The areas of intellectual property that it covers are: copyright
and related
rights
(i.e. the rights of performers, producers of sound
recordings and broadcasting organizations); trademarks
including service marks; geographical
indications
including appellations of origin; industrial
designs;
patents
including the protection of new varieties of plants; the layout-designs
of integrated circuits;
and undisclosed
information
including trade secrets and test data.The
three main features of the Agreement are:
- Standards.
In respect of each of the main areas of
intellectual property covered by the TRIPS
Agreement, the Agreement sets out the minimum
standards of protection to be provided by each
Member. Each of the main elements of protection
is defined, namely the subject-matter to be
protected, the rights to be conferred and
permissible exceptions to those rights, and the
minimum duration of protection. The Agreement
sets these standards by requiring, first, that
the substantive obligations of the main
conventions of the WIPO, the Paris Convention for
the Protection of Industrial Property (Paris
Convention) and the Berne Convention for the
Protection of Literary and Artistic Works (Berne
Convention) in their most recent versions, must
be complied with. With the exception of the
provisions of the Berne Convention on moral
rights, all the main substantive provisions of
these conventions are incorporated by reference
and thus become obligations under the TRIPS
Agreement between TRIPS Member countries. The
relevant provisions are to be found in Articles
2.1 and 9.1 of the TRIPS Agreement, which relate,
respectively, to the Paris Convention and to the
Berne Convention. Secondly, the TRIPS Agreement
adds a substantial number of additional
obligations on matters where the pre-existing
conventions are silent or were seen as being
inadequate. The TRIPS Agreement is thus sometimes
referred to as a Berne and Paris-plus agreement.
- Enforcement.
The second main set of provisions deals with
domestic procedures and remedies for the
enforcement of intellectual property rights. The
Agreement lays down certain general principles
applicable to all IPR enforcement procedures. In
addition, it contains provisions on civil and
administrative procedures and remedies,
provisional measures, special requirements
related to border measures and criminal
procedures, which specify, in a certain amount of
detail, the procedures and remedies that must be
available so that right holders can effectively
enforce their rights.
- Dispute
settlement. The Agreement makes disputes
between WTO Members about the respect of the
TRIPS obligations subject to the WTO's dispute
settlement procedures.
In
addition the Agreement provides for certain basic
principles, such as national and most-favoured-nation
treatment, and some general rules to ensure that
procedural difficulties in acquiring or maintaining IPRs
do not nullify the substantive benefits that should flow
from the Agreement. The obligations under the Agreement
will apply equally to all Member countries, but
developing countries will have a longer period to phase
them in. Special transition arrangements operate in the
situation where a developing country does not presently
provide product patent protection in the area of
pharmaceuticals.
The
TRIPS Agreement is a minimum standards agreement, which
allows Members to provide more extensive protection of
intellectual property if they so wish. Members are left
free to determine the appropriate method of implementing
the provisions of the Agreement within their own legal
system and practice.
Certain
general provisions
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As
in the main pre-existing intellectual property
conventions, the basic obligation on each Member country
is to accord the treatment in regard to the protection of
intellectual property provided for under the Agreement to
the persons of other Members. Article 1.3 defines
who these persons are. These persons are referred to as
“nationals” but include persons, natural or
legal, who have a close attachment to other Members
without necessarily being nationals. The criteria for
determining which persons must thus benefit from the
treatment provided for under the Agreement are those laid
down for this purpose in the main pre-existing
intellectual property conventions of WIPO, applied of
course with respect to all WTO Members whether or not
they are party to those conventions. These conventions
are the Paris Convention, the Berne Convention,
International Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting
Organizations (Rome Convention), and the Treaty on
Intellectual Property in Respect of Integrated Circuits
(IPIC Treaty).
Articles
3, 4 and 5 include the fundamental rules on national and
most-favoured-nation treatment of foreign nationals,
which are common to all categories of intellectual
property covered by the Agreement. These obligations
cover not only the substantive standards of protection
but also matters affecting the availability, acquisition,
scope, maintenance and enforcement of intellectual
property rights as well as those matters affecting the
use of intellectual property rights specifically
addressed in the Agreement. While the national treatment
clause forbids discrimination between a Member's own
nationals and the nationals of other Members, the
most-favoured-nation treatment clause forbids
discrimination between the nationals of other Members. In
respect of the national treatment obligation, the
exceptions allowed under the pre-existing intellectual
property conventions of WIPO are also allowed under
TRIPS. Where these exceptions allow material reciprocity,
a consequential exception to MFN treatment is also
permitted (e.g. comparison of terms for copyright
protection in excess of the minimum term required by the
TRIPS Agreement as provided under Article 7(8) of the
Berne Convention as incorporated into the TRIPS
Agreement). Certain other limited exceptions to the MFN
obligation are also provided for.
