Intellectual Property Rights (IPR) are the rights given to persons over the creation of their minds. Intellectual property includes copyright (for example, the rights of authors of literary and artistic works) as well as industrial property (for example, trademarks and patents). The need to protect IPR was discussed at the Uruguay Round (1986–94) as part of the General Agreement on Tariffs and Trade (GATT). For the first time in the history of GATT, the Uruguay Round established the minimum standards of protection to be accorded to IPR. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) came into force in January 1995.
Before the TRIPS Agreement, considerable variation existed between countries in the protection of IPR. These differences became a source for concern among developed industrial countries during the 1970s, because of rapid growth in research and development expenditures and trade in products with a high IPR content (for example, pharmaceuticals, electronics, and computer software). The basic aims of the TRIPS Agreement were to promote protection of IPR and to ensure that international trade was not constrained by the measures that individual countries enforced to protect IPR.
The TRIPS Agreement covers five major issues: the applicability of the basic principles of GATT and relevant international intellectual property agreements; the provision of adequate standards governing the use of trade-related IPR; the provision of effective measures for the enforcement of trade-related IPR; the provision of robust procedures for the settlement of disputes between governments; and the introduction of transitional arrangements during the period when the Agreement was being introduced.
In order to obtain international cohesion in the standards of IPR protection, the agreement built upon the obligations that already existed. For example, in the case of patents and industrial designs, the main international agreement was provided by the Paris Convention for the Protection of Industrial Property. This Convention was held in 1883 and has been subsequently revised. In the case of copyright, the Berne Convention for the Protection of Literary and Artistic Works, 1886, provided the principal protocol on these matters.
A council, which is answerable to the World Trade Organization, was established to oversee the operation of the TRIPS Agreement. Since 1995, the council has reviewed legislation on a wide range of IPR, including, for example: electronic commerce; a multilateral system of notification and registration of geographical indications for wines and spirits; technology transfer; integrated circuits; anticompetitive practices in contractual licenses; and undisclosed information and trade secrets.
Underlying the TRIPS Agreement were a number of general provisions that defined the minimum standards of intellectual property protection: for example, members are not obliged to provide statutory protection beyond that required by the Agreement. Provision was made whereby member countries would treat their own nationals and foreigners equally. It was also stipulated that nothing in the Agreement would absolve members from the existing obligations they had to each other under the various International Conventions for the Protection of Industrial Property. Most-favored-nation treatment was also ruled out; specifically, in the context of the protection of IPR, advantages or privileges granted by a member to the nationals of any other country would immediately and unconditionally be accorded to the nationals of all other members.
A further important principle was that the protection of IPR should contribute to innovation and technology transfer. Finally, public interest considerations were recognized: Members were permitted to exclude from patentability medical treatments for animals and humans.
In addition to these general provisions, the Agreement also provided for the protection of specific IPR. As regards copyright, the Agreement protected computer programs; international copyright rules were expanded to cover rental rights. For example, authors of computer programs had the right to prohibit the commercial rental of such works to the public. Additionally, performers had the right to prevent unauthorized recording and transmission of live performances for up to 50 years. In the case of geographical indications (GIs) of origin, the Agreement was an innovation for many countries. GIs are used to identify the place where a product is made. They are important because a particular product obtains its essential characteristics precisely because it is produced in a particular locality. Classic examples of this are “Burgundy,” “Champagne,” and “Scotch” in alcoholic beverages. Specific legal provision was also provided whereby interested parties could prevent use of a GI to identify wines if these wines had not originated in the place located by the GI.
Turning to patents, the Agreement provided that protection must be available for inventions for at least 20 years. In the specific case of pharmaceutical products, innovations such as compulsory licensing were introduced to ensure that countries unable to produce pharmaceuticals domestically could import patented drugs.
One of the key factors motivating GATT’s interest in the protection of IPR was concern about trade in pirated goods. Accordingly, a further innovation of the Agreement was to strengthen the power of the customs authorities to seize and detain fraudulently marked goods. This led to the creation of the World Customs Organization (formerly Customs Coordination Council) to promulgate customs legislation designed to facilitate the implementation of the Agreement.
1. M. Blakeney, Trade Related Aspects of Intellectual Property Rights: A Concise Guide to the TRIPS Agreement (Sweet and Maxwell, 1996);
2. C. M. Correa, Intellectual Property Rights, the WTO and Developing Countries (Zed Books, 2000).
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