TRIPS Flashcards
What is TRIPS Council ?
The TRIPS Agreement is administered by the Council for TRIPS (TRIPS Council), which reports to the General Council. The TRIPS Council, which is open to all WTO Members, is responsible for monitoring the operation of the TRIPS Agreement. The box (recall) provides more information about the organizational structure of the WTO.
The TRIPS Council meets in Geneva formally three to four times a year, as well as informally as necessary. The last part of this course will explain the work of the TRIPS Council.
What are IPRs?
- IPRs are rights given to persons over the creations of their minds.
- IPRs take the form of a limited exclusive right:
Such right allows the creator to exclude others from using the creation without the creator’s authorization for a certain period of time.
The right holder can extract economic value from the IPRs by using them or by authorizing others to do so. - IPRs are territorial rights:
They are valid only in the jurisdiction where they have been registered or otherwise acquired - IPRs are usually classified into two categories: Copyright and Industrial Property
What are the type of IPRs?
Copyright (authors of artistic and literary works)
and Related rights (or authors right or neighboring rights) (e.g: performers, phonogram producers and broadcasting organizations)
Industrial PropertyL
- GI
- Patents
- Plant variety protection
- Industrial Designs
- Layout- designs of integrated circuits
- Protection of undisclosed information
What the rights of authors of literary and artistic works?
- Books and other writings
- Films
- Musical Compositions
- Paintings, sculptures
- Computer Programmes
What is related rights
- Performers (e,g, actors, singers and musicians) over their performances
- Producers over phonograms (sound recordings)
- Broadcasting organizations over broadcasts
What is the trademark and GI
Trademarks distinguish the goods or services of one enterprise from those of other enterprises.
GIs identify a good originating in a place where a given characteristic of the good is essentially attributable to its geographical origin
What are patents, Industrial designs and Undisclosed information?
inventions protected by patents (although, in a number of countries, innovations that could embody lesser technical progress than patentable inventions may be protected by utility models); industrial designs; and, the protection of undisclosed information (trade secrets, undisclosed test or other data).
Why are IPRs protected?
Intellectual property rights are a tool of public policy aimed at promoting:
1. economic,
2. social
3. and cultural progress
by stimulating creative work and technological innovation.
What is the aim of Copyrights and related rights ?
Encourage and reward creative work
• Economic foundation for cultural industries and
market for cultural products
What is the aim of Patents ?
Stimulate innovation & investment in research and development
• Promote transfer and dissemination of technology
What is the aim of Trademarks and GI?
Inform consumers and prevent consumer deception
• Help ensure fair competition
Conclusion module 1
are “exclusive” and “territorial” rights
aim at stimulating creative work and technological innovation
are subject to a number of limitations and exceptions that aim to balance the legitimate interest of right holders and users
are usually classified into two categories:
Copyright (copyright and related rights) &
Industrial Property (trademarks, geographical indications, patents, etc.).
What is the history of the TRIPS?
The TRIPS Agreement was a result of the Uruguay Round of negotiations, which also created the WTO in 1995. Before the WTO was created, the old GATT 1947 provided the rules for the bulk of world trade.
The TRIPS Agreement is an integral part of the Marrakesh Agreement Establishing the WTO (WTO Agreement), which entered into force on 1 January 1995. The TRIPS Agreement is Annex 1C to the WTO Agreement.
WTO Organizational Structure and Decision making.
The WTO has an institutional structure composed by different bodies. The top-most decision making body is the Ministerial Conference. The General Council constitutes the second tier in the WTO structure. It comprises representatives of all Member governments usually Ambassadors or permanent representatives based in Geneva. It may adopt decisions on behalf of the Ministerial Conference when the Conference is not in session. The General Council also meets as the Dispute Settlement Body (DSB) and as the Trade Policy Review Body (TPRB).
The Council for TRIPS is one of the three sectoral (i.e. subject area) Councils operating under the General Council, the other two being the Council for Trade in Goods and the Council for Trade in Services.
The WTO continues GATT’s tradition of making decisions by consensus: a body is deemed to have decided by consensus if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision. Where consensus is not possible, the WTO Agreement allows for voting.
