WTO TRIPS Agreement

MHROD 2010

A. Background: The Uruguay Round TRIPS Agreement
‡ Uruguay Round TRIPS Agreement is one of four new agreements negotiated during the UR Round that deal with a substantive area totally new & not previously governed by any part of the GATT¶47 (the others being Agriculture, Services, & Trade-Related Investment Measures (TRIMS)). It incorporates by reference a number of other essentially unenforceable international agreements or conventions on aspects of IPR. 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 easy access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS.

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‡ 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.

Something Special About TRIPS:
‡ TRIPS is the only GATT/WTO Framework agreement that incorporates the provisions of other essentially unenforceable international agreements & makes them enforceable under the GATT/WTO Dispute Settlement process, e.g.,  - The Berne Convention (1971) relating to Copyright & Related Rights  - The Paris Convention (1967) relating to Industrial Property  The IPIC Treaty [Integrated Circuits] (1989 ). ‡ But TRIPS goes beyond the Paris & Berne Conventions to provide additional protection by establishing minimum standards for the protection of intellectual property rights.

35-38) Section 7 . IPRIC) .Anti-Competitive Practices in Contractual Licenses (Art. 40) . 9-40): Section 1 ± Copyright & Related Rights (Arts.Structural Outline of the TRIPS Agreement  ‡ ‡ ‡ ‡  ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ Part I: General Provisions & Basic Principles (Arts.IPR Conventions (Paris.MFN Treatment . 27-34) Section 6 .1-8) * Includes: .Nature & Scope of Obligations . Scope. 25.Patents (Arts.Undisclosed Information [Trade Secrets] (Art. 15-21) Section 3 .National Treatment .Layout Designs [Integrated Circuits] (Art.Objectives for IPR Enforcement Part II: Standards Concerning the Availability. 39) Section 8 .Geographical Indications (Arts.26) Section 5 . 9-14) Section 2 . Berne. & Use of IPRs (Arts. 22-24) Section 4 .Trademarks (Arts.Industrial Designs (Arts.

Civil & Administrative Procedures/Remedies (Arts. 41) ‡ Section 2 .Part III: Enforcement of IPR (Arts.Criminal Procedures (Art.Provisional Measures (Art. 62) ‡ Part V: Dispute Prevention & Settlement (Arts. 41-61) ‡ Section 1 . 50) ‡ Section 4 . 61) ‡ Part IV: Acquisition & Maintenance of IPRS & Related Inter-Partes Procedures (Art.Technical Cooperation . 65-67) [in particular]: ‡ Article 66 ± Least-Developed Country Members ‡ Article 67 . 4249) ‡ Section 3 .General Obligations (Art. 51-60) ‡ Section 5 .64) ‡ Part VI: Transitional Arrangements (Arts. 63.Special requirements for Border Measures (Arts.

‡ It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. ‡ It deals with the protection & enforcement of ³TradeRelated´ intellectual property ³rights´.What is the ³TRIPS´ Agreement? ‡ The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) ‡ that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. .

Intellectual Property ‡ What is ³Intellectual Property´? ‡ Intellectual Property comprises 2 distinct forms: ‡ * Literary & Artistic Works ‡ * Industrial Property .

. paintings. operas. ‡ plays. ‡ performances.What are ³Literary & Artistic Works´ ‡ They are books. musical compositions. & other artistic works. radio/tv programs. movies.

publish. perform the work in public. including the right to reproduce. & to make adaptations of it & benefit thereby.How are they Protected? ‡ They are protected by ³Copyright´ which provides the individual ³author´ or ³artist´ the exclusive right to do certain things with an ³original work´. .

What is ³Industrial Property´? ‡ Industrial Property describes physical matter that is the product of an idea or concept or design (other than matter subject to Copyright) that is developed specifically for commercial purposes. .

What does ³Industrial Property´ include? ‡ ‡ ‡ ‡ ‡ ‡ Patented objects Layout-designs of Integrated Circuits Trademarks Industrial Designs Geographical Indications Trade Secrets .