The
general goals of the TRIPS Agreement are contained in the
Preamble of the Agreement, which reproduces the basic
Uruguay Round negotiating objectives established in the
TRIPS area by the 1986 Punta del Este Declaration and the
1988/89 Mid-Term Review. These objectives include the
reduction of distortions and impediments to international
trade, promotion of effective and adequate protection of
intellectual property rights, and ensuring that measures
and procedures to enforce intellectual property rights do
not themselves become barriers to legitimate trade. These
objectives should be read in conjunction with Article 7,
entitled “Objectives”, according to which the
protection and enforcement of intellectual property
rights should contribute to the promotion of
technological innovation and to the transfer and
dissemination of technology, to the mutual advantage of
producers and users of technological knowledge and in a
manner conducive to social and economic welfare, and to a
balance of rights and obligations. Article 8, entitled
“Principles”, recognizes the rights of Members
to adopt measures for public health and other public
interest reasons and to prevent the abuse of intellectual
property rights, provided that such measures are
consistent with the provisions of the TRIPS Agreement.
Substantive
standards of protection
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Copyright
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During
the Uruguay Round negotiations, it was recognized that
the Berne Convention already, for the most part, provided
adequate basic standards of copyright protection. Thus it
was agreed that the point of departure should be the
existing level of protection under the latest Act, the
Paris Act of 1971, of that Convention. The point of
departure is expressed in Article 9.1 under which Members
are obliged to comply with the substantive provisions of
the Paris Act of 1971 of the Berne Convention, i.e.
Articles 1 through 21 of the Berne Convention (1971) and
the Appendix thereto. However, Members do not have rights
or obligations under the TRIPS Agreement in respect of
the rights conferred under Article 6bis of that
Convention, i.e. the moral rights (the right to claim
authorship and to object to any derogatory action in
relation to a work, which would be prejudicial to the
author's honour or reputation), or of the rights derived
therefrom. The provisions of the Berne Convention
referred to deal with questions such as subject-matter to
be protected, minimum term of protection, and rights to
be conferred and permissible limitations to those rights.
The Appendix allows developing countries, under certain
conditions, to make some limitations to the right of
translation and the right of reproduction.
In
addition to requiring compliance with the basic standards
of the Berne Convention, the TRIPS Agreement clarifies
and adds certain specific points.
Article
9.2 confirms that copyright protection shall extend to
expressions and not to ideas, procedures, methods of
operation or mathematical concepts as such.
Article
10.1 provides that computer programs, whether in source
or object code, shall be protected as literary works
under the Berne Convention (1971). This provision
confirms that computer programs must be protected under
copyright and that those provisions of the Berne
Convention that apply to literary works shall be applied
also to them. It confirms further, that the form in which
a program is, whether in source or object code, does not
affect the protection. The obligation to protect computer
programs as literary works means e.g. that only those
limitations that are applicable to literary works may be
applied to computer programs. It also confirms that the
general term of protection of 50 years applies to
computer programs. Possible shorter terms applicable to
photographic works and works of applied art may not be
applied.
Article
10.2 clarifies that databases and other compilations of
data or other material shall be protected as such under
copyright even where the databases include data that as
such are not protected under copyright. Databases are
eligible for copyright protection provided that they by
reason of the selection or arrangement of their contents
constitute intellectual creations. The provision also
confirms that databases have to be protected regardless
of which form they are in, whether machine readable or
other form. Furthermore, the provision clarifies that
such protection shall not extend to the data or material
itself, and that it shall be without prejudice to any
copyright subsisting in the data or material itself.
Article
11 provides that authors shall have in respect of at
least computer programs and, in certain circumstances, of
cinematographic works the right to authorize or to
prohibit the commercial rental to the public of originals
or copies of their copyright works. With respect to
cinematographic works, the exclusive rental right is
subject to the so-called impairment test: a Member is
excepted from the obligation unless such rental has led
to widespread copying of such works which is materially
impairing the exclusive right of reproduction conferred
in that Member on authors and their successors in title.