Conclusion module 2
was one of the major outcomes of the Uruguay Round of trade negotiations (19986-1994), which inserted IP within the WTO system.
came into force in 1995 as an integral part of the WTO Agreements, which are binding on each WTO Member.
is administered by the TRIPS Council, composed by representatives of all WTO Members.
In nutshell about TRIPS
The TRIPS Agreement is a comprehensive multilateral agreement on IP. It deals with each of the main categories of IPRs and establishes minimum standards of protection.
The Agreement also contains rules on administration and enforcement of IPRs, and provides for the application of the WTO dispute settlement mechanism to resolve disputes between Members concerning compliance with its standards.
The TRIPS Agreement includes VII Parts.
What is the relationship between the TRIPS and the pre-existing WIPO conventions?
TRIPS sets the minimum standards of IP protection firstly by requiring compliance with the substantive obligations of the main conventions of the (WIPO) in their most recent versions: BC and PC
- All the main substantive provisions of these two conventions have been incorporated by reference into the TRIPS
- with the exception of the provisions of the Berne Convention on moral rights.
The TRIPS Agreement is thus sometimes referred to as a “Berne-plus” and “Paris-plus” agreement.
- The Agreement also incorporates most of the substantive provisions of the Treaty on Intellectual Property in Respect of Integrated Circuits IPIC Treaty.
- In addition, the TRIPS provisions on related rights contain certain references to the Rome Convention.
Important Note - Safeguard Clause:
You must remember that according to the TRIPS Agreement, WTO Members cannot derogate from the existing obligations they may have to each other under the Paris, Berne and Rome Conventions or IPIC Treaty (Art. 2.2).
Structure of the TRIPS:
Part I: Part II: GENERAL PROVISIONS AND BASIC PRINCIPLES STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF IPRs 1. Copyright and Related Rights 2. Trademarks 3. Geographical Indications 4. Industrial Designs 5. Patents 6. Layout-Designs (Topographies) of Integrated Circuits 7. Protection of Undisclosed Information 8. Control of Anti-competitive Practices in Contractual Licences
PART III ENFORCEMENT OF IPRs
- General Obligations
- Civil and Administrative Procedures and Remedies
- Provisional Measures
- Special Requirements related to Border Measures
- Criminal Procedures
Part IV: ACQUISITION AND MANTENANCE OF IPRS AND RELATED INTER-PARTES PROCEDURES
Part V:DISPUTE PREVENTION AND SETTLEMENT
Part VI: TRANSITIONALARRANGEMENTS
PartVII: INSTITUTIONAL ARRANGEMENTS;FINALPROVISIONS
Where can we find the general goals of the TRIPS ?
are set out in its Preamble and include:
Reducing distortions and impediments to international trade Promoting effective and adequate protection of IPRs, and
Ensuring that measures and procedures to enforce IPRs do not themselves become barriers to legitimate trade.
What is objectives of TRIPS ?
art 7 reflects the search for a balanced approach to IP protection in the societal interest, taking into account the interests of both producers and users.
IP protection is expected to contribute not only to the promotion of technological innovation, but also to the transfer and dissemination of technology in a way that benefits both its producers and users and that respects a balance of rights and obligations, with the overall goal of promoting social and economic welfare.
What are principle of TRIPS ?
Article 8 recognizes the rights of Members to adopt measures for public health and other public interest reasons and to prevent the abuse of IPRs, provided that such measures are consistent with the provisions of the TRIPS Agreement.
Important Note:
The 2001 Doha Declaration on the TRIPS Agreement and Public Health
provides that in applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles
What is the example of minimum Standarts agreement
Article 1.1 TRIPS. Member may provide for longer terms of protection than those mandated by the TRIPS Agreement but they cannot do this in a way that conflicts with TRIPS provisions including the principle of non0discrimination. Suppose that Member A decides to provide patent protection for 25 years, instead of 20 Years as required by the TRIPS Agreement, to nationals of Member B. Then, Member A must also provide patent protection for 25 years to nationals of other Members.
what is the criteria who is the beneficiaries
- Industrial property
Pursuant to Articles 2 and 3 of the Paris Convention, protection is granted in the case of industrial property to natural or legal persons who:
are nationals of a Member;
are domiciled in a Member; or
have real and effective industrial or commercial establishments in a Member.
