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1

What are Intellectual Property Rights?

Intangible Property/Private Rights
They are rights given to persons over the creation of their minds. They usually give creator/inventor an exclusive right over the use of his/her creations/inventions for a certain period of time.
Broadly divided into two categories: copyright and related rights, and industrial property.
The TRIPS Agreement covers seven types of IPRs

2

Types of Intellectual Property

1. Copyright and Related Rights
2. Trademarks
3. Geographical Indications
4. Industrial Designs
5. Lay-out Designs (Topographies) of Integrated Circuits
6. Patents (+ sui generis protection)
7. Protection of Undisclosed Information

3

WHY PROTECT INTELLECTUAL PROPERTY RIGHTS?

Equity/Human Rights rationale
Public Interest/Utilitarian rationale
Incentive function
encourage and reward creative work: individual authors, cultural industries
Technological innovation: means to finance research and development
Fair Competition
Distinctive signs stimulate and ensure fair competition among producers and traders

4

Why Protect IP?

Consumer Protection
Distinctive signs enable informed choices
Product Safety
Transfer of Technology
FDI, Joint Ventures & Licensing
IP Holders’ Perspective
Recognized as an objective under Art. 7
Proactive measures for the benefit of LDCs under Art. 66.2
Weight of empirical evidence points towards positive correlation

5

WHY AN AGREEMENT ON TRIPS?

Growing trade in counterfeit (trademark) goods and lack of common rules to deal with the problem
Perceived flaws of WIPO Conventions:
Absence of detailed rules on national enforcement
Absence of binding and effective dispute settlement mechanism
Computerisation and digital technology

6

Why Agmt. on TRIPs

Devpd & Devping accepted because:
Uruguay Round Trade-Offs
Balance and flexibility in TRIPS
Multilateral rule of law in IP (& trade) area
Consistent with move to more open and market-based economic policies
Alternative would have meant negotiating bilateral (or plurilateral) agmts.

7

Balance: exclusive rts subject to limitations

Balance between competing authors/producers
Balance and flexibility in TRIPS
Long term interest in promoting creativity and short term social interest in maximizing access
Interests of generators and users of IP
Members have clarified balance and, in one respect, amplified flexibilities in area of public health

8

Pre - TRIPS Agreement

WIPO-Administered Agreements

Berne Convention for the Protection of Literary and Artistic Works
Paris Convention for the Protection of Industrial Property
Several Others – about 18
Also, numerous other regional and bilateral IP protection agreements

9

THE DEVELOPMENT OF MULTILATERAL DISCIPLINES

Proposals that action should be taken in the GATT to control trade in counterfeit and pirated products were made by developed countries during the Tokyo Round. During the Uruguay Round, the developed countries proposed that the negotiations should not only cover trade in counterfeit and pirated goods, but also aim at developing minimum standards of protection for adoption by member countries.

10

THE DEVELOPMENT OF MULTILATERAL DISCIPLINES

There were several reasons behind the proposal of developed countries:
the loss of competitiveness in traditional sectors such as steel, textiles and clothing and manufactures and the changing economic activity in most developed countries.
the gradual removal of restrictions on foreign investment by a large number of developing countries; conclusion of joint ventures etc
technological advances in reproduction and imitation of products

11

THE DEVELOPMENT OF MULTILATERAL DISCIPLINES

Response of Developing countries:

Lukewarm response. Entertained thought that stronger protection of IP rights would lead to an increase in the prices of drugs and agricultural chemicals. Debate as to whether IP could be used as a tool for economic and social development.

THE AIDS crisis in sub-Saharan Africa highlights this problem. Should IP rights be strengthened at the expense of other policy objectives including health policy of a country?

Would stronger protection of IP encourage FDI?

Developing countries were quite worried about these problems, but nevertheless agreed to negotiations on IP. Quid pro quo?

12

THE DEVELOPMENT OF MULTILATERAL DISCIPLINES

It was against these concerns that the TRIPS Agreement was negotiated.

