Intellectual property
TRIPS Agreement
“The WTO Analytical Index” is an article-by-article guide to the interpretation and application of the WTO agreements by WTO bodies. It covers the jurisprudence of the WTO Appellate Body panels and arbitrators as well as related decisions and other significant actions taken by other relevant WTO bodies. This publication report covers the TRIPS.
Intellectual Property and Digital Trade Mapping International Regulatory Responses to Emerging Issues
This paper explores how regulatory responses to emerging IP issues in digital trade may develop at the international level and in particular how existing mechanisms might influence the chances of developing internationally agreed rules in this regard. The primacy of state sovereignty in intellectual property up to the late 19th century gave way to the important WIPO treaties which still retained some independence of member states and based international regulatory responses directly on national experience. While more regulatory sovereignty was ceded in TRIPS the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty the adoption of non-binding instruments (such as the WIPO Joint Recommendations in the area of trademarks) show the limits of decision making by consensus.
The Shifting Contours of Trade in Knowledge
This paper charts the evolution and diversification of trade in knowledge that has taken place in the quarter-century since the WTO TRIPS Agreement came into force. Entirely new markets have come into being potentially redefining the very character of 'trade'.
Copyright and related rights
Part II of the TRIPS Agreement sets out the substantive standards for the protection of IP that WTO members should follow. This chapter outlines the provisions of Section 1 of Part II (running from Article 9 to Article 14) which sets out the protection that members must make available in the area of copyright and related rights – specifically for literary and artistic works performances phonograms (or sound recordings) and broadcasts.
Current TRIPS issues
This chapter provides a general overview of the ongoing work in the TRIPS Council and other WTO bodies on other aspects of TRIPS and public policy as of the time of writing focusing on the issues which have been the most prominent
Patents
This chapter explains the provisions of Section 5 of Part II of the TRIPS Agreement entitled ‘Patents’. Section 5 which contains eight articles from Article 27 to Article 34 sets out the obligations of members with respect to standards concerning the availability scope and use of patents. Starting with a general explanation of terms this chapter goes on to explain each specific provision in this Section of the TRIPS Agreement.
Preface
At the heart of the World Trade Organization (WTO) is a set of rules that regulate trade between nations: a body of agreements which have been negotiated and signed by governments of most of the world’s trading nations with the aim of promoting transparency predictability and nondiscrimination in trading relations. These agreements covering trade in goods trade in services and trade-related aspects of intellectual property rights help to define and inform the multiple roles of the WTO as an international intergovernmental organization in administering the provisions of these agreements providing a forum for trade negotiations handling trade disputes monitoring national trade policies providing technical assistance and capacity building for developing countries and cooperating with other international organizations. Understanding these agreements and their practical policy and legal contexts therefore provides significant insights into the WTO as an institution its activities and international role its partnerships with other organizations and the way in which WTO member governments identify and pursue their national interests through this intergovernmental forum.
Trademarks
This chapter explains the provisions of Section 2 of Part II of the TRIPS Agreement entitled ‘Trademarks’. This Section contains seven articles from Article 15 to Article 21 and deals with the protection that members have to make available for trademarks.
TRIPS and public health
Public health has been one of the most extensively discussed aspects of the TRIPS Agreement both in terms of the treaty text itself and its implementation at the domestic level. Its significance is borne out by a proclamation at the ministerial level the 2001 Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) and by the ensuing amendment of the Agreement itself the first amendment of any WTO multilateral trade agreement undertaken specifically to provide the most vulnerable countries with an additional secure legal pathway to gain access to affordable generic medicines.
Guide to transparency under TRIPS
This Appendix provides a practical guide to the transparency mechanisms established under the TRIPS Agreement concerning how countries choose to implement provisions of the Agreement. These mechanisms help the TRIPS Council to monitor the operation of the Agreement and to promote understanding of members’ intellectual property (IP) policies and legal systems. This Appendix focuses only on the practical use of these mechanisms: the relevant chapters of this book should be consulted for their full background and context.
Dispute prevention and settlement
Chapters II to VIII have dealt with members’ commitments as regards the substantive standards for protection of IPRs under domestic laws as well as their enforcement through their domestic legal systems. An important feature of the TRIPS Agreement is that disputes between members about compliance by member governments with these TRIPS obligations are subject to the dispute settlement system of the WTO. The TRIPS provisions on dispute settlement are contained in Part V of the TRIPS Agreement entitled ‘Dispute Prevention and Settlement’.
