1 WIPO National Workshop on Intellectual Property for Diplomats Sanaa, Republic of Yemen March 2007 The TRIPS Agreement - Overview - Roger Kampf WTO Secretariat

2 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

3 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

4 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

5 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 ?

6 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

7 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

8 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

9 Structure of the Agreement Coverage General Provisions, Basic principles Minimum standards for each category of IPRs Enforcement Dispute settlement Transitional arrangements Institutional mechanism

10 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

11 Keep non- controversial elements of existing conventions Avoid re-opening of existing texts Negotiate only "plus" elements Arrive at short, coherent and comprehensive text "Incorporation" Technique Berne Paris IPIC Rome

12 Areas Covered by TRIPS Copyright Artistic works Literary works [computer software and data bases] Related (neighbouring) rights Performers Phonogram producers Broadcasters Industrial property Trademarks Geographical indications Industrial designs Patents Plant varieties protection Topographies of int. circ. Undisclosed information (e.g. trade secrets; test data)

13 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 Substantive Standards: Typical Structure of Each Section

14 Objective: legal security and predictability Principles: multilateral vs. Unilateral uniform application to all WTO Agreements Function: preserve rights and obligations of all Members WTO Dispute Settlement and TRIPS (1)

15 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 –settlements concerning 4 complaints from

_______________________________ IndustrialisedDCs and DCs LDCs 1) LDCs CountriesEconomies products · general · pharma in not (patents & Transition 1) previously test data) patented · EMRs waived 1)National treatment and MFN treatment obligations apply as of 1996 Transition Periods

17 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

18 Work Under the Doha Round GC Decision of 1 st 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 July 2006: GC supports DG recommendation to suspend Doha Round negotiations February 2007: full resumption of negotiations

19 Overall Structure

20 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

21 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 TRIPS Council: Regular Session (1)

22 (Public health) GIs "extension" (until end of 2002) Biotechnology/traditional knowledge/biodiversity (Enforcement – not a permanent agenda item) Technology transfer Non-violation Technical cooperation TRIPS Council: Regular Session (2)

23 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?

24 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 –monitoring mechanism Other factors: –infrastructure, human resources –market seize –dual use products, etc. WTO Working Group on TT

25 Cooperation With Other IGOs Cooperation WTO-WIPO: –1995 Agreement –Joint Initiatives for DCs/LDCs 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

26 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

27 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