In respect of computer programs, the obligation does not
apply to rentals where the program itself is not the
essential object of the rental.
According
to the general rule contained in Article 7(1) of the
Berne Convention as incorporated into the TRIPS
Agreement, the term of protection shall be the life of
the author and 50 years after his death. Paragraphs 2
through 4 of that Article specifically allow shorter
terms in certain cases. These provisions are supplemented
by Article 12 of the TRIPS Agreement, which provides that
whenever the term of protection of a work, other than a
photographic work or a work of applied art, is calculated
on a basis other than the life of a natural person, such
term shall be no less than 50 years from the end of
the calendar year of authorized publication, or, failing
such authorized publication within 50 years from the
making of the work, 50 years from the end of the calendar
year of making.
Article
13 requires Members to confine limitations or exceptions
to exclusive rights to certain special cases which do not
conflict with a normal exploitation of the work and do
not unreasonably prejudice the legitimate interests of
the right holder. This is a horizontal provision that
applies to all limitations and exceptions permitted under
the provisions of the Berne Convention and the Appendix
thereto as incorporated into the TRIPS Agreement. The
application of these limitations is permitted also under
the TRIPS Agreement, but the provision makes it clear
that they must be applied in a manner that does not
prejudice the legitimate interests of the right holder.
Related
rights
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The
provisions on protection of performers, producers of
phonograms and broadcasting organizations are included in
Article 14. According to Article 14.1, performers shall
have the possibility of preventing the unauthorized
fixation of their performance on a phonogram (e.g. the
recording of a live musical performance). The fixation
right covers only aural, not audiovisual fixations.
Performers must also be in position to prevent the
reproduction of such fixations. They shall also have the
possibility of preventing the unauthorized broadcasting
by wireless means and the communication to the public of
their live performance.
In
accordance with Article 14.2, Members have to grant
producers of phonograms an exclusive reproduction right.
In addition to this, they have to grant, in accordance
with Article 14.4, an exclusive rental right at least to
producers of phonograms. The provisions on rental rights
apply also to any other right holders in phonograms as
determined in national law. This right has the same scope
as the rental right in respect of computer programs.
Therefore it is not subject to the impairment test as in
respect of cinematographic works. However, it is limited
by a so-called grand-fathering clause, according to which
a Member, which on 15 April 1994, i.e. the date of the
signature of the Marrakesh Agreement, had in force a
system of equitable remuneration of right holders in
respect of the rental of phonograms, may maintain such
system provided that the commercial rental of phonograms
is not giving rise to the material impairment of the
exclusive rights of reproduction of right holders.
Broadcasting
organizations shall have, in accordance with Article
14.3, the right to prohibit the unauthorized fixation,
the reproduction of fixations, and the rebroadcasting by
wireless means of broadcasts, as well as the
communication to the public of their television
broadcasts. However, it is not necessary to grant such
rights to broadcasting organizations, if owners of
copyright in the subject-matter of broadcasts are
provided with the possibility of preventing these acts,
subject to the provisions of the Berne Convention.
The
term of protection is at least 50 years for performers
and producers of phonograms, and 20 years for
broadcasting organizations (Article 14.5).
Article
14.6 provides that any Member may, in relation to the
protection of performers, producers of phonograms and
broadcasting organizations, provide for conditions,
limitations, exceptions and reservations to the extent
permitted by the Rome Convention.
Trademarks
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The
basic rule contained in Article 15 is that any sign, or
any combination of signs, capable of distinguishing the
goods and services of one undertaking from those of other
undertakings, must be eligible for registration as a
trademark, provided that it is visually perceptible. Such
signs, in particular words including personal names,
letters, numerals, figurative elements and combinations
of colours as well as any combination of such signs, must
be eligible for registration as trademarks.
Where
signs are not inherently capable of distinguishing the
relevant goods or services, Member countries are allowed
to require, as an additional condition for eligibility
for registration as a trademark, that distinctiveness has
been acquired through use. Members are free to determine
whether to allow the registration of signs that are not
visually perceptible (e.g. sound or smell marks).
Members
may make registrability depend on use. However, actual
use of a trademark shall not be permitted as a condition
for filing an application for registration, and at least
three years must have passed after that filing date
before failure to realize an intent to use is allowed as
the ground for refusing the application (Article 14.3).
The
Agreement requires service marks to be protected in the
same way as marks distinguishing goods (see e.g. Articles
15.1, 16.2 and 62.3).