Pursuant to Article 5 of the IPIC Treaty, similar criteria for determining eligible beneficiaries are applied in
relation to layout-designs or integrated circuits.
- Copyright and related rights
a) Copyright
Pursuant to Articles 3 and 4 of the Berne Convention, protection is granted to authors of literary or artistic works who:
are nationals of a Member;
have their habitual residence in a Member;
have their works first (or simultaneously) published in a Member;
are authors of cinematographic works the maker of which has his headquarters or habitual residence in a
Member; or
are authors of works of architecture erected in a Member or of other artistic works incorporated in a
building or other structure located in a Member.
b) Performers
Pursuant to Article 4 of the Rome Convention, protection is granted to performers whose:
performance takes place in another Member;
performance is incorporated in a phonogram as defined below; or
performance is covered by a broadcast as defined below.
c) Producers of phonograms
Pursuant to Article 5 of the Rome Convention, protection is granted to producers of phonograms:
if the producer is a national of another
Member;
if the first fixation of sound (i.e. recording)
was made in another
Member; or
if the phonogram was first published in another Member.
In accordance with the provisions of Article 5(3) of the Rome Convention as incorporated into the TRIPS Agreement, a Member may declare that it does not apply either the criterion of fixation or that of publication. The criterion of nationality, however, may not be excluded.
d) Broadcasting organizations
Pursuant to Article 6 of the Rome Convention, protection is granted to broadcasting organizations:
whose headquarters are situated in another
Member; or
when the broadcast was transmitted from a
transmitter in another Member.
In accordance with the provisions of Article 6(2) of the Rome Convention as incorporated into the TRIPS Agreement, a Member may declare that it will protect broadcasts only if both relevant conditions are met, i.e. that the headquarters of the broadcasting organization are situated in another Member and the broadcast was transmitted from a transmitter situated in the same Member.
What is NT and MFN?
Non-discrimination is a fundamental principle of the WTO. The principle of non-discrimination has two components: (i) the national treatment principle; and (ii) the most-favoured nation (MFN) principle. Under the GATT 1994, the subject of the MFN and national treatment is “goods”, while under the GATS the subjects are “services and services suppliers”. Instead, in the context of TRIPS, the subject of protection is “nationals”, which as mentioned before, include natural and legal persons – who are the owners of the IPRs.
While the national treatment clause forbids discrimination between a Member’s own nationals and the nationals of other Members; the MFN treatment clause forbids discrimination among the nationals of WTO Members. The MFN principle requires to accord to nations of WTO Members any advantage given to nationals of any other country - Member or not of the WTO.
what is NT?
Under the TRIPS Agreement, the national treatment obligation contained in Article 3 requires each Member to accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of IP.
What is exceptions to NT
The exceptions allowed under the four pre- existing WIPO treaties (Paris, Berne, Rome and IPIC) are also allowed under TRIPS.
An important exception to national treatment is the so-called “comparison of terms” for copyright.
Pursuant to this exception, allowed under Article 7(8) of the Berne Convention as incorporated into the TRIPS Agreement, if a Member provides a term of protection in excess of the minimum term required by the TRIPS Agreement, it does not need to protect a work for a duration that exceeds the term fixed in the country of origin of that work. In other words, the additional term can be made available to foreigners on the basis of “material reciprocity”.
what is MFN ?
Article 4 on MFN treatment requires that, with regard to the protection of IP, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.
EXAMPLE:
if Member A decides to recognize and enforce the patents granted to medicines in Member B from the date of filing in Member B, irrespective of whether the inventions covered meet the novelty criterion or not in A. Then, Member A must extend the same advantage to nationals of other Members.