Guide to TRIPS documents
The TRIPS Agreement includes a set of transparency mechanisms which require members to furnish extensive information about their IP laws and policies and details about how IPRs are administered and enforced in their territories; these laws are also reviewed in detail in the TRIPS Council. In addition the TRIPS Council has itself established a series of reporting processes concerning specific aspects of members’ IP systems. The operation of these transparency mechanisms in the years since 1995 has yielded a uniquely comprehensive and systematic body of information that now covers some 130 jurisdictions (essentially all WTO members other than LDC members for whom these provisions do not yet apply).
Acknowledgements
Preparation of the Handbook was a collective endeavour by the WTO Intellectual Property Government Procurement and Competition Division drawing on years of practical feedback from technical assistance and training programmes prepared and delivered by the Division in particular the material prepared for the first version of the TRIPS module of WTO eTraining. The former director of the Division Mr Adrian Otten substantively reviewed and enhanced earlier versions of this material.
Introduction to the TRIPS Agreement
This chapter provides an overview of the TRIPS Agreement. It first explains the historical and legal background of the Agreement and its place in the World Trade Organization (WTO). It then turns to the general provisions and basic principles as well as other provisions and institutional arrangements that apply to all the categories of intellectual property rights (IPRs) covered by TRIPS. Chapters II to VIII then discuss each of these categories their essential principles and their administration and enforcement in more detail.
Geographical indications
This chapter explains the provisions of Section 3 of Part II of the TRIPS Agreement entitled ‘Geographical Indications’. A geographical indication (GI) is defined in the TRIPS Agreement as an indication which identifies a good as originating in the territory of a member or a regional locality in that territory where a given quality reputation or other characteristic of the good is essentially attributable to its geographical origin. Typical examples would be ‘Cognac’ for a brandy coming from that region of France and ‘Darjeeling’ for tea coming from that region of India.
Undisclosed information, unfair competition and anti-competitive practices
This chapter deals with the provisions of the TRIPS Agreement that set out standards for protection of undisclosed information including test data (Article 39 of Section 7 in Part II of the Agreement) and measures for the control of anti-competitive practices in licences (Article 40 of Part II of the TRIPS Agreement). It also deals with the suppression of unfair competition a matter which is specifically referred to in Articles 22 (relating to protection of geographical indications) and 39 (relating to protection of undisclosed information) and also arises through the reference in Article 2 of the TRIPS Agreement to the Paris Convention: Article 10bis of that convention sets out general standards for the suppression of unfair competition. As for all sections of Part II these sections have to be read together with the relevant provisions of pre-existing treaties in the area of international IP law which are incorporated by reference into the TRIPS Agreement. Reference will be made to these treaties in the sections below. This chapter will also have to be read in conjunction with other relevant provisions of the TRIPS Agreement explained in other chapters (such as concerning non-discrimination enforcement of IP rights and the administration of IP). Wherever appropriate cross-references are made to other chapters.
Industrial designs and layout-designs of integrated circuits
This chapter deals with the provisions of the TRIPS Agreement that set out standards for protection of industrial designs (Articles 25 and 26 in Section 4 of Part II of the Agreement) and protection of layout-designs or topographies of integrated circuits (Articles 35 to 38 in Section 6 of Part II). As for all sections of Part II these sections have to be read together with the relevant provisions of pre-existing treaties in the area of international IP law which are incorporated by reference into the TRIPS Agreement. Reference will be made to these treaties in the sections below. This chapter will also have to be read in conjunction with other relevant provisions of the TRIPS Agreement that are explained in other chapters (such as those concerning non-discrimination enforcement of IP rights and the administration of IP). Wherever appropriate cross-references are made to other chapters.
Enforcement
The purpose of this chapter is to introduce the key features of the provisions of Part III Sections 1 to 5 of the TRIPS Agreement entitled ‘Enforcement of Intellectual Property Rights’. This Part of the Agreement elaborates in 21 articles the enforcement procedures that members have to make available to permit prompt and effective action against infringements of IPRs covered by the TRIPS Agreement.