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URUGUAY ROUND AGREEMENT: TRIPS

Agreement on Trade-Related Aspects of Intellectual Property Rights (unamended)

The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization , signed in Marrakesh, Morocco on 15 April 1994.

PREAMBLE to the Agreement on Trade-Related Aspects of Intellectual Property Rights

PART I General Provisions and Basic Principles

Part ii standards concerning the availability, scope and use of intellectual property rights.

1. Copyright and Related Rights

2. Trademarks

3. Geographical Indications

4. Industrial Designs

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 Intellectual Property Rights

1. General Obligations

2. Civil and Administrative Procedures and Remedies

3. Provisional Measures

4. Special Requirements Related to Border Measures

5. Criminal Procedures

PART IV Acquisition and Maintenance of Intellectual Property Rights and Related Inter-Partes Procedures

Part v dispute prevention and settlement, part vi transitional arrangements, part vii institutional arrangements; final provisions.

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TRIPS Agreement

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First Online: 01 January 2019
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Daniel Gervais 5

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The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was negotiated between 1986 and 1994 during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), which led to the establishment of the World Trade Organization (WTO). The TRIPS Agreement sets minimum levels of several types of intellectual property (IP) protection, including copyright, trademarks, patents, industrial design, and trade secrets protection. Membership in the WTO includes an obligation to comply with the TRIPS Agreement. According to the WTO, the Agreement attempts to strike a balance between long-term social benefits to society of increased innovations and short-term costs to society from the lack of access to inventions (World Trade Organization (n.d.) Intellectual property: protection and enforcement. Retrieved from understanding the WTO: the agreements: http://wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm ).

This entry considers this balance by looking at the two poles of intellectual property policy: providing incentives to increase innovation and optimizing access to inventions both for consumptive use and for potentially innovation-increasing experimentation. This entry also surveys the notion of calibration , the idea that every country or region should adapt its regulatory framework to reflect its own strengths and weaknesses in optimizing what one might refer to as its innovation policy. A calibration approach suggests that providing innovation incentives and optimizing access are not mutually exclusive objectives.

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Gervais, D. (2019). TRIPS Agreement. In: Marciano, A., Ramello, G.B. (eds) Encyclopedia of Law and Economics. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-7753-2_563

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28 Jun 2020 Working Papers Van den Bossche, Peter L.H.

The TRIPS Agreement and WTO Dispute Settlement: Past, Present and Future

WTI Working Paper No. 02/2020 by Peter Van den Bossche

In 2020, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’) marked its 25th anniversary. There was, however, little reason for celebration. The COVID-19 pandemic had plunged the world economy in an unprecedented crisis. In April 2020, the IMF predicted that global GDP would contract by as much as 3 per cent in 2020, and the WTO forecasted that the volume of world trade would decline in 2020 between 13 and 32 per cent depending on the how long the health crisis would last and how governments would respond to the economic impact of the crisis. Even the decline under the best-case ‘13 per cent’ scenario would still be the steepest decline on record. However, global trade and the multilateral trading system, of which the TRIPS Agreement is one of the pillars, was in crisis already before any of us had heard of the new corona virus or considered ‘social distancing’ a civil duty (rather than deviant behavior). Global trade in goods declined in 2019 by 3 per cent in value terms and global trade in commercial services grew by a paltry 2 per cent only.

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The Arguments For and Against the TRIPS Agreement

Following the culmination of the Uruguay Round of trade talks, the World Trade Organisation entered into existence on 1 January 1995. Alongside agreements on goods (GATT) and services (GATS), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) forms one of the three pillars of the new multilateral trading system (WTO, 2008: 24). While it represents the first comprehensive and enforceable global agreement on Intellectual Property Rights (IPRs), it has since its inception been the subject of much criticism (Sell & Prakash, 2004). This paper outlines the main arguments both for and against TRIPS, and in so doing provides a sceptical assessment of its legitimacy and effectiveness. It begins, firstly, with the principal arguments in favour of TRIPS, before critically examining the recent history of the agreement and IPRs more generally. The paper then moves on to discuss the impact of TRIPS on economic development, and concludes that criticism of the agreement is broadly persuasive.

The WTO position

The standard line in support of TRIPS stems from recognition of the contemporary significance of the knowledge economy, and private intellectual property (IP) as a major component of international trade (WTO, 2008: 39). Disagreements over, and absence of, IPR protection constitute significant non-tariff barriers to trade, and TRIPS is the result of the need for a robust multilateral framework to replace what was an ineffective patchwork of pre-existing IPR agreements[i] (Matthews, 2002: 10-12). For the first time, therefore, TRIPS has put in place a global minimum standard of IP protection that all WTO members must adhere to. This covers copyrights, trademarks, industrial designs, geographical indications, patents, integrated circuit designs, trade secrets, and anti-competitive contract restrictions. Like other WTO agreements, it applies the fundamental principles of non-discrimination – most-favoured-nation treatment (no discrimination between trading partners) and national treatment (giving foreigners the same treatment domestically as one’s own nationals).

Various wider benefits to society are said to accrue from the imposition of temporary monopolies and other limitations that result from private IPRs (WTO, 2008: 39; CIPR, 2002: 14-18). By instituting legal protection – tackling piracy and counterfeiting – the disclosure of new knowledge and creativity is encouraged, and the significant costs associated with the creative process (such as with research and development) can therefore be recouped and remuneration earned. Innovation is thus both rewarded and further promoted. The scope and reliability offered by a global IPR regime should not only stimulate domestic innovation, but the security offered to developed world patent holders and others can also encourage foreign direct investment, technology transfer and licensing, and the diffusion of knowledge to the developing world (Matthews, 2002: 108-111). TRIPS is therefore able to play a significant role in the overall promotion of trade and economic development.

The agreement also takes care to recognise the differing position of member states vis-à-vis their relative economic status, administrative capabilities, and technological base. As per other WTO agreements, developing countries were afforded special and differential treatment as detailed in Part VI of the agreement under ‘transitional arrangements’. While developed countries had to ensure compliance by 1 January 1996, developing and post-communist countries were instead allocated a further four years to achieve this (with another five years granted for new patents products). Under Article 66.1, least-developed countries (LDCs) were given until 2006 to enact TRIPS, with the possibility of further extensions; the 2001 Doha Declaration on TRIPS and Public Health has also subsequently allowed a further ten years for pharmaceutical products for LDCs (WTO, 2001). Article 66.2 meanwhile explicitly encourages technology transfer from developed states to the LDCs so as to assist in the establishment of a viable technological base, and Article 67 obliges developed countries to provide technical and financial assistance to facilitate implementation of the agreement.

