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HANDBOOK ON ACCESSION TO THE WTO: CHAPTER 5

Substance of Accession Negotiations

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5.2 Rules

Trade-Related Intellectual Property Rights  back to top

By the term ‘intellectual property’, the TRIPS Agreement means copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, and undisclosed information. This Agreement applies the basic most-favoured-nation and national treatment principles to trade-related intellectual property rights (TRIPS) and extends the WTO rules and procedures on dispute settlement to disputes on TRIPS, albeit with some qualifications.⁴⁰⁷ The Agreement recognizes the underlying public policy objectives of systems to protect intellectual property (IP), lays down detailed minimum standards Members must adopt to protect the private rights of IP holders and provides means that Members must make available under their law to enforce those rights. Its minimum standards incorporate by reference the substantive obligations of the main conventions previously negotiated in other bodies, notably the World Intellectual Property Organization,⁴⁰⁸ but also adds significantly to these obligations. Its enforcement provisions provide for civil judicial procedures and remedies, provisional measures, administrative procedures and remedies, special border measures, and, exceptionally in the WTO context, criminal procedures.

Transitional arrangements for the application of the TRIPS Agreement by WTO Members provided for in the Agreement have by now come to an end, the grace period for least-developed Members having terminated on 1 January 2006. However, under the terms of a separate decision, least-developed country Members are not obliged, with respect to pharmaceutical products, to implement or apply certain provisions related to patents until 1 January 2016.⁴⁰⁹

Concern about the gravity of the public health problems afflicting many developing and LDC countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics led to an amendment of the TRIPS Agreement making it easier for Members to obtain generic versions of patented medicines.⁴¹⁰

The Secretariat has circulated a checklist of the main obligations of the TRIPS Agreement asking applicants to check whether their legislation faithfully reflects each of these.⁴¹¹ Members of the Working Party will wish to satisfy themselves that this legislation is in full conformity with the requirements of the TRIPS Agreement and that the applicant concerned is in a position to implement its legislation from the date of accession. Where necessary, applicants will be asked to present an action plan setting out a timetable for the completion of each step in this process. Some applicants have presented draft legislation to Members with a request for comments. It is the clear expectation of Working Party members that acceders have this legislation in place by the time of the adoption of their Working Party Report and that it will be implemented as from the date of their accession.

The baseline Protocol commitment on this subject is very brief and to the point: “The representative of [X] stated that [X] would apply fully all the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights from the date of accession to the WTO, without recourse to any transition period.” Eighteen of the new Members accepted this type of Protocol commitment⁴¹². Five of these also recognized that specific changes still needed to be made in their legislation to bring it fully into line with the provisions of the Agreement and to provide effective enforcement of its provisions and committed themselves to make these changes by the time of their accession⁴¹³.

Two recent acceders, one of them an LDC, have accepted Protocol commitments specifying the way in which they will implement the obligation in Article 39.3 of the TRIPS Agreement to provide effective protection against unfair commercial use of undisclosed test or other data submitted to their authorities as required in support of applications for marketing approval of pharmaceutical or of agricultural chemical products which utilized new chemical entities.⁴¹⁴

Some doubts were raised as to whether new Members would be entitled to the flexibilities provided by the Doha Declaration on the TRIPS Agreement and Public Health. Any such doubts were resolved by an uncontested statement by one LDC which is recorded in the Working Party Report on its accession⁴¹⁵ and by a statement made when the Report on the accession of another LDC was presented for adoption that “the terms of this accession did not preclude access of [this country] and LDCs to the benefits under the Doha Declaration on the TRIPS Agreement and Public Health”.⁴¹⁶

The first applicant to accede to the WTO undertook to apply the TRIPS Agreement with a limited transition period.⁴¹⁷ Apart from this very early case, Working Parties have only granted transitional periods to the two LDCs that have so far acceded and to one small and vulnerable economy. An acceding government seeking transitional arrangements needs to confirm that, should a transition be granted, it would ensure that existing rates of infringement would not significantly increase and that any infringement of intellectual property rights would be addressed immediately in cooperation with affected right holders and that it would seek out all available technical assistance to ensure that its capacity to fully enforce its TRIPS-consistent legal regime upon expiration of the transition periods is assured and that [it] would make available all legislation in draft and promulgated form to WTO Members so that advice on TRIPS-consistency can be obtained. It also needs to submit a detailed action plan setting out the steps that still remained to be taken in order to achieve full compliance with the requirements of the TRIPS Agreement and a timetable for each step. This should state which of their existing laws and regulations are already in conformity with the Agreement, which need to be amended, which new laws and regulations will need to be adopted and what needs to be done to implement the legislation (See Annex 13).⁴¹⁸

Notes:

407. Understanding on Rules and Procedures Governing the Settlement of Disputes. Agreement on Intellectual Property Rights, Article 64. back to text
408. The Paris Convention for the Protection of Industrial Property, Berne Convention for the Protection for the Protection of Literary and Artistic Works, International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention), Treaty on Intellectual Property in Respect of Integrated Circuits. See TRIPS Agreement, Article 1:3, footnote. back to text
409. Decision of the Council for TRIPS of 27 June 2002, IP/C/25. back to text
410. Doha Ministerial Conference, Declaration on the TRIPS Agreement and Public Health, WTO document WT/MIN(01)/DEC/2, 14 November 2001. Decision of 6 December 2005, WT/L/641. back to text
411. WTO document WT/ACC/9 and Corr.1. back to text
412. Viet Nam, para 471; Saudi Arabia, para 272; FYROM, para 238; Armenia, para 197; China, para 305; Moldova, para 216; Lithuania, para 166; Croatia, para 202; Oman, para 140; Albania, para 153; Georgia, para 161; Jordan, para 230; Estonia, para 126; Latvia, para 116; Kyrgyz Republic, para 164; Panama, para 111; Mongolia, para 54; Bulgaria, para 85. back to text
413. Viet Nam, para 403 and 465; FYROM, para 211; Armenia, para 193; Chinese Taipei, paras 187, 198, 207 — 209; China, paras 252, 256, 259, 263, 265, 270, 275, 284, 286, 288, 291, 292, 296, 299, 302, 304, Protocol VI. back to text
414. Cambodia, para 205; China, para 284. back to text
415. Nepal, para 138. back to text
416. Cambodia, Ministerial Conference, Cancun, 11 September 2003, WTO document WT/MIN(03)/SR/4, p. 4. back to text
417. Ecuador, para 78. back to text
418. See in particular Cambodia, paras 205 and 206; Nepal, paras 137 and 138 and Tonga, paras 167 — 169. back to text

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