out on geographical indications disputes". WTO. 15 March 2005. Archived from the original on 10 June 2005. Retrieved 16 April 2012.
- ^ "CANADA – TERM OF PATENT PROTECTION : Report of the Panel" (PDF). World Trade Organization. Archived (PDF) from the original on 10 September 2019. Retrieved 8 March 2019.
- ^ "ATTACHMENT 1.1 : FIRST SUBMISSION OF THE UNITED STATES" (PDF). World Trade Organization. 18 November 1999. Archived (PDF) from the original on 9 September 2019. Retrieved 8 March 2019.
- ^ "CANADA – TERM OF PATENT PROTECTION" (PDF). World Trade Organization. Archived (PDF) from the original on 10 September 2019. Retrieved 8 March 2019.
- ^ "UNITED STATES – SECTION 110(5) OF THE US COPYRIGHT ACT" (PDF). World Trade Organization. Archived (PDF) from the original on 10 September 2019. Retrieved 8 March 2019.
- ^ "UNITED STATES – SECTION 110(5) OF US COPYRIGHT ACT : Request for the Establishment of a Panel by the European Communities and their Member States" (PDF). World Trade Organization. Archived (PDF) from the original on 9 September 2019. Retrieved 8 March 2019.
- ^ "WorldTradeLaw.net" (PDF). Worldtradelaw.net. Archived (PDF) from the original on 14 May 2019. Retrieved 8 March 2019.
- ^ "United States – Section 211 Omnibus Appropriations Act of 1998" (PDF). World Trade Organization. Archived (PDF) from the original on 10 September 2019. Retrieved 8 March 2019.
- ^ "UNITED STATES – SECTION 211 OMNIBUS APPROPRIATIONS ACT OF 1998" (PDF). World Trade Organization. Archived (PDF) from the original on 9 September 2019. Retrieved 8 March 2019.
- ^ "WorldTradeLaw.net" (PDF). Worldtradelaw.net. Archived (PDF) from the original on 14 May 2019. Retrieved 8 March 2019.
- ^ "WorldTradeLaw.net" (PDF). Worldtradelaw.net. Archived (PDF) from the original on 14 May 2019. Retrieved 8 March 2019.
- .
- ^ Collins-Chase, Charles (Spring 2008). "The Case against TRIPS-Plus Protection in Developing Countries Facing AIDs Epidemics". University of Pennsylvania Journal of International Law. 29 (3). Archived from the original on 7 June 2015. Retrieved 23 June 2015.
- S2CID 1616485.
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- doi:10.1504/IJIPM.2006.011021. Archived from the original(PDF) on 1 December 2017.
- ^ a b Newfarmer, Richard (2006). Trade, Doha, and Development (1st ed.). The World Bank. p. 292.
- from the original on 23 June 2020. Retrieved 31 October 2020.
- ^ Tosato, Andrea; Igbokwe, Ezinne (January 2023). "Access to Medicines and Pharmaceutical Patents: Fulfilling the Promise of TRIPS Article 31bis". Fordham Law Review. 91 (5): 1791. Retrieved 23 July 2023.
- S2CID 216592972. Archived from the original(PDF) on 6 December 2018.
- ^ Nebehay, Emma Farge, Stephanie (10 December 2020). "WTO delays decision on waiver on COVID-19 drug, vaccine rights". Reuters. Archived from the original on 28 February 2021. Retrieved 25 February 2021.
{{cite news}}
: CS1 maint: multiple names: authors list (link) - ^ "Members to continue discussion on proposal for temporary IP waiver in response to COVID-19". World Trade Organisation. Archived from the original on 27 February 2021. Retrieved 25 February 2021.
- ^ Baker, Brook K.; Labonte, Ronald (9 January 2021). "Dummy's guide to how trade rules affect access to COVID-19 vaccines". The Conversation. Archived from the original on 23 February 2021. Retrieved 25 February 2021.
- ^ "An Unnecessary Proposal: A WTO Waiver of Intellectual Property Rights for COVID-19 Vaccines". Cato Institute. 16 December 2020. Archived from the original on 25 February 2021. Retrieved 25 February 2021.
- ^ "G7 leaders are shooting themselves in the foot by failing to tackle global vaccine access". Amnesty International. 19 February 2021. Retrieved 25 April 2021.
- ^ Pietromarchi, Virginia (1 March 2021). "Patently unfair: Can waivers help solve COVID vaccine inequality?". Al Jazeera. Retrieved 26 April 2021.
- ^ "TRIPS Waiver | Covid-19 Response". covid19response.org.
- ^ "WTO finally agrees on a TRIPS deal. But not everyone is happy". Devex. 17 June 2022.
Sources
- 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
- Banerjee and Nayak, 'Effects of trade related intellectual property rights on the research and development expenditure of Indian pharmaceutical industry' [2014] 5 Journal of Pharmaceutical Health Services Research 89–94.
- Azam, M. (2016). Intellectual Property and Public Health in the Developing World. Open Book Publishers. ISBN 978-1-78374-228-8. A free textbook for download.
External links
- TRIPS agreement (PDF version)
- Agreement on Trade-Related Aspects of Intellectual Property Rights (html version)
- World Trade Organization links
- Audio presentation by Professor Susan Sell, George Washington University, on intellectual property rights in the global context. Archived 26 March 2012 at the Wayback Machine
- WTO TRIPS Agreement profile on database of Market Governance Mechanisms