A further advantage inherent within TRIPS is the ‘flexibility’ offered to all members in interpreting various articles of the agreement (Vandoren, 2001). Article 27.3, for example, allows members to exclude certain inventions and subject matter from patentability, and permits the protection of others – such as plant varieties – through compatible sui generis systems. The Doha Declaration reiterated that developing countries have the right to grant compulsory licences or allow parallel importing for pharmaceutical products under Article 31 to tackle ‘national emergencies or other circumstances of extreme urgency’ – and that public health crises such as HIV/AIDS , malaria, and other epidemics can be declared as such (WTO, 2001).

Crucially, TRIPS also represents a significant improvement on previous IPR agreements in having considerable monitoring, enforcement, and dispute settlement capabilities (Matthews, 2002: 79-95). A TRIPS Council – comprising all WTO members – reviews national legislation and implementation of the agreement. Should serious disputes occur, any member may ultimately bring a case to the WTO’s Dispute Settlement Body, which has the power to issue punitive trade sanctions to ensure compliance. Successful cases launched by Ecuador and Brazil show that the dispute resolution mechanism works for both developed and developing countries alike (MIP, 2010). TRIPS is therefore seen by its supporters as representing an enforceable global system of IPR protection that plays an essential role in the modern global information society. By rewarding and encouraging innovation, it facilitates international trade, spurs economic growth, and enables technological progress and the dissemination of knowledge, ultimately benefiting both producers and users throughout the developed and developing world.

A critical perspective

Carla Hesse (2002: 26) usefully reminds us, however, that “the concept of intellectual property – the idea that an idea can be owned – is a child of the European Enlightenment”. Unlike physical property, knowledge is generally not rivalrous and can be shared without loss of utility: one person’s contemporaneous use of it does not detract from another’s ability to do so. The institution of intellectual property therefore involves the ‘construction of scarcity’ where none necessarily exists (May & Sell, 2006: 17-20). As noted above, granting of private IP rights is intended to protect and encourage innovation; a balance is consequently to be struck between the private rights of ownership and the public good of shared knowledge, for the broader welfare of society.

The TRIPS agreement is however predicated on a particular conception of intellectual property as an idea, and internationalising this can be problematic. This may be in the narrow sense that different societies afford greater priority to the public good on a variety of issues, and in the broader sense that some forms of ‘traditional knowledge’ (TK) as shared amongst indigenous communities do not conform to the codified Western model of individual and exclusive ownership (Michalopoulos, 2003: 17-18). The recent progress made in biotechnology-based products has notably highlighted this contrast: for Western advocates, modern genetic research aimed at increasing human welfare is entirely respectable ‘bioprospecting’, a form of IP that fits within the TRIPS framework. For indigenous peoples, by way of contrast, the patenting of TK resources such as neem extract[ii] can be seen as a form of ‘biopiracy’, and represents the “disingenuous repackaging of traditional knowledge in order to secure monopoly rents for the biopirate while excluding the original innovator from a claim of these rents” (Isaac & Kerr, 2004). TRIPS, crucially, does not currently provide an agreed interpretation of either what constitutes traditional knowledge, or how it should be protected (CIPR, 2002b: 73-87).

It is also vital to note that the concept of intellectual property as contained within the TRIPS agreement stems from a particular interpretation of IPRs that has developed within the Western tradition over the last few decades alone. Intellectual property was initially highlighted an international issue in the 1960s and 1970s by the G77 group of developing countries, when as part of the push for a New International Economic Order they unsuccessfully sought the dilution of existing IPR protection in order to narrow the technology gap with the developed world (May & Sell, 2006: 155-156). This debate, however, also galvanised various corporate actors in the USA – and to a lesser extent in Europe and Japan – who were becoming increasingly concerned about losses stemming from trade in counterfeit goods.

While pressure from the likes of the chemical, pharmaceutical, and entertainment industries led to a ‘silent revolution’ in stricter IPR protection within the USA from the 1970s onward, corporate lobbyists also sought to move the issue to the global level (Archibugi & Filippetti, 2010). American government policy-makers, concerned about the country’s trade deficit and loss of competitiveness, became increasingly receptive to their lines of argument. International IPRs as based on protection and exclusion, rather than competition and diffusion, were thus promoted as a means of maintaining a comparative advantage in emerging knowledge-based, high-technology sectors of the global economy. Business groups succeeded in placing IP protection on the Uruguay Round agenda, and – through claiming unrivalled expertise in arcane ‘technical’ matters of IP legislation – they managed to play a key role in shaping the terms of the agreement (Matthews, 2002: 7-28).

Developing countries, on the other hand, had little input, although while many were initially sceptical of the proposals, resistance to a deal on TRIPS was gradually overcome (Drahos, 2002). The promise of greater access to agricultural and textile markets, economic coercion via threat of American sanctions, the potential development of restrictive bilateral IPR agreements, and an overall lack of awareness of the content of proposals, all played their part (May & Sell, 2006: 157-158). TRIPS therefore reflected the interests of particular global corporate actors, and it is only through acknowledgement of this that it can be properly understood (Matthews, 2002: 4-5). It is the specific view of intellectual property as promoted by Western transnational corporations, and supported by governments, that became embedded within the agreement. The fine balance between private gain and the public good – the purpose and scope of IPRs – may therefore have been tilted too far toward the former at the expense of the latter, and the consequences of this for how TRIPs functions in spite of its stated objectives are what we now turn to.

TRIPS and development

One of the principal criticisms made of the TRIPS agreement is that it offers an inappropriate uniform standard across a diverse range of states. Developed countries generally already possess suitable levels of IPR protection, and are home to the overwhelming majority of IP rights-holders that stand to benefit from increased protection (Chang, 2001: 23). Most developing countries, on the other hand, may incur significant costs from raising domestic standards to the required level – taking scarce resources away from other crucial sectors – and from the increased payments to be made to developed world rights-holders. A 2001 World Bank report suggested that in the short term TRIPS effectively constitutes an annual $20 billion transfer of wealth from technology-importing developing countries to technology-exporting developed countries (cited in Dutfield & Suthersanen, 2004). Similarly, Philip McCalman (2005) estimates that the beneficiaries of TRIPS are just a handful of developed countries: primarily the USA and various Western European states. Countries from India to Brazil – and even South Korea – meanwhile suffer through their reliance on technology imports. While most countries could still benefit in the long-term, McCalman argues that the advantages will nonetheless be distributed overwhelmingly amongst the leading developed countries. The Commission on Intellectual Property Rights also arrived at similar conclusions in its 2002 report on IPRs and development – assessing the argument that a stronger IPR regime would offset short-term implementation costs over the long-term, they concluded that:

“…for most developing countries with weak technological capacity, the evidence on trade, foreign investment, and growth suggests IP protection will have little impact. Nor is it likely that the benefits of IP protection will outweigh the costs in the foreseeable future. For more technologically advanced developing countries, the balance is finer. Dynamic gains may be achieved through IP protection, but at cost to other industries and consumers.”

