WTO | Intellectual Property - Overview of TRIPS Agreement

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    español français  ON THIS PAGE General provisions Standards home > trade topics > trips > overview TRIPS  : A MORE DETAILED OVERVIEW OF THE TRIPS AGREEMENT Overview: the TRIPS Agreement The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreementon intellectual property. CONTENTS: > General provisions > Standards of protection > Copyright> Related rights> Trademarks> Geographical indications> Industrial designs> Patents> Integrated circuits> Undisclosed information> Anti-competitive licences> Enforcement > General obligations> Procedures and remedies> Provisional measures> Border measures> Criminal procedures> Other provisions > Acquiring and maintaining rights > Transitional arrangements> Protecting existing matter The areas of intellectual property that it covers are: copyright and relatedrights (i.e. the rights of performers, producers of sound recordings andbroadcasting organizations); trademarks including service marks;geographical indications including appellations of srcin; industrial designs;patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including tradesecrets and test data.The three main features of the Agreement are: Standards . In respect of each of the main areas of intellectualproperty covered by the TRIPS Agreement, the Agreement sets outthe minimum standards of protection to be provided by each Member.Each of the main elements of protection is defined, namely thesubject-matter to be protected, the rights to be conferred andpermissible exceptions to those rights, and the minimum duration of protection. The Agreement sets these standards by requiring, first,that the substantive obligations of the main conventions of the WIPO,the Paris Convention for the Protection of Industrial Property (ParisConvention) and the Berne Convention for the Protection of Literaryand Artistic Works (Berne Convention) in their most recent versions,must be complied with. With the exception of the provisions of theBerne Convention on moral rights, all the main substantive provisionsof these conventions are incorporated by reference and thus becomeobligations under the TRIPS Agreement between TRIPS Membercountries. The relevant provisions are to be found in Articles 2.1 and9.1 of the TRIPS Agreement, which relate, respectively, to the ParisConvention and to the Berne Convention. Secondly, the TRIPSAgreement adds a substantial number of additional obligations onmatters where the pre-existing conventions are silent or were seen asbeing inadequate. The TRIPS Agreement is thus sometimes referredto as a Berne and Paris-plus agreement. Enforcement . The second main set of provisions deals with domesticprocedures and remedies for the enforcement of intellectualproperty rights. The Agreement lays down certain general principlesapplicable to all IPR enforcement procedures. In addition, it containsprovisions on civil and administrative procedures and remedies,provisional measures, special requirements related to bordermeasures and criminal procedures, which specify, in a certain amountof detail, the procedures and remedies that must be available so thatright holders can effectively enforce their rights. Dispute settlement . The Agreement makes disputes between WTOMembers about the respect of the TRIPS obligations subject to theWTO's dispute settlement procedures.In addition the Agreement provides for certain basic principles, such asnational and most-favoured-nation treatment, and some general rules toensure that procedural difficulties in acquiring or maintaining IPRs do notnullify the substantive benefits that should flow from the Agreement. Theobligations under the Agreement will apply equally to all Member countries,but developing countries will have a longer period to phase them in. Specialtransition arrangements operate in the situation where a developing countrydoes not presently provide product patent protection in the area of pharmaceuticals.The TRIPS Agreement is a minimum standards agreement, which allowsMembers to provide more extensive protection of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal systemand practice.   Certain general provisions  Back to top As in the main pre-existing intellectual property conventions, the basicobligation on each Member country is to accord the treatment in regard tothe protection of intellectual property provided for under the Agreement tothe persons of other Members. Article 1.3 defines who these persons are.These persons are referred to as “nationals” but include persons, natural orlegal, who have a close attachment to other Members without necessarily   WTO ¦ intellectual property - overview of TRIPS A...http://www.wto.int/english/tratop_e/trips_e/intel2...1 van 705-01-10 22:22  being nationals. The criteria for determining which persons must thusbenefit from the treatment provided for under the Agreement are those laiddown for this purpose in the main pre-existing intellectual propertyconventions of WIPO, applied of course with respect to all WTO Memberswhether or not they are party to those conventions. These conventions arethe Paris Convention, the Berne Convention, International Convention forthe Protection of Performers, Producers of Phonograms and