The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It sets down minimum standards for the regulation by national governments of many forms of intellectual property (IP) as applied to nationals of other WTO member nations. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990 and is administered by the WTO.
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 copyright rights, covering authors and other copyright holders, as well as holders of related rights, namely performers, sound recording producers and broadcasting organisations; geographical indications; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade names and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution 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.
Annex 1C to the Agreement establishing the World Trade Organization
|Agreement on Trade-Related Aspects of Intellectual Property Rights|
|Type||Annex to the Agreement establishing the World Trade Organization|
|Effective||1 January 1995|
|Parties||162 (All WTO members)|
|Languages||English, French and Spanish|
|Agreement on Trade-Related Aspects of Intellectual Property Rights at Wikisource|
TRIPS was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1984-1994. 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 played an important role in defeating competing policy positions that were favored by developing countries like 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 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 hard 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 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 mechanism.
TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
The TRIPS Agreement incorporates by reference the provisions on copyright from the Berne Convention for the Protection of Literary and Artistic Works (Art 9), with the exception of moral rights. It also incorporated by reference the substantive provisions of the Paris Convention for the Protection of Industrial Property (Art 2.1). The TRIPS Agreement specifically mentions that software and databases are protected by copyright, subject to originality requirement (Art 10).
Article 10 of the Agreement stipulates: "1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). 2. 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."
The most visible conflict has been over AIDS drugs in Africa. Despite the role that 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. Drugs exported under such a regime may be packaged or colored differently in order 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 2008 for $48 billion over the next five years. Despite wavering on the issue of [compulsory licensing], PEPFAR began to distribute generic drugs in 2004-5.
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.
According to article 10 of the TRIPS Agreement the appropriate instrument to protect software protection is copyright. The importance of this instrument has recently been confirmed by the US Supreme Court (Oracle America, Inc. v. Google, Inc.).
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 to implement TRIPS was extended to 2013, and until 1 January 2016 for pharmaceutical patents, with the possibility of further extension.
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. 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.
This has not happened in most cases. 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.
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, or relying on technical assistance from the World Intellectual Property Organization (WIPO), which, according to critics such as Cory Doctorow, encourages them to implement stronger intellectual property monopolies.
Banerjee and Nayak shows that TRIPS has a positive effect on R&D expenditure of Indian pharmaceutical firms.
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. General objectives of these agreements include:
According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005 page 142, 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 .
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 developing countries, academics, and non-governmental organizations. Though some of this criticism is against the WTO generally, many advocates of trade liberalisation also regard TRIPS as poor policy. TRIPS's wealth concentration 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 common bases for such criticisms. Other criticism has focused on the failure of TRIPS to accelerate investment and technology flows to low-income countries, a benefit advanced by WTO members in the lead-up to the agreement's formation. Statements by the World Bank indicate that TRIPS has not led to a demonstrable acceleration of investment to low-income countries, though it may have done so for middle-income countries. Lengthy patent periods under TRIPs have been scrutinised for unduly slowing the entry of generic substitutes and competition to the market. In particular, the illegality of pre-clinical trials or submission of samples for approval until a patent expires have been blamed for driving the growth of a few multinationals, rather than developing country producers.
Daniele Archibugi and Andrea Filippetti argue that the importance of TRIPS in the process of generation and diffusion of knowledge and innovation has been overestimated by its supporters. 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). 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. 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.
The 2002 Doha Declaration affirmed that the TRIPS agreement should not prevent members from taking measures necessary to protect public health. Despite this recognition, less-developed countries have argued that TRIPS's flexible provisions, such as compulsory licensing, are near-on impossible to exercise. In particular, less developed countries have cited their infant domestic manufacturing and technology industries as evidence of the policy's bluntness.
TRIPS-plus conditions mandating standards beyond TRIPS have also been the subject of scrutiny. 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. The TRIPS agreement allows the grant of compulsory licenses at a nation’s discretion. TRIPS-plus conditions in the United States FTA’s 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.
Access to medicines refers to the reasonable ability for people to get needed medicines required to achieve health. Such access is deemed to be part of the right to health as supported by international law since 1946.The World Health Organization states that essential medicines should be available, of good quality, and accessible. Reasonable access to medicines can be in conflict with intellectual property and free markets. In the developing world people may not get treatment for conditions like HIV/AIDS.Copyright law of Brazil
The basic law on copyright in Brazil is Law No. 9.610 of February 19, 1998, on Copyright and Neighboring Rights. Brazil has signed the Berne Convention and the TRIPS Agreement.Copyright law of Burundi
The basic law on copyright in Burundi is Law No. 1/021 of December 30, 2005, on the Protection of Copyright and Related Rights in Burundi. Burundi has not signed the Berne Convention but it has signed the TRIPS Agreement.Copyright law of Myanmar
The basic law on copyright in Burma is The Copyright Act of 1911 (promulgated 1914 and sometimes known as the 1914 Act) and the Merchandise Marks Act 1889. Related and subsequent amending legislation are listed at the relevant WIPO page. Burma has not signed the Berne Convention but it has signed the TRIPS Agreement of the World Trade Organization. Burma is a member of the World Intellectual Property Organization.