(CIPR, 2002a: 12)

The Commission emphasised that developing countries do require different IP strategies as depending on their level of development. Contrary to the claims of TRIPS advocates, “rapid growth is more often associated with weaker IP protection” and does not start to become important until a country is well into upper-middle income category (CIPR, 2002b:22). So, while the WTO may claim to take developing countries needs into account, its emphasis on the need for a single high standard of IPRs appears to run contrary to the historical evidence. Indeed, Ha-Joon Chang observes of Europe and the USA that they themselves were “still routinely violating the IPRs of other countries’ citizens well into the twentieth century” (2001: 10). The flexible use of IP regimes to further economic interests was also successfully adopted by East Asian states such as Korea and Taiwan until very recently, where imitation and reverse-engineering were all considered important methods for developing technological and innovative capacity (CIPR, 2002b: 19-20). Strong IPR protection therefore appears to be a consequence, rather than a cause, of economic development.

The potential social cost of TRIPS for poorer countries has meanwhile been particularly evident over the issue of access to medicines, most notably with regard to antiretroviral drugs (Lanoszka, 2003). Before TRIPS, many countries either did not patent medicines or provided less than the robust 20-year protection subsequently introduced. Contemporary TRIPS rules, however, drive up costs to unaffordable levels by enabling monopoly pricing and excluding cheaper ‘generic’ alternatives. In 2001, by way of example, a group of 39 pharmaceutical companies took the South African government to court to prevent their use of compulsory licensing of generics, although intense public pressure did eventually force them to abandon the case (Sell & Prakash, 2004). However, the incident showed how multinational corporations attempt to use TRIPS to pursue private gain at clear cost to the public good[iii]. While some flexibilities in interpreting the agreement in light of public health concerns have since been established, as mentioned above, they often remain unused owing to cost, complexity, and the threat of trade ‘retaliation’ (O’Farrell, 2008).

The few allowances that are granted to developing countries in the TRIPS agreement can therefore be seen as insufficient, and the numerous limitations far too restrictive. As Constantine Michalopoulos (2003) notes, TRIPS does not actually offer the same range of ‘special and differential treatment’ (SDT) as other WTO agreements. Once the transition periods have expired, developing countries must implement the same rules on scope and duration of protection – regardless of circumstances – as the most advanced developed countries[iv]. Any form of permanent SDT is not an option: LDCs can no longer exempt sectors from protection, or reduce patent duration, as a means of addressing social or economic concerns. The flexibilities within the agreement, as seen above, therefore offer only limited room for manoeuvre.

Robert Wade (2003) suggests that as a result this constitutes a distinct ‘shrinking of the development space’: a reduction in states’ policy-making autonomy that denies them the paths to development that were taken by others before them. Furthermore, the agreement is “vague at points where vagueness benefits the developed countries, and precise at points where precision works against developing countries” (Wade, 2003: 630). The obligations of developing countries and the rights of developed are both enforceable to a far greater extent than the rights of the developing and the obligations of the developed. There is, for example, despite the clearly stated objective of Article 66.2 regarding technology transfer, little evidence of a sustained effort by developed states to honour such commitments (Moon, 2008).

The legitimacy and effectiveness of the TRIPS agreement is clearly vulnerable to numerous criticisms, particularly so with regard to developing countries. It is noteworthy that even prominent free trade advocates such as Martin Wolf (2005: 217) criticise the ‘hypocrisy’ of TRIPS, seeing it as a rent extraction device for many developing countries, with potentially devastating effects on education, public health, and economic development. Even within those countries who appear to gain most from the agreement, the benefits may only accrue to particular sections of society, so that “the real winners from TRIPS are not advanced countries, but rather the large corporations that pressed for its adoption” (Archibugi & Filippetti, 2010: 144). TRIPS has also not provided a solution to policy-makers’ concerns, as trade balances have continued to erode, while the recent emphasis on private rights may even serve to inhibit innovation and the spread of knowledge in developed countries in the long term (Hesse, 2002). While Archibugi & Filippetti (2010) caution against attributing too much importance to TRIPS, it is apparent that the agreement does not function as advertised. From a global perspective, it seems clear that adopting a ‘one-size-fits-all’ approach to IPRs is entirely inappropriate. A tiered system, offering more substantive special and differential treatment according to countries’ developmental needs, would have been more suitable. However, it remains to be seen whether major reform of the agreement is likely, given that TRIPS is now firmly established within the WTO system.

Bibliography

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Botov, I. E. (2004) ‘From the Paris Convention to the TRIPS Agreement: A One-Hundred-and-Twelve-Year Transitional Period for the Industrialized Countries’, Journal of World Intellectual Property , 7, 1, 115-130.

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[i] The main agreements – the Paris and Berne Conventions of 1883 and 1886 respectively – have been subsumed within TRIPS, as have parts of the 1961 Rome Convention and the 1989 Washington Treaty (WTO, 2011).

[ii] Neem is a tree from South Asia whose extract has long been used as a form of natural medicine, pesticide, and fertilizer (CIPR, 2002b: 76)

[iii] As Chang (2001: 15-16) notes, the industry argument that profit through such strict patent protection is critical for innovation remains unconvincing. Scientific curiosity and common humanity are often sufficient motivation, while public funds are often provided to assist private sector research, and profits can also still accrue via ‘natural protective mechanisms’ (e.g. imitation lag and reputational advantage).

[iv] Botov (2004) describes how developed countries had over a century – from the Paris Convention in 1883 to the WTO agreement in 1995 – to fully develop their IPR regimes, and suggests the same latitude should be extended to today’s developing countries.

Written by: Ben Willis Written at: University of Plymouth Written for: Piers Revell Date written: March 2011

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TRADE-RELATED ASPECT INTELLECTUAL PROPERTY RIGHTS (TRIPS) AGREEMENT

by Manish Kumar
July 31, 2023
18 minutes read
9 months ago

Table of Contents

Introduction

In today’s era, the world is becoming familiar with several intellectual inventions which are impacting the relations of one another. The TRIPS agreement, created in 1995 by the WTO, addresses international trade intellectual property rights. This agreement was formed to set standards for protecting and implementing trade rights in different countries. As the TRIPS agreement is an important part of promoting trade, resolving disputes and having fair trade practices.

What is Trade and International Trade?

Trade is the exchange of goods and services between two or more parties. While International Trade means the trade between two independent sovereign nations.

What is Intellectual Property Rights (IPR)?

“Intellectual Property shall include rights relating to literary, artistic, and scientific works, discoveries throughout all areas of human endeavor, scientific advances, industrial design rights, trademarks, service marks, and commercial names and designations, protection against unfair competition,” states Article 2 of the WIPO (World Intellectual Property Organization) – Central Organization for the Protection of Intellectual Property laws and the UN expert organization.

