WTO: agreement on trade-related aspects of intellectual property

KEY POINTS

The basic principles are those of national treatment and most-favoured-nation treatment. This means members of the WTO must treat the nationals of other member countries no less favourably than their own nationals. In addition, any advantage given to nationals of another member country must also be given immediately and unconditionally to the nationals of all other member countries, even if this is more favourable treatment than it gives to its own nationals.

GENERAL RULES

Standards concerning the availability, scope and use of intellectual property rights

• The agreement aims to ensure that adequate rules on the protection of intellectual property are applied in all member countries, on the basis of the basic obligations laid down by the World Intellectual Property Organisation (WIPO) in the various conventions on intellectual property rights (the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, and the Washington Treaty on Intellectual Property in Respect of Integrated Circuits). Numerous new rules or stricter rules are introduced in fields not covered by the existing conventions or where the existing conventions are inadequate.
• With regard to copyright, the members of the WTO must comply with the basic rules of the Berne Convention for the Protection of Literary and Artistic Works. Computer programs will from now on be protected as literary works.
• As regards rental rights, authors of computer programs and producers of sound recordings may authorise or prohibit the commercial rental of their works to the public. A similar exclusive right applies to cinematographic works.
• The agreement specifies the types of signs that may benefit from protection as trademarks as well as the minimum rights conferred on their owner. It also lays down the requirements relating to:
  • the use of trademarks;
  • the duration of protection;
  • licensing and the assignment of trademarks.
• As far as geographical indications are concerned, members of the WTO must prevent the use of any misleading indications regarding the origin of a product and any use which would be unfair competition. The agreement also provided additional protection for geographical indications for wines and spirits, even where there is no risk of consumers being misled.
• Industrial designs are protected under the agreement for 10 years. Their owners have the right to prevent third parties from making, selling or importing articles whose design is a copy of the protected design.
• With regard to patents, members of the WTO have the general obligation to comply with the 1967 Paris Convention. In addition, the TRIPS Agreement states that it must be possible for all inventions to be protected by a patent for 20 years.
  • Certain inventions may be excluded from being patented if their use is prohibited for reasons of public order or morality.
  • Other authorised exclusions include:
    • diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
    • plants and animals (other than micro-organisms); and
    • essentially biological processes for producing plants or animals (other than non-biological and microbiological processes). However, members must provide for the protection of plant varieties either by patents or by a specific one-off system.
• WTO members must provide for the protection of layout designs ofintegrated circuits in accordance with the Washington Treaty on Intellectual Property in Respect of Integrated Circuits. The TRIPS Agreement also sets out a number of other rules, relating in particular to the duration of protection.
• Trade secrets and technical knowledge that have commercial value must be protected against breaches of confidence and any act contrary to honest commercial practices. Furthermore, anti-competitive practices in contractual licences may be subject to measures on the part of members to prevent and/or control such practices.

IMPLEMENTATION OF THE AGREEMENT

Enforcement of intellectual property rights

• The laws of the member countries of the WTO must include procedures to ensure that intellectual property rights are respected both by foreign rights-holders and by their own nationals. These procedures must permit effective action against any act of infringement of these rights. They must be fair and equitable, they must not be unnecessarily complicated or costly, and they must not entail unreasonable time limits. Final administrative decisions may be reviewed by a judicial authority.
• The agreement provides details concerning evidence, injunctions, damages, provisional measures and other remedies.

Transition period

With regard to the application of the agreement, developed countries had a period of 1 year to bring their legislation and practices into line with the agreement. This period was extended to 5 years for developing countries and countries which were changing from a centrally-planned economy to a market economy, and to 11 years for the least-developed countries.

Institutional framework

• The agreement created a Council for Trade-Related Aspects of Intellectual Property Rights (the Council for TRIPS). It is responsible for monitoring the operation of the agreement, ensuring that members comply with their obligations and affording opportunities for consultations between members.
• The settlement of disputes over intellectual property is governed by the dispute settlement procedures adopted following the Uruguay Round negotiations