The
owner of a registered trademark must be granted the
exclusive right to prevent all third parties not having
the owner's consent from using in the course of trade
identical or similar signs for goods or services which
are identical or similar to those in respect of which the
trademark is registered where such use would result in a
likelihood of confusion. In case of the use of an
identical sign for identical goods or services, a
likelihood of confusion must be presumed (Article 16.1).
The
TRIPS Agreement contains certain provisions on well-known
marks, which supplement the protection required by
Article 6bis of the Paris Convention, as
incorporated by reference into the TRIPS Agreement, which
obliges Members to refuse or to cancel the registration,
and to prohibit the use of a mark conflicting with a mark
which is well known. First, the provisions of that
Article must be applied also to services. Second, it is
required that knowledge in the relevant sector of the
public acquired not only as a result of the use of the
mark but also by other means, including as a result of
its promotion, be taken into account. Furthermore, the
protection of registered well-known marks must extend to
goods or services which are not similar to those in
respect of which the trademark has been registered,
provided that its use would indicate a connection between
those goods or services and the owner of the registered
trademark, and the interests of the owner are likely to
be damaged by such use (Articles 16.2 and 3).
Members
may provide limited exceptions to the rights conferred by
a trademark, such as fair use of descriptive terms,
provided that such exceptions take account of the
legitimate interests of the owner of the trademark and of
third parties (Article 17).
Initial
registration, and each renewal of registration, of a
trademark shall be for a term of no less than seven
years. The registration of a trademark shall be renewable
indefinitely (Article 18).
Cancellation
of a mark on the grounds of non-use cannot take place
before three years of uninterrupted non-use has elapsed
unless valid reasons based on the existence of obstacles
to such use are shown by the trademark owner.
Circumstances arising independently of the will of the
owner of the trademark, such as import restrictions or
other government restrictions, shall be recognized as
valid reasons of non-use. Use of a trademark by another
person, when subject to the control of its owner, must be
recognized as use of the trademark for the purpose of
maintaining the registration (Article 19).
It
is further required that use of the trademark in the
course of trade shall not be unjustifiably encumbered by
special requirements, such as use with another trademark,
use in a special form, or use in a manner detrimental to
its capability to distinguish the goods or services
(Article 20).
Geographical
indications
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Geographical
indications are defined, for the purposes of the
Agreement, as indications which identify a good as
originating in the territory of a Member, or a region or
locality in that territory, where a given quality,
reputation or other characteristic of the good is
essentially attributable to its geographical origin
(Article 22.1). Thus, this definition specifies that the
quality, reputation or other characteristics of a good
can each be a sufficient basis for eligibility as a
geographical indication, where they are essentially
attributable to the geographical origin of the good.
In
respect of all geographical indications, interested
parties must have legal means to prevent use of
indications which mislead the public as to the
geographical origin of the good, and use which
constitutes an act of unfair competition within the
meaning of Article 10bis of the Paris
Convention (Article 22.2).
The
registration of a trademark which uses a geographical
indication in a way that misleads the public as to the
true place of origin must be refused or invalidated ex
officio if the legislation so permits or at the
request of an interested party (Article 22.3).
Article
23 provides that interested parties must have the legal
means to prevent the use of a geographical indication
identifying wines for wines not originating in the place
indicated by the geographical indication. This applies
even where the public is not being misled, there is no
unfair competition and the true origin of the good is
indicated or the geographical indication is accompanied
be expressions such as “kind”,
“type”, “style”,
“imitation” or the like. Similar protection
must be given to geographical indications identifying
spirits when used on spirits. Protection against
registration of a trademark must be provided accordingly.
Article
24 contains a number of exceptions to the protection of
geographical indications. These exceptions are of
particular relevance in respect of the additional
protection for geographical indications for wines and
spirits. For example, Members are not obliged to bring a
geographical indication under protection, where it has
become a generic term for describing the product in
question (paragraph 6). Measures to implement these
provisions shall not prejudice prior trademark rights
that have been acquired in good faith (paragraph 5).
Under certain circumstances, continued use of a
geographical indication for wines or spirits may be
allowed on a scale and nature as before (paragraph 4).
Members availing themselves of the use of these
exceptions must be willing to enter into negotiations
about their continued application to individual
geographical indications (paragraph 1). The
exceptions cannot be used to diminish the protection of
geographical indications that existed prior to the entry
into force of the TRIPS Agreement (paragraph 3). The
TRIPS Council shall keep under review the application of
the provisions on the protection of geographical
indications (paragraph 2).
