Intellectual property-background

TRIPs agreement

Research issues

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Intellectual property-background

According to the World Intellectual Property Organisation (WIPO) intellectual property refers to creations of the mind. Intellectual property rights usually give the creator an exclusive right over the use of his/hers creation for a certain period of time.

WIPO distinguishes two categories of intellectual property:

1. Industrial property. This category can be subdivided into four groups:

• Inventions (patents): A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.

• Trademarks: a distinctive sign that identifies certain goods or services as those produced or provided by a specific person or enterprise. It helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets their needs.

• Industrial designs: the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or colour. In general, industrial design is primarily of an aesthetic nature, and does not protect any technical features of the article to which it is applied.

• Geographical indications: a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin. Most commonly, a geographical indication consists of the name of the place of origin of the goods, e.g. Parma ham.

2. Copyright: this refers to the rights given to creators for their literary and artistic works, for example paintings, books, music, architecture etc.

Intellectual property rights are laid down in national laws and rules. In the second half of the 19th century increasing international trade called for international standards of intellectual property rights protection, because differences in national laws made it difficult to get protection for intellectual property abroad. A first attempt for such international standards was the Paris Convention in 1884, for the protection of industrial property. Two years later, the Berne Convention was concluded, which deals with the protection of literary and artistic works. In the 20^th century, more international conventions have been concluded, and membership to the conventions has expanded. The Paris and Berne Conventions have been revised several times and formed the basis for the WTO’s Trade-Related Aspects of International Property Rights (TRIPs) Agreement.

The WIPO, a specialised agency of the United Nations, administers the Paris and Berne Conventions and 21 other treaties. It counts 177 nations as member states.

For more information, see:

the WIPO webiste

Paris Convention full text

Berne Convention full text

The TRIPS Agreement

In 1995, the World Trade Organisation (WTO) Agreement entered into force. Annex 1C of this Agreement contains the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement). Under this Agreement, the term "intellectual property" refers to the following 7 categories:

• Copyright and related rights

• Trademarks

• Geographical indications

• Industrial designs

• Patents

• Layout-designs of integrated circuits

• Undisclosed information (trade secrets and know how).

The general goals of the TRIPs Agreement 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 become barriers to legitimate trade" (see Preamble of TRIPs).

This general goal is linked to Article 7, which states the objective of the TRIPs Agreement: "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations."

The TRIPs Agreement covers six issues:

1. Basic principles: these include the obligations of national treatment and most-favoured-nation treatment. In respect of the national treatment obligation, the exceptions allowed under the pre-existing intellectual property conventions of WIPO are also allowed under TRIPs. Where these exceptions allow material reciprocity, a consequential exception to MFN treatment is also permitted. Certain other limited exceptions to the MFN obligation are also provided for. The rights of Members to adopt measures for public health and other public interest reasons and to prevent the abuse of intellectual property rights are recognised, provided that such measures are consistent with the provisions of the TRIPs Agreement.

2. Standards of protection: regarding any of the seven regulated categories the TRIPs Agreement set out the minimum standards of protection that each Member must provide:

• Subject to be protected

• Rights to be given and exceptions to those rights

• Duration of the conferred protection

The obligations of the Paris Convention and Berne Convention of WIPO must be complied with. In addition, obligations are added on issues that were not (or inadequately) dealt with in pre-existing conventions.

3. Enforcement: the Agreement lays down a set of general principles applicable to all IPR enforcement procedures and contains provisions that specify which procedures and remedies must be available so that IPRs can be effectively enforced.

4. Dispute settlement: The Agreement makes disputes between WTO members regarding TRIPs obligations subject to the WTO's dispute settlement procedures.

5. Transition arrangements: Developed countries had one year (i.e. until 1 January 1996) to implement the Agreement. Developing countries and (under certain conditions) countries in transition have five years and least developed countries 11 years to comply with the TRIPs agreement. If a developing country did not have patent protection in a particular area of technology on 1 January 1995, it should introduce protection within 10 years. For pharmaceutical and agricultural chemical products, the country must accept the filing of patent applications from the beginning of the transitional period, although the patent need not be granted until the end of this period.

For more information on TRIPs, see the WTO TRIPs pages. 

The complete text of the agreement is available here.

Research Issues

The TRIPs Agreement has received a lot of attention in literature. The main issues that are subject of research are the following:

• Implementation and working of TRIPs. How countries must adapt their national legislation to comply with the TRIPs Agreement; what problems do developing countries face, impact on the economy.

• Intellectual property rights in public health issues. The access to essential drugs for the poor.

• The impact of TRIPs on ICM and technology transfers. Does the protection of intellectual property rights stimulate or hinder technological innovation and technology transfers?

• TRIPs and trade and competition. The role of competition policy in the fair use of intellectual property rights.

• TRIPs, biotechnology and  biodiversity. Patents on life forms: a threat to plant diversity and plant breeders?

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