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  • Print publication year: 2017
  • Online publication date: June 2018

15 - Intellectual Property Rights

Summary

INTRODUCTION

The Agreement on Trade-Related Aspects of Intellectual Property Rights (the ’ TRIPS Agreement’) is arguably the most innovative of the WTO agreements. While references to intellectual property (IP) rights were included in the GATT 1947, the TRIPS Agreement, for the first time, establishes and imposes a positive regulatory obligation on Members to ensure a minimum level of protection and enforcement of IP rights in their territories.

Part I of the TRIPS Agreement contains general provisions and basic principles that apply to all the IP rights falling within its coverage. Part II is subdivided into eight sections, each dealing with a different area of IP protection. Part III sets out the obligations of Members with regard to enforcement of IP rights. The remainder of the TRIPS Agreement addresses issues relating to the acquisition and maintenance of IP rights, and contains institutional and procedural provisions.

This chapter provides an overview of the TRIPS Agreement and focuses on: (1) origins and objectives; (2) scope of application; (3) basic principles; (4) substantive protection provided to selected IP rights; (5) rules on enforcement of IP rights; (6) rules on acquisition of IP rights; (7) institutional and procedural provisions; and (8) rules providing for special and differential treatment of developing-country Members.

THE ORIGINS AND OBJECTIVES OF THE TRIPS AGREEMENT

Intellectual property, broadly speaking, refers to the legal rights that result from intellectual activity in the artistic, literary, scientific or industrial fields. When this intellectual activity leads to the creation of something new and innovative, many countries recognise and protect the right of the author or inventor in his or her creation, in order to reward and stimulate creative endeavour. Many countries have rules in place for the protection and enforcement of IP rights. IP rights, it should be noted, confer negative rights, i.e. the right to exclude others from the use of the protected subject matter for a particular period of time. They do not confer positive rights, such as the right to produce or market the product embodying the IP right.

Trade and intellectual property protection are closely connected. The achievements in trade liberalisation through WTO disciplines on and removal of trade barriers, discussed in previous chapters, can be greatly undermined if IP rights related to the traded goods or services are not respected in the export market or in the country of origin of imports.