BroadcastingOrganizations (Rome Convention), and the Treaty on Intellectual Property inRespect of Integrated Circuits (IPIC Treaty).Articles 3, 4 and 5 include the fundamental rules on national andmost-favoured-nation treatment of foreign nationals, which are common toall categories of intellectual property covered by the Agreement. Theseobligations cover not only the substantive standards of protection but alsomatters affecting the availability, acquisition, scope, maintenance andenforcement of intellectual property rights as well as those mattersaffecting the use of intellectual property rights specifically addressed in theAgreement. While the national treatment clause forbids discriminationbetween a Member's own nationals and the nationals of other Members, themost-favoured-nation treatment clause forbids discrimination between thenationals of other Members. In respect of the national treatment obligation,the exceptions allowed under the pre-existing intellectual propertyconventions of WIPO are also allowed under TRIPS. Where these exceptionsallow material reciprocity, a consequential exception to MFN treatment isalso permitted (e.g. comparison of terms for copyright protection in excessof the minimum term required by the TRIPS Agreement as provided underArticle 7(8) of the Berne Convention as incorporated into the TRIPSAgreement). Certain other limited exceptions to the MFN obligation are alsoprovided for.The general goals of the TRIPS Agreement are contained in the Preamble of the Agreement, which reproduces the basic Uruguay Round negotiatingobjectives established in the TRIPS area by the 1986 Punta del EsteDeclaration and the 1988/89 Mid-Term Review. These objectives include thereduction of distortions and impediments to international trade, promotionof effective and adequate protection of intellectual property rights, andensuring that measures and procedures to enforce intellectual propertyrights do not themselves become barriers to legitimate trade. Theseobjectives should be read in conjunction with Article 7, entitled“Objectives”, according to which the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technologicalknowledge and in a manner conducive to social and economic welfare, andto a balance of rights and obligations. Article 8, entitled “Principles”,recognizes the rights of Members to adopt measures for public health andother public interest reasons and to prevent the abuse of intellectualproperty rights, provided that such measures are consistent with theprovisions of the TRIPS Agreement.   Substantive standards of protection  Back to top Copyright  Back to top During the Uruguay Round negotiations, it was recognized that the BerneConvention already, for the most part, provided adequate basic standards of copyright protection. Thus it was agreed that the point of departure shouldbe the existing level of protection under the latest Act, the Paris Act of 1971, of that Convention. The point of departure is expressed in Article 9.1under which Members are obliged to comply with the substantive provisionsof the Paris Act of 1971 of the Berne Convention, i.e. Articles 1 through 21of the Berne Convention (1971) and the Appendix thereto. However,Members do not have rights or obligations under the TRIPS Agreement inrespect of the rights conferred under Article 6 bis  of that Convention, i.e.the moral rights (the right to claim authorship and to object to anyderogatory action in relation to a work, which would be prejudicial to theauthor's honour or reputation), or of the rights derived therefrom. Theprovisions of the Berne Convention referred to deal with questions such assubject-matter to be protected, minimum term of protection, and rights tobe conferred and permissible limitations to those rights. The Appendixallows developing countries, under certain conditions, to make somelimitations to the right of translation and the right of reproduction.In addition to requiring compliance with the basic standards of the BerneConvention, the TRIPS Agreement clarifies and adds certain specific points.Article 9.2 confirms that copyright protection shall extend to expressionsand not to ideas, procedures, methods of operation or mathematicalconcepts as such.Article 10.1 provides that computer programs, whether in source or objectcode, shall be protected as literary works under the Berne Convention(1971). This provision confirms that computer programs must be protectedunder copyright and that those provisions of the Berne Convention thatapply to literary works shall be applied also to them. It confirms further,that the form in which a program is, whether in source or object code, doesnot affect the protection. The obligation to protect computer programs asliterary works means e.g. that only those limitations that are applicable to WTO ¦ intellectual property - overview of TRIPS A...http://www.wto.int/english/tratop_e/trips_e/intel2...2 van 705-01-10 22:22  literary works may be applied to computer programs. It also confirms thatthe general term of protection of 50 years applies to computer programs.Possible shorter terms applicable to photographic works and works of applied art may not be applied.Article 10.2 clarifies that databases and other compilations of data or othermaterial shall be protected as such under copyright