Industrial
designs
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Article
25.1 of the TRIPS Agreement obliges Members to provide
for the protection of independently created industrial
designs that are new or original. Members may provide
that designs are not new or original if they do not
significantly differ from known designs or combinations
of known design features. Members may provide that such
protection shall not extend to designs dictated
essentially by technical or functional considerations.
Article
25.2 contains a special provision aimed at taking into
account the short life cycle and sheer number of new
designs in the textile sector: requirements for securing
protection of such designs, in particular in regard to
any cost, examination or publication, must not
unreasonably impair the opportunity to seek and obtain
such protection. Members are free to meet this obligation
through industrial design law or through copyright law.
Article
26.1 requires Members to grant the owner of a protected
industrial design the right to prevent third parties not
having the owner's consent from making, selling or
importing articles bearing or embodying a design which is
a copy, or substantially a copy, of the protected design,
when such acts are undertaken for commercial purposes.
Article
26.2 allows Members to provide limited exceptions to the
protection of industrial designs, provided that such
exceptions do not unreasonably conflict with the normal
exploitation of protected industrial designs and do not
unreasonably prejudice the legitimate interests of the
owner of the protected design, taking account of the
legitimate interests of third parties.
The
duration of protection available shall amount to at least
10 years (Article 26.3). The wording “amount
to” allows the term to be divided into, for example,
two periods of five years.
Patents
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The
TRIPS Agreement requires Member countries to make patents
available for any inventions, whether products or
processes, in all fields of technology without
discrimination, subject to the normal tests of novelty,
inventiveness and industrial applicability. It is also
required that patents be available and patent rights
enjoyable without discrimination as to the place of
invention and whether products are imported or locally
produced (Article 27.1).
There
are three permissible exceptions to the basic rule on
patentability. One is for inventions contrary to ordre
public or morality; this explicitly includes
inventions dangerous to human, animal or plant life or
health or seriously prejudicial to the environment. The
use of this exception is subject to the condition that
the commercial exploitation of the invention must also be
prevented and this prevention must be necessary for the
protection of ordre public or morality (Article
27.2).
The
second exception is that Members may exclude from
patentability diagnostic, therapeutic and surgical
methods for the treatment of humans or animals (Article
27.3(a)).
The
third is that Members may exclude 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, any country excluding plant varieties from
patent protection must provide an effective sui
generis system of protection. Moreover, the whole
provision is subject to review four years after entry
into force of the Agreement (Article 27.3(b)).
The
exclusive rights that must be conferred by a product
patent are the ones of making, using, offering for sale,
selling, and importing for these purposes. Process patent
protection must give rights not only over use of the
process but also over products obtained directly by the
process. Patent owners shall also have the right to
assign, or transfer by succession, the patent and to
conclude licensing contracts (Article 28).
Members
may provide limited exceptions to the exclusive rights
conferred by a patent, provided that such exceptions do
not unreasonably conflict with a normal exploitation of
the patent and do not unreasonably prejudice the
legitimate interests of the patent owner, taking account
of the legitimate interests of third parties (Article
30).
The
term of protection available shall not end before the
expiration of a period of 20 years counted from the
filing date (Article 33).
Members
shall require that an applicant for a patent shall
disclose the invention in a manner sufficiently clear and
complete for the invention to be carried out by a person
skilled in the art and may require the applicant to
indicate the best mode for carrying out the invention
known to the inventor at the filing date or, where
priority is claimed, at the priority date of the
application (Article 29.1).
If
the subject-matter of a patent is a process for obtaining
a product, the judicial authorities shall have the
authority to order the defendant to prove that the
process to obtain an identical product is different from
the patented process, where certain conditions indicating
a likelihood that the protected process was used are met
(Article 34).
Compulsory
licensing and government use without the authorization of
the right holder are allowed, but are made subject to
conditions aimed at protecting the legitimate interests
of the right holder. The conditions are mainly contained
in Article 31. These include the obligation, as a general
rule, to grant such licences only if an unsuccessful
attempt has been made to acquire a voluntary licence on
reasonable terms and conditions within a reasonable
period of time; the requirement to pay adequate
remuneration in the circumstances of each case, taking
into account the economic value of the licence; and a
requirement that decisions be subject to judicial or
other independent review by a distinct higher authority.