IP is intangible assets of individual mind’s creation. It includes artistic expressions, signs, symbols and names used in commerce, designs and inventions. IPR is legal right given to individual for their creation. The WTO’s TRIPS agreement recognizes the necessity of IP in international market as IPR are valued and exchanged. IP rights give their owners rights to exclude others from making use of their creations only for a limited period. IP rights entitle the owners to receive a royalty or any sort of financial compensation or payment when another person uses their creations [1] .

There are two types of IPR:

Industrial Property

Details of TRIPS and its Agreement

TRIPS originated in the Uruguay Round of GATT trade negotiations, leading to the WTO’s establishment in 1995. It aimed to address concerns about inadequate intellectual property protection and enforcement. TRIPS introduced minimum standards for various forms of IP and sought to balance protection with innovation and fair trade. It also established dispute settlement mechanisms. Additionally, TRIPS shaped global IP norms, influenced domestic laws, and spurred discussions on public health, access to medicines, and traditional knowledge. It is a crucial international framework for IP protection and enforcement.

What is TRIPS?

TRIPS stands for Trade-Related Aspects of Intellectual Property Rights. The TRIPS agreement is a WTO-administered international agreement setting minimum standards for IP protection among member countries. TRIPS covers various forms of IP, including patents, copyrights, trademarks, industrial designs, and trade secrets. Moreover, It aims to establish a balance between protecting IP rights and promoting innovation, technology transfer, and fair international trade. TRIPS also provides a framework for dispute resolution and encourages cooperation among nations in the field of intellectual property. [2]

Before the establishment of the WTO, the leading international agreements under WIPO were the Paris Convention for the Protection of Industrial Property (covering patents, industrial designs, etc.) and the Berne Convention for the Protection of Literary and Artistic Works (covering copyright). However, these agreements did not cover all areas of intellectual property, and in some cases, the prescribed standards of protection were considered insufficient. The TRIPS Agreement was introduced to supplement these existing international standards and significantly enhance the level of intellectual property protection globally.

What is Agreement on TRIPS?

The TRIPS Agreement was established in 1995 as part of the World Trade Organization (WTO) agreement. It sets forth minimum standards for the availability, scope, and use of various forms of intellectual property, including trademarks, copyrights, geographical indications, patents, industrial designs, layout designs for integrated circuits, and undisclosed information or trade secrets. Moreover, It applies to all member states of the WTO and incorporates fundamental international trade principles regarding intellectual property.

One of the key aspects of the TRIPS Agreement is the provision of exceptions and limitations that strike a balance between the interests of intellectual property and those of public health and economic development. Additionally, This agreement plays a significant role in facilitating trade in creativity and knowledge, resolving trade disputes related to intellectual property, and providing WTO members with the flexibility to pursue their domestic policy objectives. It also outlines the importance of innovation, technology transfer, and public welfare within the framework of the intellectual property system.

The administration and monitoring of the TRIPS Agreement is the responsibility of the TRIPS Council. The agreement was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) from 1986 to 1994. It is often referred to as a “Berne and Paris-plus” Agreement, signifying its extension beyond the provisions of the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property. [3]

Issue govern by TRIPS Agreement [4]

Majorly 3 types of issue is governed under this agreement

Standards: Member states must establish minimum criteria for protecting intellectual property rights (IPRs) in each covered category, including subject matter, granted rights, exceptions, and minimum duration of protection.
Enforcement: The Agreement covers domestic enforcement processes and remedies for intellectual property rights, including rules on civil, administrative, and criminal proceedings, provisional measures, border requirements, ensuring effective exercise of right holders’ rights.
Dispute resolution: WTO member disputes on TRIPS Agreement responsibilities are resolved through the WTO’s dispute resolution processes.

Objective and importance of TRIPS

Objective: To promote and defend intellectual property rights to facilitate technology transfer, fair international trade, and innovation. Establish guidelines, enforce procedures, support developing nations, encourage global cooperation, and balance IP protection with public interests and economic development. [5]

Importance: The TRIPS Agreement, a treaty among WTO member countries, aims to safeguard intellectual property rights by setting minimum standards of protection. It encourages innovation, economic growth, and job creation while providing a legal framework for enforcement and combating piracy. It promotes a level playing field for international trade in intellectual property rights, benefiting all WTO members. [6]

Parts of TRIPS Agreement

PART I GENERAL PROVISIONS AND BASIC PRINCIPLES:- Deals with Article 1 to 8
PART II STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS:- Deals with Article 9 to 40
PART III ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS:- Deals with Article 41 to 61
PART IV ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED INTER-PARTES PROCEDURES:- Deals with Article 62
PART V DISPUTE PREVENTION AND SETTLEMENT:- Deals with Article 63 to 64
PART VI TRANSITIONAL ARRANGEMENTS:- Deals with Article 65 to 67
PART VII INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS:- Deals with Article 68 to 73. [7]

General provisions and basic principles

Articles 3, 4, and 5 of the TRIPS Agreement outline the essential principles of national and most-favored-nation treatment for foreign individuals and entities in relation to intellectual property. These principles cover all aspects of intellectual property protection, including standards, availability, acquisition, scope, maintenance, enforcement, and use. The national treatment provision prohibits discrimination between a member’s own nationals and those of other members, while the most-favored-nation treatment clause prohibits discrimination between nationals of different members.

TRIPS allows for the same exclusions permitted under the pre-existing WIPO intellectual property treaties in terms of national treatment commitments. Governments also have the authority to enact legislation to prevent IPR abuse or challenge practices that unjustly restrict commerce or hinder the international transfer of technology, in accordance with the provisions of the Agreement. [8] [9]

Kinds of IP

Part 2 (“STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS”) of “AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS” contains all the kinds of IP.

They are as follows: [10] [11]

Section 1:- Copyright and Related Rights (Article 9 to 14)

According to the Agreement, copyright protection applies to various forms of creative works, including literary, musical, dramatic, photographic, sculptural, architectural, choreographic, graphic, motion picture, sound recording, multimedia works, and computer programs. The copyright owner has the exclusive rights to control the reproduction, distribution, derivative works, performance, exhibition, and utilization of the copyrighted work for a certain period of time. Copyright protection is based on originality rather than innovation, meaning the work must be created by the copyright owner or claimant, but it does not necessarily have to be groundbreaking or innovative.

The Berne Convention extends copyright protection to computer programs in both source and object code. Compilations of data in various formats, protected due to the selection or arrangement of their contents, are also recognized as creative works. Authors of computer programs and cinematographic works have the right to control the commercial rental of original or copied works to the public. However, member governments have the authority to revoke rental rights if it leads to widespread copying that threatens the uniqueness of the work. The minimum term of copyright protection is not less than 50 years, as stated in Article 12 of the Agreement.

