At present, the products of intellectual creativity such as inventions, designs, know-how and artistic works serve an important role, and in order to promote such creative activity, inventions, industrial designs, literary and artistic works, layout-designs of integrated circuits, trade secrets and so on are given protection.
Furthermore, trademarks and other such signs are also protected so as to secure the trust obtained through business activities, as well as protect consumers and ensure fair competition.
In international trade, the proportion of goods and services consisting of intellectual property has increased dramatically, and if the intellectual property protection offered by countries is inadequate or inappropriate, there is a danger of distorting the international trade order. However, in developing countries, although systems existed for the protection of intellectual property, there were many countries where the standard of protection was inadequate, for example the extent of protection was limited or the period of protection was extremely short, or enforcement of intellectual property rights could not be guaranteed to be sufficiently effective. Even among developed nations, there were some countries with systems that gave too much protection to intellectual property or discriminated between internal and external sources.
For these reasons, from the perspective of improving the international trade order, there was increasing recognition of the necessity to develop a framework to ensure appropriate protection of intellectual property. In the intellectual property field there already existed a number of agreements for the international protection of intellectual property, such as the Paris Convention related to industrial property rights including patents and trademarks, and the Berne Convention concerning copyright. However, with more emphasis being placed on the trade-related aspects of
intellectual property, it was seen as an urgent task to attain international agreement in the context of GATT, with as many nations as possible participating, concerning standards of protection of intellectual property associated with trade.
In this climate, the negotiations concerning Trade-Related Aspects of Intellectual Property Rights (TRIPS) became one of the important new areas for discussion at the Uruguay Round of GATT, begun in 1986. Along with other agreements to come out of the Uruguay Round, the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) was finally agreed upon at the ministerial meeting in Marrakesh, Morocco in April 1994, and came into force as part of the WTO Agreement on January 1, 1995.
TRIPs Agreement Covers Seven Categories of Intellectual Property Rights
The Agreement on Trade Related Intellectual Property Rights (TRIPs) is comprehensive in giving cover to all areas of technology, property, patents, trademarks, copyrights and so on.
The TRIPs encourages upon the member country’s sovereign right to frame its own legislation on intellectual property matters. This clause has been included on account of persistent demand from the developed and industrialized countries.
The TRIPs Agreement covers seven categories of intellectual property rights:
(iii) Geographical Indications
(iv) Industrial Designs
(vi) Integrated Circuits
(vii) Trade Secrets
Copyright and Related Rights (Section 1)
Provisions are included regarding clarification of the relation to the Berne Convention (Article 9), protecting the copyright of computer programs and compilations of data (Article 10), rental rights (Article 11), the term of protection (Article 12), and protection of performers, producers of phonograms (sound recordings) and broadcasting organizations (Article 14).
Regarding the protection of computer programs and compilations of data, there had been moves led by developed countries to improve their copyright system so as to afford protection to these rights through copyright law, but there were no clear provisions in the Berne Convention. The TRIPS Agreement therefore made express provision for the protection of computer programs and databases using copyright.
Trademarks (Section – 2)
The Paris Convention makes provision for the independence of each country in the protection of trademarks (Article 5), the protection of well-known marks (Article 6(2)), the protection of state emblems etc. (Article 6(3)), the assignment of marks (Article 6(4)), the protection of marks registered in other countries (Article 6(5)), the protection of service marks (Article 6(6)), the protection of collective marks (Article 7(2)), and the protection of trade names (Article 8). The TRIPS Agreement supplements these provisions with extra provisions concerning protectable subject matter (Article 15), rights conferred (Article 16) and the term of protection (Article 18), etc.
Further, in contrast to the Paris Convention, which only provided that service marks must be protected, the TRIPS Agreement requires the establishment of a registration system for service marks.
Geographical Indications (Section – 3)
The TRIPS Agreement provides additional protection regarding wines and spirits (Article 23), offering more thorough protection.
Industrial Designs (Section – 4)
The TRIPS Agreement contains provisions concerning the requirements for protection (Article 25) and the protection itself (Article 26). Since some countries adopt the registration approach to protection of industrial designs in the same way as patents, while other countries protect them as creative works in the same way as copyright, the TRIPS Agreement states that Members may protect industrial designs under either system.
Patents (Section – 5)
The TRIPS Agreement includes many substantive provisions not covered by the Paris Convention, including patentable subject matter (Article 27), rights conferred (Article 28), conditions on patent applicants (Article 29), exceptions to rights conferred (Article 30), other use without authorization of the right holder (Article 31), revocation/forfeiture (Article 32), term of protection (Article 33), and the burden of proof for process patents (Article 34).
Layout-designs of integrated circuits (Section 6)
The TRIPS Agreement establishes provisions to supplement the IPIC Treaty related to intellectual property rights for integrated circuits regarding the scope of the protection (Article 36), acts not requiring the authorization of the right holder (Article 37), and the term of protection (Article 38).
Protection of undisclosed information (Section 7)
The TRIPS Agreement provides protection of information that has been kept secret (undisclosed information) such as knowhow and trade secrets, as well as information submitted to governments or governmental agencies (Article 39).
Further, a characteristic of the TRIPS Agreement is that it contains provisions regarding enforcement of intellectual property rights. Part III of the Agreement contains detailed provisions regarding general obligations (Section 1), civil and administrative procedures and remedies (Section 2), provisional measures (Section 3), special requirements related to border measures (Section 4), and criminal procedures (Section 5).
Advantages and disadvantages of the TRIPS Agreement
Advantages of the TRIPS Agreement
- Transparency in IP policy was brought to the world’s attention.
- WIPO’s existing international legal system, which was designed and controlled by them, was greatly enhanced by this agreement.
- Trade conflicts over intellectual property concerns were reduced by establishing a clear, rules-based framework for resolving disputes.
- It has aided in the acquisition and exercise of intellectual property rights, as well as providing a solid platform for the trade in knowledge products.
- In developing countries, the number of patent applications is increased
Disadvantages of the TRIPS Agreement
- TRIPS mandates high levels of patent protection.
- Fertilisers, insecticides, pharmaceutical items, and procedures were not protected by patents, resulting in low-cost food and drugs.
- Education and technology transfer were fostered by the lack of copyright protection for informational products.
- Jobs in the local imitative industries were lost.
- In general, increased prices resulted in significant deadweight losses, with minimal stimulation of local innovation.
- Traditional knowledge is not protected in any way.
The TRIPS Agreement is often regarded as the most comprehensive mechanism for protecting intellectual property rights. It enhances and manifests the previous IPR conventions, the most important of which were first drafted at the end of the nineteenth century. Certainly, these agreements were revised on a regular basis, to permit a gradual international control of intellectual property and copyrights. However, in comparison to the results of previous revision exercises, the TRIPS Agreement constitutes a tremendous conceptual leap that profoundly transforms not only how IPRs are seen internally, but also how they are implemented and disputes are resolved.
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