international agreements

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Agreement on the Trade-Related Aspects of Intellectual Property

The Trade-Related Aspects of Intellectual Property Agreement (“TRIPS”) is a multilateral[1] agreement administered by the World Trade Organisation (“WTO”) that came into effect on 1 January 1995[2].

The introduction of TRIPS was a result of intense lobbying by the United States, supported by developed nations like the European Union and Japan. This was a culmination of several factors in a globalising economy in the 1980s. Firstly, technology became increasingly important in international competition[3]. IPR protection in the field of new technologies to create or reinforce exclusive rights was required[4]. At the same time, globalisation broke down barriers to trade and communication[5], which increased opportunities for direct export to developing countries[6]. Multinational enterprises were concerned about poor intellectual property protections in developing countries[7], which would hamper their developmental prospects[8]. Therefore, TRIPS was created out of a need to establish minimum standards and an effective mechanism for enforcement[9]. Secondly, the shift to high-technology products in developed countries[10] created new forms of exclusion in a widening technology gap between rich and poor countries[11]. There was a need to encourage innovation, entrepreneurialism and the acquisition of technical skills in developing countries[12].

The aim of TRIPS is set out in its Preamble, and includes 'reducing distortions and impediments to international trade’, promoting effective and adequate protection of Intellectual Property Rights (“IPRs”), and ‘ensuring that measures and procedures to enforce IPRs do not become barriers to legitimate trade’[13]. Broadly, this aim is achieved by bringing IPRs together under a common international set of rules[14] and establishing minimum standards of IPR protection[15], which will allow for trans-border technology flows.

Historically, IPR laws resided in the domestic sphere[16], and national governments had the flexibility to create policies relating to the scope and coverage of IPRs within their national jurisdictions[17]. The existing Paris and Berne Conventions provided weak IPRs enforcement mechanisms. The main changes to the law was therefore the imposition of new and substantive minimum standards[18], as well as a powerful enforcement mechanism. For example, governments must ensure that their laws provide for enforcement of IPRs and to make available procedures to ensure that private IPRs holders can take effective action against infringement[19], as well as to intervene directly to enforce IPRs[20].

The three main features of TRIPS are standards, enforcement and dispute settlement. Part II of TRIPS sets out minimum standards of IP protection to be provided by each Member in: (1) Copyright and related rights including computer programs and databases; (2) Trademarks; (3) Geographical indications; (4) Industrial designs; (5) Patents; (6) Layout designs of integrated circuits; and (7) Undisclosed information, including trade secrets and test data[21]. In particular, the main elements of protection are the subject matter eligible for protection, the scope of rights to be conferred, permissible exceptions to those rights, and the minimum duration of protection[22]. Part III of TRIPS deals with domestic procedures and remedies for the enforcement of IPRs[23], and Part V deals with dispute prevention and settlement[24].

(2) Agreement Establishing the World Trade Organisation 1995

The Agreement Establishing the World Trade Organisation 1995 (“WTO Agreement”) is a short agreement setting out the role, structure and powers of the World Trade Organisation (“WTO”)[25]. It was signed in Marrakesh on 15 April 1994 at the end of the Uruguay Round of the Multilateral Trade Negotiations.

The WTO Agreement was part of the treaty that established the WTO[26]. Prior to the WTO’s establishment, the General Agreement on Tariffs and Trade (GATT) governed the rights and obligations[27] for trade in goods between its signatories. However, the GATT had a weak institutional basis[28], and was not meeting evolving needs[29]. Further, the agreements governing GATT were only signed by some signatories, and therefore had little or no impact. Therefore, at the Uruguay Round negotiations, the WTO was established out of a need for a better institution to govern international trade. In particular, there was an emphasis on efforts to improve the coherence of global economic policy-making[30]. The WTO superseded the GATT as the umbrella organisation for international trade.

The WTO Agreement creates an entirely new international organisation (the WTO) to administer “an integrated, more viable and durable multilateral trading system[31]”. The key aim of the WTO is “raising standards of living, ensuring full employment, expanding production and trade, and allowing optimal use of the world’s resources”[32]. In order to facilitate this, the WTO Agreement provides the new organisation with a clear structure, political guidance, a proper staff, and appropriate financial arrangements[33].

There are some main changes in the WTO Agreement compared to the GATT. First, the WTO Agreement relates to the production and trade of goods and services[34], while the GATT only related to goods. Second, the WTO Agreement recognizes the need for positive efforts to ensure that developing countries “secure a share in the growth in international trade" commensurate with the needs of their economic development”[35]. Third, it states an objective relating to sustainable development, in particular, to “protect and preserve the environment”[36]. Another key change from the GATT relates to dispute settlement arrangements that had evolved on a largely ad-hoc basis, with separate agreements to resolve disputes depending on where they arose[37]. Now, the WTO Agreement provides clearly that the WTO are to administer the settlement of disputes that may arise between members for the review of trade policies[38].

Broadly, the WTO Agreement defines the functions of the organisation[39], its structure[40], the qualifications for membership[41], and decision-making procedures[42] and requirements[43], as well as calls for efforts for improve the coherence of global economy policy-making[44]. In particular, Article III, defines clear functions of the WTO, including implementing agreements, acting as a negotiation forum, and administering the settlement of disputes[45]. Article V provides for the WTO to establish cooperative arrangements with other intergovernmental organisations, and non-governmental organisations with related responsibilities and interests to the WTO[46]. In particular, the WTO Agreement specifically calls on a cooperation with the International Monetary Fund and the World Bank[47].

