TRIPS AND COPYRIGHT

Analysis of the origin of TRIPS,

fundamental principles and the relevant provisions dealing with Copyrights
Rationale:
Trade and intellectual property protection are closely
connected.

The achievements in trade liberalisation through WTO
disciplines on and removal of trade barriers, can be
greatly undermined if IP rights related to the traded
goods or services are not respected in the export market
or in the country of origin of imports.

Background:
International agreements to strengthen and harmonise
protection in the field of IP law exist since the late
nineteenth century.

They were fragmented in their coverage of IP rights;
lacked effective enforcement standards and systems for
the settlement of disputes; and they often had very
limited membership.
The TRIPS Agreement was negotiated to address these
particular problems.
Developed countries in general, and the United States in
particular, were the driving force behind these
negotiations.
Developing countries objected to the inclusion of
negotiations on IP protection on the Uruguay Round
agenda and would never truly embrace these
negotiations. They came to realise that they were better
off with multilateral disciplines than being subject to
bilateral pressure to improve IP protection.



Objectives and Principles:
To reduce distortions and impediments to international
trade..taking into account the need to promote
effective and adequate protection of intellectual
property rights, and to ensure that measures and
procedures to enforce intellectual property rights do not
themselves become barriers to legitimate trade.
Article 7 of TRIPS Agreement, entitled Objectives,
reflects the rationale of the TRIPS Agreement to create a
balance between these competing goals.

The protection and enforcement of intellectual property
rights should contribute to the promotion of
technological innovation and the transfer and
dissemination of technology, to the mutual advantage
of producers and users of technological knowledge and
in manner conducive to social and economic welfare,
and to a balance of rights and obligations.
Scope of Application
Substantive Scope

The Agreement does not define what Intellectual
Property is. Instead it only specifies which categories of IP
rights are covered by its provisions.
Article 1.2 provides that the term intellectual property
refers to all categories of intellectual property which
include: copyright and related rights; trademarks;
geographical indications; industrial design; patents;
layout designs of integrated circuits and protection of
undisclosed information.
Does not cover all the aspects of IP Protection for the
covered categories.

Other aspects of IP rights that are not mentioned in the
TRIPS Agreement or in the incorporated provisions of the
World Intellectual Property Organisation (WIPO)
conventions are also excluded from the purview of the
Agreement.

Temporal Scope
Article 70 of the TRIPS Agreement deals with the protection of
existing subject matter.

Article 70.1 specifies certain acts which do not give rise to
obligations under the Agreement. Also does not apply
retroactively to acts that occurred before its date of
application for a Member.

Article 70.2 provides that the Agreement does create
obligations in respect of subject-matter that existed at the
date of application.

General Provisions and Basic
Principles of TRIPS
Agreement


Part I of the Agreement contains the general provisions
and basic principles that apply to all covered areas of
IP.

Article 1.1 obliges Members to give effect to its
provisions. However, it expressly states that Members are
free to determine the appropriate method of
implementing their obligations under the Agreement
within their own legal systems and practice.

In addition, it provides that Members are free, but not
obliged, to implement more extensive protection than
that required by the Agreement.

Firmly establishes that the nature of TRIPS Agreement as
setting a minimum level of IP protection.

The flexibility is an important tool in balancing the
competing policy goals. However, strings attached.




Relationship between TRIPS
and WIPO Conventions
Builds upon the standards of IP protection enshrined in
the IP conventions administered by WIPO.

TRIPS supplements and innovates the rules of relevant
WIPO conventions, as well as expressly provides
additional protection in some cases.

Creates an obligation under municipal law for Members
to have a system in place to ensure the enforcement of
the protected IP rights, and links them to the effective
and binding dispute settlement of the WTO.


Article 2 of the Agreement, states that the Members
should comply with Articles 1 to 12 and 19 of the Paris
Convention in respect of Parts II, III and IV of the TRIPS
Agreement.

WTO Members that are not parties to the Paris
Convention must comply with these provisions.






National Treatment Obligation
National treatment obligation of the TRIPS Agreement
under Article 3.1 requires each Member to accord to
nationals of other Members treatment no less
favourable than it accords to its own nationals in
respect of IP protection.

Article 3 of the Agreement applies to nationals as
defined in Article 1.3, rather than to like products or
like services or service providers.
EC Trademarks and Geographical
Indications (2005)
The issue involved an EC regulation with two sets of
detailed procedures for the registration of Geographical
Indications for agricultural and food products.

First was applied to the names of geographical areas
located in the European Communities. The second
applied to the names of geographical areas located in
outside the European Communities.
Additional conditions required that a third country must
provide reciprocal and equivocal protection to GIs to
those available in European Communities.

Claimed that the EC Regulation was inconsistent with
the national treatment obligation under Article 3.1 of
TRIPS, because it imposed conditions of reciprocity and
equivalence on the availability of protection.