Section 2:- Trademarks (Article 15 to 21)

Article 15 of the Agreement states that any sign or combination of signs capable of distinguishing the products or services of one undertaking from those of others is eligible for trademark registration, as long as it is perceptible. This includes words, characters, digits, figurative elements, color combinations, and any combinations thereof. Article 16 grants the trademark owner exclusive rights to prevent third parties from using similar or identical signs for goods or services that are similar to those covered by the registered trademark.

Section 3:- Geographical Indications (Article 22 to 24)

Article 22 of the Agreement recognizes geographical indications as designations that identify a good as originating from a specific territory or region. The quality, reputation, or unique characteristics of the product are primarily attributed to its geographical origin. Geographical indications have traditionally been associated with goods produced in specific territories. They serve as reliable indicators of the product’s qualities, and their significance is comparable to trademarks, warranting legal protection.

Section 4:- Industrial Designs (Articles 25 to 26)

Articles 25 and 26 of the TRIPS Agreement require member states to provide protection for original and distinctive industrial designs. The Agreement, building upon the principles of the Paris Convention, sets a minimum duration of 10 years for the protection of industrial designs. When commercial activities are involved, the rights holder has the authority to prohibit third parties from producing, importing, or selling products that incorporate the protected design without the holder’s consent. The TRIPS Agreement expands upon the scope of protection provided by the Paris Convention, offering stronger safeguards for industrial designs.

Section 5:- Patents (Articles 27 to 34)

Article 27 of the TRIPS Agreement establishes patents as intellectual property rights granted to inventors, enabling them to prevent others from creating, using, selling, or importing the patented invention within a designated region for a specified period. However, patentability is subject to three exceptions. Firstly, inventions contrary to public health, animal or plant life, or the environment are excluded. Secondly, diagnostic, medicinal, and surgical procedures for human and animal treatment may be excluded from patentability.

The standard term of patent protection is 20 years from the filing date, with member nations having the flexibility to provide limited exemptions to exclusive patent rights under Article 21. These exemptions should not unreasonably prejudice the legitimate interests of patent owners or conflict with the normal exploitation of the patent, while considering the legitimate interests of third parties. Additionally, Article 29 requires patent applications to disclose the invention in a clear and complete manner that enables a person skilled in the relevant field to carry it out.

Article 31 permits a member government to issue a compulsory license for medicines without the patentee’s consent in certain circumstances. This provision ensures access to essential medications, subject to specific requirements.

Section 6:- Layout-Designs (Topographies) of Integrated Circuits (Article 35 to 38)

Article 36 of the TRIPS Agreement prohibits importing, selling, or distributing secured layout designs, integrated circuits containing secured layout designs, or articles incorporating such circuits for commercial purposes. This intellectual property sector guarantees protection for layout designs for a minimum of ten years from the date of filing an application. However, member countries have the option to limit the duration of protection to fifteen years from the date of the layout design’s creation, as stated in Article 37. This provision allows flexibility for member nations to determine the specific length of protection for layout designs within the provided range.

Section 7:- Protection of Undisclosed Information (Article 39)

Article 39 of the TRIPS Agreement protects trade secrets, which refer to undisclosed information. Member states must provide trade secret protection in line with the Agreement’s provisions. TRIPS stipulates that countries should enact national laws to prevent the unauthorized disclosure, acquisition, or use of trade secrets by third parties without the consent of the rightful owner, in a manner inconsistent with fair trade practices. To qualify for protection, the information must be confidential, possess commercial value due to its confidentiality, and have been subject to reasonable measures to maintain its secrecy. The TRIPS Agreement recognizes the importance of safeguarding trade secrets and encourages member countries to establish legal frameworks that effectively protect such valuable undisclosed information.

Section 8:- Control of Anti-Competitive Practices in Contractual Licenses (Article 40)

The members of the TRIPS Agreement recognize that certain licensing arrangements or restrictions related to intellectual property rights (IPR) can hinder competition, trade, and the transfer of technology. To address this concern, the Agreement includes provisions allowing governments to engage in discussions when there is an infringement of IPR that negatively affects competition. In specific cases, the TRIPS Agreement provides flexibility by waiving certain requirements typically needed for issuing a compulsory license for a patent. For instance, a compulsory license may be granted by the government to remedy an anti-competitive practice.

These provisions reflect the recognition that striking a balance between intellectual property rights and competition is crucial for promoting innovation, technology dissemination, and fair trade. The TRIPS Agreement allows exceptions in cases of anti-competitive behavior to prevent intellectual property rights misuse that hinders market competition or technology transfer. This approach encourages a more balanced and inclusive intellectual property framework that promotes both innovation and fair market practices.

Enforcement

Part 3(ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS) of “AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS” contains the enforcement. The TRIPS Agreement mandates that governments ensure the effective enforcement of intellectual property rights (IPR) to prevent or deter infringement. Enforcement methods should be fair, equitable, and not excessively burdensome or costly. Unreasonable deadlines or unwarranted delays should not be imposed. Moreover, Individuals should have the right to seek judicial review, challenge administrative decisions, or appeal lower court judgments.

The Agreement provides detailed provisions for defending IPR, including requirements for evidence gathering, interim measures, injunctions, damages, and other penalties. It stipulates that courts should have the authority to order the disposal or destruction of infringing objects in specific circumstances. Treating willful trademark counterfeiting or commercial-scale copyright infringement as a criminal offense is necessary. Governments must also ensure that rights holders receive assistance from customs authorities to prevent the importation of counterfeit and pirated goods. These provisions aim to establish robust mechanisms for the protection and enforcement of IPR in a manner that upholds fairness and safeguards against infringement. [12] [13]

TRANSITIONAL ARRANGEMENTS

PART 6 (TRANSITIONAL ARRANGEMENTS) of “AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS” says that the TRIPS Agreement allowed for varying transition periods during which member countries could delay the implementation of its provisions. The timeframes were set from January 1, 1995 (Agreement’s entry into force) until implementation in each country. The main transition periods were as follows:

Developed countries had a one-year transition period, ending on January 1, 1996, following the entry into force of the WTO Agreement.
The TRIPS provisions, excluding Articles 3, 4, and 5 that cover non-discrimination principles, granted developing countries an additional four years until January 1, 2000, to implement.
Transition economies, countries transitioning from centrally planned to market economies, could also benefit from the same extension until January 1, 2000, provided they met specific additional criteria.
Least-developed countries were granted an extended transition period until January 1, 2006, with the potential for additional extensions. They have extended the transition period three times, and it currently continues until July 1, 2034, or until a member no longer qualifies as a Least Developed Country (LDC), whichever comes first.

These transition periods aimed to allow countries time to adjust their laws and institutions to comply with the TRIPS Agreement, taking into account the varying levels of development and capacity among member nations. [14] [15]

Institutional arrangements

Part 7(INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS) of “AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS”:-

Article 68 of the TRIPS Agreement establishes the TRIPS Council as the governing body responsible for the administration and implementation of the Agreement. Moreover, The TRIPS Council oversees members’ compliance with their obligations under the Agreement and provides a platform for consultation on trade-related aspects of intellectual property rights.

