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WIPO National Workshop onIntellectual Property for Diplomats

Sana’a, Republic of Yemen20-21 March 2007

The TRIPS Agreement

- Overview -

Roger Kampf

WTO Secretariat

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Structure of the Presentation

• Basic IPR Concepts and Principles• TRIPS Negotiating Background• Overview of the TRIPS Agreement• IP under Doha Work Programme• TRIPS Council:

– Structure– Current work

• Cooperation With Other IGOs• Role of FTAs• Conclusions

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Basic IPR Concepts and Principles (1)

• IPRs = rights given to persons over the creation of their minds, at certain conditions

• IPRs = exclusive negative right to prevent others from using the creation without authorisation, generally for a limited period of time⇒ no automatic marketing approval for

regulated products• IPRs = intangible property• IPRs = private rights• Principle of territoriality

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Basic IPR Concepts and Principles (2)

• Objectives:– stimulate innovation and creativity– encourage investment and technology

transfer– ensure fair competition– protect consumers

• Permanent search for balance of rights and obligations:– long-term interest in promoting

creativity and the short term social interests in maximizing access

– interests of generators and users of IP

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TRIPS Negotiating Background (1)

• Few IP provisions in the GATT:– national treatment– general exception– distinctive regional / geographical names

• Work on trade in counterfeit goods• Punta del Este mandate 1986:

– establish multilateral rules to deal with international trade in counterfeit goods

• Work of Uruguay Round Negotiating Group: are IPRs trade-related ?

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TRIPS Negotiating Background (2)

• IP protection not new for most countries, incl. DCs: – WIPO Conventions and Treaties– pre-TRIPS national legislation

• Why Did Developing Countries Accept TRIPS ?– Uruguay Round trade-offs (agriculture, textiles)– balance and flexibility in the TRIPS Agreement– multilateral rule of law in the area of intellectual

property– consistency with move to more open and

market-based economic policies

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Sources of Protection

• In country of origin: domestic law• In other countries: international

agreements extending the application of domestic laws to foreigners and providing minimum level of protection– multilateral agreements:

• WTO• WIPO

– free trade agreements and other international agreements

⇒ need to implement / direct applicability

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The TRIPS Agreement

• TRIPS = Annex 1C of the WTO Agreement

• Minimum level of protection, subject to certain specific provisions for DCs and LDCs

• Most complete international treaty on IPRs

• Subject to multilateral dispute settlement

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Structure of the Agreement

• Coverage• General Provisions, Basic principles• Minimum standards for each

category of IPRs• Enforcement• Dispute settlement• Transitional arrangements• Institutional mechanism

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General Provisions• Minimum rights agreement• Freedom to determine appropriate method

of implementation• Incorporation of existing conventions• Non-discrimination:

– national treatment– most-favoured-nation treatment

• Exhaustion of rights• Objectives and Principles

– technology transfer– mutual advantage, welfare and balance– measures to protect public health consistent

with TRIPS / against abuse

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• Keep non-controversial elements of existing conventions

• Avoid re-opening of existing texts

• Negotiate only "plus" elements

• Arrive at short, coherent and comprehensive text

"Incorporation" Technique

BerneParis

IPICRome

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Areas Covered by TRIPS

Copyright • Artistic works• Literary works

[computer software and data bases]

Related (neighbouring) rights

• Performers• Phonogram producers• Broadcasters

Industrial property• Trademarks• Geographical indications • Industrial designs• Patents• Plant varieties protection• Topographies of int. circ.• Undisclosed information

(e.g. trade secrets; test data)

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• Reference to the incorporated treaty, if any

• Whenever possible, definition of the subject-matter

• Conditions for protection

• Exclusive rights; limitations and exceptions

• Term of protection

• Other provisions

Substantive Standards: Typical Structure of Each Section

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• Objective: legal security and predictability

• Principles:

• multilateral vs. Unilateral

• uniform application to all WTO Agreements

• Function: preserve rights and obligations of all Members

WTO Dispute Settlementand TRIPS (1)

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WTO Dispute Settlementand TRIPS (2)

• 25 complaints, relating to 20 separate matters– 13 settlements– 9 panel and appellate body reports– 3 inactive cases