3) Protection stimulates creativity and innovation necessary for productivity. energy. & ‡ frustrate the efforts of ³free riders´ to make money off their efforts & investment whilst not having any input. . at least for a period of time.Introduction to Intellectual Property Rights (IPR) ‡ Why Protect ³Intellectual Property´? 1) Because companies & individuals expend a lot of investment in time. 2) So authors & inventors have a right to be protected for their efforts. competitiveness. & money into conceptualization & production of new & innovative products & processes (services) & they have a right. to: ‡ have their name associated with their product and/or their authorship associated with it ‡ get paid for their efforts & to recover their investment. and national economic development.

. 2) Trade will be inhibited (& foreign direct investment frustrated) if the laws of a country do not protect the IPR of its trading partners and/or prospective investors.B. Relevancy of IPR to International Trade & Investment 1) The rationale for IPR provisions in the GATT/WTO Framework (& other trade agreements) is to ensure that IPR enforcement is consistent with free trade principles of effective market access & non-discrimination. but. overzealous enforcement of IPR can also inhibit trade by putting traders at a competitive disadvantage.

perform the work in public.Definitions of Terms: ‡ Patent ± is the right given to inventors to have protected exclusive use for specified period of time (³term´) for making. including the right to reproduce. ‡ Copyright ± is the exclusive right to do certain things with an original work. non-obvious invention. using. publish. but only the original expression of ideas. & to make adaptations of it. Patents are available for both products & processes. Copyright does not protect ideas as such. .IPR Protection . or selling a new. useful.

letters.‡ Trademark ± consists of any sign. colours.capable of distinguishing the goods or services of one person from  those of another.  figurative elements. collective marks. or combination of signs.numerals. or their packaging. & may include certification marks. . designs.  TMs include service marks. including personal names. shape of goods.

‡ Geographical Indications ± (sometimes called appellations of origin) are any indication that identifies a product as originating in the territory of a Member. competitors. reputation. .or a region or locality therein. or other characteristic of the product is essentially attributable to geographical origin.‡ Trade Secrets ± are information deriving its value from not being known or available to the public. for reason of which a particular quality. or other parties who might otherwise gain benefit from its disclosure or use.

pattern. configuration. or ornamentation of a useful article but not a method or principle of construction .‡ Industrial Design ± is the shape.

. e. & ‡ A WTO Member must accord nationals of other WTO members treatment no less favourable than it accords to its own nationals..g.g. ³national treatment´. e. .General TRIPS Principles/Requirements Relevant To ALL IPR Covered Under the Agreement: ‡ While A Member may implement more extensive IPR protection than provided in TRIPS. ³most favoured nation´ or ³MFN´ treatment. ‡ Members must accord nationals of other WTO members the treatment provided for in TRIPS. such increased protection may not contravene provisions of TRIPS.

to the principle of exhaustion. therapeutic. & surgical methods of treatment for humans or animals.TRIPS Agreement: Main Provisions on Patents 1. Plant varieties shall be protected by patents. provided they are new. 3. 5. or a combination of both. . Patents shall be granted in all fields of technology. No discrimination is allowed with respect to the place of invention. Exclusive rights conferred in the case of product and process patents are defined. whether products or processes. subject in the case of imports. or based on whether the products are locally-produced or imported. an effective sui generis(unique)regime. 4. 2. Members can exclude from patentability diagnostic. as well as plants & animals & biological process for the production thereof. Patents shall be granted for any inventions. involve an inventive step. & are capable of industrial application.

6. . may be required. 9. Revocation/forfeiture of a patent is subject to judicial review. Conditions for granting other uses without authorisation of the patent-holder (compulsory licenses) are set forth ± Members can determine the grounds to allow such uses. Inventions shall be disclosed in a manner which is sufficiently clear & complete for a skilled person in the art to carry out the invention. Indication of the best code of carrying out the invention. as well as information concerning corresponding patent applications & grants. The term of protection shall be at least 20 years from the date of application. Limited exceptions to the exclusive rights can be defined by national laws (TRIPS Art. 30) 8. 10. 7.

Copyright ‡ 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 .