The 1911 Act (formerly known as the India Act III, 1914) was based on the 1911 Copyright Act of the United Kingdom. Despite the Act, no formal copyright registration procedure has ever been instituted in Burma. The Act also does not recognise the copyright of any other country and registration of copyright must be carried out using other methods that have been developed over the years. In 2004, new copyright legislation began to be drafted based upon the WIPO model law but that legislation has never entered into force.Copyright law of New Zealand
The copyright law of New Zealand is covered by the Copyright Act 1994 and subsequent amendments. It is administered by Business Law Policy Unit of the Ministry of Business, Innovation and Employment (MBIE). In June 2017, a review of the existing legislation was announced.New Zealand is party to several international copyright agreements, including the TRIPS Agreement 1994, the Berne Convention 1928 and the Universal Copyright Convention 1952.Copyright law of South Africa
The copyright law of South Africa governs copyright, the right to control the use and distribution of artistic and creative works, in the Republic of South Africa. It is embodied in the Copyright Act, 1978 and its various amendment acts, and administered by the Companies and Intellectual Property Commission in the Department of Trade and Industry.
South Africa is a party to the Berne Convention and the TRIPS Agreement. It has signed, but not ratified, the WIPO Copyright Treaty.Copyright law of Turkey
Turkish copyright law is documented in the law number 5846 on Intellectual and Artistic Works (Turkish: Fikir ve Sanat Eserleri Kanunu).
Turkey is revising its intellectual property rights laws in order to align them with WIPO standards. Turkey is a party to the Berne Convention, the Rome Convention and the TRIPS Agreement. Turkish copyright law was made compliant with these treaties after its 1995 and 2001 amendments.Copyright law of the European Union
The copyright law of the European Union consists of a number of directives, which the member states are obliged to enact into their national laws, as interpreted by the decisions of the European Court of Justice. Directives of the EU are passed to harmonise the laws of European Union member states. The most recent proposal is the Directive on Copyright in the Digital Single Market. Copyright in the Union is furthermore dependent on international conventions to which the European Union is a member (such as the TRIPS Agreement and conventions to which all Member States are parties (such as the Berne Convention). The remaining issues are part of the national law of the member states.Doha Declaration
The Doha Declaration on the TRIPS Agreement and Public Health was adopted by the WTO Ministerial Conference of 2001 in Doha on November 14, 2001. It reaffirmed flexibility of TRIPS member states in circumventing patent rights for better access to essential medicines.
In Paragraphs 4 to 6 of the Doha Declaration, governments agreed that:
"4. The TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all.In this connection, we reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.5. Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we recognize that these flexibilities include:(a) In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.
(b) Each Member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted.
(c) Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.
(d) The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property rights is to leave each Member free to establish its own regime for such exhaustion without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4.6. We recognize that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement. We instruct the Council for TRIPS to find an expeditious solution to this problem and to report to the General Council before the end of 2002."These provisions in the Declaration ensure that governments may issue compulsory licenses on patents for medicines, or take other steps to protect public health.Geographical indication
A geographical indication (GI) is a name or sign used on products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). The use of a geographical indication, as a type of indication of source, acts as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation, due to its geographical origin.
Appellation of origin is a subtype of geographical indication where quality, method and reputation of a product strictly originate from the delineated area defined under its intellectual property right registration.List of Geographical Indications in India
A geographical indication (GI) is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999 has come into force with effect from 15 September 2003. GIs have been defined under Article 22(1) of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS) Agreement as: "Indications which identify a good as originating in the territory of a member, or a region or a locality in that territory, where a given quality, reputation or characteristic of the good is essentially attributable to its geographic origin."The GI tag ensures that none other than those registered as authorised users (or at least those residing inside the geographic territory) are allowed to use the popular product name. Darjeeling tea became the first GI tagged product in India, in 2004-05, since then by october 2018, 321 had been added to the list. These are listed below.List of parties to international treaties protecting rights related to copyright
Below is a list of countries which have signed and ratified one or more international treaties protecting rights related to copyright.
