175pxls.gif (835 bytes)
Click here to return to ‘trade topics’

TRIPS: FAQs
Frequently asked questions
about TRIPS
[ trade-related aspects of intellectual property rights ] in the WTO

If you have a query about TRIPS in the WTO, check to see if the answer is in one of these questions. Scroll down or click on a question to find the answer:

175pxls.gif (835 bytes)


What are “intellectual property rights”? Back to top

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.

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.

For the purposes of the TRIPS Agreement, “intellectual property” refers to:

... all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the agreement (Article 1:2). This includes copyright and related rights, trademarks, geographical indications, industrial designs, patents, integrated circuit layout-designs and protection of undisclosed information.

Return to questions

  
  
Does the TRIPS Agreement apply to all WTO members? Back to top

All the WTO agreements (except for a couple of “plurilateral” agreements) apply to all WTO members. The members each accepted all the agreements as a single package with a single signature — making it, in the jargon, a “single undertaking”.

The TRIPS Agreement is part of that package. Therefore it applies to all WTO members. (More on the single undertaking.)

But the agreement allows countries different periods of time to delay applying its provisions. These delays define the transition from before the agreement came into force (before 1 January 1995) until it is applied in member countries. The main transition periods are:

  • Developed countries were granted a transition period of one year following the entry into force of the WTO Agreement, i.e. until 1 January 1996.
  • Developing countries were allowed a further period of four years (i.e. to 1 January 2000) to apply the provisions of the agreement other than Articles 3, 4 and 5 which deal with general principles such as non-discrimination.
  • Transition economies, i.e. members in the process of transformation from centrally-planned into market economies, could also benefit from the same delay (also until 1 January 2000) if they met certain additional conditions.
  • Least-developed countries are granted a longer transition period of a total of eleven years (until 1 January 2006), with the possibility of an extension. For pharmaceutical patents, this has been extended to 1 January 2016, under a decision taken by ministers at the Fourth Ministerial Conference in November 2001.

Return to questions

    
  
Which countries are using the general transition periods? Back to top

WTO members can make use of the general transition periods without having to notify the WTO and fellow-members. The TRIPS Council reviews the legislation of members after their transition periods have expired.

1. Developing Countries

Developing countries that are not least-developed countries had to apply the TRIPS Agreement’s provisions by 1 January 2000. In 2000 and 2001, the TRIPS Council reviewed the legislation of the following members whose transition periods expired on 31 December 1999:

Antigua and Barbuda, Argentina, Bahrain, Barbados, Belize, Bolivia, Botswana, Brazil, Brunei Darussalam, Cameroon, Chile, Colombia, Congo, Costa Rica, Côte d’Ivoire, Cuba, Cyprus, Dominica, Dominican Republic, Egypt, El Salvador, Estonia, Fiji, Gabon, Ghana, Grenada, Guatemala, Guyana, Honduras, Hong Kong, China, India, Indonesia, Israel, Jamaica, Kenya, Korea, Kuwait, Macau, Malaysia, Malta, Mauritius, Mexico, Morocco, Namibia, Nicaragua, Nigeria, Pakistan, Papua New Guinea, Paraguay, Peru, Philippines, Poland (areas which were not reviewed in ’96–’98), Qatar, Saint Lucia, Singapore, Sri Lanka, St. Kitts and Nevis, St. Vincent and Grenadines, Suriname, Swaziland, Thailand, Trinidad and Tobago, Tunisia, Turkey, United Arab Emirates, Uruguay, Venezuela, Zimbabwe

Please note, nonetheless, that many of these members put into effect national legislation to implement much of the TRIPS Agreement before 1 January 2000.

2. Least Developed Countries

Least developed countries had initially until 1 January 2006 to apply the TRIPS Agreement’s provisions, now extended to 1 July 2013, with the possibility of further extension, and until 1 January 2016 for pharmaceutical patents. In the WTO, least developed country members are those recognized as least developed countries by the United Nations. Lists of least-developed countries that are WTO members and those negotiating membership can be found here.

