ee 1 Sooo Introduction tothe TRIPS Agreement ety [A ntroduction ‘etl nce Pep Opin oe WIPO Perormance nd Pherae Tey “This chapter provides an overview of the TRIPS Agreement fst ‘Wee Tac Oat czas the historia and lea backround of the Agrstnnt and is Pe inthe Word Trade Organization (WTO), It then tars tthe {general provisions and basic principles, aswell a other provisions ad lnsational arrangements tha apply toll he categorie of intl property rights IPRS) covered by TRIPS. Chapters to VIL hen discus [eh of thee categorie in more detail However, in order to understand the TRIPS Agreement itis important to fist review the background tothe intelectual poopery (EP) sytem: ‘what the main forms of TPR ate, why these ‘ight are recognised td Tow they ate protected, These questions have been at the coe of IP ply discussions since the adoption ofthe eke IP iy and continae to spark active debate. This chaper attempts nether to sumrarae ‘ios relevant legal and economic theories, not survey the range of ‘views presented in the debate, but meray highlights some ofthe gener ‘concepts and approaches TPR can be characterized as ight given to persons over the crestons| of thee minds They sialy take the form of slid ‘exchsve right ranted under national aw toa creator oer the use ofthe cretion for "certain period of time. Such a ght allows the crests to ecude others from sing the creation incerta ways without the creator authori. tion The tight holder ca then extract emo value fom the [PRs by Using them dicey or by authorizing others dos, IPRs ae teitorl rights, which scans that they ae vali only in the jurisdiction where they have ben repitered or otcrwite acsuie, IPRS are customarily clustered to two categories copyright sd Indust propery.[Copyright can wseflly be dvd int two main aes: CCoprigh (or ‘suhor right’ in some stems) fers to the rights ‘of aur oF literary and artisie works (such a books ad other ‘writings, sia compositions, platings, sculpture, computer pro {rams an lin). Authors, o those who derive height ron suthors {such as publishers), have the right to eteine how ther works are sed fora minimum pestod of tine fer the death ofthe author 2. Copyright in a wider sense so includes relied rights (cometimes called “eighbouring night), especialy the rights of pesforme eg. actors, singers and musicians) over the peformaness, produces ‘over phonogzams (sound recordings) and broadcasting orpniations over Broadens. These rights re also lite a time Indust property can be vided into wo fis 1. The fits the protection of dsinive sgn in particular tadenaks (omic distinguish the goods or servicer one undrang fom those of eter undertakings) and geographical ndcations (Gl which de tity a god as originating ina pace where a given harcterii the ‘ood I esental atributable toe ogrphal origin) Trademark protection may indent, provided the ign in question continues to bedisinctve; use ofthe trademarks alo often teguement, A GE ‘an abo be protected indefinitely, provided eominget oie the ‘oeraphis ong 2, Other types of indus propre are protcted primarily to recognize tnd stimulate techncloial innovation and industrial design, and to provide the legal framework forthe cation of new technologies, fd products In this catepory fl inventions (protected by patents tlthough, in @ number of entries, nnostions that could embeay Iesser technical progress than petal iaentons may be protected ‘by tity model), instal designs and trade sees The protection is usualy gien fra ft teem (now tpi twenty years inthe cae of patents) although tuade secs can be protected se laa they remain sett Industral propery alo indade esl means to sup pres acts of unfir competion ‘The intelecra propery (IP) system isto! of publi pliy general, Its intended to promote economic, sol and cual progress by stimulating creative work ad technological innovation, More specif tly the main socal purpoe of protection of copyright and elated igs sto encourage and rewatd creative work. tives an opportunity for authors and atts to car thei ving fom ceive work. Other than serving aan incentive to ators, copyright eet provides on ‘eonomie undaton for elturl industries and the make or clara products once the rights are censed or aasgned to publshers and Producers Silay, patents and certain other ids propery rights [re designed to provide protection fr inaovations rsa rom ines, rent nese and development (R&D), ths giving he inetiv ad means o mance spied RED “These standard policy objectives are supportd by the economic eony tha sugges tit works and information resting from cee ‘rok and innovation have characteristics of public goods inthe sense that they ate ‘non-exclodable’ and ‘noe rivalrous in consumption In other words, once crested, absent specific meatus, none can be ‘xclnded from ‘consuming them. In addin, ones eof a work or fn iveaion does uot deprive another ofits ase and ican be ey used by anyone (unless there are specifi lel contri, unlike physical property suchas and that can be eee of Therefor inthe absence of IP protection, it i dial for erestors to etrac economic vac fom or ‘appropriate the fnancal returns fom their work oF indeed to initvene how they are utilized. Thu, fom the soit’ pepective thee Sak of rhe fare that i udeinvestent in soialy beneficial Creative and innovative woke The IP stem al allow markt diven ‘tcentralzd decision-making, where products ate created and techn ‘ogy developed in response 1 demand. The IP system offers ange of ‘options, bur doesnot preclide