. 5) Recognition of the 50 year minimum exclusivity term for works (other than photographic or applied artworks) owned by juridical persons & for performers & phonogram producers. at least for phonograms. & for cinematographic works (except if rental has not led to widespread copying that impairs the reproduction rights). producers of phonograms. procedures. or mathematical concepts as such. 3) Recognition of rental rights. 6) Recognition of rights of performers. & broadcasting organisations. 4) Exceptions to exclusive rights must be limited to special cases which do not conflict with normal exploitation of the work & do not unreasonably prejudice the legitimate interests of the rights-holder. methods of operation. excluding moral rights to the expression but not the ideas. computer programs.TRIPS Agreement: Main Provisions on Copyright 1) Protection of works covered by the Berne Convention. 2) Protection of computer programs as literary works & of compilations of data.

g. e. but not filing of an application. those capable of distinguishing the goods or services of one undertaking from those of other undertakings. including if knowledge thereon is acquired through their promotion. can be dependent on use..TRIPS Agreement: Provisions on Trademarks 1) Definition of protected signs. 2) Registrability. 6) Requirements for use are to be limited in terms of both the minimum period of non-use & the admissibility of reasons there for. 7) A TM may be assigned without transfer of the business. . 8) Measures to combat trade in counter-feiting products should be available at the border. 3) Protection of well-known TMs for goods & services. indefinitely renewable. Service marks receive protection equivalent to that for marks for goods. 5) The minimum term of protection is 7 years. 4) Exceptions to exclusivity must be limited & take into account the legitimate interests of the TM owner & of third parties.

3) Exclusive rights can be exercised against acts for ‡ commercial purposes.TRIPS Agreement: Provisions on Industrial Designs 1) Protection should be conferred on designs which are ‡ new or original. 4) The minimum term of protection is 10 years. . 2) Requirements for protection of textile designs should ‡ not impair the opportunity to obtain such protection. including importation.

g..TRIPS Agreement: Provisions for Layout Designs for Integrated Circuits: 1) The layout designs (topographies) of integrated circuits shall be protected according to the provisions of the Washington Treaty of 1989. provisions on compulsory licenses. 3) Bona fide purchasers of products involving infringing layout designs shall be liable to pay a compensation to the rights-holder after notification. e. 2) Protection shall extend to layout designs as such & to the industrial articles that incorporate them. . 4) The term of protection is a minimum of 10 years. except those specifically excluded by that Agreement.

if the information is secret. . & is subject to steps to keep it secret. has commercial value. 2) Secret data submitted for the approval of new chemical entities for pharmaceutical & agrochemical products should be protected against unfair commercial use & disclosure by governments.TRIPS Agreement: Provisions for Trade Secrets 1) Undisclosed information is to be protected against unfair commercial practices.

if it would mislead the public as to the true place of origin.TRIPS Agreement: Provisions for Geographical Indications 1) WTO Members are obligated under TRIPS Art. 22. 2) Members are also required to refuse or invalidate registration of a TM that contains or consists of a geographical indication with respect to goods not originating in the territory indicated. or any use that constitutes an act of unfair competition within the meaning of Paris Convention of 1967.2 to provide legal means for interested parties to prevent: use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner that misleads the public as to its true origin. .

stating for example that TRIPS can and should be interpreted in light of the goal "to promote access to medicines for all. initiated a round of talks that resulted in the Doha Declaration. developing countries. concerned that developed countries were insisting on an overly narrow reading of TRIPS.Doha Round ‡ In 2001. .³ ‡ The TRIPS agreement 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. ‡ The Doha declaration is a WTO statement that clarifies the scope of TRIPS.

& ‡ Protection of Traditional & Indigenous Knowledge. ‡ Regulation of Biotechnology. ‡ Regulation of Biodiversity & origin of Genetic Resources.The TRIPS Agreement & the Doha Round: ‡ A number of developing & LDC Members of the WTO have expressed concerns about certain provisions of the TRIPS Agreement relating to: ‡ TRIPS¶ provisions regarding patents for pharmaceuticals & their access to medicines & maintenance of public health. .

‡ Some developed countries (EU) want an expansion of the TRIPS regulatory rules for Geographical Indications. .

14 November 2001. while reiterating our commitment to the TRIPS Agreement. we affirm that the Agreement can & should be interpreted & implemented in a manner supportive of WTO members¶ right to protect public health &. We also recognize the concerns about its effects on prices. in particular. inter alia: ‡ We recognize that intellectual property protection is important for the development of new medicines. stated. to promote access to medicines for all. ‡ We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly.The Doha WTO Ministerial Declaration the TRIPS Agreement & Public Health.´ .

