The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) is an international treaty which sets down minimum standards for most forms of intellectual property regulation within all member countries of the WTO.
Specifically, TRIPs deals with copyright and related rights (ie. 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; 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 are allowed a longer period in which to implement the applicable changes to their national laws.
Although subsequent developments (see below) have expanded the original requirements of TRIPs, the agreement itself 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.
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 EU, Japan and other first world states. Also influential were campaigns of unilateral economic encouragement (under the Generalized System of Preferences) and coercion (under Section 301 of the Trade Act). 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 mobilised US corporations and made maximising intellectual property privileges the number one priority of US trade policy.
After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization (WTO). As ratification of TRIPs is a compulsory requirement of WTO membership, any country seeking to obtain easy access to the numerous international markets opened by the WTO must enact the very 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 authorising 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" (regardless of whether it is in the public interest to do so).
- 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 (this is called " national treatment"). 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.
Since TRIPs came into force it has received a growing level of criticism from developing countries, academics, and NGOs, on the basis that the WTO system in general and the TRIPs system in particular encapsulates all that is socially, politically and economically unjust about globalisation (see also anti-globalisation). However, due to the rule-based system of the WTO, and the technical complexities of applicable laws, many commentators consider that only extensive and intense social and political opposition is likely to overcome the perceived unequal application of TRIPs upon lesser-developed countries and communities.
Access to essential medicines
The most visible conflict has been over AIDS drugs in Africa. Despite the role which patents have played 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. Since then PhRMA, the United States and, to a lesser extent, other developed nations, have been 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. Drugs exported under such a regime may be packaged or colored differently to prevent them fom 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, and /or from the way the TRIPs Agreement has been implemented at the national level. For discussion of regional trade agreements or domestic implementation of TRIPS hinders access to medicines and therefore violates human rights in Botswana, Ecuador, El Salvador and Uganda.
Software and business method patents
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.
Although the requirements of TRIPs are, from a policy perspective, extremely stringent, the lobby groups working to expand various IP laws have certainly found "limitations" in it.
These have formed the basis for various bilateral and multilateral initatives since 1994:
- The creation of anti-circumvention laws to protect digital restrictions management systems. This was achieved through the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
- The desire to further restrict the possibility of compulsory licenses for patents has led to provisions in recent bilateral US trade agreements.
- It is one thing for states to have intellectual property laws on their statutes, and another for governments to enforce them aggressively. This distinction has led to provisions in bilateral agreements, as well as proposals for WIPO and EU rules on Intellectual property enforcement.
- The wording of Trips 27 (non discrimination) is used to justify an extension of the patent system.
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