The TRIPS Council fulfills any additional duties delegated to it by the members, which may include providing assistance requested by members in the context of dispute resolution procedures. Moreover, It has the authority to consult with and gather information from any relevant source it deems necessary to carry out its responsibilities.

The TRIPS Council plays a crucial role in ensuring the effective implementation and enforcement of intellectual property rights within the framework of the TRIPS Agreement. It serves as a forum for discussions, cooperation, and information exchange among member countries on matters related to intellectual property rights and their impact on international trade. [16] [17]

Pros and cons of TRIPS Agreement

TRIPS encourage R&D, innovation, and equitable global trade while attracting investment. It facilitates technology transfer, provides legal certainty, and supports access to medicines. TRIPS also safeguards traditional knowledge and promote international cooperation in intellectual property. It enhances IP policy transparency, strengthens WIPO’s legal system, reduces trade conflicts, and promotes patent applications in developing countries. [18] [19]

TRIPS establish requirements for patent protection, which can have both positive and negative impacts. While it strengthens patent protection, it can lead to increased prices, potential deadweight losses, and limited stimulation of local innovation. Some industries, such as fertilizers, insecticides, pharmaceuticals, and procedures, previously benefited from the absence of patent protection, resulting in low-cost food and drugs. Lack of copyright protection for informational products fostered education and technology transfer. However, TRIPS does not provide explicit protection for traditional knowledge. [20]

Analysis

The TRIPS Agreement, while imposing essential obligations on member nations to protect intellectual property rights, has had significant implications for developing countries. The stringent intellectual property restrictions often hinder the growth of indigenous enterprises in these regions. Implementing intellectual property rights in developing nations must be cautious to prevent negative impacts on the economy and public health.

The consequences of the patent protection regime, for instance, can have a discouraging effect on the development of local sectors, such as pharmaceuticals. It is crucial to ensure that intellectual property rights are not used to impede the interests of developing nations, especially in areas like public health where harm is already prevalent. Consequently, there is a need for a re-evaluation of the implementation of intellectual property rights, with effective and strict enforcement of exceptions when required.

The TRIPS Agreement has had a noticeable impact on intellectual property rights protection in poor nations, but its effect on developed countries has been less discernible. This is due to the fact that the TRIPS requirements were designed to align as closely as possible with the existing intellectual property protection systems in many developed nations. Therefore, compliance with the TRIPS Agreement did not necessitate significant policy changes in developed countries. Additionally, developed nations that heavily rely on exports to countries advocating for the inclusion of TRIPS in the WTO may consider the potential for retaliatory trade penalties seriously, as they stand to lose substantial export revenues. This demonstrates the effectiveness of the TRIPS Agreement as a coercive tool in international economic negotiations.

Many criticisms have questioned the TRIPS Agreement’s validity and efficacy, particularly its impact on developing nations. Even proponents of free trade, such as Martin Wolf, have criticized TRIPS as hypocritical, perceiving it as a rent-seeking mechanism that could have detrimental consequences for education, public health, and economic growth in many poor nations. Some argue that major corporations, not developed countries, are the actual beneficiaries of TRIPS due to their advocacy for adoption. TRIPS has also failed to address policymakers’ concerns, as trade imbalances have continued to worsen, and the current emphasis on private rights may hinder innovation and knowledge dissemination in developed nations in the long run.

While cautioning against misrepresenting the impact of TRIPS, it is evident that the agreement has not functioned as intended. A tiered structure providing meaningful special treatment based on developmental needs would have been more beneficial. Major revisions to TRIPS for the benefit of developing nations are uncertain due to its entrenched position within the WTO.

TRIPS mandates robust intellectual property rights protection among its member states. It encompasses copyright rights for authors, performers, sound recording producers, and broadcasting organizations. It covers geographical indications, industrial designs, integrated circuit layout designs, patents, plant varieties, trademarks, trade names, as well as confidential information. TRIPS includes provisions for enforcement procedures, remedies, and dispute-resolution mechanisms. Additionally, it incorporates a most favored nation (MFN) clause, ensuring equal treatment among member states.

The TRIPS Agreement is indeed a crucial component of the global intellectual property protection system. Moreover, It establishes a standardized framework to enforce and protect intellectual property rights, promoting fairness and international trade. The TRIPS Agreement harmonizes global intellectual property laws, fostering robust protection and enforcement of these rights.

To read related articles click here

[1] https://byjus.com/free-ias-prep/trade-related-aspects-of-intellectual-property-rights-trips/

[2] https://www.wto.org/english/docs_e/legal_e/27-trips_03_e.htm

[3] https://byjus.com/free-ias-prep/trade-related-aspects-of-intellectual-property-rights-trips/

[4] https://blog.ipleaders.in/all-you-need-to-know-about-the-trips-agreement/#What_is_the_TRIPS_Agreement_about

[5] https://testbook.com/ias-preparation/trips-agreement

[6] https://testbook.com/ias-preparation/trips-agreement

[7] https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[8] https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[9] https://blog.ipleaders.in/all-you-need-to-know-about-the-trips-agreement/#Advantages_of_the_TRIPS_Agreement

[10] https://blog.ipleaders.in/all-you-need-to-know-about-the-trips-agreement/#Advantages_of_the_TRIPS_Agreement

[11] https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[12] https://blog.ipleaders.in/all-you-need-to-know-about-the-trips-agreement/#Advantages_of_the_TRIPS_Agreement

[13] https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[14] https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[15] https://blog.ipleaders.in/all-you-need-to-know-about-the-trips-agreement/#Advantages_of_the_TRIPS_Agreement

[16] https://blog.ipleaders.in/all-you-need-to-know-about-the-trips-agreement/#Advantages_of_the_TRIPS_Agreement

[17] https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[18] https://blog.ipleaders.in/all-you-need-to-know-about-the-trips-agreement/#Advantages_of_the_TRIPS_Agreement

[19] https://testbook.com/ias-preparation/trips-agreement

[20] https://blog.ipleaders.in/all-you-need-to-know-about-the-trips-agreement/#Advantages_of_the_TRIPS_Agreement

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Trade Related Aspects Of Intellectual Property Rights Trips

Trade Related Aspects of Intellectual Property Rights (TRIPS)

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is in the news now because of the recent US decision to support the temporary waiver of patent rules for the coronavirus vaccines. This is an important topic from multiple perspectives for the UPSC exam including economy, international relations, current affairs, etc.

TRIPS Agreement

Trade Related Aspects of Intellectual Property Right (TRIPS) is an agreement on international IP rights.

