The TRIPS Agreement tries to determine common ground for the protection of IPRs and reduce the discrepancies between the levels of protection around the world.
- Basic principles
As in GATT and GATS, the starting point of the TRIPs agreement is the basic principles of non-discrimination: national treatment and MFN treatment.
First, Members must observe the national treatment principle which forbids discrimination between a Member's own nationals and the nationals of other Members. This principle is also a key principle in other intellectual property agreements outside the WTO. The exceptions to the national treatment principle allowed under the pre-existing intellectual property conventions (Paris, Berne and Rome conventions and the Washington Treaty) are also allowed under the TRIPS Agreement.
Second, Members must observe the MFN principle, i.e. all concessions and advantages accorded to a state must be immediately extended to all other contracting parties. Exceptions are possible and inter alia, advantages derived from international agreements entering into force prior to the entry into force of the WTO Agreement provided that such agreements are notified to the Council for TRIPS and "do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members."
These two fundamental principles of non-discrimination are applicable to all categories of IPRs covered by the TRIPS Agreement. These obligations cover not only the substantive standards of protection but also matters affecting the availability, acquisition, scope, maintenance and enforcement of IPRs as well as those matters affecting the use of IPRs specifically addressed in the Agreement.
In addition, the TRIPS Agreement lays down an important principle: that intellectual property protection contributes to technical innovation and to the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced, the agreement says.
- Protection of the intellectual property
In a second section, the Agreement sets out the minimum levels of protection which each Member should grant for the IPRs which are covered by the agreement:
- copyright;
- trademarks;
- geographical indications;
- patents;
- industrial designs;
- layout designs;
- integrated circuits; and
- undisclosed information.
The purpose is to ensure that adequate standards of protection exist in all Members. Here, the starting point is the obligations of the main international agreements of the World Intellectual Property Organisation (WIPO) that already existed before the WTO was created:
- the Paris Convention for the Protection of Industrial Property (patents, industrial designs, etc); and
- the Berne Convention for the Protection of Literary and Artistic Works (copyright).
Some areas are not covered by these conventions. In some cases, the standards of protection prescribed were thought inadequate. So the TRIPS agreement adds a significant number of new or higher standards.
Let us take the example of copyrights.
Copyrights and related rights
The purpose of protection by copyrights and related rights is to encourage and reward creative work. Copyrights protect authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films). Are also protected through related rights (sometimes, referred to as "neighbouring" rights) rights of performers (such as actors, singers and musicians), producers of phonograms (sound recordings) and broadcasting organisations.
The copyright protection must be granted by Members to any forms of "literary and artistic works". The copyright protection "shall extend to expressions and not to ideas, procedures, and methods of operation or mathematical concepts as such". The minimum term for protection as established under the Bern Convention is the life of the author and 50 years after his death.
The rights which are protected are defined for the most part in the Berne Convention and include the right of reproduction of the works; the right of translation; the right of adaptation, arrangement and other alterations; the broadcasting or other public communication of a broadcast as well as adaptations, arrangements and other alterations.
Members may provide limitations or exceptions to the exclusive rights listed above but must "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder."
- Enforcement
The Agreement also contains rules regarding the enforcement of IPRs. Indeed, it is not sufficient that theoretical protection of IPRs exist, it must also be ensured that those rights can be enforced under domestic laws. The Agreement states that governments have to ensure that IPRs can be enforced under their laws. The procedures must be fair and equitable, and not unnecessarily complicated or costly. They should not entail unreasonable time-limits or unwarranted delays. The individuals concerned should be able to ask a tribunal to review an administrative decision or to appeal a lower court's ruling. The Agreement describes how enforcement should be handled, including rules for obtaining evidence, provisional measures, injunctions, damages and other penalties. The Agreement also contains specific provisions regarding the handling of imports of counterfeit trademarks and pirated copyright goods.
- Transition arrangements
When the TRIPS Agreement took effect on 1 January 1995, developed countries were given one year to ensure that their laws and practices complied with the TRIPS Agreement.
Developing countries enjoyed a five-year delay upon application to the Council (i.e. 2000). This delay did not apply, however, to the general requirements of National Treatment and MFN Treatment.
A further five-year delay applies where a developing country did not provide product patent protection in a given area of technology on the general date of application of the Agreement for that Member, i.e. in the year 2000. However, regarding patent protection for pharmaceutical and agricultural chemical products, Members initially excluding pharmaceuticals and agrochemicals from patents are required to accept filing of applications in those fields from 1995. These applications will not need to be examined for their patentability until the country starts applying product patent protection in that area, i.e. for developing countries in 2005. However, at that time, the application must be examined by reference to the prior act as it existed at the time the application was made. If the application is successful, product patent protection would then have to be granted for the remainder of the patent term counted from the filing date of the application.
Least-developed countries were authorised to delay the implementation of the Agreement until 2006. The Council, at the Doha Meeting, decided that these countries will not be obliged, with respect to pharmaceutical products, to implement or apply provisions concerning patents and protection of undisclosed information or to enforce rights until 1 January 2016.
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