Transcript WIPO National Workshop on Intellectual Property for Diplomats Sana’a, Republic of Yemen 20-21 March 2007 The TRIPS Agreement - Overview Roger Kampf WTO Secretariat.

WIPO National Workshop on
Intellectual Property for Diplomats
Sana’a, Republic of Yemen
20-21 March 2007
The TRIPS Agreement
- Overview Roger Kampf
WTO Secretariat
1
Structure of the Presentation
•
•
•
•
•
Basic IPR Concepts and Principles
TRIPS Negotiating Background
Overview of the TRIPS Agreement
IP under Doha Work Programme
TRIPS Council:
– Structure
– Current work
• Cooperation With Other IGOs
• Role of FTAs
• Conclusions
2
Basic IPR Concepts and Principles (1)
• IPRs = rights given to persons over the
creation of their minds, at certain
conditions
• IPRs = exclusive negative right to prevent
others from using the creation without
authorisation, generally for a limited
period of time
⇒ no automatic marketing approval for
regulated products
• IPRs = intangible property
• IPRs = private rights
• Principle of territoriality
3
Basic IPR Concepts and Principles (2)
• Objectives:
– stimulate innovation and creativity
– encourage investment and technology
transfer
– ensure fair competition
– protect consumers
• Permanent search for balance of
rights and obligations:
– long-term interest in promoting
creativity and the short term social
interests in maximizing access
– interests of generators and users of IP
4
TRIPS Negotiating Background (1)
• Few IP provisions in the GATT:
– national treatment
– general exception
– distinctive regional / geographical names
• Work on trade in counterfeit goods
• Punta del Este mandate 1986:
– establish multilateral rules to deal with
international trade in counterfeit goods
• Work of Uruguay Round Negotiating
Group: are IPRs trade-related ?
5
TRIPS Negotiating Background (2)
• IP protection not new for most countries,
incl. DCs:
– WIPO Conventions and Treaties
– pre-TRIPS national legislation
• Why Did Developing Countries
Accept TRIPS ?
– Uruguay Round trade-offs (agriculture, textiles)
– balance and flexibility in the TRIPS Agreement
– multilateral rule of law in the area of intellectual
property
– consistency with move to more open and
market-based economic policies
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Sources of Protection
• In country of origin: domestic law
• In other countries: international
agreements extending the application of
domestic laws to foreigners and
providing minimum level of protection
– multilateral agreements:
• WTO
• WIPO
– free trade agreements and other international
agreements
⇒ need to implement / direct applicability
7
The TRIPS Agreement
• TRIPS = Annex 1C of the WTO
Agreement
• Minimum level of protection, subject
to certain specific provisions for DCs
and LDCs
• Most complete international treaty on
IPRs
• Subject to multilateral dispute
settlement
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Structure of the Agreement
• Coverage
• General Provisions, Basic principles
• Minimum standards for each
category of IPRs
• Enforcement
• Dispute settlement
• Transitional arrangements
• Institutional mechanism
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General Provisions
• Minimum rights agreement
• Freedom to determine appropriate method
of implementation
• Incorporation of existing conventions
• Non-discrimination:
– national treatment
– most-favoured-nation treatment
• Exhaustion of rights
• Objectives and Principles
– technology transfer
– mutual advantage, welfare and balance
– measures to protect public health consistent
with TRIPS / against abuse
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"Incorporation" Technique
• Keep noncontroversial
elements of existing
conventions
• Avoid re-opening of
existing texts
• Negotiate only
"plus" elements
• Arrive at short,
coherent and
comprehensive text
Paris
IPIC
Berne
Rome
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Areas Covered by TRIPS
Copyright
Industrial property
• Artistic works
• Literary works
•
•
•
•
•
•
•
[computer software and data
bases]
Related (neighbouring)
rights
• Performers
• Phonogram producers
• Broadcasters
Trademarks
Geographical indications
Industrial designs
Patents
Plant varieties protection
Topographies of int. circ.