With the lowering of tariffs across the globe. regulations. It is therefore. certain non tariff measures which cannot be justified under any of these legal provisions are normally termed as non tariff barriers (NTBs).Non Tariff Measures ‡ Non Tariff Measures (NTMs) are all measures other than normal tariffs namely trade related procedures. licencing systems and even trade defense measures such as anti-dumping duties etc which have the effect of restricting trade between nations. Some of these measures could be justified under the provisions or the exceptions provided under the various multilateral agreements governing international trade. standards. NTMs have come into prominence with Members using these measures to erect entry barriers for goods and services. The details of some of the major NTMs that are maintained against Indian exports are as under: ‡ ‡ . On the other hand. not surprising that the developed countries with relatively lower tariffs are the more prolific users of NTMs / NTBs especially to keep out developing country exports.

7% of value and lengthy procedure for conversion of hard currency as well as profit repatriation Australia Mangoes China Agricultural products Uzbekistan All products . Mandatory labeling discriminating ³farm raised´ and ³wild´ with punitive fines and non-recognition of EIC certification Australia maintains ban on the pretext of the presence of fruit flies and stone weevils. Customs Bond requirement.Some of them are : United States Increased Marine products inspections under the BioTerrorism Act. a custom processing fee @ 0. Opacity of Sanitary and Phytosanitary (SPS) measures and delays in giving clearances Cumbersome procedure for registration and certification.

the Department of Commerce has attempted to put in place a database of NTMs/ NTBs imposed by trading partners on its exports .India¶s Action ‡ With a view to strengthening its information base on NTMs/ NTBs.

International Trade Agreements ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ Agreements already concluded Asia Pacific Trade Agreement APTA CECA between The Republic of India and the Republic of Singapore India Chile PTA(Preferential Trade Agreement) India Afghanistan PTA India Bangladesh Trade Agreement India Bhutan Trade Agreement India China Trade Agreement India Japan Trade Agreement India MERCOSUR PTA India Nepal Trade Treaty India Sri Lanka FTA (Free Trade Agreement) .

It has Chile and Bolivia as its associate members. MERCOSUR has become a successful market of about 200 million people. Uruguay and Paraguay. capital and people among the four member countries. Argentina. It is the fourth largest integrated market after the European Union (EU). MERCOSUR was formed in 1991 with the objective of facilitating the free movement of goods.MERCOSUR ‡ MERCOSUR is a trading bloc in Latin America comprising Brazil. representing about 1 trillion dollars of GDP and 190 billion dollars of trade. North American Free Trade Agreement (NAFTA) and ASEAN. . services.

the State of Qatar and the State of Kuwait. the Kingdom of Bahrain.Other Agreements/ Negotiations ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ Framework Agreement with ASEAN Framework agreement with Chile Framework Agreement with GCC States(The Member States of the Cooperation Council for the Arab States of the Gulf i. the Sultanate of Oman. that are parties to the Charter of the Cooperation Council for the Arab States of the Gulf. or GCC) Framework Agreement with Thailand India EU Trade and Investment Agrement TIA India US Trade Policy Forum Joint Statement India Ceylon Trade Agreement India DPR Korea Trade Agreement India EU Strategic Partnership Joint Action Plan India Korea Joint Study Group India Korea Trade Agreement India Maldives Trade Agreement India Mongolia Trade Agreement India Pakistan Trading Arrangement India United States Commercial Dialogue . the Kingdom of Saudi Arabia.eThe Governments of the United Arab Emirates.

which indicated that TRIPs should not prevent states from dealing with public health crises. Bush created the PEPFAR program. this controversy has not led to a revision of TRIPs. an interpretive statement. was issued in November 2001. which received $15 billion from 2003-2007. PhRMA. the Bush administration also changed its position. After Doha. PEPFAR began to distribute generic drugs in 2004-5 ‡ ‡ . Instead. Drugs exported under such a regime may be packaged or colored differently to prevent them from prejudicing markets in the developed world. 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. the Doha Declaration. Despite wavering on the issue of compulsory licensing. concluding that generic treatments might in fact be a component of an effective strategy to combat HIV. Despite the role which patents have played in maintaining higher drug costs for public health programs across Africa. and was reauthorized in 2007 for $30 billion over the next five years.Recent Developments regarding TRIPS ‡ ‡ ‡ Access to essential medicines The most visible conflict has been over AIDS drugs in Africa. A 2003 agreement loosened the domestic market requirement. the United States and to a lesser extent other developed nations began working to minimize the effect of the declaration. In 2003.

