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Trade-Related Aspects of Intellectual Property Rights

Another great achievement of the Uruguay Round negotiations is the negotiation of a specific agreement on trade-related aspects of intellectual property rights (TRIPS). Prior to the Uruguay Round, the GATT multilateral trading system did not include specific rules regarding intellectual property rights.

Intellectual property rights are rights which are granted to reward the creative work of its inventor. They take various forms depending on the forms of the creation. Copyrights are granted to the author of literary and artistic work; patents protect inventions; brands and logos are protected through trademarks. The inventive and creative work give to the goods concerned an important economic value which deserves therefore to be protected.

Before the TRIPS Agreement was negotiated, the scope of the protection and enforcement of intellectual property rights varied greatly around the world. Countries having a high comparative advantage in innovation felt that the lack in protection and enforcement of intellectual property by their trading partners constituted an obstacle to trade. A company substantially investing in R&D to develop new drugs expects high returns on its investments through appropriate protection, the lack of which can create obstacles to trade.

As protection of intellectual property became more important in trade, these differences became a source of tension in international trade relations. Negotiations of specific rules regarding protection of intellectual property were viewed as the means to achieve greater predictability and fairness and for disputes to be settled more systematically.

Indeed, although international conventions dealing with intellectual property existed before the TRIPS Agreement was negotiated during the Uruguay Round, it was felt that such a framework was not appropriate. Indeed, participation in those conventions negotiated under the aegis of the World Intellectual Property Organisation ('WIPO') was far from being universal. Moreover, the WIPO did not include an appropriate framework to deal with disputes.

The TRIPS Agreement is an attempt to narrow the gaps in the way intellectual property rights are protected around the world and to bring them under common international rules.

In a first part, the Agreement lays down several important obligations and principles which all Members must comply with. The starting point, such as in the other WTO Agreements, is the two principles of non-discrimination: that of Most-Favoured-Nation treatment (requesting equal treatment for nationals of all trading partners in the WTO) and that of National Treatment (requesting equal treatment between a Member's own nationals and foreigners). Importantly, the Agreement also establishes that intellectual property should contribute to technical innovation and the transfer of technology and that it should promote economic and social welfare. Those principles are important as they strike the delicate balance of the Agreement between economic goals and the interests of developing countries.

The second part of the Agreement sets out the minimum levels of protection which each Member should grant for the intellectual property rights which are covered by the agreement, i.e. patent, copyright, trademark, geographical indications, industrial designs, layout designs, integrated circuits and undisclosed information. Given that the Agreement tries to create a balance between the long term goals of promoting innovation and creation with short term objectives, it allows that exceptions be created with respect to those minima of protection.

The Agreement also contains rules regarding the enforcement of those intellectual property rights. Indeed, it is not sufficient that theoretical protection of intellectual property rights exist, it must also be ensured that those rights can be enforced under domestic laws. There must be judicial procedures available which must inter alia be fair and equitable, be not unnecessarily complicated or costly.

The Agreement includes detailed transitional provisions, specifically with respect to developing and least-developed countries. Those rules tried to address the problem of most developing countries which lacked rules for the protection of intellectual property at the time the TRIPS was signed. The issue of patent protection, specifically with respect to pharmaceutical products, was of specific concern.

Learn more about the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

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