Undisclosed information
(e.g. trade secrets; test
data)
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Substantive Standards: Typical
Structure of Each Section
• Reference to the incorporated treaty, if
any
• Whenever possible, definition of the
subject-matter
• Conditions for protection
• Exclusive rights; limitations and
exceptions
• Term of protection
• Other provisions
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WTO Dispute Settlement
and TRIPS (1)
• Objective: legal security and
predictability
• Principles:
•
multilateral vs. Unilateral
•
uniform application to all WTO
Agreements
• Function: preserve rights and
obligations of all Members
14
WTO Dispute Settlement
and TRIPS (2)
• 25 complaints, relating to 20 separate
matters
– 13 settlements
– 9 panel and appellate body reports
– 3 inactive cases
• Represents 7.3% of 341 complaints
• Developing countries as respondents
– reports concerning 3 complaints from 19961998
– settlements concerning 4 complaints from
1996-2000
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Transition Periods
1996
2000 2005 2013 2016
_______________________________
↓
↓
↓
↓
↓
Industrialised
Countries
1)
DCs and
Economies
in
Transition1)
DCs
LDCs 1)
products
· general
not
previously
patented
LDCs
· pharma
(patents &
test data)
· EMRs
waived
National treatment and MFN treatment obligations apply as of
1996
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IP as part of Doha Work Programme
• Single Undertaking
– multilateral register for geographical
indications for wines and spirits
• Outstanding implementation issues
– extension of protection for geographical
indications
– disclosure proposal
• Other
– non-violation complaints
– technology transfer
• Note: TRIPS/public health not part of DDA
negotiations
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Work Under the Doha Round
• GC Decision of 1st August 2004:
– takes note of TRIPS Council / Special Session report
– requests continuation of work on outstanding
implementation-related issues
– extends moratorium for non-violation complaints
• Hong Kong, China MC, 2005:
– requests to intensify negotiations on multilateral GI
register
– requests to intensify consultative process on GI
extension and TRIPS-CBD relationship; progress review
by July 2006
– extends moratorium for non-violation complaints
– welcomes extension of LDC transition period
• 27-28 July 2006: GC supports DG recommendation
to suspend Doha Round negotiations
• February 2007: full resumption of negotiations
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Overall Structure
Ministerial Conference
General Council
Trade Negotiating Committee
Councils/Committees
Neg Group on
Market Access
Neg Group
on Rules
Special
Sessions
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TRIPS Council: Regular Session
and Special Session
TRIPS
COUNCIL
REGULAR SESSION,
Review of legislation,
public health,
biotech/TK/biodiversity,
etc.
⇒
SPECIAL SESSION
Negotiations on multilat. system
of notification & registration
of GIs for wines and spirits
plus: Consultative Process led by Deputy DG:
GI extension and disclosure of origin proposal
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TRIPS Council:
Regular Session (1)
• Notifications by Members under various
provisions
• Notifications under Article 63.2 (laws,
regulations and practices)
• Review of national legislation (laws,
regulations and practices), including
process of questions-replies,
presentations in the meeting, follow-up
questions-replies
⇒ Merits of the process in general:
transparency (dispute prevention effect);
valuable source of information; right of all
Members to pose questions
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TRIPS Council:
Regular Session (2)
• (Public health)
• GIs "extension" (until end of 2002)
• Biotechnology/traditional
knowledge/biodiversity
• (Enforcement – not a permanent agenda
item)
• Technology transfer
• Non-violation
• Technical cooperation
22
IPRs and Development
• Possible impact on domestic actors
– belief that enhanced IP protections promote
domestic creativity and inventiveness
– element in moving towards higher value-added
production
– property rights, including IPRs, important part
in move towards more open, market-based
policies
• Evidence of an increasing use of patent
and other IP systems by some developing
countries
• Optimal balance?
23
Transfer of Technology
• Two aspects:
– disclosure of knowledge
– impact on trade, FDI, licensing
• Under TRIPS:
– recognized as an objective under Art.7
– proactive measures for the benefit of LDCs
under Art. 66.2
– monitoring mechanism
• Other factors:
– infrastructure, human resources
– market seize
– dual use products, etc.
• WTO Working Group on TT
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Cooperation With Other IGOs
• Cooperation WTO-WIPO:
– 1995 Agreement
– Joint Initiatives for DCs/LDCs
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•
•
•
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WHO – public health
CBD – bio issues
UNCTAD - various
World Bank - various
OECD – various; project regarding
measuring counterfeiting and piracy
• Interpol – IPR enforcement
• G8 – access to medicines; IPR
enforcement
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Role of Free Trade Agreements
• Art.1.1 TRIPS: freedom to implement more
extensive protection
• Development of standards through “TRIPS
plus” elements
• Non-discrimination rules generally apply:
– national treatment
– MFN treatment
⇒ application of higher standards to all WTO
Members
• Comparison of US and EU approach
• Role of WTO
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Concluding Remarks
• IP = value added to human activities and
the products / services resulting therefrom
• IP = permanent attempt to strike a balance
between various interests
• TRIPS = most comprehensive multilateral
IP treaty
• Increased recognition of TRIPS flexibilities
– Need to implement and use flexibilities
⇒ Doha Declaration on TRIPS
and Public Health
• Special provisions for LDCs and DCs
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