TRIPS came into force in 1995, as part of the agreement that established the World Trade Organisation (WTO) .
TRIPS establishes minimum standards for the availability, scope, and use of seven forms of intellectual property namely, trademarks, copyrights, geographical indications, patents, industrial designs, layout designs for integrated circuits, and undisclosed information or trade secrets.
It applies basic international trade principles regarding intellectual property to member states.
It is applicable to all WTO members.
TRIPS Agreement lays down the permissible exceptions and limitations for balancing the interests of intellectual property with the interests of public health and economic development.
TRIPS is the most comprehensive international agreement on IP and it has a major role in enabling trade in creativity and knowledge, in resolving trade disputes over intellectual property, and in assuring WTO members the latitude to achieve their domestic policy objectives.
It frames the IP system in terms of innovation, technology transfer and public welfare.
The TRIPS Council is responsible for administering and monitoring the operation of the TRIPS Agreement.
TRIPS was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1986–1994.
The TRIPS Agreement is also described as a “Berne and Paris-plus” Agreement.

Read about other WTO Agreements in the link.

What are Intellectual Property Rights?

Intellectual property rights are the rights given to persons over the creations of their minds. Intellectual property rights (IPRs) are legal rights that protect these creations. In contrast to rights over tangible property, IP rights give their owners rights to exclude others from making use of their creations only for a limited period. IP rights entitle the owners to receive a royalty or any sort of financial compensation or payment when another person uses their creations.

What is Intellectual Property?

“Intellectual property” refers to creations of the mind. These creations can take many different forms, such as artistic expressions, signs, symbols and names used in commerce, designs and inventions.

IP rights are generally classified into two categories:

Copyright and rights related to copyright: This rights relates to rights protecting art works, literary works, computer programmes, films, musical compositions, sculptures, paintings, etc. Related rights also include rights of performers, broadcasting organisations, and producers of phonograms (sound recordings). The main purpose of protection of copyright and related rights is to encourage and reward creative work.
The protection of distinctive signs, especially trademarks (which differentiate the goods or services of one organisation/establishment from those of other undertakings) and geographical indications. These rights are aimed at protecting and ensuring fair competition consumer protection.
The second type of industrial property rights are protected primarily to stimulate innovation, design and the creation of technology. These rights protect innovations by patents, trade secrets and industrial designs.

Read more on intellectual property rights in the linked article.

TRIPS Significance

The TRIPS Agreement makes protection of intellectual property rights an integral part of the multilateral trading system, as embodied in the WTO. The agreement is often termed one of the three “pillars” of the WTO, the other two being trade in goods (the traditional domain of the GATT) and trade in services.

Before TRIPS, the extent of protection and enforcement of IP rights varied widely across nations and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. Therefore, it was considered prudent to have new trade rules for IP rights in order to have more order and predictability, and also to settle disputes in an orderly manner.

TRIPS Agreement Latest News

In view of the COVID-19 pandemic, India and South Africa had proposed to the WTO in October 2020 that the TRIPS Agreement (that included patent protection to pharmaceutical products including COVID vaccines) be waived off for COVID vaccines, medicines and diagnostics for the time period of the pandemic in order to make vaccines and drugs for COVID available to a maximum number of people worldwide.

If the vaccines are patent protected, only a few pharmaceutical companies from developed western countries would be able to manufacture it, making such drugs unavailable or inaccessible due to the high costs to people of other countries, especially, developing and least developed countries.

The US, which was opposed to any TRIPS waiver, has backed this proposal, along with the EU. This move has been welcomed by many since it might lead to the manufacture of more volumes of COVID vaccines enabling the whole world to get rid of the coronavirus at the earliest. However, pharmaceutical companies have protested the move saying this would not necessarily ensure vaccine availability since developing countries did not have the capability to produce the vaccines.

Arguments in favour of relaxing TRIPS rules

This would make the vaccines more available to people of developing countries and also LDCs.
Life-saving drugs and vaccines should be made available to everyone and pharmaceutical companies should not be looking to make profits out of these. There is an ethical and moral issue here.
With particular reference to the COVID-19 pandemic, it is said that no one is safe unless everyone is safe. In this respect, it is imperative that vaccines are made available to everyone in countries affected since it can easily spread to all countries as seen in the first wave.
Rules granting monopolies that place the right to access basic healthcare in a position of constant peril must end.

Arguments made by opponents of TRIPS waiver

Unless corporations are rewarded for their inventions, they would be unable to recoup amounts invested by them in research and development.
Without the right to monopolise production there will be no incentive to innovate.
They also claim that companies in the developing world do not have the capacity to manufacture vaccines or drugs on a large scale.

Just a waiver of the IP rights rules without further assistance such as technology transfer to generic pharmaceutical companies in developing countries would render the move useless. This is because there would also necessitate tech transfer for the pharmaceutical companies to start the production since vaccines like the mRNA vaccines require highly sophisticated manufacturing equipment. Not only technology and equipment, raw materials and probably personnel would also need to be transferred for developing countries to be able to produce vaccines on a large scale.

It could also take several years before the generic pharmaceutical companies’ plants become operational at optimal capacity and produce vaccines, which is a problem because it is doubted whether vaccines produced today would be effective against any new strain of the virus.

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WTO TRIPS Council: India and South Africa submit draft decision text on a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19.

On Friday, 2 October 2020, the World Trade Organization (WTO) published a joint submission by India and South Africa on a draft decision text to the WTO TRIPS Council on a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19. On Tuesday, 6 October 2020, the WTO published a corrigendum (IP/C/W/669/Corr.1 ) with the following information:

The following corrigendum is circulated following a request from the co-sponsors received on 6 October 2020: In paragraph 4 on page 1, the second sentence should read as follows: 4. […] As at 1 October 2020, there were about 33,722,075 confirmed cases globally with 1,009,270 confirmed deaths.

In their communication, IP/C/W/669 , India and South Africa presented the following request:

In these exceptional circumstances, we request that the Council for TRIPS recommends, as early as possible, to the General Council a waiver from the implementation, application and enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement in relation to prevention, containment or treatment of COVID-19.

In terms of the duration of the waiver, India and South Africa frame their request in the following manner. The waiver would apply to all WTO members but would not prejudice “the right of least developed country Members under paragraph 1 of Article 66 of the TRIPS Agreement.”

The waiver should continue until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity hence we propose an initial duration of [x] years from the date of the adoption of the waiver.

Section 1 of part II of the TRIPS Agreement pertains to copyright and related rights; section 4 deals with industrial designs. Section 5 of part II of the TRIPS Agreement pertains to patents; section 7 deals with the protection of undisclosed information.

The joint submission by India and South Africa is a timely initiative to recalibrate the architecture of the WTO TRIPS Agreement to respond to the COVID-19 pandemic. This ambitious proposal, if accepted by WTO membership, would facilitate deep technology transfer for effective COVID-19-related vaccines, therapeutics or diagnostic tests as the joint submission covers patents, copyright, industrial designs, and undisclosed information including know-how and trade secrets.