Negotiations launched in Punta del Este (Uruguay) - September 1986

Negotiations concluded towards the end of 1993

Text adopted at Marrakech (Morocco) - April 1994

13

"Incorporation" technique

The TRIPS Agreement builds on the main international conventions on IP rights by incorporating (by reference) most of their provisions.
To ensure coherence
To avoid re-opening of texts
To negotiate the + elements
To have a short but comprehensive text

14

STRUCTURE AND APPROACH OF THE TRIPS AGREEMENT

Basic principles and general obligations
Minimum standards of protection covering (i) the subject-matter to be protected, (ii) rights conferred; and (iii) term of protection
Domestic procedures and remedies for the enforcement of IPRs
Transitional provisions

15

STRUCTURE AND APPROACH OF THE TRIPS AGREEMENT

Minimal requirements/Minimum standards: Members can provide higher protection
“Shall provisions” and “may provisions”
TRIPS to be read in conjunction with certain Treaties
Each section dealing with a particular type of IP right:
Definition (if possible)
Conditions for protection
Exclusive rights
Exceptions and limitations to exclusive rights
Minimum duration of protection

16

Nature and Scope of Obligations

Article 1:
Members MAY provide greater protection
Members free to determine appropriate method of implementation
“Intellectual Property” refers to types of IP referred to in the Agreement

17

Beneficiaries

Article 1:
Treatment to be applied to nationals of other Members
Refer to relevant Conventions
Industrial Property
Copyright
Related rights

18

Basic Principles

The cornerstone of the TRIPS Agreement is the non-discrimination principle.


Article 3 provides for national treatment:

“[e]ach Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals …”

19

Basic Principles

Article 4 provides for most-favoured-nation treatment:
“[w]ith regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members…”.
Exemptions:
Treaties on judicial assistance or law enforcement of a general nature
Berne/Rome Convention advantages granted on basis of treatment granted in another country
“Related rights” not provided for under Agreement
Rights under international agreements entered into before TRIPS Agreement came into force

20

Objectives: Preamble

Main Elements:
Reduction of distortions and impediments to trade

Promotion of effective and adequate IPR protection

Enforcement should not lead to barriers to trade

Cater to the special needs of Developing and Least-Developed countries.

21

Objectives : Art. 7


PROTECTION and ENFORCEMENT of IPRs to contribute to:
Promotion of technological innovation
Transfer and dissemination of technology

To mutual advantage of PRODUCERS and USERS of technological knowledge

In manner conducive to SOCIAL and ECONOMIC welfare

To BALANCE rights and obligations

22

Objectives : Art. 8

Members MAY adopt measures necessary to:
Protect public health and nutrition

Promote the public interest in sectors of vital importance to socio-economic and technological development

Prevent abuse of IPRs or practices which
Unreasonably restrain trade OR
Adversely affect international transfer of technology

23

Copyright:Substantive Principles

Berne Convention (1971)
Three basic principles
National treatment
Automatic protection
Independence of protection
Works protected
Minimum standards of protection
Permissible exceptions
Term of protection
Appendix

24

Copyright:Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works was concluded in 1886, but has been revised several times. 176 States party.
Article 9(1) of the TRIPS Agreement incorporates Articles 1-21 of the Berne Convention (Paris Act 1971) and the Appendix thereto by reference.
Exception is Article 6bis dealing with moral rights on which there was no consensus among WTO Members.

25

Copyright:NT, Automatic & Independence of Protection

National Treatment: No discrimination between nationals and foreigners
Automatic protection: Protection should not be made subject to any formality of registration, deposit or the like.
Independence of Protection: Enjoyment and exercise of rights granted is independent of the existence of protection in the country of origin

26

Coypright:Subject Matter

What IS protected?
Art. 9(2) TRIPS and Article 2 Berne Convention
All forms of “expressions ” –
Every production in the literary, scientific and artistic domain, whatever the mode or form of its expression
Article 10 TRIPS
Computer programs -
Source or object code
Compilations of data -
Machine-readable or other form which by reason of selection or arrangement
Involve intellectual creation

27

Coypright:Subject Matter

What IS NOT protected?

Article 9(2) TRIPS
Ideas, procedures, methods of operation or mathematical concepts -

28

Coypright:Exclusive Rights

Berne Convention:
Right of translation
Right of reproduction
Right of public performance, including communication to public
Right of broadcasting, including communication to public
Right of public recitation
Right of adaptation, arrangement and other alteration

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Coypright:Exceptions

Berne Convention
Reproduction in special cases
Quotations and use of works by way of illustration for teaching purposes
Reproduction of newspapers to report current events
Ephemeral recordings
TRIPS Agreement, Art. 13:
Limitations/Exceptions to exclusive rights confined to
Special cases which
Do not conflict with normal exploitation
Do not unreasonably prejudice legitimate interests of right holder

30

Coypright:Term of Protection

Berne Convention, Art. 7
Life of author + 50 years after death
TRIPS Agreement, Art. 12:
If term of protection calculated on basis OTHER than life of natural person
>= 50 years from end of calendar year of authorised publication
if no authorised publication within 50 years from making of work, 50 years from end of calendar year of making