3. New Members

The general transitional periods apply to the original members of the WTO, i.e. governments that were members on 1 January 1995. Since the WTO came into being, a number of countries have joined it. These countries have generally agreed in their membership agreements (their “accession protocols”) to apply the TRIPS Agreement from the date when they officially became WTO members, without the benefit of any transition period.

The latest list of countries (and “customs territories”) applying to join the WTO can be found here, as can the list of all WTO members, and their dates of joining the WTO.

Return to questions

  
  
Do members have any obligations under the agreement during the transition period? Back to top

All members, even those availing themselves of the longer transitional periods, have had to comply with obligations on national treatment (equal treatment for foreign and domestic individuals and companies, Article 3) and most-favoured-nation treatment (non-discrimination between foreign individuals and companies, Article 4) from 1 January 1996.

Special transition rules apply in the situation where a developing country does not provide product patent protection in a given area of technology.

More specifically, if a developing country did not provide product patent protection in a particular area of technology when the TRIPS Agreement came into force (1 January 1995), it has up to 10 years (to 1 January 2005) to introduce the protection (Art 65.4).

But for pharmaceutical and agricultural chemical products, the country must accept the filing of patent applications from the beginning of the transitional period, even though the decision on whether or not to grant any patent itself need not be taken until the end of this period (Art 70.8). This is sometimes called the “mailbox” provision.

If the government allows the relevant pharmaceutical or agricultural chemical product to be marketed during the transition period, it must — subject to certain conditions — provide the patent applicant an exclusive marketing right for the product for five years, or until a decision on granting a product patent is taken, whichever is shorter (Art 70.9).

In addition, Article 65.5 of the TRIPS Agreement says countries using the transition period should not backslide — members availing themselves of a transitional period (under paragraphs 1, 2, 3 or 4 of Article 65) must ensure that any changes in their laws, regulations and practice made during the transition period do not result in a lesser degree of consistency with the provisions of the agreement.

Return to questions

  
  
Were intellectual property rights covered under the old GATT (GATT 1947) before the TRIPS Agreement came into being? Back to top

Before the 1986–94 Uruguay Round negotiations, there was no specific agreement on intellectual property rights in the framework of the GATT multilateral trading system.

However, some principles contained in the GATT had a bearing on intellectual property measures taken on imports or exports.

Article XX(d) of GATT 1947 (now Article XX(d) of GATT 1994) specifically referred to intellectual property rights. Under this provision, measures which would otherwise be inconsistent with the General Agreement could be taken (subject to certain conditions) to secure compliance with laws or regulations relating, among other things, to intellectual property rights.

Return to questions

  
  
What is the place of the TRIPS Agreement in the multilateral trading system? Back to top

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” resulting from the Uruguay Round negotiations. 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”).

Return to questions

  
  
What is the relationship between the TRIPS Agreement and the pre-existing international conventions that it refers to? Back to top

The TRIPS Agreement says WTO member countries must comply with the substantive obligations of the main conventions of WIPO — the Paris Convention on industrial property, and the Berne Convention on copyright (in their most recent versions).

With the exception of the provisions of the Berne Convention on moral rights, all the substantive provisions of these conventions are incorporated by reference. They therefore become obligations for WTO member countries under the TRIPS Agreement — they have to apply these main provisions, and apply them to the individuals and companies of all other WTO members.

The TRIPS Agreement also introduces additional obligations in areas which were not addressed in these conventions, or were thought not to be sufficiently addressed in them.

The TRIPS Agreement is therefore sometimes described as a “Berne and Paris-plus” Agreement.

The text of the TRIPS Agreement also makes use of the provisions of some other international agreements on intellectual property rights:

  • WTO members are required to protect integrated circuit layout designs in accordance with the provisions of the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty) together with certain additional obligations.
  • The TRIPS Agreement refers to a number of provisions of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention), without entailing a general requirement to comply with the substantive provisions of that Convention.

Article 2 of the TRIPS Agreement specifies that nothing in Parts I to IV of the agreement shall derogate from existing obligations that members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in respect of integrated circuits.