The next session of the TRIPS Council will take place on 15 October 2020 to 16 October 2020. It remains to be seen how other WTO members including Canada, the European Union, Japan, Switzerland, the United Kingdom, and the United States of America respond.

India and South Africa provided the following rationale for their request for a TRIPS waiver.

The World Trade Organization (WTO) has cautioned that the “pandemic represents an unprecedented disruption to the global economy and world trade, as production and consumption are scaled back across the globe”. We have witnessed a break down in global supply chains coupled with growing supply-demand gaps. Given this present context of global emergency, it is important for WTO Members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19. The COVID-19 pandemic is now widespread, affecting most WTO Members. As at 1 October 2020, there were about 33,722,075 confirmed cases globally with 1,009,270 confirmed deaths. To date, there is no vaccine or medicine to effectively prevent or treat COVID-19. All WTO Members are struggling to contain the spread of the pandemic and provide health care services to those affected. Many developed, developing and least developed countries have declared a national emergency with the aim to curb the growing outbreak, and as advised by the WHO implemented social distancing measures with significant consequences for society and the economy. Notably, developing countries and least developed countries are especially disproportionately impacted. An effective response to COVID-19 pandemic requires rapid access to affordable medical products including diagnostic kits, medical masks, other personal protective equipment and ventilators, as well as vaccines and medicines for the prevention and treatment of patients in dire need.

The joint WTO submission details the acute shortages of COVID-19 health technologies faced by many countries.

The outbreak has led to a swift increase in global demand with many countries facing acute shortages, constraining the ability to effectively respond to the outbreak. Shortages of these products has put the lives of health and other essential workers at risk and led to many avoidable deaths. It is also threatening to prolong the COVID-19 pandemic. The longer the current global crisis persist, the greater the socio-economic fallout, making it imperative and urgent to collaborate internationally to rapidly contain the outbreak. As new diagnostics, therapeutics and vaccines for COVID-19 are developed, there are significant concerns, how these will be made available promptly, in sufficient quantities and at affordable price to meet global demand. Critical shortages in medical products have also put at grave risk patients suffering from other communicable and non-communicable diseases. To meet the growing supply-demand gap, several countries have initiated domestic production of medical products and/or are modifying existing medical products for the treatment of COVID-19 patients. The rapid scaling up of manufacturing globally is an obvious crucial solution to address the timely availability and affordability of medical products to all countries in need.

In relation to intellectual property, India and South Africa make it clear that the joint submission encompasses more than just patents.

There are several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients. It is also reported that some WTO Members have carried out urgent legal amendments to their national patent laws to expedite the process of issuing compulsory/government use licenses. Beyond patents, other intellectual property rights may also pose a barrier, with limited options to overcome those barriers. In addition, many countries especially developing countries may face institutional and legal difficulties when using flexibilities available in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). A particular concern for countries with insufficient or no manufacturing capacity are the requirements of Article 31bis and consequently the cumbersome and lengthy process for the import and export of pharmaceutical products. Internationally, there is an urgent call for global solidarity, and the unhindered global sharing of technology and know-how in order that rapid responses for the handling of COVID-19 can be put in place on a real time basis.

The draft decision text follows.

DRAFT DECISION TEXT

WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19

The General Council

Having regard to paragraphs 1, 3 and 4 of Article IX of the Marrakesh Agreement Establishing the World Trade Organization (“the WTO Agreement”);

Conducting the functions of the Ministerial Conference in the interval between meetings pursuant to paragraph 2 of Article IV of the WTO Agreement;

Noting that the coronavirus disease 2019 (COVID-19) is a new infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2);

Recalling that on 11th March 2020, the World Health Organization (WHO) declared the 2019–20 coronavirus outbreak to be a pandemic, and it continues to be a very high risk across the globe in all WTO Members;

Noting with concern the threat to human health, safety and well-being caused by the COVID-19 pandemic, which has spread all around the globe, as well as the unprecedented and multifaceted effects of the pandemic, including the severe disruption to societies, economies, global trade and travel and the devastating impact on the livelihoods of people;

Recognising the need for unimpeded and timely access to affordable medical products including diagnostic kits, vaccines, medicines, personal protective equipment and ventilators for a rapid and effective response to the COVID-19 pandemic;

Recognizing also that the COVID-19 global pandemic requires a global response based on unity, solidarity and multilateral cooperation;

Noting that, in the light of the foregoing, exceptional circumstances exist justifying waivers from the obligations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement);

Decides as follows:

1. The obligations of Members to implement or apply Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement or to enforce these Sections under Part III of the TRIPS Agreement, shall be waived in relation to prevention, containment or treatment of COVID-19, for [X] years from the decision of the General Council.

2. The waiver in paragraph 1 shall not apply to the protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations under Article 14 of the TRIPS Agreement.

3. This decision is without prejudice to the right of least developed country Members under paragraph 1 of Article 66 of the TRIPS Agreement.

4. This waiver shall be reviewed by the General Council not later than one year after it is granted, and thereafter annually until the waiver terminates, in accordance with the provisions of paragraph 4 of Article IX of the WTO Agreement.

5. Members shall not challenge any measures taken in conformity with the provision of the waivers contained in this Decision under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994, or through the WTO’s Dispute Settlement Mechanism.

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Agreement on Trade-Related Aspects of Intellectual Property Rights (unamended)

PART I General Provisions and Basic Principles

PART III Enforcement of Intellectual Property Rights

PART IV Acquisition and Maintenance of Intellectual Property Rights and Related Inter-Partes Procedures

TRIPS Agreement

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TRADE-RELATED ASPECT INTELLECTUAL PROPERTY RIGHTS (TRIPS) AGREEMENT

Introduction

What is Trade and International Trade?

What is Intellectual Property Rights (IPR)?

What is TRIPS?

What is Agreement on TRIPS?

Issue govern by TRIPS Agreement [4]

Objective and importance of TRIPS

Parts of TRIPS Agreement

General provisions and basic principles

Kinds of IP

Section 1:- Copyright and Related Rights (Article 9 to 14)

Section 2:- Trademarks (Article 15 to 21)

Section 3:- Geographical Indications (Article 22 to 24)

Section 4:- Industrial Designs (Articles 25 to 26)

Section 5:- Patents (Articles 27 to 34)

Section 6:- Layout-Designs (Topographies) of Integrated Circuits (Article 35 to 38)

Section 7:- Protection of Undisclosed Information (Article 39)

Section 8:- Control of Anti-Competitive Practices in Contractual Licenses (Article 40)

Enforcement

TRANSITIONAL ARRANGEMENTS

Institutional arrangements

Pros and cons of TRIPS Agreement

Analysis

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WTO TRIPS Council: India and South Africa submit draft decision text on a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19.

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