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World Trade Organization Toolkit : Trade-Related Aspects of Intellectual Property Rights

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(a) Introduction

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 ('IPRs').

Before the conclusion of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), almost all international activity regarding the creation and harmonisation of IPRs took place under the aegis of the World Intellectual Property Organisation ('WIPO'). The rules administered by WIPO are contained in a varied set of multilateral conventions. The main conventions are:

• the Paris Convention for the Protection of Industrial Property;
• the Berne Convention for the Protection of Literary and Artistic Works;
• the Treaty on Intellectual Property in respect of Integrated Circuits.

Notwithstanding the existence of these conventions, the scope of protection and enforcement of IPRs varied widely around the world. Concerns of developed countries were that:

• participation in the pre-existing International Conventions on IP was far from universal;
• these Conventions define rights but say little about enforcement at national level;
• the WIPO did not provide a credible institutional framework for settlement of disputes under these agreements.

Therefore, new trade rules relating to intellectual property were viewed as necessary to introduce a greater harmonisation and therefore predictability and for disputes to be settled more systematically. Needless to say, countries urging enhancement of the rules relating to IPRs were developed countries with a comparative advantage in innovation.

Two arguments are generally advanced for the protection of IPRs:

Fairness: the argument of fairness relied on the idea that persons are naturally the owners of the fruit of their own labour.

Economic argument: a company will be less likely to make an investment if someone else can capture or appropriate at little or no cost part of the economic returns from the investment in question. Thus, these countries generally argue that patents will help to foster growth in poor places since they stimulate domestic innovation, boost foreign investment and improve access to new technologies.

Developing countries were opposed to the negotiation of IPr within the GATT. The negotiation of the TRIPS Agreement was one of the topics which crystallised the North-South opposition.

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