Certain of these conditions are relaxed where compulsory
licences are employed to remedy practices that have been
established as anticompetitive by a legal process. These
conditions should be read together with the related
provisions of Article 27.1, which require that
patent rights shall be enjoyable without discrimination
as to the field of technology, and whether products are
imported or locally produced.
Layout-designs
of integrated circuits
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Article
35 of the TRIPS Agreement requires Member countries to
protect the layout-designs of integrated circuits in
accordance with the provisions of the IPIC Treaty (the
Treaty on Intellectual Property in Respect of Integrated
Circuits), negotiated under the auspices of WIPO in 1989.
These provisions deal with, inter alia, the
definitions of “integrated circuit” and
“layout-design (topography)”, requirements for
protection, exclusive rights, and limitations, as well as
exploitation, registration and disclosure. An
“integrated circuit” means a product, in its
final form or an intermediate form, in which the
elements, at least one of which is an active element, and
some or all of the interconnections are integrally formed
in and/or on a piece of material and which is intended to
perform an electronic function. A “layout-design
(topography)” is defined as the three-dimensional
disposition, however expressed, of the elements, at least
one of which is an active element, and of some or all of
the interconnections of an integrated circuit, or such a
three-dimensional disposition prepared for an integrated
circuit intended for manufacture. The obligation to
protect layout-designs applies to such layout-designs
that are original in the sense that they are the result
of their creators' own intellectual effort and are not
commonplace among creators of layout-designs and
manufacturers of integrated circuits at the time of their
creation. The exclusive rights include the right of
reproduction and the right of importation, sale and other
distribution for commercial purposes. Certain limitations
to these rights are provided for.
In
addition to requiring Member countries to protect the
layout-designs of integrated circuits in accordance with
the provisions of the IPIC Treaty, the TRIPS Agreement
clarifies and/or builds on four points. These points
relate to the term of protection (ten years instead of
eight, Article 38), the applicability of the protection
to articles containing infringing integrated circuits
(last sub clause of Article 36) and the treatment of
innocent infringers (Article 37.1). The conditions in
Article 31 of the TRIPS Agreement apply mutatis
mutandis to compulsory or non-voluntary licensing of
a layout-design or to its use by or for the government
without the authorization of the right holder, instead of
the provisions of the IPIC Treaty on compulsory licensing
(Article 37.2).
Protection
of undisclosed information
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The
TRIPS Agreement requires undisclosed information -- trade
secrets or know-how -- to benefit from protection.
According to Article 39.2, the protection must apply to
information that is secret, that has commercial value
because it is secret and that has been subject to
reasonable steps to keep it secret. The Agreement does
not require undisclosed information to be treated as a
form of property, but it does require that a person
lawfully in control of such information must have the
possibility of preventing it from being disclosed to,
acquired by, or used by others without his or her consent
in a manner contrary to honest commercial practices.
“Manner contrary to honest commercial
practices” includes breach of contract, breach of
confidence and inducement to breach, as well as the
acquisition of undisclosed information by third parties
who knew, or were grossly negligent in failing to know,
that such practices were involved in the acquisition.
The
Agreement also contains provisions on undisclosed test
data and other data whose submission is required by
governments as a condition of approving the marketing of
pharmaceutical or agricultural chemical products which
use new chemical entities. In such a situation the Member
government concerned must protect the data against unfair
commercial use. In addition, Members must protect such
data against disclosure, except where necessary to
protect the public, or unless steps are taken to ensure
that the data are protected against unfair commercial
use.
Control
of anti-competitive practices in contractual licences
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Article
40 of the TRIPS Agreement recognizes that some licensing
practices or conditions pertaining to intellectual
property rights which restrain competition may have
adverse effects on trade and may impede the transfer and
dissemination of technology (paragraph 1). Member
countries may adopt, consistently with the other
provisions of the Agreement, appropriate measures to
prevent or control practices in the licensing of
intellectual property rights which are abusive and
anti-competitive (paragraph 2). The Agreement provides
for a mechanism whereby a country seeking to take action
against such practices involving the companies of another
Member country can enter into consultations with that
other Member and exchange publicly available
non-confidential information of relevance to the matter
in question and of other information available to that
Member, subject to domestic law and to the conclusion of
mutually satisfactory agreements concerning the
safeguarding of its confidentiality by the requesting
Member (paragraph 3). Similarly, a country whose
companies are subject to such action in another Member
can enter into consultations with that Member (paragraph
4).
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