Contact us Site map A-Z Search. The TRIPS Agreement, which came into effect on 1 January , is to date the most comprehensive multilateral agreement on intellectual property.
In addition the Agreement provides for certain basic principles, such as national and most-favoured-nation treatment, and some general rules to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement. The obligations under the Agreement will apply equally to all Member countries, but developing countries will have a longer period to phase them in.
Special transition arrangements operate in the situation where a developing country does not presently provide product patent protection in the area of pharmaceuticals. The TRIPS Agreement is a minimum standards agreement, which allows Members 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 system and practice. As in the main pre-existing intellectual property conventions, the basic obligation on each Member country is to accord the treatment in regard to the protection of intellectual property provided for under the Agreement to the persons of other Members. Article 1. The criteria for determining which persons must thus benefit from the treatment provided for under the Agreement are those laid down for this purpose in the main pre-existing intellectual property conventions of WIPO, applied of course with respect to all WTO Members whether or not they are party to those conventions.
Articles 3, 4 and 5 include the fundamental rules on national and most-favoured-nation treatment of foreign nationals, which are common to all categories of intellectual property covered by the Agreement.
These obligations cover not only the substantive standards of protection but also matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in the Agreement.
While the national treatment clause forbids discrimination between a Member's own nationals and the nationals of other Members, the most-favoured-nation treatment clause forbids discrimination between the nationals of other Members.
Where these exceptions allow material reciprocity, a consequential exception to MFN treatment is also permitted e. Certain other limited exceptions to the MFN obligation are also provided for. These objectives include the reduction of distortions and impediments to international trade, promotion of effective and adequate protection of intellectual property rights, and ensuring that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.
Copyright Back to top. During the Uruguay Round negotiations, it was recognized that the Berne Convention already, for the most part, provided adequate basic standards of copyright protection. Thus it was agreed that the point of departure should be the existing level of protection under the latest Act, the Paris Act of , of that Convention.
The point of departure is expressed in Article 9. Articles 1 through 21 of the Berne Convention and the Appendix thereto. The provisions of the Berne Convention referred to deal with questions such as subject-matter to be protected, minimum term of protection, and rights to be conferred and permissible limitations to those rights.
The Appendix allows developing countries, under certain conditions, to make some limitations to the right of translation and the right of reproduction. Article 9. Article This provision confirms that computer programs must be protected under copyright and that those provisions of the Berne Convention that apply 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, does not affect the protection. The obligation to protect computer programs as literary works means e. It also confirms that the 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. Databases are eligible for copyright protection provided that they by reason of the selection or arrangement of their contents constitute intellectual creations.
The provision also confirms that databases have to be protected regardless of which form they are in, whether machine readable or other form. Furthermore, the provision clarifies that such protection shall not extend to the data or material itself, and that it shall be without prejudice to any copyright subsisting in the data or material itself.
Article 11 provides that authors shall have in respect of at least computer programs and, in certain circumstances, of cinematographic works the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works.
With respect to cinematographic works, the exclusive rental right is subject to the so-called impairment test: a Member is excepted from the obligation unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs, the obligation does not apply to rentals where the program itself is not the essential object of the rental.
According to the general rule contained in Article 7 1 of the Berne Convention 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 in certain cases. These provisions are supplemented by Article 12 of the TRIPS Agreement, 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 a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.
Thus, the story they tell is about disparate impact due to better financial resources rather than disparate treatment. The paper by Petit, van Pottelsberghe de la Potterie and Gimeno-Fabra disagrees with the results presented by Rassenfosse and Hosseini and argues that tests of the national treatment argument should be conducted not on grant rates which may be influenced by more adverse market conditions facing the foreign applicant but on the examination process.
The examination process is defined as the work carried out by the patent examination office to assess if an application fulfils the legal patentability conditions , which is assumed to be mostly independent from economic forces. Testing for national bias within the examination process relies on the fact that patent offices are legally required to justify each decision they publish through concrete and transparent evidence.