Related rights protect performers, producers of sound recordings (phonograms) and broadcasting organisations. In some countries these rights are known simply as copyright, while other countries distinguish them from authors' rights: in either case, their international protection is distinct from
the protection of literary and artistic works under the Berne Convention and other treaties.Odisha Ikat
Odisha Ikat is a kind of ikat, a resist dyeing technique, originating from Indian state of Odisha. Also known as "Bandha of Odisha", it is a geographically tagged product of Odisha since 2007. It is made through a process of tie-dying the warp and weft threads to create the design on the loom prior to weaving. It is unlike any other ikat woven in the rest of the country because of its design process, which has been called "poetry on the loom". This design is in vogue only at the western and eastern regions of Odisha; similar designs are produced by community groups called the Bhulia, Kostha Asani, and Patara. The fabric gives a striking curvilinear appearance. Saris made out of this fabric feature bands of brocade in the borders and also at the ends, called anchal or pallu. Its forms are purposefully feathered, giving the edges a "hazy and fragile" appearance. Ikat's equivalent usage in Malay language is mengikat, which means "to tie or to bind".This silk has been registered for protection under the Geographical indication of the Trade Related Intellectual Property Rights (TRIPS) agreement. In 2007, it was listed as "Odisha Ikat" under the GI Act 1999 of the Government of India, with registration confirmed by the Controller General of Patents Designs and Trademarks under Classes 23, 24 and 25 as Yarn and Threads Tied and Dyed for Textile use, Textile and Textile Goods, and Clothing respectively vide application number 22.Patent law of China
Patent law in modern mainland China began with the promulgation of the Patent Law of the People's Republic of China, in 1984. In 1985, China acceded to the Paris Convention for the Protection of Industrial Property, followed by the Patent Cooperation Treaty in 1994. When China joined the World Trade Organization (WTO) in 2001, it became a member of the TRIPS agreement.
To comply with its international obligations, as well as to facilitate its development into an innovative country, China has since amended its Patent Law three times: first in 1992, then again in 2000, and most recently in 2009.Philippine trademark law
R.A. 8293, otherwise known as the Intellectual Property Code, defines a trademark as “any visible sign capable of distinguishing goods”. Early jurisprudence has taken it to mean “a sign, device or mark by which the articles produced or dealt in by a particular person or organization are distinguished or distinguishable from those produced or dealt in by others, and must be affixed to goods or articles”.Santiniketan Leather Goods
Santiniketan Leather Goods are leather products made in Santiniketan and surrounding villages near Kolkata, West Bengal, India. The material used is vegetable tanned leather with art work done by touch dyeing. Its artistic leather bags are popular in foreign markets and are exported to many countries including Japan and the U.S. They are generally made of E. I. Leather (East India Leather) from sheepskin and goatskin.This product has been registered for protection under the List of Geographical indications of the Trade Related Intellectual Property Rights (TRIPS) agreement. In July 2007, it was listed as "Santiniketan Leather Goods" under the GI Act 1999 of the Government of India with registration confirmed by the Controller General of Patents Designs and Trademarks under Class 18 Handicraft goods vide application number 509 for the dated 12 July 2007.Software patents under TRIPs Agreement
The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), particularly Article 27, is occasionally referenced in the political debate on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be considered as a field of technology.Sui generis database right
A sui generis database right is considered to be a property right, comparable to but distinct from copyright, that exists to recognise the investment that is made in compiling a database, even when this does not involve the "creative" aspect that is reflected by copyright.The TRIPS Agreement requires that copyright protection extends to databases and other compilations if they constitute intellectual creation by virtue of the selection or arrangement of their contents, even if some or all of the contents do not themselves constitute materials protected by copyright. Many countries act in accordance with this requirement, as databases are protected by copyright if this condition is met, and there is no separate intellectual property right protecting databases (or any aspects of them) that do not meet the condition for copyright protection. The sui generis database right extends protection over databases which does not depend on the condition required for copyright protection, and is recognised only in a small number of jurisdictions, most notably the European Union.World Trade Organization Dispute 160
On January 26, 1999, the European Communities (EC) and its Member States requested consultation with the United States concerning a dispute over discrepancies between the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) and Section 110(5) of the United States Copyright Act amended by the Fairness in Music Licensing Act. The dispute was over the legality of “the playing of radio and television music in public places (such as bars, shops, restaurants etc.) without the payment of a royalty fee” (World). The disputed parties worked through the existing process of WTO Dispute Settlement. First the EC lodged a complaint against the US with the Dispute Settlement Body (DSB) and requested consultation over the dispute. Then the parties requested a panel leading to the body’s eventual formation, followed by the circulation of the panel report. The parties accepted the Panel Report without appeal and the dispute ended in arbitration over implementation of the panel’s recommendations. Australia, Brazil, Canada, Japan, and Switzerland acted as third parties in this dispute (World).