Return to questions

  
  
What is WIPO? Back to top

The World Intellectual Property Organization (WIPO) was established by a convention of 14 July 1967, which entered into force in 1970. It has been a specialized agency of the United Nations since 1974, and administers a number of international unions or treaties in the area of intellectual property, such as the Paris and Berne Conventions.

WIPO’s objectives are to promote intellectual property protection throughout the world through cooperation among states and, where appropriate, in collaboration with any other international organization. WIPO also aims to ensure administrative cooperation among the intellectual property unions created by the Paris and Berne Conventions and sub-treaties concluded by the members of the Paris Union.

The administration of the unions created under the various conventions is centralized through WIPO’s secretariat, the “International Bureau”. The International Bureau also maintains international registration services in the field of patents, trademarks, industrial designs and appellations of origin. WIPO also undertakes development cooperation for developing countries through advice, training and furnishing of documents.

An agreement on cooperation between WIPO and the WTO came into force on 1 January 1996. The agreement provides cooperation in three main areas:

  • notification of, access to and translation of national laws and regulations
  • implementation of procedures for the protection of national emblems
  • and technical cooperation.

WIPO is located at 34 chemin des Colombettes, Geneva
mailing address: P.O. Box 18, CH-1211 Geneva 20
telephone: (41 22) 338 9111
fax: (41 22) 733 5428
website:
www.wipo.int.

Return to questions

  
  
Does the TRIPS Agreement require all member’s rules on protection of intellectual property to be identical? Back to top

No, the TRIPS Agreement requires members to comply with certain minimum standards for the protection of intellectual property rights covered in it.

But Members may choose to implement laws which give more extensive protection than is required in the agreement, so long as the additional protection does not contravene the provisions of the agreement.

This is why the TRIPS Agreement is sometimes described as a “minimum standards” agreement.

In addition, the agreement gives members the freedom to determine the appropriate method of implementing the provisions of the agreement within their own legal system and practice. The agreement thus takes into account the diversity of members’ legal frameworks (for instance between common law and civil law traditions).

Return to questions

  
  
Does the agreement allow compulsory licensing of patents? Back to top

Article 31 allows compulsory licensing and government use of a patent without the authorization of its owner.

But this can only be done under a number of conditions aimed at protecting the legitimate interests of the right holder. For example: (unless there is an emergency) the person or company applying for a licence must have first attempted, unsuccessfully, to obtain a voluntary licence from the right holder on reasonable commercial terms, and adequate remuneration must be paid to the right holder.

The authorization granted under compulsory licensing must also meet certain requirements. In particular, it cannot be exclusive, and it must as a general rule be granted predominantly to supply the domestic market.

(Compulsory licensing = authorization, given by a government,
to use a patented invention without the consent of the patent-holder)
> More frequently-asked questions on compulsory licensing of pharmaceuticals and TRIPS
 

Return to questions

  
  
Does the agreement require members to provide patent protection to plant varieties? Back to top

Article 27.3(b) allows members to exclude some types of plant and animal inventions from patenting in their countries.

More specifically, it allows them to exclude from patentability “plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes”.

However, the agreement says members must provide for the protection of plant varieties, either by patents or by an effective sui generis system (i.e. a system created specially for this purpose) or by any combination of the two.

These agreement calls for a review of the provisions of Article 27.3(b) four years after the agreement entered into force (i.e. in 1999). This review is underway in the TRIPS Council.

Return to questions

  
  
What is the role of the TRIPS Council? Back to top

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.

Click here for more information on WTO bodies

1. MONITORING: Members review each others’ laws.

The reviews are central to the TRIPS Council’s task of monitoring what is happening under the agreement.

Each country has to make sure its laws comply with the obligations of the agreement, according to the timetable spelt out in the agreement. Most have to enact laws implementing the obligations.

These laws are notified to the TRIPS Council, allowing members to review each others’ legislation, and promoting the transparency of members’ policies on intellectual property protection.