. and whether or not this necessitates the granting of software and business method patents.‡ Software and business method patents ‡ Another controversy has been over the TRIPS Article 27 requirements for patentability "in all fields of technology".

. in two tiers of transition according to their level of development. however developing countries were allowed extra time to implement the applicable changes to their national laws. ‡ The transition period for developing countries expired in 2005. and could be extended beyond that. The transition period for least developed countries was extended to 2016.TRIPS and Developing Countries ‡ The obligations under TRIPS apply equally to all member states.

A 2005 report by the WHO found that many developing countries have not incorporated TRIPS flexibilities (compulsory licensing. use of broad research and other exceptions to patentability. parallel importation. prima facie. in the strategic interest of most if not all underdeveloped nations to use any flexibility available in TRIPS to write the weakest IP laws possible. limits on data protection. etc) into their legislation to the extent authorized under Doha. patent.and trademark-related royalties. ‡ This has not happened in most cases. ‡ 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 ‡ Many argue that it is. .‡ Developed countries are massive net-exporters of copyright-.

. ‡ which has often led to developing countries directly copying developed country IP legislation.‡ This is likely caused by the lack of legal and technical expertise needed to draft legislation that implements flexibilities. which.or relying on technical assistance from the World Intellectual Property Organization (WIPO). according to critics such as Cory Doctorow. encourages them to implement stronger intellectual property monopolies.

Post-TRIPS expansionism ‡ The requirements of TRIPS are. from a policy perspective. Despite this. lobbyists for the industries that benefit from various intellectual property laws have continued since 1994 to campaign to strengthen existing forms of intellectual property and to create new kinds: . extremely stringent.

‡ It is one thing for states to have intellectual property laws on their statutes. and another for governments to enforce them aggressively.‡ The creation of anti-circumvention laws to protect Digital Rights Management systems. The 2001 EU Copyright Directive was to implement the 1996 WIPO Copyright Treaty. as well as proposals for WIPO and European Union rules on intellectual property enforcement. . ‡ The desire to further restrict the possibility of compulsory licenses for patents has led to provisions in recent bilateral US trade agreements. This distinction has led to provisions in bilateral agreements. This was achieved through the 1996 World Intellectual Property Organization Copyright Treaty (WIPO Treaty) and the WIPO Performances and Phonograms Treaty.

drugs Compulsory licensing and license of right Several areas excluded from patents (method of agriculture. or similar treatment of animals and plants to render them free of disease or increase economic value of products) TRIPS Process and product patents in almost all fields of technology Term of patents 20 years Limited compulsory licensing. chemicals Term of patents 14 years. any process for medicinal surgical or other treatment of humans. medicines. Only area conclusively excluded from patentability is plant varieties. debate regarding some areas in agriculture and biotechnology Government allowed to use invention to prevent scarcity patented Very limited scope for governments to use patented inventions .Comparison of India¶s Patent Act and TRIPs ‡ INDIA Only process not product patents in food. no license of right Almost all fields of technology patentable. 5-7 in chemicals.

‡ India¶s Patent Policy and Negotiations in TRIPs:Future Options for India and other Developing Countries ‡ Dr. Anitha Ramannay .

for example. academics.Controversy ‡ Since TRIPS came into force it has received a growing level of criticism from developing countries. ‡ TRIPS' wealth redistribution 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. Some of this criticism is against the WTO as a whole. but many advocates of trade liberalization also regard TRIPS as bad policy (see. and Nongovernmental organizations. . Jagdish Bhagwati's In Defense of Globalization for a discussion on the detrimental effect of TRIPS on access to medicines in developing countries). are a common basis for such criticisms.

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