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TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPs)

Meaning of TRIPs

The TRIPs(Trade-Related Aspects of Intellectual Property Rights) sets rules for the purpose of avoiding trade frictions and securing free trade.

1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology

Principles(Article 8)

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Objectives(Article 7)

1. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice. 2. For the purposes of this Agreement, the term intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II. 3. Members shall accord the treatment provided for in this Agreement to the nationals of other Members. (1) In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those conventions. (2) Any Member availing itself of the possibilities provided in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade-Related Aspects of Intellectual Property Rights (the Council for TRIPS).

Nature and Scope of Obligations(Article 1)

Intellectual property rights can be defined as the rights given to people over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time.

What are intellectual property rights?

3 Intellectual property rights are traditionally divided into two main categories: Copyright and rights related to copyright: i.e. rights granted to authors of literary and artistic works, and the rights of performers, producers of phonograms and broadcasting organizations. The main purpose of protection of copyright and related rights is to encourage and reward creative work. Industrial property: This includes (1) the protection of distinctive signs such as trademarks and geographical indications, and (2) industrial property protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.

o The requirements of TRIPS

TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:

Copyright terms must extend to 50 years after the death of the author.(Art. 12 and 14) 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) are constrained by the Berne threestep test

Patents must be granted in all "fields of technology," although exceptions for certain public interests are allowed (Art. 27.2 and 27.3)[2] and must be enforceable for at least 20 years (Art 33). Exceptions to exclusive rights must be limited, provided that a normal exploitation of the work (Art. 13) and normal exploitation of the patent (Art 30) is not in conflict. No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed. Legitimate interests of third parties have to be taken into account by patent rights (Art 30). In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPS signatories under the principle of national treatment (with certain limited exceptions, Art. 3 and 5).TRIPS also has a most favored nation clause.

the role of the TRIPS Council

The TRIPS Council comprises all WTO members. It is responsible for monitoring the operation of the agreement, and, in particular, how members comply with their obligations under it. 1. MONITORING: Members review each others laws.

5 The reviews are central to the TRIPS Councils task of monitoring what is happening under the agreement.under Article 63.2 of the TRIPS Agreement. Members have to supply the TRIPS Council with copies of their laws and regulations that deal with the TRIPS Agreements provisions. These notifications are then used as the basis the Councils reviews of members legislation.In these reviews, countries supply written questions about each others laws before the review meetings. The answers are also in writing. Follow-up questions and replies are made orally during the course of the meeting, and further follow-up is possible at subsequent meetings. 2. CONSULTATIONS: On any TRIPS issue The TRIPS Council is also a forum that countries can use to consult each other on problems they may have with each other to do with the TRIPS Agreement.It can also clarify or interpret provisions of the agreement. 3. TECHNICAL COOPERATION: A work programme The Council follows a work programme on technical cooperation with a view to monitoring how developed countries fulfil their obligations under Article 67 of the TRIPS Agreement. This article sets out the developed countries commitments on technical cooperation. The work programme ensures that developing countries can have adequate information on the assistance on offer. It also ensures any of their unfulfilled needs are identified and responded to. 4. REVIEW OF TRIPS AGREEMENT The TRIPS Council will hold a general review of the agreement after five years; but it is also empowered to review it at any

6 time in the light of any relevant new developments which might warrant modification and amendment (Article 71).

TRIPS Agreement in the multilateral trading system

One of the fundamental characteristics of the TRIPS Agreement is that it makes protection of intellectual property rights an integral part of the multilateral trading system, as embodied in the WTO. The TRIPS Agreement is often described as 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. The TRIPS Agreement is part of the single undertaking That implies that the TRIPS Agreement applies to all WTO members. It also means that the provisions of the agreement are subject to the integrated WTO dispute settlement mechanism which is contained in the Dispute Settlement Understanding (the Understanding on Rules and Procedures Governing the Settlement of Disputes).

WTO AND THE TRIPS AGREEMENT

The World Trade Organization (WTO) is the international organization dealing with the rules of trade between nations. As of February 2005, 148 countries are Members of the WTO. In becoming Members of the WTO, countries undertake to adhere to the 18 specific agreements annexed to the Agreement establishing the WTO. They cannot choose to be party to some agreements but not others (with the exception of a few "plurilateral" agreements that are not obligatory). Of these agreements, Trade-Related Aspects of Intellectual Property Rights (TRIPS) is expected to have the greatest impact on the pharmaceutical sector and access to medicines.

7 The TRIPS Agreement has been in force since 1995 and is to date the most comprehensive multilateral agreement on intellectual property. The TRIPS Agreement introduced global minimum standards for protecting and enforcing nearly all forms of intellectual property rights (IPR), including those for patents. International conventions prior to TRIPS did not specify minimum standards for patents. At the time that negotiations began, over 40 countries in the world did not grant patent protection for pharmaceutical products. The TRIPS Agreement now requires all WTO members, with few exceptions, to adapt their laws to the minimum standards of IPR protection. In addition, the TRIPS Agreement also introduced detailed obligations for the enforcement of intellectual property rights.

o Criticism
Since TRIPS came into force it has received a growing level of criticism from developing countries, academics, and Nongovernmental organizations. Some of this criticism is against the WTO as a whole, but many advocates of trade liberalization also regard TRIPS as bad policy (see, for example, Jagdish Bhagwati's In Defense of Globalization for a discussion on the detrimental effect of TRIPS on access to medicines in developing countries). TRIPS' wealth redistribution effects (moving money from people in developing countries to copyright and patent owners in developed countries) and its imposition of artificial scarcity on the citizens of countries that would otherwise have had weaker intellectual property laws, are a common basis for such criticisms. Peter Drahos writes that "It was an accepted part of international commercial morality that states would design domestic intellectual property law to suit their own economic circumstances. States made sure that existing international intellectual property agreements gave them plenty of latitude to do so." Daniele Archibugi and Andrea Filippetti argue that the importance of TRIPS in the process of generation and diffusion of knowledge and innovation has been overestimated by both their supporters and their detractors. Claude Henry and Joseph E. Stiglitz argue that the current intellectual property global regime may impede both innovation and dissemination, and suggest reforms to foster the global dissemination of innovation and sustainable development.