What is the exceptions to MFN ?
article 4 (a) and (d)
What is the examples to article 5
This exception does not apply in respect of the substantive standards of protection themselves. It is not limited to pre-existing WIPO agreements.
Examples of such agreements are the Patent Cooperation Treaty, the Madrid Agreement Concerning the International Registration of Marks and the Protocol to that Agreement, and the Hague Agreement Concerning the International Registration of Industrial Des
What is Exhaustion in article 6 ?
The term ‘exhaustion’ refers to the generally accepted principle in IP law that a right owner’s exclusive right to control the distribution of a protected item lapses after the first act of distribution.
In many countries, once the item has been put on the market by or with the consent of the right owner, the exclusive distribution right is ‘exhausted’ (which is why the principle is referred to in some jurisdictions as the ‘first-sale doctrine’) and further circulation of that item can no longer be controlled by the right holder.
This doctrine of exhaustion does not, of course, affect any other exclusive rights the right holder may enjoy, for example, the right to authorize activities such as reproduction or communication to the public. In other words, the entitlement to distribute a legitimately purchased CD does not in itself extend to an entitlement to make reproductions or public performances of the recorded music.
While it is generally accepted that IPRs are exhausted within the jurisdiction where the first sale took place, are such rights exhausted when the first sale takes place outside the jurisdiction in question?
The answer depends on whether a country applies a regime of national or international exhaustion and thereby prevents or allows so-called “parallel importation”.
National Exhaustion
The right owners’ distribution rights are only considered exhausted once they put the protected item on the market in that country. Distribution rights would not be exhausted with regard to protected items that were put on the market in another country, so that right holders can still control the sale or import of those items into the first country.
Parallel imports of products first sold on other markets are illegal
International Exhaustion
The right owner’s distribution right in that country is exhausted regardless of where the first act of distribution took place. In the example, right holders cannot use IPRs to prevent the importation and sale of DVDs that they have sold in another country.
Parallel imports of products first sold on other markets are legal
International Exhaustion
International Exhaustion
Products imported as parallel imports are NOT counterfeit or pirated goods, but genuine original products that have been sold in other countries with the authorization of the right holder; they do not infringe IPRs in the country of origin.
A country may adopt different exhaustion regimes (national or international exhaustion) for different ! categories of IPRs.
Regional Exhaustion
An alternative approach is taken in some free trade areas (FTAs) or customs unions, namely regional exhaustion. In this case, the right holder’s IPRs are exhausted once the first sale takes place anywhere within the specified region.
Exhaustion: National or International?
The TRIPS Agreement leaves Members considerable discretion as to how to regulate the question of exhaustion.
Article 6 provides that, for the purposes of dispute settlement under the TRIPS Agreement, nothing in the Agreement shall be used to address the issue of the exhaustion of IPRs, provided that the national and MFN treatment obligations are complied with.
It is generally understood that national exhaustion favours market segmentation as well as differential pricing, product differentiation and differing release dates, whereas international exhaustion facilitates parallel importation of the same product sold at lower prices in other countries.
Important Note:
This provision was confirmed in the Doha Declaration on the TRIPS Agreement and Public Health. It stated that the effect of the TRIPS provisions relevant to exhaustion of IPRs was to leave each Member free to establish its own regime for exhaustion without challenge, subject to the MFN and national treatment obligations
Conclusion module 3
The TRIPS Agreement:
is a comprehensive multilateral agreement on IP which establishes minimum standards of protection for each of the main categories of IPRs.
it incorporates most provisions of the main WIPO Conventions (mainly Berne and Paris Conventions), while adding a number of obligations.
includes the national treatment and MFN obligations, which apply to nationals owners of IPRs.
leaves policy space for each Member to choose its own regime of exhaustion for IPRs according to its policy objectives.
Does the TRIPS Agreement require Members to provide more favourable protection than that required by the Agreement?
No
Members may provide more extensive protection than that required under the TRIPS Agreements to IPRs holders, but it is not an obligation
True
To know how the IP rules applicable in any concrete practical situation, the national law of the Member concerned will have to be consulted.
True
Does MFN prohibit discrimination between nationals and foreigners?
No