the ne for other forms of fining ‘mechanisms, ip particular in areas where the market lone may not provide adequate incentives (for example, contemporary concert mse Sr cre for nelet des), Another objective of IP protection the tsfer and dissemination ‘of technology. A well-functioning IP rege shuld, ther things Being fea facilitate the direct and indict unser of technology, by means sch a foreign direc avestment (FDI, tide and Hcensing. The legal tes provided bythe IP system are used to define and structure the Aisin rights and eesponsiiiies in technology partnership, such ab ‘esearch cooperation or technology sharing or tafe arrangements One ofthe purposes ofthe patent system ito disseminate technological Information by requiring inventors to disclose ne technology in thet patent applications zaher than attempt to esp it sect 30 that ee Technology can become part of the common pool of knowledge of ‘mankind and be ely used once patents expire Improved informationtechnology tools that faitat, for empl, the avait of patent information on the Internet means that this teaching’ fnction of the patent rster is becoming increasingly more elective and aces in practice compared to eater dys “Trademars, Gls and other distinctive signs are protected x0 at 10 inform consumers and prevent consomer deeption In aiion, thee forms of IP help to ensure fair competition among producer They provide an incentive for companies to ves in thee reputation throvgh the provision of quality products and services. A equally important, objetivo enable consumers to make informed shoes between ‘aioue goods and services. electing thei ole a tool of public plicy JPRS are not absolute nd unlimited, bat are general subject ton number of limitations and ‘exceptions thas to balance he legate interes of ight bodes and ners. Thee imitations and exceptions together wth the carly defined ‘cope of proteable subject mater and ated term of protection, ae intended to maintain an appropiate blece beeen competing public policy intrest so that thesstem a whalecan be eect in meting ated objesies 2 Historical and legal background to TRIPS ‘The World Trade Organization (WTO) isthe legal and institutional foundation forthe administration snd development of tade relations| among it 153 Members, tthe multstral level Teams to provide fi tnd Sable conditions forthe conduct of international ade with 3 view to encouraging trade and investment tht rie ving standards word Wide Tes the successor to te former General Agpeerent on Tai and Trade (GATT 1947), maltlateral wade agreement tat was condded lnthat year, Further trade iberazaton was pursed ander he auspices ofthe GATT through trade round aiming at further tif cue nd Strengthened rules. The Uruguay Round wat the eighth round of trade negotiations and by far the most comprehensive, Thee negotiations ‘rere launched in 1986 und completed Ia 1994 “The main results fom the Uruguay Round incaded a farther major reduction of easton tari wordwide, and the beralztion of and development of beter rales governing trade in textes and sprite ~ two areas previously largely excluded from the GATT, The wading system mas also extended into new areas of trade elations not previously eae with, notably trade in services nd {P. This reflected the rowing economic importance ofthese two areas and their incresed share of International wade. Furthermore the result incladed the evelopment tof teinforced and integrated dspuresetlement tem, hich api tle to any agreements covered bythe WTO. The Uruesy Round lo ‘ert in the cretion of «new organization the WTO to adriniser the agreement. The Marrakesh Agreement Esaliahing the World Tede (Organisation the WTO Agreement) entered into force on I later) 1995. The GATT ow refers o an updates agreement on trade in goods Jubbed ‘GATT 1959 to distinguish i fom the eaher GATT, which i ‘only one ofa number of agreements annexed tothe WTO Agzeement (GATT 1947 included several provisions that made reference to IPRS. For instance GATT 1947 confirmed that Contracting Parties could have rules on IPRS provided that they were consistent with principles of non Ascimination. Article 4 requize teste for imported products ‘that sno les favourable than that accorded to like products of national ‘ign in cespectof al avs, eglations and reuiement ths ines Paws. More specifically ArileXX(d) allows a general excption to the appliation of GATT obligations with respect to compliance with laws ‘nd seultions that are not inconsistent with GATT provison includ ing those that deal with poten, trademarks and copyrights sad the prevention of deceptive practices. Additionally Artie TAs contains a postive olgation on Contracting Fates to cooperate wth each the to Prevent these of tradenames in «manner that would misepusent the thu origin ofa product, or that would bet the detriment of distinctive reponal or geographical names of produ protected in other paris tetris by national legion, In the Tokyo Round of mulatea wade negations (1973 to 1979), te one immediatly preceding the Uraguay Round thee was x propose 1w negotiate rls on trade in counterfet good resting in «daft Areement on Measures to Dscourage the Importation of Counterfeit (Goods. Fiowevernepiators didnot ech greement ati jt was not included the ss ofthe Tokyo Roun when itoachad 1979 Instead, in 1982, pursuant to 2 work programme gros by tad minis ters) a revised vetbion ofa dt agreement on tad in counter gods et acd wah en org sbeeocct acne os arn mise rh hn a pe