As a result, discriminatory behaviours from patent offices should show up in the way applications are processed. The paper by Ramani and Urias reviews the use of the much-publicized TRIPS flexibility — compulsory licensing for public health — in middle and low-income countries. Compulsory licensing is considered an important policy instrument to make medicines affordable in countries where a pharmaceutical industry does not exist or where stronger TRIPS provisions on product patents are likely to increase the prices of medicines placing then out of the reach of a large segment of the population in many low and middle income countries.
Based on a systematic review of the existing evidence on the impact of compulsory licensing on drug prices, Ramani and Urias identify 24 instances of compulsory licensing in 8 countries — which is a very limited use of this much touted flexibility. They attribute this limited use to the very restrictive scope for the use of compulsory licensing in the TRIPS provisions. Comparing pre- and post-compulsory licensing prices, their paper finds that a compulsory licensing event is likely to reduce the price of a patented drug, although public knowledge of the extent of price drop is poor.
Further, they find compulsory licensing procurement from the international market is likely to be more effective in reducing drug prices than contracts to local companies. Interestingly, their findings are reconfirmed in the race to improve access to the antiviral medication Remdesivir for hospitalized COVID patients, based on information that is publicly available.
Clearly, the future incidence and impact of compulsory licensing will depend on further possible procedural refinements to ease its implementation, the development of technological and manufacturing capabilities in developing countries, and the importance of biologics among life-saving drugs.
COVID could prove a pivotal moment in redefining this flexibility and enabling its wider use. The paper allows us to observe patent prosecution in a developing country where substantive examination is new. Although the papers in this issue do not cover all aspects of international business since TRIPS, we hope some of the issues noted in this Introduction and in the included papers will create a rich menu of future options for research on TRIPS and patent policy by IB scholars.
In addition to patents, trademarks, and copyright, TRIPS also addresses geographical indications, industrial designs, integrated circuits, and plant varieties. Watal and Taubam provide a fascinating account of the process of negotiation and its twists and turns. Governments have supplemented national patent policies with prizes in areas where solutions are needed e. The Longitude prize has recently been re-established in around six challenge areas.
See Scotchmer and David for more discussion of the array of incentives. While conceptually these are three distinct policy levers, they are related to each other in their effects. For example, a patent system that, in terms of scope, allows multiple versions of similar inventions to be eligible for protection, may de facto offer longer periods of patent protection if the multiple patents are filed sequentially.
Cahoy provides detailed history and discussion of compulsory licensing in areas beyond pharmaceuticals. Examples of indices along these lines include Park as a general measure, Campi and Nuvolari for agricultural technologies, Liu and La Croix for pharmaceuticals. A prominent example of this was not recognising the Bessemer patent for steel production, granted in the UK.
Although Priority Foreign Country designation is meant to trigger the process leading to trade sanctions, countries can be sanctioned without ever being labelled as such. The Paris Convention continues to be the reference for coordinating procedures on how patents are applied for and the respect of priority dates, for example.
Rodrik makes a similar point. Acemoglu, D. Journal of the European Economic Association , 4 1 : 37— Google Scholar. Internationalization in the information age: A new era for places, firms, and international business networks? Journal of International Business Studies, 47 5 : — Arora, A. Markets for technology and their implications for corporate strategy.
Industrial and Corporate Change, 10 2 : — Athreye S. On markets in knowledge. Journal of Management and Governance, 1 2 : — Journal of International Business Policy, 3 1 : 58— Patent rights and the international transfer of climate change mitigation technologies.
Unpublished Mimeo. Azmeh, S. The international trade regime and the quest for free digital trade. International Studies Review, 22 3 : — Baldwin, R. The World Trade Organization and the future of multilateralism. Journal of Economic Perspectives , 30 1 : 95— Barnett, J.
Intellectual property as a law of organization. Southern California. Law Review, 84 4 : — Bayard, T. Reciprocity and retaliation in U. Bhagwati, J.
Bessen, J. Patent failure: How judges, bureaucrats, and lawyers put innovators at risk. Brander, J. China and intellectual property rights: A challenge to the rule of law. Journal of International Business Studies , 48 7 : — Branstetter, L. Do stronger intellectual property rights increase international technology transfer?
Empirical evidence from U. Quarterly Journal of Economics , 1 : — Brandl, K. Foreign actors and intellectual property protection regulations in developing countries.