• Represents 7.3% of 341 complaints• Developing countries as respondents

– reports concerning 3 complaints from 1996-1998

– settlements concerning 4 complaints from 1996-2000

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1996 2000 2005 2013 2016_______________________________ ↓ ↓ ↓ ↓ ↓

Industrialised DCs and DCs LDCs 1) LDCsCountries Economies products · general · pharma

in not (patents &Transition1) previously test

data) patented · EMRs waived

1) National treatment and MFN treatment obligations apply as of 1996

Transition Periods

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IP as part of Doha Work Programme

• Single Undertaking– multilateral register for geographical

indications for wines and spirits

• Outstanding implementation issues– extension of protection for geographical

indications– disclosure proposal

• Other– non-violation complaints– technology transfer

• Note: TRIPS/public health not part of DDA negotiations

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Work Under the Doha Round• GC Decision of 1st August 2004:

– takes note of TRIPS Council / Special Session report– requests continuation of work on outstanding

implementation-related issues– extends moratorium for non-violation complaints

• Hong Kong, China MC, 2005:– requests to intensify negotiations on multilateral GI

register– requests to intensify consultative process on GI

extension and TRIPS-CBD relationship; progress review by July 2006

– extends moratorium for non-violation complaints– welcomes extension of LDC transition period

• 27-28 July 2006: GC supports DG recommendation to suspend Doha Round negotiations

• February 2007: full resumption of negotiations

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Overall Structure

Neg Group onM arket Access

Neg Groupon Rules

SpecialSessions

Trade Negotiating Com m itte e Councils/Com m ittees

General Council

M inisterial Conference

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TRIPS Council: Regular Session and Special Session

TRIPS COUNCIL

REGULAR SESSION,Review of legislation,

public health, biotech/TK/biodiversity,

etc.

SPECIAL SESSIONNegotiations on multilat. system

of notification & registrationof GIs for wines and spirits

⇒ plus: Consultative Process led by Deputy DG:GI extension and disclosure of origin proposal

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• Notifications by Members under various provisions

• Notifications under Article 63.2 (laws, regulations and practices)

• Review of national legislation (laws, regulations and practices), including process of questions-replies, presentations in the meeting, follow-up questions-replies⇒ Merits of the process in general: transparency (dispute prevention effect); valuable source of information; right of all Members to pose questions

TRIPS Council:Regular Session (1)

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• (Public health)

• GIs "extension" (until end of 2002)

• Biotechnology/traditional knowledge/biodiversity

• (Enforcement – not a permanent agenda item)

• Technology transfer

• Non-violation

• Technical cooperation

TRIPS Council:Regular Session (2)

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IPRs and Development

• Possible impact on domestic actors– belief that enhanced IP protections promote

domestic creativity and inventiveness– element in moving towards higher value-added

production– property rights, including IPRs, important part

in move towards more open, market-based policies

• Evidence of an increasing use of patent and other IP systems by some developing countries

• Optimal balance?

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Transfer of Technology

• Two aspects:– disclosure of knowledge– impact on trade, FDI, licensing

• Under TRIPS:– recognized as an objective under Art.7– proactive measures for the benefit of LDCs

under Art. 66.2– monitoring mechanism

• Other factors:– infrastructure, human resources– market seize– dual use products, etc.

• WTO Working Group on TT

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Cooperation With Other IGOs

• Cooperation WTO-WIPO:– 1995 Agreement– Joint Initiatives for DCs/LDCs

• WHO – public health• CBD – bio issues• UNCTAD - various• World Bank - various• OECD – various; project regarding

measuring counterfeiting and piracy• Interpol – IPR enforcement• G8 – access to medicines; IPR

enforcement

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Role of Free Trade Agreements

• Art.1.1 TRIPS: freedom to implement more extensive protection

• Development of standards through “TRIPS plus” elements

• Non-discrimination rules generally apply:– national treatment– MFN treatment

⇒ application of higher standards to all WTO Members

• Comparison of US and EU approach• Role of WTO

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Concluding Remarks• IP = value added to human activities and

the products / services resulting therefrom• IP = permanent attempt to strike a balance

between various interests• TRIPS = most comprehensive multilateral

IP treaty• Increased recognition of TRIPS flexibilities

– Need to implement and use flexibilities

⇒ Doha Declaration on TRIPS

and Public Health

• Special provisions for LDCs and DCs