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.
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