Journal of International Business Studies, 50 5 , — Cahoy, D. Breaking patents. Michigan Journal of International Law , 32 3 : — Campi, M. Intellectual property rights and agricultural development: Evidence from a worldwide index of IPRs in agriculture — Cantwell, J.
An evolutionary approach to understanding international business activity: The co-evolution of MNEs and the institutional environment. Journal of International Business Studies , 41 4 : — Chang, H. Kicking away the ladder—Development strategy in historical perspective. London: Anthem Press. Chen, Y. Intellectual property rights and innovation in developing countries. Journal of Development Economics, 78 2 : — Commission on Intellectual Property Rights. Integrating intellectual property rights and development policy.
London: Commission on Intellectual Property Rights. Correa, C. London: Zed Books. David, P. Wallerstain, M. Schoen Eds , Global dimensions of intellectual property rights in science and technology : 19— Deere, C. Oxford: Oxford University Press. Drahos, P. Prometheus, 13 1 : 6— Thinking strategically about intellectual property rights. Telecommunications Policy , 21 3 : — Durand, C. Intellectual monopoly in global value chains. Review of International Political Economy , 27 2 : — Gamso, J.
Trade agreement depth, foreign direct investment, and the moderating role of property rights. Article Google Scholar. Gereffi, G.
The governance of global value chains. Review of International Political Economy , 12 1 : 78— Ghemawat, P. Redefining Global Strategy: crossing borders in a world where differnces still matter. Boston: Harvard Business School Press. Gillai B. Similarities in managing supply chain sustainability and intellectual property. Gomory, R. Global trade and conflicting national interests.
Gooris, J. Fragmenting global business processes: A protection for proprietary information. Journal of International Business Studies , 47 5 : — TRIPS applies basic international trade principles to member states regarding intellectual property, including national treatment and most-favored-nation treatment.
TRIPS establishes minimum standards for the availability, scope, and use of seven forms of intellectual property: copyrights, trademarks, geographical indications, industrial designs, patents, layout designs for integrated circuits, and undisclosed information trade secrets. It spells out permissible limitations and exceptions in order to balance the interests of intellectual property with interests in other areas, such as public health and economic development.
Developing-country members and members in transition to a market economy were entitled to delay full implementation of TRIPS obligations until January 1, To ensure access to relevant information in this regard, developed country members have agreed to present annually to the TRIPS Council a description of their technical cooperation activities in the area of intellectual property. Click here for more information. In addition, developed country members have notified contact points in their administrations to which requests for technical assistance may be addressed and from which information on technical cooperation can be obtained.
Which countries are using the general transition periods? Do members have any obligations under the Agreement during the transition period? What is the relationship between the TRIPS Agreement and the pre-existing international conventions that it refers to?
What is WIPO? Does the agreement allow compulsory licensing of patents? Does the agreement require members to provide patent protection to plant varieties? How can I get information on technical cooperation available from developed country members?
Intellectual property rights are traditionally divided into two main categories: Copyright and rights related to copyright: i. The main purpose of protection of copyright and related rights is to encourage and reward creative work.
Industrial property: This includes 1 the protection of distinctive signs such as trademarks and geographical indications , and 2 industrial property protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions protected by patents , industrial designs and trade secrets. The main transition periods are: Developed countries were granted a transition period of one year following the entry into force of the WTO Agreement, i.
Developing countries were allowed a further period of four years i. Transition economies, i. Least-developed countries were granted a longer transition period of a total of eleven years until 1 January , with the possibility of an extension.
The transition period has been extended three times, and now runs until 1 July , or until a member ceases to be an LDC, whichever comes first. Return to questions. Back to top Which countries are using the general transition periods? Return to questions Back to top Do members have any obligations under the agreement during the transition period?
The text of the TRIPS Agreement also makes use of the provisions of some other international agreements on intellectual property rights: WTO members are required to protect integrated circuit layout designs in accordance with the provisions of the Treaty on Intellectual Property in Respect of Integrated Circuits IPIC Treaty together with certain additional obligations.
The agreement provides cooperation in three main areas: notification of, access to and translation of national laws and regulations implementation of procedures for the protection of national emblems and technical cooperation. Return to questions Back to top Does the agreement allow compulsory licensing of patents?
0コメント