Part II of the TRIPS Agreement deals with the different types of intellectual property rights and how they can be protected. The aim is to ensure that minimum standards of protection exist in all WTO Members. The starting point here are the obligations of the main international agreements of the World Intellectual Property Organization (WIPO), which already existed before the creation of the WTO: As in the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS), the starting point of the TRIPS Agreement is the basic principles. And as in the other two agreements, non-discrimination plays an important role: national treatment (treatment of foreigners who are no less favourable than their own nationals) and most-favoured-nation treatment (mfN and most-favoured-nation treatment) (no discrimination between nationals of trading partners). National treatment is also a key principle in other intellectual property agreements outside the WTO. While the WTO Agreements entered into force on 1 January 1995, the TRIPS Agreement granted WTO Members certain transitional periods before they were required to apply all its provisions. Members of developed countries have had one year to ensure that their laws and practices are in line with the TRIPS Agreement. Developing countries and (under certain conditions) countries with economies in transition were granted five years, until the year 2000. The least developed countries were initially 11 years old, until 2006 – now generally extended until 1 July 2021.
Since the entry into force of travel, it has been criticized by developing countries, scientists and non-governmental organizations. While some of these criticisms are directed at the WTO in general, many proponents of trade liberalization also view the TRIPS Agreement as bad policy. The concentration effects of the TRIPS Agreement`s wealth (money from people in developing countries to copyright and patent holders in developed countries) and the imposition of artificial scarcity on citizens of countries that would otherwise have had weaker intellectual property laws are common ground for such criticism. Other criticisms have focused on TRIPS` inability to accelerate the flow of investment and technology to low-income countries, an advantage advanced by WTO members in the run-up to the agreement. World Bank statements suggest that the TRIPS Agreement has not led to a demonstrable acceleration of investment in low-income countries, although this may have been the case for middle-income countries. [33] The long duration of TRIPS patents was assessed for an unreasonable slowdown in generic substitute market entry and competition. In particular, the illegality of preclinical studies or the submission of samples for approval until a patent expires have been accused of stimulating the growth of a few multinationals rather than producers in developing countries. A 2003 agreement relaxed the requirements of the domestic market and allowed developing countries to export to other countries where there is a national health problem, as long as the exported drugs are not part of a trade or industrial policy. [10] Medicines exported under such a regime may be packaged or coloured differently to prevent them from affecting developed country markets. The TRIPS Agreement is the only international agreement that describes in detail the enforcement of intellectual property rights, including rules on the taking of evidence, interim measures, injunctions, damages and other sanctions. It clarifies that, under certain conditions, courts should have the right to order the disposition or destruction of goods that infringe intellectual property rights. Intentional trademark infringement or commercial-scale copyright conspiracy must be criminally punished.
Governments must also ensure that intellectual property rights holders can receive support from customs authorities to prevent the importation of counterfeit and pirated goods. The TRIPS Agreement is an agreement on minimum standards that allows Members to provide more comprehensive protection of intellectual property if they so wish. Members are free to determine the appropriate method for implementing the provisions of the Agreement in their own legal system and practice. (a) resulting from international agreements on mutual legal assistance or prosecution of a general nature and are not specifically limited to the protection of intellectual property; Some areas are not covered by these agreements. In some cases, the prescribed standards of protection were found to be inadequate. Thus, the TRIPS Agreement significantly complements existing international standards. The terms of the TRIPS Plus Agreement, which prescribe standards that go beyond the TRIPS Agreement, were also discussed. [38] These free trade agreements contain conditions that limit the ability of governments to introduce competition for generic manufacturers. In particular, the United States has been criticized for pushing protection far beyond the standards prescribed by the TRIPS Agreement. U.S. free trade agreements with Australia, Morocco, and Bahrain have expanded patentability by mandating the availability of patents for new uses of well-known products. [39] The TRIPS Agreement allows for compulsory licensing at a country`s discretion.
U.S. free trade agreements with Australia, Jordan, Singapore, and Vietnam have limited the application of compulsory licenses to emergencies, antitrust remedies, and cases of non-commercial public use. [39] Contrary to the „upward“ standards of protection mentioned above, these flexibilities do not fall under the TRIPS Agreement. Therefore, countries that legislate on these issues are not required to abide by the principles and provisions of the agreement. For example, the protection of TK could only be extended to foreigners on the basis of reciprocity. As in the main existing intellectual property conventions, the fundamental obligation of each member country is to accord the treatment of intellectual property provided for in the convention to persons of other members. Article 1.3 defines who these persons are. Such persons are called nationals, but include natural or legal persons who have close links with other members without necessarily being nationals of them. The criteria for determining which persons should therefore benefit from the treatment provided for in the Agreement are those set out for that purpose in the main existing WIPO conventions on intellectual property, which are of course applied to all WTO Members, whether or not they are Parties to these Agreements. These conventions are the Paris Convention, the Berne Convention, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) and the Treaty on Intellectual Property in Integrated Circuits (IPIC Treaty).
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