BIBLIOGRAPHY

Books

1. Correa C M, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options (Zed Books, 2000)

2. Ghidini G, Peritz R J R, Ricolfi M, TRIPS and Developing Countries: Towards a New IP World Order? (Edward Elgar Publishing Ltd, 2014)

Journals

1. ‘The WTO Agreements Series: 1 – Agreement Establishing The WTO’ <https://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf> accessed 27 February 2016

2. Tully D L, “Prospects for Progress: The TRIPS Agreement and Developing Countries After the Doha Conference” (2006) Boston College Law Review reproduced at <https://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bciclr/26_1/06_TXT.htm> accessed 26 February 2016

3. World Trade Organisation, ‘Module 1: Introduction to the TRIPS Agreement’ <https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/modules1_e.pdf> accessed 26 February 2016

4. World Trade Organisation, ‘Overview: the TRIPS Agreement’, <https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm> accessed 26 February 2016

Agreements

1. Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016)


[1] World Trade Organisation, ‘Overview: the TRIPS Agreement’, <https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm> accessed 26 February 2016.

[2] Ibid.

[3]Carlos M. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options, Chapter 1: General Concepts (Zed Books, 2000), p. 3.

[4] Ibid, p. 4.

[5] L. Danielle Tully, ‘Prospects for Progress: The TRIPS Agreement and Developing Countries After the Doha Conference’ (2006) Boston College Law Review <https://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bciclr/26_1/06_TXT.htm> accessed 26 February 2016.

[6]Carlos M. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options, Chapter 1: General Concepts (Zed Books, 2000), p. 4.

[7] L. Danielle Tully, ‘Prospects for Progress: The TRIPS Agreement and Developing Countries After the Doha Conference’ (2006) Boston College Law Review <https://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bciclr/26_1/06_TXT.htm> accessed 26 February 2016.

[8] Gustavo Ghidini, Rudolph J. R. Peritz, Marco Ricolfi, TRIPS and Developing Countries: Towards a New IP World Order?, (Edward Elgar Publishing Ltd, 2014), p. 242.

[9] L. Danielle Tully, ‘Prospects for Progress: The TRIPS Agreement and Developing Countries After the Doha Conference’ (2006) Boston College Law Review <https://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bciclr/26_1/06_TXT.htm> accessed 26 February 2016.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] World Trade Organisation, ‘Module 1: Introduction to the TRIPS Agreement’ <https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/modules1_e.pdf> accessed 26 February 2016.

[14] World Health Organization, ‘Trade-Related Aspects of Intellectual Property Rights (TRIPS)’ <http://www.who.int/trade/glossary/story091/en/> accessed 26 February 2016.

[15] L. Danielle Tully, ‘Prospects for Progress: The TRIPS Agreement and Developing Countries After the Doha Conference’ (2006) Boston College Law Review <https://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bciclr/26_1/06_TXT.htm> accessed 26 February 2016.

[16] L. Danielle Tully, ‘Prospects for Progress: The TRIPS Agreement and Developing Countries After the Doha Conference’ (2006) Boston College Law Review <https://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bciclr/26_1/06_TXT.htm> accessed 26 February 2016.

[17]Gustavo Ghidini, Rudolph J. R. Peritz, Marco Ricolfi, TRIPS and Developing Countries: Towards a New IP World Order?, (Edward Elgar Publishing Ltd, 2014), p. 241.

[18] Ibid, p. 241.

[19] Ibid, p. 243.

[20] Ibid, p. 243.

[21]Carlos M. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options, Chapter 1: General Concepts (Zed Books, 2000), p. 1.

[22] World Trade Organisation, ‘Module 1: Introduction to the TRIPS Agreement’ <https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/modules1_e.pdf> accessed 26 February 2016.

[23] World Trade Organisation, ‘Module 1: Introduction to the TRIPS Agreement’ <https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/modules1_e.pdf> accessed 26 February 2016.

[24] World Trade Organisation, ‘Module 1: Introduction to the TRIPS Agreement’ <https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/modules1_e.pdf> accessed 26 February 2016.

[25] ‘The WTO Agreements Series: 1 – Agreement Establishing The WTO’ <https://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf> accessed 27 February 2016.

[26]Article I, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).

[27] ‘The WTO Agreements Series: 1 – Agreement Establishing The WTO’ <https://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf> accessed 27 February 2016.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Preamble, Para 4, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).

[32] ‘The WTO Agreements Series: 1 – Agreement Establishing The WTO’ <https://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf> accessed 27 February 2016.

[33] Ibid.

[34] Ibid.

[35] Preamble, Para 2, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).

[36] Preamble, Para 1, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).

[37] ‘The WTO Agreements Series: 1 – Agreement Establishing The WTO’ <https://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf> accessed 27 February 2016.

[38] Ibid.

[39] Article III, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).

[40] Article IV, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).

[41] Article V to VII, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).

[42] Article IX, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).

[43] ‘The WTO Agreements Series: 1 – Agreement Establishing The WTO’ <https://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf> accessed 27 February 2016.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Article III, Agreement Establishing the World Trade Organization, (online at <https://www.wto.org/english/docs_e/legal_e/04-wto.pdf> accessed 27 February 2016).