even where thedatabases include data that as such are not protected under copyright.Databases are eligible for copyright protection provided that they by reasonof the selection or arrangement of their contents constitute intellectualcreations. The provision also confirms that databases have to be protectedregardless of which form they are in, whether machine readable or otherform. Furthermore, the provision clarifies that such protection shall notextend to the data or material itself, and that it shall be without prejudiceto any copyright subsisting in the data or material itself.Article 11 provides that authors shall have in respect of at least computerprograms and, in certain circumstances, of cinematographic works the rightto authorize or to prohibit the commercial rental to the public of srcinalsor copies of their copyright works. With respect to cinematographic works,the exclusive rental right is subject to the so-called impairment test: aMember is excepted from the obligation unless such rental has led towidespread copying of such works which is materially impairing theexclusive right of reproduction conferred in that Member on authors andtheir successors in title. In respect of computer programs, the obligationdoes not apply to rentals where the program itself is not the essentialobject of the rental.According to the general rule contained in Article 7(1) of the BerneConvention as incorporated into the TRIPS Agreement, the term of protection shall be the life of the author and 50 years after his death.Paragraphs 2 through 4 of that Article specifically allow shorter terms incertain cases. These provisions are supplemented by Article 12 of the TRIPSAgreement, which provides that whenever the term of protection of a work,other than a photographic work or a work of applied art, is calculated on abasis other than the life of a natural person, such term shall be no less than50 years from the end of the calendar year of authorized publication, or,failing such authorized publication within 50 years from the making of thework, 50 years from the end of the calendar year of making.Article 13 requires Members to confine limitations or exceptions to exclusiverights to certain special cases which do not conflict with a normalexploitation of the work and do not unreasonably prejudice the legitimateinterests of the right holder. This is a horizontal provision that applies to alllimitations and exceptions permitted under the provisions of the BerneConvention and the Appendix thereto as incorporated into the TRIPSAgreement. The application of these limitations is permitted also under theTRIPS Agreement, but the provision makes it clear that they must be appliedin a manner that does not prejudice the legitimate interests of the rightholder. Related rights  Back to top The provisions on protection of performers, producers of phonograms andbroadcasting organizations are included in Article 14. According to Article14.1, performers shall have the possibility of preventing the unauthorizedfixation of their performance on a phonogram (e.g. the recording of a livemusical performance). The fixation right covers only aural, not audiovisualfixations. Performers must also be in position to prevent the reproduction of such fixations. They shall also have the possibility of preventing theunauthorized broadcasting by wireless means and the communication to thepublic of their live performance.In accordance with Article 14.2, Members have to grant producers of phonograms an exclusive reproduction right. In addition to this, they have togrant, in accordance with Article 14.4, an exclusive rental right at least toproducers of phonograms. The provisions on rental rights apply also to anyother right holders in phonograms as determined in national law. This righthas the same scope as the rental right in respect of computer programs.Therefore it is not subject to the impairment test as in respect of cinematographic works. However, it is limited by a so-called grand-fatheringclause, according to which a Member, which on 15 April 1994, i.e. the dateof the signature of the Marrakesh Agreement, had in force a system of equitable remuneration of right holders in respect of the rental of phonograms, may maintain such system provided that the commercial rentalof phonograms is not giving rise to the material impairment of the exclusiverights of reproduction of right holders.Broadcasting organizations shall have, in accordance with Article 14.3, theright to prohibit the unauthorized fixation, the reproduction of fixations,and the rebroadcasting by wireless means of broadcasts, as well as thecommunication to the public of their television broadcasts. However, it isnot necessary to grant such rights to broadcasting organizations, if owners of copyright in the subject-matter of broadcasts are provided with thepossibility of preventing these acts, subject to the provisions of the BerneConvention.The term of protection is at least 50 years for performers and producers of phonograms, and 20 years for broadcasting organizations (Article 14.5).Article 14.6 provides that any Member may, in relation to the protection of  WTO ¦ intellectual property - overview of TRIPS A...http://www.wto.int/english/tratop_e/trips_e/intel2...3 van 705-01-10 22:22  performers, producers