The requirement to notify comes 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 Council’s 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. REVIEWS AND NEGOTIATIONS ON SPECIFIC SUBJECTS

The WTO is a forum for further negotiations aimed at enhanced commitments in the area of intellectual property, as in other areas covered by the WTO agreements.

The TRIPS Agreement calls for further work in specified areas, including:

  • the negotiation of a multilateral system of notification and registration for geographical indications for wines (Article 23.4);
  • the review of the application of provisions on protecting geographical indications (Article 24.2);
  • the review, after four years, of the option to exclude from patentability certain plant and animal inventions (Article 27.3(b));
  • and the examination of the applicability to TRIPS of non-violation complaints under the dispute settlement process (Article 64).

(non-violation complaints = complaints about
impairment of legitimate benefits even if no obligation has been violated,
allowed under GATT and GATS, but suspended for 5 years under TRIPS)

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

Return to questions

  
  
What are members’ main notification obligations under the TRIPS Agreement? Back to top

(Official documents cited in this answer can be obtained
by going to the
on-line documents search
and entering the document code in the appropriate field.)

The TRIPS Agreement obliges WTO members to make certain notifications to the TRIPS Council. These notifications allow members to review each others’ legislation, an important part of the council’s work. They also promote the transparency of members’ policies on intellectual property protection.

In addition, members wishing to avail themselves of certain options allowed under the Agreement have to notify the Council.

In order to implement these notification obligations, the Council has adopted procedures and guidelines relating to them.

Article 63.2 of the TRIPS Agreement says members must notify the laws and regulations on the subject-matter of the agreement (the availability, scope, acquisition, enforcement and prevention of abuse of intellectual property rights).

The procedures for the notification of national laws and regulations under Article 63.2 are contained in document IP/C/2.

Articles 1.3 and 3.1 of the TRIPS Agreement allow members to avail themselves of certain options in regard to the definition of beneficiary persons and national treatment, provided that notifications are made to the Council for TRIPS.

Notifications made under Articles 1.3 and 3.1 are circulated in the IP/N/2/- series of documents. Further background information on these notification possibilities can be found in document IP/C/W/5.

In accordance with Article 4(d), a Member may exempt from the most-favoured-nation obligation any advantage, favour, privilege or immunity according by that member deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other members.

Article 69 of the agreement requires members to establish and notify contact points in their administrations for the purposes of cooperation with each other aimed at the elimination of trade in infringing goods.

The information on such contact points is circulated in document IP/N/3, and addenda, corrigenda and periodic revisions.

In addition to notification obligations specifically provided for in the agreement, a number of notification provisions of the Berne and the Rome Conventions are incorporated by reference into the TRIPS Agreement but without being explicitly referred to it.

At its meeting in February 1996, the council invited each member wishing to make such notifications to make them to the TRIPS Council, even if the member in question had already made a notification under the Berne or the Rome Convention in regard to the same issue.

Further background information on these notification possibilities can be found in document IP/C/W/15. Notifications of this kind are circulated in the IP/N/5/- series of documents.

Detailed information on the notification procedures can be found in the Technical Cooperation Handbook on Notification Requirements: Agreement on Trade-Related Aspects of Intellectual Property Rights (document WT/TC/NOTIF/TRIPS/1).

Return to questions

  
  
How can I get information on technical cooperation available from developed country members? Back to top

(Official documents cited in this answer can be obtained
by going to the
on-line documents search
and entering the document code in the appropriate field.)

Article 67 of the TRIPS Agreement says developed country members must provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country members.

To ensure access to relevant information in this regard, developed country members have agreed to present annually to the TRIPS Council a description of their technical cooperation activities in the area of intellectual property. This information is circulated in the IP/C/W/- series of documents. Click here for more information.

In addition, developed country members have notified contact points in their administrations to which requests for technical assistance may be addressed and from which information on technical cooperation can be obtained.

A list of these contact points is contained in document IP/N/7, and addenda, corrigenda and periodic revisions.

Return to questions

Find out more about the definitions of developing and least-developed countries in the WTO