Trade Related Aspects of Intellectual Property Rights – TRIPS


Trade Related Aspects of Intellectual Property Rights are regulated under the TRIPS Agreement, Annex 1C of the WTO Agreement.

Background

  • Historically, there has been a shift from production of goods, to the supply of services, and, finally, the creation of intellectual property
    • This progression has been echoed by the WTO, and the TRIPS agreement is the newest agreement
    • It was pushed into the negotiations by the developed world, which creates IP
      • Whilst the developed world had IP regulated for ages in bilateral treaties
      • They wanted it to be incorporated into the WTO to force developing countries into the agreement
      • And for access to the DSU
        • Although, it is possible that they didn’t consider how effectively developing countries could use IP in retaliations, as in the US – Gambling case with Antigua and Barbuda
  • It was forced, as part of the Uruguay package, on developing countries
    • Some developing countries are beneficiaries of the TRIPS Agreement (e.g. Asia), but others are still are subject to a net detriment (e.g. Africa)
  • Economic reasoning
    • Unify the system reduces barrier to entry
    • Protects rights of IP producers, increasing incentive to produce IP
  • This treaty references conditions from other conventions (esp. Paris Convention ’67, Berne Convention ’71, Rome Convention and Treaty on IP in Respect to Integrated Circuits

Differences between TRIPS and other WTO Agreements

  • Trips differs from GATTand GATS, since it is not about increasing or reducing protections, which may be negotiated
    • It is a strict agreement that requiresthe enforcement of IP rules internationally
      • If a member believes another is not doing enough to enforce IP rights, a case may be brought against them
    • As such, it could be said that it was “aimed” at China
  • WTO is about trade liberalisation, but IP protection is contra to liberalisation – against the goals of free trade

Cornerstones/GATT Parallels

Whilst the main objective of the TRIPS agreement is to internationally enforce, and unify, IP rights, the GATT cornerstones are still present

Enforcement

  • Here, there is a strong, positive requirement for enforcement of IP rights

Members shall ensure that enforcement procedures … are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this agreement (TRIPS Art. 41:1)

    • Note the wording “shall ensure” … “effective action” – a strong requirement
  • There is, further, a requirement for fairness (TRIPS Art. 41:2), a reasoned decision as apposed to an arbitrary one (TRIPS Art. 41:3), review within the judicial system (TRIPS Art. 41:4)
  • Further, TRIPs, Part 3, Section 2 outlines the judicial/administrative procedure for enforcement in civil matters, and TRIPs, Part 3, Section 5 outlines the procedure for a criminal matter

Dispute Settlement

There was a transitional period, which has expired (TRIPS Art. 64:2), now Dispute settlement is via the DSU (TRIPS Art. 64:1).

TRIPS and health

  • One of the issues with the TRIPS agreement was the issues with patented drugs being too expensive for use during an epidemic.
  • In a move that was heralded a PR success, this was settled outside of the DOHA round, in response to international pressure.
  • This was done through Article 31, which allows use without authorisation if:
    • there have been bona fide efforts to get authorisation (Art. 31:b) (e.g. negotiations); this is waived if there is an emergency
    • the use is predominantly for domestic use (Art 31:f)
      • This means that India isn’t able to make out of license drugs for African countries in crisis
      • This is currently under negotiations
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