of phonograms and broadcasting organizations,provide for conditions, limitations, exceptions and reservations to theextent permitted by the Rome Convention. Trademarks  Back to top The basic rule contained in Article 15 is that any sign, or any combination of signs, capable of distinguishing the goods and services of one undertakingfrom those of other undertakings, must be eligible for registration as atrademark, provided that it is visually perceptible. Such signs, in particularwords including personal names, letters, numerals, figurative elements andcombinations of colours as well as any combination of such signs, must beeligible for registration as trademarks.Where signs are not inherently capable of distinguishing the relevant goodsor services, Member countries are allowed to require, as an additionalcondition for eligibility for registration as a trademark, that distinctivenesshas been acquired through use. Members are free to determine whether toallow the registration of signs that are not visually perceptible (e.g. soundor smell marks).Members may make registrability depend on use. However, actual use of atrademark shall not be permitted as a condition for filing an application forregistration, and at least three years must have passed after that filing datebefore failure to realize an intent to use is allowed as the ground forrefusing the application (Article 14.3).The Agreement requires service marks to be protected in the same way asmarks distinguishing goods (see e.g. Articles 15.1, 16.2 and 62.3).The owner of a registered trademark must be granted the exclusive right toprevent all third parties not having the owner's consent from using in thecourse of trade identical or similar signs for goods or services which areidentical or similar to those in respect of which the trademark is registeredwhere such use would result in a likelihood of confusion. In case of the useof an identical sign for identical goods or services, a likelihood of confusionmust be presumed (Article 16.1).The TRIPS Agreement contains certain provisions on well-known marks,which supplement the protection required by Article 6 bis  of the ParisConvention, as incorporated by reference into the TRIPS Agreement, whichobliges Members to refuse or to cancel the registration, and to prohibit theuse of a mark conflicting with a mark which is well known. First, theprovisions of that Article must be applied also to services. Second, it isrequired that knowledge in the relevant sector of the public acquired notonly as a result of the use of the mark but also by other means, including asa result of its promotion, be taken into account. Furthermore, theprotection of registered well-known marks must extend to goods or serviceswhich are not similar to those in respect of which the trademark has beenregistered, provided that its use would indicate a connection between thosegoods or services and the owner of the registered trademark, and theinterests of the owner are likely to be damaged by such use (Articles 16.2and 3).Members may provide limited exceptions to the rights conferred by atrademark, such as fair use of descriptive terms, provided that suchexceptions take account of the legitimate interests of the owner of thetrademark and of third parties (Article 17).Initial registration, and each renewal of registration, of a trademark shall befor a term of no less than seven years. The registration of a trademark shallbe renewable indefinitely (Article 18).Cancellation of a mark on the grounds of non-use cannot take place beforethree years of uninterrupted non-use has elapsed unless valid reasons basedon the existence of obstacles to such use are shown by the trademarkowner. Circumstances arising independently of the will of the owner of thetrademark, such as import restrictions or other government restrictions,shall be recognized as valid reasons of non-use. Use of a trademark byanother person, when subject to the control of its owner, must berecognized as use of the trademark for the purpose of maintaining theregistration (Article 19).It is further required that use of the trademark in the course of trade shallnot be unjustifiably encumbered by special requirements, such as use withanother trademark, use in a special form, or use in a manner detrimental toits capability to distinguish the goods or services (Article 20). Geographical indications  Back to top Geographical indications are defined, for the purposes of the Agreement, asindications which identify a good as srcinating in the territory of a Member,or a region or locality in that territory, where a given quality, reputation orother characteristic of the good is essentially attributable to itsgeographical srcin (Article 22.1). Thus, this definition specifies that thequality, reputation or other characteristics of a good can each be asufficient basis for eligibility as a geographical indication, where they areessentially attributable to the geographical srcin of the good.In respect of all geographical indications, interested parties must have legalmeans to prevent use of indications which mislead the public as to the WTO ¦ intellectual property - overview of TRIPS A...http://www.wto.int/english/tratop_e/trips_e/intel2...4 van 705-01-10 22:22
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