TRIPs
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) is an international agreement on the subject of "intellectual property". It covers copyright, patents, trademarks, trade secrets, industrial designs, geographical indicia and integrated circuit layouts.
The enactment of TRIPs in 1994 was an unprecedented and effectively mandatory globalisation of intellectual property law. Although subsequent developments
(see below) have expanded on TRIPs' requirements, the agreement itself remains without doubt the most important international agreement on copyright, patents and other IP rules.
The Requirements of TRIPs
TRIPs requires member states to provide strong intellectual property rights in many of these areas. For example, under TRIPs:
- Copyright terms must extend to 50 years after the death of the author (although films and photographs are only required to have fixed 50 and 25 year terms, respectively).
- Copyright must be granted automatically, and not based upon any "formality", such as registrations or systems of renewal.
- Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.
- National exceptions to copyright (such as "fair use" in the United States) must be tightly constrained.
- Patents must be granted in all "fields of technology" (regardless of whether it is in the public interest to do so).
- Exceptions to patent law must be limited almost as strictly as those to copyright law.
- In each state, intellectual property laws may not offer any benefits to local citizens which are not availble to citizens of other TRIPs signatories (this is called "national treatment"). TRIPs also has a most favoured nation clause.
Many of the TRIPs provisions on copyright were imported from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were imported from the Paris Convention for the Protection of Industrial Property.
Background and History
TRIPs was added to the General Agreement on Tariffs and Trade (GATT) at the end of the Uruguay Round of trade negotiations in 1994. Its inclusion was the culmination of a program of intense lobbying by the United States, supported by the EU, Japan and other first world states. Also influential were campaigns of unilateral economic encouragement (under the Generalized System of Preferences) and coercion (under Section 301 of the Trade Act). In turn, the United States strategy of linking trade policy to intellectual property standards can be traced back to the entrepreneurship of senior management at Pfizer in the early 1980s, who mobilised US corporations and made maximising intellectual property privileges the number one priority of US trade policy.
After the Uruguay round, the GATT became the basis of the World Trade Organization (WTO). Since ratification of TRIPs is a compulsory requirement of WTO membership, any country which wishes to obtain easy access to the numerous international markets opened by the WTO must enact the very strict intellectual property laws mandated by TRIPs.
Furthermore, unlike other international agreements on intellectual property, TRIPs has a powerful enforcement mechanism. States which do not adopt TRIPs-compliant intellectual property systems can be disciplined through the WTO's dispute settlement mechanism, which is capable of authorising trade sanctions against dissident states.
Controversies
Since TRIPs was enacted, it has received a growing level of criticism from developing countries, academics and NGOs. But because of the rule-making processes in the WTO, and the technical complexities of the laws in question, anything short of widespread and intense political opposition is unlikely to decrease the power of TRIPs.
Access to Essential Medicines
The most visible conflict has been over AIDS drugs in Africa. Despite the rather indefensible role which patents have played in undermining public health programs across Africa, this controversy has not led to any revisions to TRIPs. Instead, an interpretive statement, the Doha Declaration, was issued in Novemeber 2001, which indicated that TRIPs should not prevent states from dealing with public health crises. Since that time, at the behest of PhRMA, the United States (and, to a lesser extent, other developed nations) has been working to minimise the effect of the declaration.
Indeed, in 2004, the main way that Intellectual Property rules hinders access to medicines comes not so much from the TRIPs Agreement itself but rather from regional trade agreements with more stringent IP requirements, and /or from the way the TRIPs Agreement has been implemented at the national level. For discussion of regional trade agreements or domestic implementation of TRIPS hinders access to medicines and therefore violates human rights in Botswana, Ecuador, El Salvador and Uganda, see the briefing notes of 3D -> Trade - Human Rights - Equitable Economy, at
Software and Business Method Patents
Another recent controversy has been over the relationship between the requirements in TRIPs Article 27 for patentability in all "fields of technology", and the necessity of granting software and business method patents (see EU Directive on the Patentability of Computer-Implemented Inventions). In this situation, highly esoteric legal questions, with socially and rhetorically constructed answers, have become the medium through which political contests are fought.
Post-TRIPs Expansionism
Although the requirements of TRIPs are, from a policy perspective, extremely stringent, the lobby groups working to expand various IP laws have certainly found "limitations" in it.
These have formed the basis for various bilateral and multilateral initatives since 1994:
- The creation of anti-circumvention laws to protect digital restrictions management systems. This was achieved through the WIPO Copyright Treaty.
- The desire to further restrict the possibility of compulsory licenses for patents has led to provisions in recent bilateral US trade agreements.
- It is one thing for states to have intellectual property laws on their statues, and another for governments to enforce them aggressively. This distinction has led to provisions in bilateral agreements, as well as proposals for WIPO and EU rules on Intellectual property enforcement.
See also