Observed that, Article 3 prohibits not only measures,
which prima facie discriminate between the nationals of
a Member and foreign nationals, but also de facto
discriminatory measures.
Difference in treatment affected the effective equality
of opportunities between the nationals of other
Members and the European Communities nationals
with regard to the protection of IP rights, to the
detriment of nationals of other Members.


Decision
Equivalence and reciprocity conditions of the EC
Regulation were held by the panel to modify the
effective equality of opportunities to obtain protection
of intellectual property. Those conditions, according to
the panel, constituted a significant extra-hurdle to
obtaining GI protection that did not apply to
geographic areas located within the European
Communities.
The panel found that these conditions in the Regulation
restrict the availability of GI protection, and thus violate
Article 3.1 because the treatment accorded to the
group of nationals of other Members was different from,
and less favourable than, that accorded to the
European Communities nationals.

However, Article 5 provides that the national treatment
obligation of Article 3 does not apply to procedures for
the acquisition of IP rights provided in multilateral
agreements negotiated under the auspices of WIPO.
Most-Favoured-Nation Treatment
Obligation
Article 4 contains the MNF obligations which requires
that any advantage, favour, privilege or immunity with
regard to IP protection granted by a Member to the
nationals of any other country be accorded
immediately and unconditionally to the nationals of all
other Members.

Members are required to provide MNF treatment only
with respect to categories of IP rights covered by the
Agreement.
None of the pre-existing IP conventions contains an MNF
treatment obligation. TRIPS introduces this for the first
time.

MNF is the key to the multilateral trading system, it must
be accorded the same significance with respect to
intellectual property rights under the TRIPS that it has
long been accorded with respect to trade in goods
under the GATT.

In a word, this is fundamental.
This obligation is subject to exceptions.

Advantages granted by a Member that are derived
from international agreements on judicial assistance or
law enforcement need not be granted to all Members.

Also the advantages under Rome Convention and
Berne Convention on condition of reciprocity are
excluded from the coverage of the MNF obligation of
TRIPS Agreement.
Exhaustion of Intellectual Property
Rights
The doctrine applies only to the right to control
distribution of the product after it has been put on the
market by or with the consent of the right holder.

It does not affect the essence of an IP right, i.e. the right
to exclude others from exploiting the IP right without the
consent of the right holder.

The Three Approaches
National exhaustion - first sale of product exhausts IP rights to control
the resale of the product only on the national market

Regional exhaustion - first sale of product in a country that is a party
to regional agreement exhausts IP rights to control further
distribution in other parties to the regional agreement

International exhaustion - once a product is sold by or with the
consent of the right holder, whether on the domestic market or on a
foreign market, the IP rights to control the further distribution of the
product are exhausted both domestically and internationally.
TRIPS does not mandate a particular approach to the
exhaustion of IP rights.

Article 6 expressly provides that nothing in this
Agreement, leaving aside the obligations of national
treatment and MFN treatment, shall be used to address
the subject-matter of exhaustion of IP rights.

The Doha Declaration on the TRIPS Agreement and
Public Health clarified that Members cannot be
challenged in WTO dispute settlement under the TRIPS
Agreement for allowing the international exhaustion of IP
rights, and therefore permitting parallel importation.



Substantive Protection of
Intellectual Property
Rights under TRIPS:
Copyright and Related
Rights
Section 1 of part II of TRIPS deals with copyright and
related rights.

Article 9.1 of the Agreement expressly incorporates
Articles 1 to 21 of the Berne Convention.

Article 10 of the TRIPS confirms that copyright protection
covers two new types of works, namely computer
programs and compilations of data, and clarifies how
protection is to be applied to them.

Under both the Berne Convention and TRIPS, every party is
free to determine the level of originality or artistic creativity
required for the work subject to copyright protection.

Copyright protection is not granted indefinitely, but is limited
to a particular term of protection. The minimum term of
protection is the life of the author plus fifty years after death.
With regard to the duration, when it is calculated on a basis
other than the life of a natural person, according to Article 12
of the Agreement, such term shall not be less than fifty years
from the end of the calendar year of authorised publication,
or, failing such authorised publication within fifty years from
the making of the work, fifty years from the end of calendar
year of making.


Article 13 of TRIPS constitutes a binding guideline for WTO
Members. It lays down the requirements that exceptions
and limitations to exclusive rights provided for in national
IP law have to meet. The rationale behind this is the
search for the appropriate balance between the rights
of the creators and public interest in access to
copyrighted works

The exceptions provided in Berne Convention can be
relied upon regardless of Article 13 and also whether a
limitation or an exception conflicts with a normal
exploitation of a work must be judged for each exclusive
right individually.

Under Article 14 of the Agreement, special rights apply
to performers, producers of phonograms and
broadcasting organisations. According to Article 14.1
performers have the exclusive right to authorise the
fixation. Article 14.3 provides that the broadcasting
organisations have the right to prohibit the re-fixation or
rebroadcasting of broadcasts.

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